Saturday, July 10, 2010

Meiertöns: The Doctrines of US Security Policy: An Evaluation under International Law

Heiko Meiertöns (Humboldt-Universität zu Berlin) has published The Doctrines of US Security Policy: An Evaluation under International Law (Cambridge Univ. Press 2010). Here's the abstract:
The practise of outlining principles for the conduct of US security policy in so-called doctrines is a characteristic feature of US foreign policy. From an international lawyer's point of view two aspects of these doctrines are of particular interest. First, to what degree are the criteria for the use of force, as laid down in these doctrines, consistent with the limitations for the use of force in international law? Second, which law-creating effects do these doctrines have? Furthermore, the legal nature of these doctrines remains uncertain. These matters are examined, beginning with the Monroe Doctrine of 1823 and taking into account the Stimson Doctrine of 1932, the doctrines of the Cold-War period and the Bush Doctrine of 2002. The Bush Doctrine in particular has generated controversies concerning its compatibility with Article 51 of the UN Charter, due to its principle of preventive self-defence.

Friday, July 9, 2010

Hansen: Parallel Proceedings in Investor-State Treaty Arbitration: Responses for Treaty-Drafters, Arbitrators and Parties

Robin F. Hansen (Univ. of Saskatchewan - Law) has published Parallel Proceedings in Investor-State Treaty Arbitration: Responses for Treaty-Drafters, Arbitrators and Parties (Modern Law Review, Vol. 73, no. 4, pp. 523-550, July 2010). Here's the abstract:
Parallel investment treaty arbitrations present a demonstrated risk of inconsistent awards. This article examines several ameliorative responses to parallel investment treaty proceedings, executable by treaty-drafters, arbitrators and parties themselves. The unique jurisdiction mechanics and applicable law in investment treaty disputes frames the responses available. Despite the unique context within which parallel investment arbitrations occur, the challenges they pose to party interests, to principles including legal fairness and to the effective pursuit of dispute resolution closely resemble those posed by parallel proceedings in other domestic and international legal fora.

New Issue: Review of International Studies

The latest issue of the Review of International Studies (Vol. 36, no. 3, July 2010) is out. Contents include:
  • Jean-François Drolet, Containing the Kantian revolutions: a theoretical analysis of the neo-conservative critique of global liberal governance
  • David Bach, Varieties of cooperation: the domestic institutional roots of global governance
  • Peter Romaniuk, Institutions as swords and shields: multilateral counter-terrorism since 9/11
  • Karthika Sasikumar, State agency in the time of the global war on terror: India and the counter-terrorism regime
  • Beth Elise Whitaker, Compliance among weak states: Africa and the counter-terrorism regime
  • Tim Jacoby, Turkey and Europe: culture, capital and corruption
  • Edward Lock, Refining strategic culture: return of the second generation
  • Shaun Breslin, Comparative theory, China, and the future of East Asian regionalism(s)
  • Philippe de Lombaerde, Fredrik Söderbaum, Luk van Langenhove, & Francis Baert, The problem of comparison in comparative regionalism
  • Xinning Song, European ‘models’ and their implications to China: internal and external perspectives

Call for Papers: Civil Society, Social Movements and Transitional Justice

The International Journal of Transitional Justice has issued a call for papers for a special issue on "Civil Society, Social Movements and Transitional Justice." Here's the call:

The International Journal of Transitional Justice invites submissions for its 2011 special issue titled ‘Civil Society, Social Movements and Transitional Justice,' to be guest edited by Moses Chrispus Okello, Project Coordinator, Beyond Juba Project and Senior Research Advisor, Refugee Law Project, Uganda and Lucy Hovil, Senior Researcher, Citizenship and Displacement in the Great Lakes region, International Refugee Rights Initiative.

Possible topics to be covered in this issue will include:

  • Survivor/victim organizations and TJ
  • TJ as a social movement
  • TJ and the international human rights movement
  • International civil society and TJ processes
  • Relationship between local, national, transnational and international civil
  • Political context for civil society operating in periods of transition
  • Role of funding and funders: who controls the agenda
  • Role of international actors in norm setting and the establishment of models
  • Role and influence of civil society – in establishing mechanisms, implementing TJ programmes, advocacy, monitoring and evaluation
  • Impact of TJ mechanisms on civil society
  • Role of the media
  • Role of popular culture
  • Engagement of religious actors in TJ processes
  • Art and literature
  • Civil society, TJ and community-building
  • Civil society and schools/curriculum reform
  • Limitations of civil society in advocacy (who speaks, who influences?)
  • Civil society and outreach programs
  • Women's groups and TJ
  • Civil society and DDR

The deadline for submissions is April 1, 2011.

Papers should be submitted online from the IJTJ webpage at

For questions or further information, please contact the Managing Editor at

Anton: Dispute Concerning Japan’s JARPA II Program of “Scientific Whaling” (Australia v. Japan)

Donald K. Anton (Australian National Univ. - Law) has posted an ASIL Insight on Dispute Concerning Japan’s JARPA II Program of “Scientific Whaling” (Australia v. Japan).

Thursday, July 8, 2010

Conference: Second Biennial Global Conference of the Society of International Economic Law

Today through Saturday, the Society of International Economic Law will hold its second biennial global conference in Barcelona. The conference is being hosted by the University of Barcelona and its IELPO Programme. I noted the call for papers previously. The program is here. Many of the papers have been posted here. The van Aaken paper in the previous post will be presented at this conference. I will post on some other papers, as well, in the coming days.

van Aaken: Opportunities and Limits to an Economic Analysis of International Economic Law

Anne van Aaken (Univ. of St. Gallen - Law) has posted Opportunities and Limits to an Economic Analysis of International Economic Law. Here's the abstract:

Economics is not only a subject matter but also a specific methodological approach. Economic analysis in International Economic Law is therefore not confined to economic matters but can be extended to virtually all issues by drawing on the economic approach. It can be used both to explain the consequences of (International Economic) Law as well as the determinants of its creation.

Taking economics as a methodology, modern economic analysis uses political economy approaches, including game theory and contract theory, to explain states' behavior in economic relations. Here, it is closely related to political science approaches using rational choice methodology. This enables decision-makers in treaty drafting and treaty interpretation to take a more differentiated and informed view (external view). Beyond this, economics is also highly relevant to the interpretation of the law (internal view). Traditional quantitative economic approaches have their place in application of the law, where the law commands it, e.g. in damage calculation in trade or investment law. Furthermore, empirical studies have sometimes overthrown economic textbooks models or certainly have led to more a differentiated view on the gains from trade and foreign investment. Economic analysis cannot tell what goals should be achieved in an international legal order but it can help to inform about the best legal tools to achieve given goals, e.g. sustainable development and possible trade-offs incurred.

Bowling: Policing the Caribbean: Transnational Security Cooperation in Practice

Ben Bowling (King's College London - Criminology and Criminal Justice) has published Policing the Caribbean: Transnational Security Cooperation in Practice (Oxford Univ. Press 2010). Here's the abstract:

Policing the Caribbean explores the emergence of law enforcement and security practices that extend beyond the boundaries of the nation state. Perceptions of public safety and national sovereignty are shifting in the face of domestic, regional and global insecurity, and with the emergence of transnational policing practices responding to drug trafficking and organised crime. This book examines how security threats are prioritised and the strategies that are put in place to respond to them, based on a detailed empirical case study of police and security sector organizations in the Caribbean.

Transnational policing, one of the most significant recent developments in the security field, has brought about a number of changes in the organisation of criminal law enforcement in the Caribbean and other parts of the world. Drawing on interviews with chief police officers, customs, coastguard, immigration, security, military and government officials, Policing the Caribbean examines these changes, providing a unique insight into the work of overseas liaison officers from the UK and USA, and their collaboration with local police and security agencies.

The first study of transnational policing in the Caribbean, this book assesses the extent to which a restructured transnational security infrastructure has enhanced the safety and wellbeing of the Caribbean islands, and other countries on the shores of the north Atlantic, and asks how we can ensure that the policing beyond boundaries is accountable and good enough to make the world a safer place.

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 49, no. 1, January 2010) is out. Contents include:
  • Presbyterian Church of Sudan v. Talisman Energy, Inc. (2d Cir.), with introductory note by Jennifer E. Marcovitz
  • ICSID: Vito G. Gallo v. Canada - Challenge of Arbitrator, with introductory note by Jeremy K. Sharpe
  • European Court of Human Rights: Lautsi v. Italy, with introductory note by Christian Walter
  • International Criminal Court: Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, with introductory note by Amy Senier
  • United Nations Security Council Resolutions 1888 & 1889: Women, Peace, and Security, with introductory note by Preeti Kundra Deshmukh
  • African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, with introductory note by Andrew Solomon
  • Eritrea's and Ethiopia's Damage Claims, Final Awards, with introductory note by Michael J. Matheson

Wednesday, July 7, 2010

New Issue: American Journal of International Law

The latest issue of the American Journal of International Law (Vol. 104, no. 2, April 2010) is out. Contents include:
  • Anthea Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States
  • Editorial Comment
    • Lori Fisler Damrosch, Bernard H. Oxman, Richard B. Bilder, & David D. Caron, Book Reviews and Libel Proceedings
  • Current Developments
    • Daniel Bodansky, The Copenhagen Climate Change Conference: A Postmortem

Martinico & Pollicino: The National Judicial Treatment of the ECHR and EU Laws. A Comparative Constitutional Perspective

Giuseppe Martinico (Sant’Anna School of Advanced Studies & Univ. of Pisa) & Oreste Pollicino (Bocconi Univ. - Law) have published The National Judicial Treatment of the ECHR and EU Laws. A Comparative Constitutional Perspective (Europa Law Publishing 2010). The table of contents is available here. Here's the abstract:
Do national judges start treating the provisions of the European Convention on Human Rights the same way they treat the EC law’s norms? In order to answer this question the editors (Giuseppe Martinico and Oreste Pollicino) involved scholars from the countries that are members both of the EU and the Council of Europe. The book collects the proceeding of an international conference at the Scuola Superiore Sant’Anna of Pisa (16-17 January 2010).

Kammerhofer: Uncertainty in International Law: A Kelsenian Perspective

Jörg Kammerhofer (Friedrich-Alexander-Universität Erlangen-Nürnberg - Law) has published Uncertainty in International Law: A Kelsenian Perspective (Routledge 2010). Here's the abstract:

Re-engaging with the Pure Theory of Law developed by Hans Kelsen and the other members of the Viennese School of Jurisprudence, this book looks at the causes and manifestations of uncertainty in international law. It considers both epistemological uncertainty as to whether we can accurately perceive norms in international law, and ontological problems which occur inter alia where two or more norms conflict. The book looks at these issues of uncertainty in relation to the foundational doctrines of public international law, including the law of self-defence under the United Nations Charter, customary international law, and the interpretation of treaties.

In viewing international law through the lens of Kelsen’s theory Jörg Kammerhofer demonstrates the importance of the theoretical dimension for the study of international law and offers a critique of the recent trend towards pragmatism and eclecticism in international legal scholarship. The unique aspect of the monograph is that it is the only book to apply the Pure Theory of Law as theoretical approach to international law, rather than simply being a piece of intellectual history describing it.

Prost: International Law's Unities and the Politics of Fragmentation

Mario Prost (Keele Univ. - Law) has posted International Law's Unities and the Politics of Fragmentation (Finnish Yearbook of International Law, forthcoming). Here's the abstract:
This paper explores the mainstream discourse on unity/fragmentation in international law. It seeks to demonstrate that a number of 'fragmentation' concepts and issues are poorly theorized, if at all, and that this generates discussions that may, as a result, be essentially mistaken. It does that by critically addressing one of the many controlling assumptions that presently structure the fragmentation debate. At stake in this paper, in particular, is the one-dimensional representation of fragmentation as pertaining only to substantive unity, that is, to issues of overlapping and possibly contradictory legal norms, regimes or judicial decisions. Against this equation, this paper argues that unity is an elusive and multifaceted concept. Unity comes (and goes) in many different forms and at many different levels, none of which is logically more compelling or self-evident than another. Accordingly, any discourse on fragmentation is inevitably contingent. It presupposes the choice of a particular narrative perspective on unity and ultimately reflects certain preferences regarding the nature and function of international law. To address fragmentation solely as a substantive/technical problem is therefore problematic in at least two respects. For one thing, it ignores alternative narratives about the identity and unity of international law and fails to appreciate that to each form of unity corresponds a special form of fragmentation, as well as specific challenges and solutions. For another, and more fundamentally, it overlooks the ‘politics’ of fragmentation, i.e. the fact that behind the seemingly neutral discourse on conflict of norms lies a Bourdieusian ‘classification struggle’ (lutte de classement), in which efforts by the dominant agents of the international legal fi eld to control and impose certain cognitive criteria, symbolic hierarchies and interpretive procedures as objective (or official) necessities are pitted against the attempts of emerging actors to transform these structures of vision and division.

Palma, Tsamenyi, & Edeson: Promoting Sustainable Fisheries

Mary Ann Palma (Univ. of Wollongong - Australian National Centre for Ocean Resources and Security), Martin Tsamenyi (Univ. of Wollongong - Australian National Centre for Ocean Resources and Security), & William Edeson (Univ. of Wollongong - Australian National Centre for Ocean Resources and Security) have published Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Martinus Nijhoff Publishers 2010). Here's the abstract:
Illegal, unreported and unregulated fishing, or IUU fishing, is considered one of the most significant threats to the sustainability of fisheries resources. Since the adoption of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU), States and regional fisheries management organisations have made sustained efforts to address the problem. This book analyses the concept of IUU fishing and the international instruments which provide the legal and policy framework to combat IUU fishing. The book also examines the range of measures adopted by States and regional organisations to address IUU fishing. These measures include flag State, coastal State, port State, and market State measures.

Tuesday, July 6, 2010

Desai: Multilateral Environmental Agreements: Legal Status of the Secretariats

Bharat H. Desai (Jawaharlal Nehru Univ. - Law) has published Multilateral Environmental Agreements: Legal Status of the Secretariats (Cambridge Univ. Press 2010). Here's the abstract:
The present study seeks to examine the genesis, development, and proliferation of multilateral environmental agreements (MEAs) - in-built law-making mechanisms and processes of institutionalization - and their ad hoc treaty-based status and the issue of the legal personality of their secretariats. It provides legal understanding of the location of MEA secretariats within an existing international host institution, as well as discussion of the issue of relationship agreements and interpretation of the commonly used language that triggers such relationships. It places under scrutiny the standard MEA phrase 'providing a secretariat', delegation of authority by the host institution to the head of the convention secretariat, possible conflict areas, host country agreement, and the workings of the relationship agreements. The book offers an authoritative account of the growing phenomenon in which an existing international institution provides a servicing base for MEA that, in turn, triggers a chain of legal implications involving the secretariat, the host institution, and the host country.

Mackenzie et al.: Selecting International Judges: Principle, Process, and Politics

Ruth Mackenzie (Univ. of Westminster - Law), Kate Malleson (Queen Mary, Univ. of London - Law), Penny Martin (Univ. College London - Centre for International Courts and Tribunals), & Philippe Sands (Univ. College London - Law) have published Selecting International Judges: Principle, Process, and Politics (Oxford Univ. Press 2010). Here's the abstract:

This book examines the way international court judges are chosen. Focusing principally on the judicial selection procedures of the International Court of Justice and International Criminal Court, it provides the first detailed examination of how the selection process works in practice at national and international levels: what factors determine whether a state will nominate a candidate? How is a candidate identified? What factors influence success or failure? What are the respective roles of merit, politics, and other considerations in the nomination and election process?

The research was based on interviews, case studies and survey data in a range of different states. It concludes that although the nature and quality of nomination and election processes vary widely, a common theme indicates the powerful influence of domestic and international political considerations, and the significant role of a small group of diplomats, civil servants, lawyers, and academics, often without transparency or accountability. The processes allow overt political considerations to be introduced throughout the decision-making process in ways that may detract from the selection of the most highly qualified candidates and, ultimately, undermine independence. This is particularly evident in the election campaigning that has become a defining feature of the selection process, accompanied by widespread vote trading and reciprocal agreements between states. The effect of these practices is often to undermine the role of statutory selection criteria and to favour candidates from more politically powerful states. The book reviews new judicial selection models adopted or proposed in other international and regional courts, and considers a number of proposals for change to promote more independent, transparent, and merit-based nomination and election procedures.

Gaillard: Legal Theory of International Arbitration

Emmanuel Gaillard (Univ. of Paris XII - Law) has published Legal Theory of International Arbitration (Martinus Nijhoff Publishers 2010). Here's the abstract:

International arbitration readily lends itself to a legal theory analysis. The fundamentally philosophical notions of autonomy and freedom are at the heart of its field of study. Similarly essential are the questions of legitimacy raised by the parties’ freedom to favor a private form of dispute resolution over national courts, to choose their judges, to tailor the procedure and to choose the applicable rules of law, and by the arbitrators’ freedom to determine their own jurisdiction, to shape the conduct of the proceedings and to choose the rules applicable to the dispute.

The present work, based on a Course given at The Hague Academy of International Law in the Summer 2007, identifies the philosophical postulates that underlie this field of study and shows their profound coherence and the practical consequences that follow from these postulates in the resolution of international disputes.

Elleman, Forbes, & Rosenberg: Piracy and Maritime Crime: Historical and Modern Case Studies

Bruce A. Elleman, Andrew Forbes, & David Rosenberg have published Piracy and Maritime Crime: Historical and Modern Case Studies (Naval War College Newport Papers, No. 35). The table of contents is here. Here's the abstract:
In this thirty-fifth title in the Newport Papers monograph series, Dr. Elleman, of the Naval War College Maritime History Department, and his coeditors have collected twelve case studies that allow conclusions to be drawn on uses and limitations of naval antipiracy operations in the context of new technology and modern national policy goals.

Monday, July 5, 2010

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 10, no. 3, 2010) is out. Contents include:
  • Ivar Scheers, From Rome to Kampala: An Analysis of Article 124 of the Statute of the International Criminal Court
  • Maja Munivrana Vajda, The 2009 AIDP's Resolution on Universal Jurisdiction - An Epitaph or a Revival Call?!
  • Angela Overton, The International Criminal Court and the External Non-Witness Expert(s), Problematic Concerns: An Exploratory Endeavour
  • Uwe Ewald, 'Predictably Irrational' - International Sentencing and its Discourse against the Backdrop of Preliminary Empirical Findings on ICTY Sentencing Practices
  • Stephen Tully, Sex, Slavery and the High Court of Australia: The Contribution of R v. Tang to International Jurisprudence

Rau: Understanding (and Misunderstanding) 'Primary Jurisdiction'

Alan Scott Rau (Univ. of Texas - Law) has posted Understanding (and Misunderstanding) 'Primary Jurisdiction' (American Review of International Arbitration, forthcoming). Here's the abstract:

In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion - the fulcrum around which the entire arbitral enterprise pivots - has been the supposed dichotomy between the state of the “seat” - where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” - and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion - for example, by appointing the arbitrators - and above all in monitoring compliance with the agreement - for example, by annulling or vacating the resulting award.

That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration - and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law.

I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood.

The inevitable problem, though, is that none of this is a universal solvent - the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.

Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated - perhaps on the fundamental ground that he has never even given his assent - American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” - and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.”

American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit - or for that matter to the proposition that international neutrals cannot possibly be corrupt - need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges.

New Issue: Archiv des Völkerrechts

The latest issue of Archiv des Völkerrechts (Vol. 48, no. 2, June 2010) is out. Contents include:

New Issue: Journal of International Economic Law

The latest issue of the Journal of International Economic Law (Vol. 13, no. 2, June 2010) is out. Contents include:
  • James Flett, Collective Intelligence and the Possibility of Dissent: Anonymous Individual Opinions in WTO Jurisprudence
  • Tania Voon & Andrew Mitchell, Open for Business? China’s Telecommunications Service Market and the WTO
  • Nicolas Lockhart & Elizabeth Sheargold, In Search of Relevant Discretion: The Role of the Mandatory/Discretionary Distinction in WTO Law
  • Aaron Xavier Fellmeth, Below-market Interest in International Claims Against States
  • Matthew Kennedy, When will the Protocol Amending the TRIPS Agreement Enter into Force?
  • Notes, Comments, and Developments
    • Brendan Ruddy, The Critical Success of the WTO: Trade Policies of the Current Economic Crisis
    • Isabelle Van Damme, Ninth Annual WTO Conference: An Overview

Sunday, July 4, 2010

Olusanya: Excuse and Mitigation Under International Criminal Law: Redrawing Conceptual Boundaries

Olaoluwa Olusanya (Aberystwyth Univ. - Law and Criminology) has published Excuse and Mitigation Under International Criminal Law: Redrawing Conceptual Boundaries (New Criminal Law Review, Vol. 13, no. 1, pp. 23–89, January 2010). Here's the abstract:
Since the Nuremberg trials of 1945, the classification of men and women who commit atrocities in time of war has been a subject of bafflement. Attempts to explain this phenomenon have largely relied on various abnormality theories. However, none of these theories hold sway. Instead, the dominant view today is that men and women who commit atrocities are normal. This conclusion has confounded many because it is even harder to rationalize how people who in fact closely resemble us could perpetrate such violent crimes. How had they become evil criminals? The focus on this article is on excuse theory and its value in resolving this issue.