Saturday, October 16, 2010

New Issue: L'Observateur des Nations Unies

The latest issue of L'Observateur des Nations Unies (# 27, 2009-2) is out. The theme is "La bonne administration de la Justice internationale." Contents include:
  • Première Partie - La Bonne Administration de La Justice, Un Principe de Droit International ?
    • Robert Kolb, La maxime de la « bonne administration de la justice » dans la jurisprudence internationale
    • Aurélia Lelarge, L'émergence d'un principe de bonne administration de la justice internationale dans la jurisprudence internationale antérieure à 1945
  • Deuxième Partie – Preuve et Bonne Administration de la Justice Internationale
    • Julien Cazala, Adaptation des règles et principes probatoires au nom d'une bonne administration de la justice internationale
    • Gérard Niyungeko, Les faits notoires dans le contentieux international et la bonne administration de la justice
    • Jacobo Rios Rodriguez, Expertise scientifique, normes techniques et bonne administration de la justice
  • Troisième Partie – Aspects Spécifiques de la Bonne Administration de la Justice Internationale
    • Hazel Fox, State Immunity in the International Court of Justice: the Court's List at January 2010
    • Élise Durand & Thomas Margueritte, Le droit au procès équitable devant les juridictions internationales pénales
    • Guillaume Le Floch, L'urgence et la bonne administration de la justice internationale
  • Quatrième Partie – Aspects Institutionnels de la Bonne Administration de la Justice Internationale
    • Paul-Jean Le Cannu & Daniel Drabkin, Assessing the Role of the Permanent Court of Arbitration in the Peaceful Settlement of International Disputes
  • Points D'appui
    • Anne-Sophie Firion, Le statut du Secrétaire général des Nations Unies
    • Gabrielle Marceau & Aline Doussin, Le droit du commerce international, les droits fondamentaux et les considérations sociales

Friday, October 15, 2010

Smith: Genocide and the Europeans

Karen E. Smith (LSE - International Relations) has published Genocide and the Europeans (Cambridge Univ. Press 2010). Here's the abstract:
Genocide is one of the most heinous abuses of human rights imaginable, yet reaction to it by European governments in the post-Cold War world has been criticised for not matching the severity of the crime. European governments rarely agree on whether to call a situation genocide, and their responses to purported genocides have often been limited to delivering humanitarian aid to victims and supporting prosecution of perpetrators in international criminal tribunals. More coercive measures - including sanctions or military intervention - are usually rejected as infeasible or unnecessary. This book explores the European approach to genocide, reviewing government attitudes towards the negotiation and ratification of the 1948 Genocide Convention and analysing responses to purported genocides since the end of the Second World War. Karen E. Smith considers why some European governments were hostile to the Genocide Convention and why European governments have been reluctant to use the term genocide to describe atrocities ever since.

Lauterpacht: The Life of Hersch Lauterpacht

Elihu Lauterpacht (Univ. of Cambridge - Lauterpacht Centre for International Law) has published The Life of Hersch Lauterpacht (Cambridge Univ. Press 2010). Here's the abstract:
Hersch Lauterpacht, of whom this book is an intimate biography by his son, Elihu, was one of the most prolific and influential international lawyers of the first half of the twentieth century. Having come to England from Austria in the early 1920s, he first researched and taught at the London School of Economics before moving to Cambridge in 1937 to become Whewell Professor of International Law. He did valuable work to enhance relations with the United States during the Second World War, and was active after the war in the prosecution of William Joyce and the major Nazi war criminals. For ten years he was also involved in various significant items of professional work and in 1955 he was elected a judge of the International Court of Justice. The book contains many extracts from his correspondence, the interest of which will extend to lawyers, historians of the period and beyond.

Schill: International Investment Law and Comparative Public Law

Stephan W. Schill (Max Planck Institute for Comparative Public Law and International Law) has published International Investment Law and Comparative Public Law (Oxford Univ. Press 2010). Contents include:
  • Stephan W. Schill, International Investment Law and Comparative Public Law - An Introduction
  • Giacinto della Cananea, Minimum Standards of Procedural Justice in Administrative Adjudication
  • Benedict Kingsbury & Stephan W. Schill, Public Law Concepts to Balance Investors' Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionality
  • Markus Perkams, The Concept of Indirect Expropriation in Comparative Public Law - Searching for Light in the Dark
  • Stephan W. Schill, Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law
  • Helge Elisabeth Zeitler, Full Protection and Security
  • Ali Ehsassi, Cain & Abel: Congruence and Conflict in the Application of the Denial of Justice Principle
  • Jürgen Kurtz, The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
  • Freya Baetens, Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law
  • Stephan W. Schill, Umbrella Clauses as Public Law Concepts in Comparative Perspective
  • Abba Kolo, Transfer of Funds: The Interaction between the IMF Articles of Agreement and Modern Investment Treaties: A Comparative Law Perspective
  • Irmgard Marboe, State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests
  • Hector A. Mairal, Legitimate Expectations and Informal Administrative Representations
  • Kim Talus, Revocation and Cancellation of Concessions, Operating Licenses and Other Beneficial Administrative Acts
  • Catherine Donnelly, Public-Private Partnerships: Award, Performance and Remedies
  • Christina Binder & August Reinisch, Economic Emergency Powers: A Comparative Law Perspective
  • Federico Lenzerini, Property Protection and Protection of Cultural Heritage
  • Christian Tietje & Karoline Kampermann, Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context
  • Paul B. Stephan, Comparative Taxation Procedure and Tax Enforcement
  • Gus Van Harten, Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law
  • Chester Brown, Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law
  • William Burke-White & Andreas von Staden, The Need for Public Law Standards of Review in Investor-State Arbitrations
  • Anne van Aaken, Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View
  • Borzu Sabahi & Nicholas J. Birch, Comparative Compensation for Expropriation
  • Alessandra Asteriti & Christian J. Tams, Transparency and Representation of the Public Interest in Investment Treaty Arbitration

Workshop: Radicati di Brozolo

Luca Radicati di Brozolo (Catholic Univ. of Milan - Law) will give a talk today at the Lauterpacht Centre for International Law's Friday Lunchtime Lecture Series on "Interference by National Courts in International Arbitration."

Thursday, October 14, 2010

von Staden: Reestablishing Doctrinal Clarity and Correctness: Treaty Exceptions, Necessity, and the CMS, Sempra, and Enron Annulment Decisions

Andreas von Staden (Univ. of Saint Gallen - Law) has posted Reestablishing Doctrinal Clarity and Correctness: Treaty Exceptions, Necessity, and the CMS, Sempra, and Enron Annulment Decisions (Czech Yearbook of International Law, forthcoming). Here's the abstract:
Several arbitration awards rendered against Argentina have revealed fundamental problems in the interpretation and application of treaty-based non-precluded measures provisions and the customary law defense of necessity. The ICSID annulment decisions in the cases of CMS, Sempra, and Enron have provided much needed doctrinal clarification in this respect, and two of these have justifiably annulled the awards for failure to apply the proper law.

New Issue: The Law and Practice of International Courts and Tribunals

The latest issue of The Law and Practice of International Courts and Tribunals (Vol. 9, no. 2, 2010) is out. Contents include:
  • James Sloan, Peacekeepers under Fire: Prosecuting the RUF for Attacks against the UN Assistance Mission in Sierra Leone
  • Sergey Golubok, Pre-Conviction Detention before the International Criminal Court: Compliance or Fragmentation?
  • Prince Neto D.C.B. Waite, An Inquiry into the ICC Appeals Chamber's Exercise of the Power of Remand
  • Juan J. Quintana, Procedural Developments at the International Court of Justice

Rothwell & Stephens: The International Law of the Sea

Donald R Rothwell (Australian National Univ. - Law) & Tim Stephens (Univ. of Sydney - Law) have published The International Law of the Sea (Hart Publishing 2010). Here's the abstract:

The law of the sea provides for the regulation, management and governance of the ocean spaces that cover over two-thirds of the Earth's surface. This book provides a fresh explanation of the foundational principles of the law of the sea, a critical overview of the 1982 United Nations Convention on the Law of the Sea, and an analysis of subsequent developments including the many bilateral, regional and global agreements that supplement the Convention.

The book takes its focus the rules and institutions established by the Convention on the Law of the Sea and places the achievements of the Convention in both historical and contemporary context. All of the main areas of the law of the sea are addressed including the foundations and sources of the law, the nature and extent of the maritime zones, the delimitation of overlapping maritime boundaries, the place of archipelagic and other special states in the law of the sea, navigational rights and freedoms, military activities at sea, and marine resource and conservation issues including fisheries, marine environmental protection, and dispute settlement.

As the Convention is now over a quarter of a century old the book takes stock of contemporary oceans issues that are not adequately addressed by the convention. Overarching challenges facing the law of the sea are considered, including how new maritime security initiatives can be reconciled with traditional navigational rights and freedoms, how declines in the health of marine ecosystems can be halted through strengthened legal regimes, and how the law of the sea can regulate ocean space in the Polar regions as global warming opens up new possibilities for resource exploitation.

Waxman: Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4)

Matthew C. Waxman (Columbia Univ. - Law) has posted Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4). Here's the abstract:
Cyber-attacks pose difficult line-drawing problems, but we must avoid missing the strategic forest in thinking about the legal trees. Some problems of cyber-warfare for regulating force are at the same time novel yet familiar. Viewing these questions in the context of Cold War debates about the UN Charter and its prohibition of “force” reveals that although the technology of conflict – both in terms of capabilities and probable vulnerabilities – is changing in revolutionary ways, the issue that destructive potential is deliverable with non-military means is a repeating one. Proposals for legal reform should consider the particular features of new modes of conflict that make legal regulation difficult and the way legal interpretations inevitably create strategic winners and losers. Interpretations prohibitive of some types of cyber-activities can help check new forms of destructive power but only if those legal moves are themselves backed up with evolving power.

New Issue: Archiv des Völkerrechts

The latest issue of Archiv des Völkerrechts (Vol. 48, no. 3, September 2010) is out. Contents include:
  • Abhandlung
    • Jerzy Kranz, Die völkerrechtliche Verantwortlichkeit für die Anwendung militärischer Gewalt: Maßstäbe der Zurechenbarkeit
  • Beiträge und Berichte
    • Charlotte Kreuter-Kirchhof, Völkerrechtliche Schutzverantwortung bei elementaren Menschenrechtsverletzungen: Die Responsibility to Protect als Verantwortungsstruktur
    • Björn Ahl, Die Anwendung völkerrechtlicher Verträge in China - zur innerstaatlichen Bedeutung des chinesisch-australischen Konsularabkommens

Van Schaack: Closing In On the Khmer Rouge: The Closing Order in Case 002 Before the Extraordinary Chambers in the Courts of Cambodia

Beth Van Schaack (Santa Clara Univ. - Law) has posted an ASIL Insight on Closing In On the Khmer Rouge: The Closing Order in Case 002 Before the Extraordinary Chambers in the Courts of Cambodia.

Workshop: Al-Khasawneh

Awn Shawkat Al-Khasawneh (Judge, International Court of Justice) will give a talk today at the Oxford Public International Law Discussion Group on "The Poetry of Judges and the Judges of Poetry."

Wednesday, October 13, 2010

New Issue: International Organization

The latest issue of International Organization (Vol. 64, no. 4, Fall 2010) is out. Contents include:
  • Kenneth Scheve & David Stasavage, The Conscription of Wealth: Mass Warfare and the Demand for Progressive Taxation
  • Karen J. Alter & Laurence R. Helfer, Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice
  • Daniela Donno, Who Is Punished? Regional Intergovernmental Organizations and the Enforcement of Democratic Norms
  • Todd S. Sechser, Goliath's Curse: Coercive Threats and Asymmetric Power
  • Jeff D. Colgan, Oil and Revolutionary Governments: Fuel for International Conflict
  • J. Lawrence Broz & Michael Plouffe, The Effectiveness of Monetary Policy Anchors: Firm-Level Evidence

Barria & Roper: The Development of Institutions of Human Rights: A Comparative Study

Lilian A. Barria (Eastern Illinois Univ. - Political Science) & Steven D. Roper (Eastern Illinois Univ. - Political Science) have published The Development of Institutions of Human Rights: A Comparative Study (Palgrave Macmillan 2010). The table of contents is here. Here's the abstract:
During the transition to democracy, states have used various mechanisms to address previous human rights abuses including domestic trials, truth and reconciliation commissions and internationalized tribunals. This volume analyzes the transitional justice choices made by four countries: Argentina, Bosnia-Herzegovina (BiH), Sierra Leone and East Timor. For each country, there is a chapter which provides a historical overview concerning the causes of the conflict and two subsequent chapters which highlight a different method of transitional justice implemented. The volume highlights the opportunities and the constraints faced by states and the international community to provide accountability for human rights violations.

Symposium: International Human Rights and Climate Change

The latest issue of the Georgia Journal of International and Comparative Law (Vol. 38, no. 3, 2010) contains a symposium on "International Human Rights and Climate Change." Contents include:
  • Daniel Bodansky, Introduction: Climate Change and Human Rights: Unpacking the Issues
  • Thomas Pogge, Keynote Address: Poverty, Climate Change, and Overpopulation
  • Marc Limon, Human Rights Obligations and Accountability in the Face of Climate Change
  • Naomi Roht-Arriaza, “First, Do No Harm”: Human Rights and Efforts to Combat Climate Change
  • Svitlana Kravchenko, Procedural Rights as a Crucial Tool to Combat Climate Change
  • Rebecca M. Bratspies, The Intersection of International Human Rights and Domestic Environmental Regulation
  • Edward Cameron, Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach

Nzelibe: Strategic Globalization: International Law as an Extension of Domestic Political Conflict

Jide Nzelibe (Northwestern Univ. - Law) has posted Strategic Globalization: International Law as an Extension of Domestic Political Conflict (Northwestern University Law Review, forthcoming). Here's the abstract:
Traditional accounts in both the international law and international relations literature largely assume that great powers like the United States enter into international legal commitments in order to resolve global cooperative problems or to advance objective state interests. Contrary to these accounts, this Article suggests that an incumbent regime (or partisan elites within the regime) may often seek to use international legal commitments to overcome domestic obstacles to their narrow policy and electoral objectives. In this picture, an incumbent regime may deploy international law to expand the geographical scope of political conflict across borders in order to isolate the domestic political opposition and increase the influence of foreign groups or governments sympathetic to the regime’s objectives. The political opposition may in turn seek to exploit the existence of a fragmented system of domestic institutions to thwart both the adoption and enforcement of any international law that strengthens the ruling regime and weaken its own position. Finally, this Article sketches a framework for predicting when distributive international legal commitments are likely to be sustainable across electoral cycles and when they are not. More specifically, the framework suggests that an international legal commitment is likely to be electorally sustainable when the veil of ignorance underlying the commitment is sufficiently thick; in other words, an international commitment entered into by a partisan regime has more staying power if it produces policy outcomes that are favored by some salient groups in the political opposition. The Article uses examples from the United States experience with human rights and international trade to illustrate how partisan dynamics between Republicans and Democrats has helped spawn and restrict the scope of international legal commitments.

Clark: The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda

Phil Clark (Univ. of Oxford - Centre for Socio-Legal Studies) has published The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge Univ. Press 2010). Here's the abstract:
Since 2001, the Gacaca community courts have been the centrepiece of Rwanda's justice and reconciliation programme. Nearly every adult Rwandan has participated in the trials, principally by providing eyewitness testimony concerning genocide crimes. Lawyers are banned from any official involvement, an issue that has generated sustained criticism from human rights organisations and international scepticism regarding Gacaca's efficacy. Drawing on more than six years of fieldwork in Rwanda and nearly five hundred interviews with participants in trials, this in-depth ethnographic investigation of a complex transitional justice institution explores the ways in which Rwandans interpret Gacaca. Its conclusions provide indispensable insight into post-genocide justice and reconciliation, as well as the population's views on the future of Rwanda itself.

Workshop: Buthe

Tim Buthe (Duke Univ. - Political Science) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on "Standards for global markets: domestic and international institutions for setting international product standards."

Tuesday, October 12, 2010

Wolf & Schmidt-Pfister: International Anti-Corruption Regimes in Europe: Between Corruption, Integration, and Culture

Sebastian Wolf & Diana Schmidt-Pfister have published International Anti-Corruption Regimes in Europe: Between Corruption, Integration, and Culture (Nomos 2010). The table of contents is available here. Here's the abstract:

This volume provides up-to-date studies on international anti-corruption regimes from an interdisciplinary point of view. Focusing on Europe, selected cross-border initiatives of the last years to combat corruption are analysed. The chapters are written by political scientists, lawyers, sociologists, economists, and by practitioners.

The volume contains both qualitative and quantitative studies. Moreover, it often takes cultural aspects into account within its four parts: “The European Dimension”, “Political and Legal Instruments”, “Culture, Perceptions, and Experiences”, and “Practitioners’ Perspectives”.

Chesney: Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010

Robert Chesney (Univ. of Texas - Law) has posted Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010 (Virginia Journal of International Law, forthcoming). Here's the abstract:

The post-9/11 debate regarding the law and policy of military detention is shot through with flawed assumptions. It tends to assume, for example, that if the factual and legal predicates for using military detention without criminal charge can be established in the first instance, then for good or ill that model can be sustained over the long term. It tends to assume that evidence-gathering and other activities associated with criminal prosecution are alien to military training, doctrine, practice and culture. It tends to assume a sharp and exhaustive categorical distinction between the realm of criminal law enforcement and the realm of military detention without criminal charge. At the highest level of generality, it presupposes that the legal framework applicable to detention is relatively static, that it is not responsive to changing strategic circumstances. And not coincidentally it does all of this through the lens of Guantanamo, focusing relentlessly on the peculiar circumstances of slightly less than 800 individuals who have been detained there over time.

No one doubts that detention at Guantanamo matters, or that it gives rise to complex questions of law and policy. But some perspective is in order. The U.S. military has been deployed to Iraq for more than seven years, and during that time has held more than 100,000 individuals in custody without criminal charge—more than 100 times the scale of detention at Guantanamo. And once we look beyond Guantanamo to account for that neglected (yet far more representative and extensive) experience, the weaknesses of the aforementioned assumptions become clear:

  • The Inevitable Loss of Overseas Detention Facilities: Changing strategic and diplomatic circumstances ensure that the United States eventually must shut down detention facilities it operates in connection with overseas deployments. This is happening now in Iraq, and will happen soon in Afghanistan (and thus Afghanistan is no long-term solution to the Guantanamo dilemma).
  • Military Adaptation to the Prosecution-Support Function: Compelled by strategic necessity, the U.S. military has quietly adapted its procedures at the point of capture and organizational structures in the field in order to maximize the prospects for host-nation prosecutions—all contrary to conventional wisdom about the incompatibility of such efforts with the military’s mission.
  • The Viability of the Security Internment Model: Whereas the Guantanamo debate typically oscillates between the criminal prosecution and combatant detention models, the vast majority of detentions in Iraq have rested on a distinct, ad hoc security internment regime modeled on (though not directly justified by) the Fourth Geneva Convention.
  • Procedural Evolution and the Convergence Thesis: In keeping with the predictions of the convergence thesis, the weak procedural safeguards associated with security internment eventually gave way in Iraq to more robust protections, and much the same is now occurring in Afghanistan. The convergence thesis also warns, however, that the opposite can be expected to happen in the criminal justice system as it comes to shoulder more of the load in terms of national security.
  • The Dynamic Relationship Between Law and Strategic Context: The American experience in Iraq lends support to the argument, associated with Philip Bobbitt, that law and strategic context exist in dynamic relationship. The point is not that states may disregard law in pursuit of security (indeed, this thesis holds that support for the rule of law is central to security). The point is that the law relating to detention is not static, but instead will tend to adapt over time to the strategic context.

These claims rest in significant part on a large body of after-action reports written by Judge Advocates upon their return from deployment in Iraq over the past seven years, supplemented by interviews with non-lawyer servicemembers who experienced our shifting detention policies in Iraq from the perspective of captures in the field.

Milanovic: Is the Rome Statute Binding on Individuals? (And Why We Should Care)

Marko Milanovic (Univ. of Nottingham - Law) has posted Is the Rome Statute Binding on Individuals? (And Why We Should Care) (Journal of International Criminal Justice, forthcoming). Here's the abstract:

This article examines whether the Rome Statute is binding not only on its states parties, but also on individuals, i.e. whether its provisions which define international crimes are substantive or jurisdictional in nature. This question cannot be resolved by the text of the Statute alone. It is both vexing and fundamental, and has significant conceptual and practical consequences. If the Statute is only jurisdictional in nature, then the source of substantive norms of criminal law binding on individuals must be elsewhere, primarily in customary law. If this is so, then the Statute could never go beyond customary law, even though it arguably attempts to do so in several instances, and any individual accused before the Court should be able to mount a challenge as to whether the charges against him have a basis in customary law.

If, on the other hand, the Statute is seen as being substantive in nature, then the Statute — a treaty — must be binding on individuals who have never consented to be bound by it, nor could have done so. Then it may well go beyond customary law, but it would potentially run afoul of the nullum crimen sine lege principle in two cases — when a particular situation has been referred to the Court by the UN Security Council or by a non-state party — since the supposedly substantive Statute could not have been binding on the individuals concerned at the time that they allegedly committed their offence. These issues have been already raised (in Lubanga, its first case), and will be raised before the Court, as with the declaration lodged by Palestine whereby it accepted the Court's jurisdiction for Gaza, or with regard to the situation in Darfur.

The article argues that the best approach in such situations is for the Court to ‘read down’ the Statute so as to conform to customary law that was binding on the individuals in question at the relevant time. This, however, is not the only solution open to the Court, and the article examines others. In doing so, it also deals with broader issues of when and how treaties can directly bind individuals in international law.

New Issue: New Zealand Journal of Public and International Law

The latest issue of the New Zealand Journal of Public and International Law (Vol. 7, no. 2, December 2009) is out. Contents include:
  • Kirsty Gover, Tribal Constitutionalism and Membership Governance in Australia and New Zealand: Emerging Normative Frictions
  • RP Boast, "So Long Lying Idle without a School": Wi Parator, Wallis and Whitireia, 1848-2008
  • Miron Mushkat & Roda Mushkat, The Economic Dimension of Hong Kong's Basic Law: An Analytical Overview
  • Adriaan Barnard, Slegs Suid Afrikaners — South Africans only? A Review and Evaluation of the International Crime of Apartheid

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 24, no. 1, Spring 2009) is out. Contents include:
  • 26th AAA/ICC/ICSID Joint Colloquium on International Arbitration — Adapting Arbitration to a Changing World
    • Nassib G. Ziadé, Conference Overview
    • William K Slate, II, Institutional Developments at the American Arbitration Association
    • John Beechey, Institutional Developments at the ICC International Court of Arbitration
    • Meg Kinnear, Institutional Developments at ICSID
    • Carolyn B. Lamm, Eckhard R. Hellbeck, Michael P. Daly & Matthew N. Drossos, Users' Perspectives on Challenges Facing the Institutions in a Changing World
    • Henri C. Alvarez & Mark W. Friedman, What Should Parties Expect from Arbitrators and What Should Arbitrators Expect from Parties?
    • Nassib G. Ziadé, How Many Hats Can a Player Wear: Arbitrator, Counsel and Expert?
    • Mark Kantor, Third-Party Funding in International Arbitration: An Essay About New Developments
    • Richard Naimark, Implications of the Financial Crisis for the Arbitration Community
    • Brigitte Stern, Are Some Issues Too Political to Be Arbitrable?
    • Cherie Booth, Is There a Place for Human Rights Considerations in International Arbitration?
    • Mohamed Abdel Raouf, How Should International Arbitrators Tackle Corruption Issues?
    • Albert Jan van den Berg, Modernizing and Simplifying the Multilateral Instruments in International Arbitration
    • Jason Fry, The Adequacy of the Arbitration Rules
    • Mark A. Clodfelter, The Adaptation of States to the Changing World of Investment Protection through Model BITs
    • Lucy Reed & Stanimir A. Alexandrov, Concluding Remarks
  • W. Michael Reisman, International Investment Arbitration and ADR: Married but Best Living Apart Challenge Decisions

Van Schaack: Negotiating at the Interface of Power & Law: The Crime of Aggression

Beth Van Schaack (Santa Clara Univ. - Law) has posted Negotiating at the Interface of Power & Law: The Crime of Aggression. Here's the abstract:

Delegates from the International Criminal Court’s Assembly of States Parties, observer states, and non-governmental organizations recently convened in Kampala, Uganda, to hammer out amendments to the Court’s Statute that will lay the groundwork for the eventual prosecution of the crime of aggression. This achievement caps decades of negotiations that began in the post-World War II period. The perennial difficulty of reaching consensus on when and how to prosecute the crime of aggression stems from the recognition that the crime by its nature involves both state action and individual conduct. From virtually the beginning of the negotiations, it was argued that an aggression prosecution should not go forward absent some definitive showing that a state had committed a predicate act of aggression. Where delegations diverged was in deciding on which body should be empowered to determine this consensus: the oligarchic Security Council, in keeping with its role under the U.N. Charter as the arbiter of peace and security, or some other body, including perhaps the Court itself. Because state action was deemed to be so central to an aggression prosecution, delegates also raised the question of whether it was necessary for some state - the putative aggressor state(s), the victim state(s), or all of the above - to have consented to the Court’s jurisdiction in some fashion before a prosecution could proceed. Although these two issues - the role of the Security Council and state consent - were present in Rome where the ICC Statute was promulgated, they emerged in starker relief in Kampala.

States opposed to Security Council control of aggression prosecutions congregated around two irreconcilable positions: one - idealistic if not hopelessly naïve - seeking a fully independent Court, capable of exercising a universal form of jurisdiction over the crime of aggression, and another - more cautious - insisting that jurisdiction be premised on some manifestation of state consent. States in these two camps were natural allies against the permanent five members of the Council (P-5) - who wanted the Council to control aggression prosecutions. Nonetheless, this loose coalition struggled to overcome their collective action problems and find common ground on a jurisdictional package that did not involve the Security Council, notwithstanding a host of creative solutions put forward in Kampala. For their part, the P-5 had difficulty asserting their full influence as well. Indeed, with China, Russia, and the United States all observers during the negotiations, and the United States a latecomer at that, it was left to France and the United Kingdom (the P-2) to formally defend postwar privileges. And yet, legal arguments in favor of Council exclusivity in the aggression realm proved unconvincing in light of contemporary United Nations practice. Policy arguments, in turn, were never persuasively developed and were in any case undermined by the Security Council’s checkered history of responding to breaches of the peace. States that might otherwise have endorsed a strong, if not exclusive, role for the Council instead espoused voluntarist attitudes that undercut the preferences of the P-5.

In the end, the coalition of states favoring strong aggression provisions abandoned its ideals and backed an unimpeachable regime of state consent with retrograde elements - one that completely insulates the nationals of non-states parties from prosecution and allows states parties to opt out of the crime entirely - in order to defeat one controlled by the Security Council. This concession attests to the extreme - if not irrational - antipathy felt by many states toward the Council. Speaking through the P-2, the P-5 reluctantly joined the consensus. This was notwithstanding that the results achieved in Kampala have once again subtly eroded the primacy of the Security Council, as states revealed a preference for a consent-based regime and a willingness to extend international criminal jurisdiction to their own nationals and over their own foreign policies. Notwithstanding the suggestion in the ICC Statute that there should be greater harmonization between the ICC and the Security Council in the aggression context, the Security Council was not ultimately accorded any additional powers vis-à-vis aggression prosecutions. Indeed, the aggression amendments may have actually diminished the efficacy of the Council’s pre-existing referral power and created the potential for greater conflict between the Council and the Court. The outcome in Kampala thus presents a microcosm of the continual thinning of state sovereignty and the indelible shift in the balance between power and law in international relations.

This Article engages the aggression amendments and the process by which they were adopted in three Parts. Part II introduces the central themes at issue and presents a short history of the multilateral efforts to codify the crime and its jurisdictional regime that culminated in the Kampala negotiations. Part III provides a thick description of the arc of the most recent negotiations and recounts states’ recurring efforts to mix and match jurisdictional elements to reach a consensus outcome and avoid either a contentious vote or continued deferral of the entire project. Part IV discusses the validity of the substantive arguments made by negotiating states and their rhetorical impact and offers a critique of the negotiation process. The Article closes with a discussion of the way in which the negotiations and the final amendments invoked and rebalanced the central themes of power politics, state consent, and judicial independence within public international law.

Monday, October 11, 2010

New Issue: Cuadernos de Derecho Transnacional

The latest issue of Cuadernos de Derecho Transnacional (Vol. 2, no. 2, October 2010) is out. Contents include:
  • Estudios
    • José María Alcántara, Frazer Hunt, Svante O. Johansson, Barry Oland, Kay Pysden, Jan Ramberg, Douglas G. Schmitt, William Tetley, & Julio Vidal, Particular concerns with regard to the Rotterdam Rules
    • Giacomo Biagioni, Tecniche internazionalprivatistiche fondate sulla volontà delle parti nel diritto dell’Unione Europea
    • Alfonso-Luis Calvo Caravaca & Celia Caamiña Domínguez, L’incorporation au régime juridique espagnol de la normative communautaire de restitution de biens culturels
    • Federico F. Garau Sobrino, Los acuerdos atributivos de jurisdicción en Derecho Procesal Civil Internacional español
    • Miguel Gómez Jene, Concurso y arbitraje internacional
    • Carlos Llorente Gómez de Segura, Las Reglas de Rotterdam (II)
    • Olivia Lopes Pegna, La proposta di cooperazione rafforzata sulla legge applicabile a separazione e divorzio: profili problematici
    • Agustín Luna Serrano, Hacia el abandono de la mención de la causa en la conformación definitoria del contrato
    • Maria João Matias Fernandez, O direito aplicável aos negócios relativos a instrumentos financeiros: a disciplina introduzida pelo novo Regulamento comunitário sobre a lei aplicável às obrigações contratuais ("Roma I")
    • Juan Jorge Piernas López, The notion of State aid and regulation in the EU: drawing the shape of a moving target
    • María José Santos Morón, Forma contractual y "desarmonización" comunitaria
  • Varia
    • Celia Caamiña Domínguez, Las resoluciones de restitución de menores en la Unión Europea: el caso
    • Rinau Alfonso-Luis Calvo Caravaca & Javier Carrascosa González, Notas breves sobre la Sentencia del TJUE (Sala Cuarta) de 20 mayo 2010 (Bilas: asunto C-111/09): la sumisión tácita en los litigios internacionales de seguro, consumo y trabajo
    • Cristina Campiglio, Il foro della residenza abituale del coniuge nel Regolamento (CE) n° 2201/2003: note a margine delle prime pronunce italiane
    • Antonia Durán Ayango, El concepto de orden público internacional y el derecho a un proceso justo. Nota a la STJCE de 2 de abril de 2009
    • Antonia Durán Ayango, El concepto de parte en el proceso de exequátur. Nota a la STJCE de 23 de abril de 2009
    • Pilar Juárez Pérez, Dieciocho años de ciudadanía de la Unión: ¿hacia una figura emancipada?
    • Pilar Maestre Casas, Doble nacionalidad y forum patriae en divorcios internacionales
    • Giulia Rossolillo, Convenzioni concluse dagli Stati membri e diritto processuale civile internazionale dell’Unione Europea: interpretazione conforme o rispetto degli obblighi internazionali?
    • Julia Suderow, Cuestiones de jurisdicción internacional en torno a la aplicación privada del Derecho antitrust: forum shopping y "demandas torpedo"

Call for Submissions: Melbourne Journal of International Law

The Melbourne Journal of International Law has issued a call for submissions for the first issue of its twelfth volume, due to be published in June 2011. The submission deadline is January 31, 2011. Here's the call:

The Editors of the Melbourne Journal of International Law (‘MJIL’) invite submissions on areas of interest in international law for the first issue of their 12th volume, to be published in June 2011.

MJIL, Australia’s premier generalist international law journal, is a peer-reviewed academic journal run through the Melbourne Law School at the University of Melbourne. MJIL’s objective is to facilitate scholarly research and critical discussion of private and public international law issues.


MJIL is a bi-annual publication, published in June and November each year.

MJIL publishes articles, commentaries, case notes and book reviews. Articles should be in the vicinity of 10 000 to 20 000 words in length and be an original and detailed contribution to international law scholarship. Commentaries explore recent developments in a specific field of international law and their practical applications, and should be between 5000 and 8000 words in length.


All articles, case notes, commentaries and review essays published in MJIL are subjected to a double-blind refereeing process, involving at least two specialists in the field. Once accepted for publication, submissions will then be edited for compliance with the Melbourne Manual for International Law Citation and the Australian Guide to Legal Citation. Authors have an opportunity to review the final version of the piece prior to publication. Our publication policy can be accessed here.

All submissions should be sent via email in Word format, together with a signed publication policy.

The submission deadline for 12(1) is 31 January 2011.

New Volume: Asian Yearbook of International Law

The latest volume of the Asian Yearbook of International Law (Vol. 14, 2008) is out. Contents include:
  • Takashi Miyazaki, Japan-Alcoholic Beverages Case Revisited: A Case of Treaty Interpretation or Formation of International Law?
  • Michael Ewing-Chow & Ng Wuay Teck, Caveat Emptor: Three Aspects of Investment Protection Treaties
  • Zhu Lijiang, Some Asian States' Opposition to the Concept of War Crimes in Non-International Armed Conflicts and its Legal Implications
  • Sanzhuan Guo, Effectiveness of National Human Rights Institutions in International Human Rights Law: Problems and Prospects
  • Lan Anh Tran, Vietnam's Membership in the WTO: The Challenge of Reconciling Socialist Policies with the Principle of Open Economy
  • Agora: Is There An Asian Approach To International Law?
    • BS Chimni, Is there an Asian Approach to International Law? – Questions, Theses and Reflections
    • M. Sornarajah, Asian International Law: Where is it Now?

Stephens: The Modern Common Law of Foreign Official Immunity

Beth Stephens (Rutgers Univ., Camden - Law) has posted The Modern Common Law of Foreign Official Immunity (Fordham Law Review, forthcoming). Here's the abstract:

In Samantar v. Yousuf, 130 S. Ct. 227 (2010), decided in May 2010, the Supreme Court held that the Foreign Sovereign Immunities Act, the federal immunity statute, does not protect foreign government officials sued in U.S. courts. The decision resolved a longstanding split among the circuits and between the circuits and the Executive Branch on an issue that is key to international relations and hotly contested around the world: When are government officials immune from suit in the courts of a foreign state? The Court remanded to the lower court to determine whether common law immunity protects foreign officials such as the defendant, a former official of Somalia who has been sued for torture and summary execution.

With little guidance from the Supreme Court, the lower courts are now charged with developing common law standards to determine when a foreign official is immune from suit in the United States. Suits for human rights violations will be particularly contentious, as the courts seek to reconcile the competing demands of sovereign immunity and human rights norms.

The courts will not be able to simply adopt common law principles applied before the FSIA was enacted in 1976, because both international and U.S. norms governing accountability for human rights violations have changed dramatically since that time. Instead, courts should look for guidance to international and domestic immunity principles and doctrines developed in U.S. human rights litigation. When foreign officials violate clearly defined, widely accepted international law norms, they act outside of their lawful authority and are not entitled to immunity.

New Volume: Czech Yearbook of International Law

The inaugural volume of the Czech Yearbook of International Law (Vol. 1, 2010) is out. The theme is "Second Decade Ahead: Tracing the Global Crisis." Contents include:
  • Naděžda Rozehnalová & Jiří Valdhans, A Few Observations on Choice of Law
  • Alexander J. Bělohlávek, Law Applicable to the Merits of International Arbitration and Current Developments in European Private International Law: Conflict-of-laws Rules and the Applicability of the Rome Convention, Rome I Regulation and Other EU Law Standards in International Arbitration
  • Marcin Czepelak, The Law Applicable to the Contract of Carriage under the Rome I Regulation
  • Helena Barancová, Problems of Slovak Labour Law in Relation to Community Law Requirements
  • Monika Pauknerová, Overriding Mandatory Rules and Czech Law
  • Jan Brodec, Surmounting the Wall of Legal Entity and Some Aspects of International Private Law in International Insolvency Proceedings
  • Petr Dobiás, Principles of European Insurance Contract Law in Comparison with Czech Law on Insurance Contracts
  • Karel Klíma, European Constitutional Law - Anticipated Model or Reality
  • Petr Mlsna, International Treaties in European Law: Dualism versus Monism
  • Jan Kněžínek, State Responsibility for Ensuring the Availability of International Treaties at the National Level
  • Michal Tomásek, Human Rights as Means of Europeanization of Criminal Law
  • Jaroslav Fenyk, European Public Prosecutor - A Step towards Mutual Recognition, or Establishment of European Criminal Justice?
  • Oskar Krejčí, Geopolitics and International Law
  • Matthias Scherer, Economic or Financial Crises as a Defence in Commercial and Investment Arbitration

Sunday, October 10, 2010

de la Rasilla del Moral: The Unsolved Riddle of International Constitutionalism

Ignacio de la Rasilla del Moral (Harvard Univ. - Law) has posted The Unsolved Riddle of International Constitutionalism (International Community Law Review, Vol. 12, No. 1, pp. 81-110, February 2010) Here's the abstract:
The extremely diverse contributions present in the volume edited by Nicholas Tsagourias, Transnational Constitutionalism: International Law and European Perspectives (Cambridge: Cambridge University Press, 2007, pp. 377) are contextualized through an exploration of some of the different strands of international legal doctrine that have been making use of the constitutionalist vernacular in recent years. These strands include among others, the growth in European Union-related constitutionalist discourse and the emergence of a transnational comparative legal realm at the cross-roads of the European and the international spheres; the historical lineage and the contemporary appeal of the constitutional vernacular in the field of international organizations; and the phenomenon of the fragmentation of international law along with the upholding, in reaction to that fragmentation, of a hierarchy of international legal norms. It also includes an examination of the emergence of alternative vocabularies that sustain a “fragmented/societal” model of constitutionalism on the basis of systems-theory as well as an examination of a constitutionalist value ridden perspective of the international legal order that, in mirroring recent developments, attempts to “restate” a classic teleologically conceived narrative of progress without yet leaving the realm of positivism. This article, which confronts “in fine” the “international community school” with its critics, does not aim to provide a complete deconstructed genealogy of each converging strand of doctrine that one might locate behind the current appeal of constitutionalist talk at the dawn of a post-hegemonic era. Yet it is hoped that it might serve as a reminder of the multifaceted factors that lie behind the contemporary renewal of the international constitutionalist arena and, thus, help to strengthen the latter’s potential as a benchmark for diagnosing the legitimacy deficit(s) of international law.