- Session 1: War Powers
- Peter D. Feaver, Seven Provocations on Domestic Politics of Foreign Relations
- William G. Howell, Wartime Presidents
- Douglas L. Kriner, More than Meets the Eye: Congressional Checks on Presidential War-Making
- Commentator: Jide Nzelibe
- Session 2: Secrecy
- Benjamin O. Fordham, How Useful is Secrecy in American Foreign Policy?
- Jack L. Goldsmith, The Problem of Secret Executive Interpretations of War Powers Law
- Commentator: Oona Hathaway
- Session 3: Treaties, Executive Agreements, and Partisanship
- Oona A. Hathaway, Democracy in the Balance: Strengthening Accountability in U.S. International Lawmaking
- Judith Kelley & Jon Pevehouse, The Domestic Politics of the US Article II Process
- Jide Nzelibe, Our Partisan Foreign Affairs Constitution
- Edward T. Swaine, Valuing Agreements
- Commentators: Rachel Brewster and Ernie Young
- Session 4: International Trade and Other Delegations
- Daniel Abebe, Rethinking International Delegations
- Rachel Brewster, Supplying Compliance: Domestic Sources of Trade Law and Policy
- Judith Goldstein, Delegation of Tariff Setting Authority to the President
- Commentator: Larry Helfer
- Session 5: Congressional Action and Inaction
- Curtis A. Bradley, Congressional Inaction in Foreign Affairs
- Paul B. Stephan, The Political Economy of Extraterritoriality
- Ernest A. Young, The Political Dynamics of Dormant Foreign Affairs Preemption: Lessons from Immigration and Climate Regulation
- Commentator: Ed Swaine
Saturday, November 6, 2010
Friday, November 5, 2010
Withdrawing from International Custom, a recent article by Curtis Bradley and Mitu Gulati, has sparked interest and debate. Bradley and Gulati’s article, develops with significant nuance and detail that, naturally, can be best understood by a careful reading of their work. In essence, it proposes a modification in customary international law (CIL) doctrine – a change that would permit states to unilaterally exit from existing customary international law. This Essay will act as a brief reflection on that article. In Part I, it will explore the analogies Withdrawing makes between CIL and contract and will argue, first that CIL and contract are not analogous and, second, that even to the extent that contract demonstrates how other doctrinal areas order exits from legal relationships, contract illustrates the point that unilateral exit is a recognized abdication of the exiting party’s obligations and that exit gives rise to legal liability. In Part II, it explores the analogies Withdrawing makes between governments and agents in order to unpack some of the theoretical political theory constructs on which Withdrawing relies, and to explore the limitations Withdrawing sets on the proposal for unilateral exit. Part III of this Essay will make an affirmative argument for symmetry between CIL formation doctrine and CIL disintegration doctrine. The current proposal anticipates that CIL formation would remain unchanged, but exit for any given state would be far more expeditious than is contemplated by current CIL exit formulations. This Part will illustrate that this proposal violates a strong presumption in favor of symmetrical entrenchment.
- Simone Vezzani, Preliminary Remarks on the Envisaged World Health Organization Pandemic Influenza Preparedness Framework for the Sharing of Viruses and Access to Vaccines and Other Benefits
- Hans Morten Haugen, Access Versus Incentives: Analysing Intellectual Property Policies in Four UN Specialized Agencies by Emphasizing the Role of the World Intellectual Property Organization and Human Rights
- Graham Reynolds, All the Game's a Stage: Machinima and Copyright in Canada
- Yuan-Chen (Jessica) Chiang, Parallel Importation of Copyright Products in Taiwan: A Struggle with International Trade Policy
An extraordinary range of international "rules" or "norms" are created today through mechanisms that do not fit easily into the traditional sources of international law. In the making of international law, Professors Alan Boyle of the University of Edinburgh and Christine Chinkin of the London School of Economics set their sights on providing a broad account of such law-making, looking across different areas of organizational behavior, both governmental and non-governmental. Although this volume has some shortcomings, it is an excellent starting point for those interested in an engaging and informed survey of various ways in which international law is currently made, and points the direction for those who wish to embark on even deeper inquiries.
The Law of MERCOSUR presents both an overview and in-depth analysis of one of the world’s most important and increasingly influential economic organisations. The book comprises both a series of first-hand analyses of MERCOSUR by experts from countries in the MERCOSUR bloc, and also discussions from other parts of the world looking at MERCOSUR as global actor of ever-increasing importance. The book is divided into three main parts: the first analyses the key institutional legal aspects of MERCOSUR, looking at its history, the general theory of economic integration, and basic aspects relating to the functioning of MERCOSUR; the second examines specialised topics, including the regulation of the environment, human rights and the energy market in MERCOSUR; and in the third part the editors offer a translation of core MERCOSUR instruments, with the objective of furthering understanding of the economic bloc. Original in its conception, the book aims to fill a major gap in the English-language literature by offering a comprehensive and in-depth analysis of the Law of MERCOSUR, and it is hoped that it will become essential reading for those practitioners and academics who are interested not only in MERCOSUR, but in economic integration generally, in international trade, and in the regional aspects of the phenomenon of globalisation.
Thursday, November 4, 2010
Any talk of the advancement of international law presupposes that two objections are met. The first is the 'realist' objection which, observing the state of international relations today, claims that when it comes down to the important things in international life-war and peace, and more generally power politics among states-no real advancement has been made: international society remains a society of sovereign states deciding matters with regard solely to their own best interests and with international law all too often being no more than a thin cloak cast over the precept that 'might is right'. Against this excessive scepticism stands excessive optimism: international law is supposedly making giant strides forward thanks especially to the tremendous mass of soft law generated by international organisations over the past sixty years and more. By incautiously mixing all manner of customs, treaties, resolutions and recommendations, a picture of international law is painted that has little to do with the 'real world'.
This book is arranged into three sections. The first purports to show from the specific example of international investment law that the past half-century has seen the invention of two genuinely new techniques in positive law: state contracts and transnational arbitration without privity. This is 'advancement' in international law not because the techniques are 'good' in themselves (one may well think them 'bad') but because they have introduced legal possibilities into international law that did not exist heretofore. The second section examines the theoretical consequences of those new legal techniques and especially the way they affect the theory of the state. The third widens the field of view and asks whether European law has surpassed international law in a move towards federalism or whether it represents a step forward for international law.
These reflections make for a clearer theoretical understanding of what constitutes true advancement in international law. Such an understanding should give pause both to those who argue that hardly any progress has been made, and to those who are overly fanciful about progress.
The Law against War is a translated and updated version of a book published in 2008 in French (Le droit contre la guerre, Pedone). The aim of this book is to study the prohibition of the use of armed force in contemporary positive international law. Some commentators claim that the field has undergone substantial changes arising especially since the end of the Cold War in the 1990s. More specifically, several scholars consider that the prohibition laid down as a principle in the United Nations Charter of 1945 should be relaxed in the present-day context of international relations, a change that would seem to be reflected in the emergence of ideas such as 'humanitarian intervention', 'preventive war' or in the possibility of presuming Security Council authorisation under certain exceptional circumstances. The argument in this book is that while marked changes have been observed, above all since the 1990s, the legal regime laid down by the Charter remains founded on a genuine jus contra bellum and not on the jus ad bellum that characterised earlier periods. 'The law against war', as in the title of this book, is a literal rendering of the familiar Latin expression and at the same time it conveys the spirit of a rule that remains, without a doubt, one of the cornerstones of public international law.
- Ian Bryan & Peter Langford, Impediments to the Expulsion of Non-Nationals: Substance and Coherence in Procedural Protection under the European Convention on Human Rights
- Halvard Haukeland Fredriksen, One Market, Two Courts: Legal Pluralism vs. Homogeneity in the European Economic Area
- Antonio Cappiello, Legal Origins and Socio-economic Consequences: Can Legal Origins Really Explain the Main Differences in Economic and Juridical Performances?
- Jaanika Erne, Political and Legal Problems Related to Estonian Private Law Reforms Prior to the Formal Statehood Period and during the Early Formal Statehood Period
Human rights norms are often studied as an independent body of law with tribunals dedicated to interpreting and enforcing those norms. However, human rights norms are also increasingly incorporated into the development of substantive law in fields as diverse as labor law, corporate governance, environmental law, torts, intellectual property, and armed conflict.The symposium will bring together scholars in diverse areas of substantive law to discuss the impact of human rights norms in their fields.
Stones Left Unturned looks at the post-colonial history of Burundi through transitional justice lenses. It describes how repeated cycles of politico-ethnic violence as well as the so-called “remedial” action undertaken in their aftermath have been inspired by the desire to maintain or obtain political power. Throughout Burundi’s negotiated transition from conflict to peace, dealing with the past has been a constant matter of attention. The book zooms in on the gap between the rhetorical commitment by domestic and international actors to establish a truth and reconciliation commission and a special tribunal and the little achievements made so far. The historical account of transitional justice in Burundi is indicative of a fundamental evolution in the conception of law and how it relates to the exercise of political authority. It reveals a growing awareness that neither the process nor the outcome of transitional justice should solely be left to the discretion of the incumbent regime, but that international and constitutional norms impose substantive and procedural barriers.
Against the background of Burundi’s obligations under international law, this volume proposes – and at the same time also critically evaluates – the use of constitutional adjudication as a way of incorporating the transitional justice process in a wider effort of promoting the rule of law in Burundi.
Paul Stephan (Univ. of Virginia - Law) will give a talk today at the Columbia Law School Faculty Workshop on "Privatizing International Law."
Wednesday, November 3, 2010
A central puzzle in jurisprudence has been the role of custom in law. Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent? And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law.
- Erik Jayme, Party Autonomy in International Family and Succession Law: New Tendencies
- Ralf Michaels, After the Revolution – Decline and Return of U.S. Conflict of Laws
- Diego P. Fernández Arroyo, Private International Law and Comparative Law: A Relationship Challenged by International and Supranational Law
- Koji Takahashi, Damages for Breach of a Choice-of-Court Agreement: Remaining Issues
- Eva Lein, A Further Step Towards a European Code of Private International Law: The Commission Proposal for a Regulation on Succession
- Giulia Rossolillo, Personal Identity at a Crossroad between Private International Law, International Protection of Human Rights and EU Law
- Urs Peter Gruber & Ivo Bach, The Application of Foreign Law: A Progress Report on a New European Project
- Juan José Alvarez Rubio, Contracts for the International Carriage of Goods: Jurisdiction and Arbitration under the New UNCITRAL Convention 2008
- Private International Law in China - Selected Topics
- Yongping Xiao & Weidi Long, Contractual Party Autonomy in Chinese Private International Law
- Qisheng He, Recent Developments with Regards to Choice of Law in Tort in China
- Renshan Liu, Recent Judicial Cooperation in Civil and Commercial Matters between Mainland China and Taiwan, the Hong Kong S.A.R. and the Macao S.A.R.
- Weidong Zhu, Law Applicable to Arbitration Agreements in China
- Yongping Xiao, Foreign Precedents in Chinese Courts
- Guoqiang Luo (Steel Rometius), Crime of Law-Bending Arbitration in Chinese Criminal Law and Its Effects on International Commercial Arbitration
- Fang Xiao, Law Applicable to Arbitration Clauses in China: Comments on the Chinese People’s Supreme Court’s Decision in the Hengji Company Case
Palestine as a territorial entity has experienced a curious history. Until World War I, Palestine was part of the sprawling Ottoman Empire. After the war, Palestine came under the administration of Great Britain by an arrangement with the League of Nations. In 1948 Israel established itself in part of Palestine’s territory, and Egypt and Jordan assumed administration of the remainder. By 1967 Israel took control of the sectors administered by Egypt and Jordan and by 1988 Palestine reasserted itself as a state. Recent years saw the international community acknowledging Palestinian statehood as it promotes the goal of two independent states, Israel and Palestine, co-existing peacefully. This book draws on evidence from the 1924 League of Nations mandate to suggest that Palestine was constituted as a state at that time. Palestine remained a state after 1948, even as its territory underwent permutation, and this book provides a detailed account of how Palestine has been recognized until the present day.
- The Nuclear Taboo: the United States and the Non-Use of Nuclear
Weapons Since 1945
- Theo Farrell, Nuclear non-use: constructing a Cold War history
- Lynn Eden, The contingent taboo
- Carol Atkinson, Using nuclear weapons
- T.V. Paul, Taboo or tradition? The non-use of nuclear weapons in world politics
- William Walker, The absence of a taboo on the possession of nuclear weapons
- Regional powers in a changing global order
- Philip Nel & Detlef Nolte, Introduction
- Detlef Nolte, How to compare regional powers: analytical concepts and research topics
- Sandra Destradi, Regional powers and their strategies: empire, hegemony, and leadership
- Dirk Nabers, Power, leadership, and hegemony in international politics: the case of East Asia
- Philip Nel, Redistribution and recognition: what emerging regional powers want
- Critical reflections on the work of Richard K. Ashley
- Cynthia Weber, Interruption Ashley
- Mark Laffey, Things lost and found: Richard Ashley and the silences of thinking space
- Kyle Grayson, Dissidence, Richard K. Ashley, and the politics of silence
- Autoethnography and International Relations II
- Roland Bleider & Morgan Brigg, Introduction
- Oded Löwenheim, The ‘I’ in IR: an autoethnographic account
- Roxanne Lynn Doty, Autoethnography – making human connections
- Iver B. Neumann, Autobiography, ontology, autoethnology
- Debating IR theory
- Ulrich Franke & Ulrich Roos, Actor, structure, process: transcending the state personhood debate by means of a pragmatist ontological model for International Relations theory
- Inanna Hamati-Ataya, Knowing and judging in International Relations theory: realism and the reflexive challenge
- Rethinking hegemony
- Dennis Florig, Hegemonic overreach vs. imperial overstretch
- Kai He, The hegemon's choice between power and security: explaining US policy toward Asia after the Cold War
- Andrew R. Hom, Hegemonic metronome: the ascendancy of Western standard time
Principles of Evidence in International Criminal Justice provides an overview of the procedure and practice concerning the admission and evaluation of evidence before the international criminal tribunals. The book is both descriptive and critical and its emphasis is on day-to-day practice, drawing on the experience of the Yugoslavia, Rwanda and Sierra Leone Tribunals. This book is an attempt to define and explain the core principles and rules that have developed at those ad hoc Tribunals; the rationale and origin of those rules; and to assess the suitability of those rules in the particular context of the International Criminal Court which is still at its early stages. The ICC differs in structure from the ad hoc Tribunals and approaches the legal issues it has to resolve differently from its predecessors. The ICC is however confronted with many of the same questions. The book examines the differences between the ad hoc Tribunals and the ICC and seeks to offer insights as to how and in which circumstances the principles established over years of practice at the ICTY, ICTR and SCSL may serve as guidance to the ICC practitioners of today and the future.
The contributors represent a cross-section of the practising international criminal bar, drawn from the ranks of the Bench, the Prosecution and the Defence and bringing with them different legal domestic cultures. Their mixed background underlines the recurring theme in this book which is the manner in which a legal culture has gradually taken shape in the international Tribunals, drawing on the various traditions and experiences of its participants.
Tuesday, November 2, 2010
Lawfare that erodes the good faith application of the laws and customs of warfare is illegitimate and untenable. This essay outlines the contours of such illegitimate lawfare and provides current examples to guide practitioners. Clearly addressing the terminological imprecision in current understandings of lawfare, this essay is intended to help prevent further erosion of the corpus of jus in bello. Words matter, particularly when they are charged with legal significance and purport to convey legal rights and obligations. When purported legal “developments” actually undermine respect for the application and enforcement of humanitarian law, they are illegitimate. Although the laws and customs of war create a careful balance between the smoke, adrenalin, and uncertainty of a modern battlefield, and the imperative for disciplined constraints on the unlawful application of force, inappropriate lawfare permits the public perceptions to be manipulated Illegitimate exploitation of the law in turn permits the legal structure to be portrayed as a mass of indeterminate subjectivity that is nothing more than another weapon in the moral domain of conflict at the behest of the side with the best cameras, biggest microphones, and most compliant media accomplices. In this manner, the media can be misused to mask genuine violations of the law with spurious allegations and misrepresentations of the actual state of the law. Illegitimate lawfare is that which, taken to its logical end, marginalizes the precepts of humanitarian law and therefore creates strong disincentives to its application and enforcement. It logically follows that any efforts to distort and politicize fundamental principles of international law should not be meekly accepted as inevitable and appropriate “evolution.”
Under pressure from globalisation, the classical distinction between domestic and international law has become increasingly blurred, spurring demand for new paradigms to construe the emerging postnational legal order. The typical response of constitutional and international lawyers as well as political theorists has been to extend domestic concepts - especially constitutionalism - beyond the state. Yet as this book argues, proposals for postnational constitutionalism not only fail to provide a plausible account of the changing shape of postnational law but also fall short as a normative vision. They either dilute constitutionalism's origins and appeal to 'fit' the postnational space; or they create tensions with the radical diversity of postnational society.
This book explores an alternative, pluralist vision of postnational law. Pluralism does not rely on an overarching legal framework but is characterised by the heterarchical interaction of various suborders of different levels - an interaction that is governed by a multiplicity of conflict rules whose mutual relationship remains legally open. A pluralist model can account for the fragmented structure of the European and global legal orders and it reflects the competing (and often equally legitimate) claims for control of postnational politics. However, it typically provokes concerns about stability, power and the rule of law.
This book analyses the promise and problems of pluralism through a theoretical enquiry and empirical research on major global governance regimes, including the European human rights regime, the contestation around UN sanctions and human rights, and the structure of global risk regulation. The empirical research reveals how prevalent pluralist structures are in postnational law and what advantages they possess over constitutionalist models. Despite the problems it also reveals, the analysis suggests cautious optimism about the possibility of stable and fair cooperation in pluralist settings.
Shany: Compliance with Decisions of International Courts as Indicative of Their Effectiveness: A Goal-Based Analysis
The paper, which is part of the author’s broader work in the field of assessing the effectiveness of international courts, seeks to ascertain the manner in which compliance with the remedies provided by a number of international courts is indicative of their goal-attainment. In doing so, it revisits certain conventional assumptions about the relationship between rates of compliance with judicial remedies (remedy compliance) and international Court effectiveness. Using as case studies the changing remedy design policies of the European Court of Human Rights and two recent ICJ cases, I argue that (a) correlation between state practice and judicial remedies tells us little about the impact that courts actually have. For example, ‘low aiming’ courts (issuing remedies entailing limited compliance costs and/or insignificant changes in state practice) are expected to generate what appear to be higher compliance rates, but would not be necessarily more effective; (b) remedy compliance is only meaningful from an effectiveness viewpoint, if it is discussed in the context of goal attainment – that is, the degree in which the judgment, any remedies ordered thereby and compliance therewith, contribute to promoting primary norm compliance, resolving disputes, supporting and legitimizing international norms and institutions, etc. Hence, compliance rates are in themselves a poor proxy for judicial effectiveness.
Professor of International Law and Politics with respect to International Courts
The Faculty of Law at the University of Copenhagen invites applications for a position as Professor of Law for the present with focus on International Law and Politics with respect to International Courts. The applicant should have an outstanding interdisciplinary academic record in the area of law and politics in the context of the emergence and functioning of international and supranational courts. In considering applications for the professorship, the main emphasis will be on the applicant?s ability to document a very high level of original scientific production on an international level within the area and a demonstrated ability to remain at the forefront of the field. The applicant is moreover expected to have a strong record of research funding from academia and other funding agencies. The position is available from 1 February 2011 or as soon as possible thereafter.
The main responsibilities of the professor of International Law and Politics are:
to publish and disseminate research results
to teach and oversee the administrative duties within the research area
to lead the development of the subject area, be responsible for research-based teaching with associated examination and administrative duties, and to supervise MA-thesis and PhD students
to exchange knowledge with the rest of society and take part in public debate
to manage research, provide guidance to and supervise assistant professors and researchers and take part in academic assessments.
The professor shall also develop and maintain his or her teaching and pedagogic competencies. Other duties may be added according to Faculty regulations and the weighting of the different tasks may change over time.
For more information applicants are encouraged to read the memorandum "Job Structure for Academic Staff at Universities 2007". The memorandum can be read here.
Emphasis will be placed on:
documented high degree of original academic production at international level, including evidence that the applicant has contributed to the development of the subject
ability and opportunity to continue to develop the subject
ability to manage research projects and other management functions and
The overall assessment of applications will emphasise the applicant's contribution to new developments in the teaching area.
For further information applicants are encouraged to read the "Guide to appointment of permanent academic staff at the Faculty of Law". The Guide can be read here.
Salary and terms of employment
Professors are appointed permanently according to the agreement between the Ministry of Finance and the Danish Confederation of Professional Associations (Akademikernes Centralorganisation, AC) on remuneration in pay scale 37, DKK. 521.094. In addition to the basic salary you will receive an annual increment, currently of DKK. 51.378 (as per 1 April 2010). Furthermore, you will receive an annual increment, currently of DKK. 71.817 (as per 1 April 2010). In addition to this, a total contribution to your pension fund equal to 17,1% of your salary and annual increment is paid.
The application and all submitted material, incl. papers, articles and books, must be written in Danish, Swedish, Norwegian, English, German or French. The application and all appendices must be submitted in three sorted copies, and it is therefore not possible to submit the application by email. Applicants must include their email address for communication purposes.
Each application must include the following appendices marked with the stated appendix numbers:
Appendix 1: List of appendices - including a list of the submitted publications.
Appendix 2: Curriculum vitae.
Appendix 3: Documentation regarding the applicant's education.
Appendix 4: Complete numbered list of publications.
Appendix 5: A maximum of 10 scientific publications that the applicant wishes to be included in the assessment, of which no more than three may be monographs.
Appendix 6: An account of the applicant's vision regarding research, education and dissemination.
Appendix 7: Documentation regarding the applicant's experience and qualifications in relation to teaching, as well as other relevant qualifications. Applicants are encouraged to read the "Guidelines for applicants regarding information about pedagogic qualifications" on the Faculty website.
In addition to the material which the applicant wishes to include in the assessment, the Assessment Committee may require further material to assess the applicant. It is the applicant's responsibility to provide such supplementary material should this be requested.
If works are cited of which the applicant is a co-author, a co-author declaration concerning the applicant's share of these works must be submitted. Material not yet published can be submitted. Please note if this is the case.
An acknowledgement of the receipt of the application will be issued, and applicants will be kept informed about the process of the application procedure on a regular basis via email. Following the application deadline, the Dean, on the recommendation of the Academic Council, will set up an expert Assessment Committee. When the committee has completed its assessment, each applicant will receive the portion of the overall assessment that specifically refers to her/him. Qualified applicants will be invited for interviews according to the Dean's decision.
Upon the completion of the application process, only original material will be returned.
All interested parties, regardless of personal background, are encouraged to apply. The Faculty of Law wishes to promote gender equality. As the majority of the Faculty's research staff is male, applications from women will thus be received with particular interest.
Further information is available from personnel officer Thomas Haaning Christiansen, ph. (+45) 35 32 35 26; email: thhc[at]jur.ku.dk.
Applications must be addressed to Dean Henrik Dam and sent or delivered to Faculty of Law, att. Thomas Haaning Christiansen, Studiestræde 6, st., DK-1455 Copenhagen, Denmark. Please quote "Stillingsansøgning" as well as reference number: 211-0425/10-6540 on the front of the application as well as on the envelope or package.
The application must be received by November 8, 2010 at 12:00 (noon) at the above mentioned address. Applications received after the deadline has expired will not be accepted.
The Faculty of Law is one of eight faculties at the University of Copenhagen. The Faculty carries out research, education and knowledge dissemination within the area of law. The research is partly organised in research centres and groups. The Faculty employs about 75 full time researchers and app. 35 PhD scholars as well as app. 70 administrative staff members. There are app. 400 part time instructors contributing to the teaching of app. 4.000 law students. Visit the Faculty website.
Publisher: Faculty of Law
- Persephone Economou & Karl P. Sauvant, Recent trends and issues in foreign direct investment, 2008/2009
- Peter Muchlinski, Trends in international investment agreements, 2008/2009: Review of the model bilateral investment treaties of Norway, South Africa and the United States
- Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens & Sobia Haque, International investment law and arbitration: 2008/2009 in review
- Erlend Bakken and Tonje P. Gormley, Using dynamic petroleum contract clauses to manage risk in volatile markets
- Emmanuelle Cabrol, Pren Nreka v. Czech Republic. The notion of investment under bilateral investment treaties: Does investment really mean “every kind of asset”?
- Jarrod Wong & Jason Yackee, The 2006 procedural and transparency-related amendments to the ICSID Arbitration Rules: Model intentions, moderate proposals, and modest returns
- Carolyn B. Lamm, Chiara Giorgetti & Hansel T. Pham, Has the time come for an ICSID code of ethics for counsel?
- Maria Vicien-Milburn & Yulia Andreeva, Testing the procedural limits of the ICSID annulment regime in cases against Argentina
- Lee Caplan, A proposed set of arbitration rules for weaker players in investor-state arbitration
- Armand de Mestral, The Lisbon Treaty and the expansion of EU competence over foreign direct investment and the implications for investor-state arbitration
- Christopher S. Gibson, Latent grounds in investor-state arbitration: Do international investment agreements provide a new means to enforce intellectual property rights?
- Louis T. Wells, Property rights for foreign capital: Sovereign debt and private direct investment in times of crisis
- Anne van Aaken & Jürgen Kurtz, Emergency measures and international investment law: How far can states go?
- Lauge Skovgaard Poulsen, The importance of BITs for foreign direct investment and political risk insurance: Revisiting the evidence
- Jeswald W. Salacuse, Investment treaties through a different lens: A new global regime?
- Muthucumaraswamy Sornarajah, Toward normlessness: The ravage and retreat of neo-liberalism in international investment law
Monday, November 1, 2010
- JHHW, Editorial: Copyright, Law Journals and a Romantic View of EJIL
- Symposium: The Interpretation of Treaties - A Re-examination
- J.H.H. Weiler, The Interpretation of Treaties – A Re-examination Preface
- George Letsas, Strasbourg's Interpretive Ethic: Lessons for the International Lawyer
- Leena Grover, A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court
- Lucas Lixinski, Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law
- Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body
- Riccardo Pavoni, Mutual Supportiveness as a Principle of Interpretation and Law-Making: A Watershed for the ‘WTO-and-Competing-Regimes’ Debate?
- Luigi Crema, Disappearance and New Sightings of Restrictive Interpretation(s)
- Critical Review of International Governance: An Occasional Series
- Juliet Chevalier-Watts, Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?
- Frank Hoffmeister, Litigating against the European Union and Its Member States – Who Responds under the ILC's Draft Articles on International Responsibility of International Organizations?
- Anne-Sophie Tabau & Sandrine Maljean-Dubois, Non-compliance Mechanisms: Interaction between the Kyoto Protocol System and the European Union
- Review Essay
- Sergio Dellavalle, Beyond Particularism: Remarks on Some Recent Approaches to the Idea of a Universal Political and Legal Order
- Hilary Evans Cameron, Refugee Status Determinations and the Limits of Memory
- Jeannie Rose C. Field, Bridging the Gap Between Refugee Rights and Reality: a Proposal for Developing International Duties in the Refugee Context
- Savitri Taylor & Brynna Rafferty-Brown, Waiting for Life to Begin: the Plight of Asylum Seekers Caught by Australia's Indonesian Solution
- Marjoleine Zieck, UNHCR and Turkey, and Beyond: of Parallel Tracks and Symptomatic Cracks
- Megan A. Fairlie, The Precedent of Pretrial Release at the ICTY: A Road Better Left Less Traveled
- Chi Mgbaho & Laura A. Smith, Sex Work and Human Rights in Africa
- Lars Waldorf, "A Mere Pretense of Justice": Complementarity, Sham Trials, and Victor's Justice at the Rwanda Tribunal
This final chapter draws conclusions from the second edition of Constitutionalism, Multilevel Trade Governance and International Economic Law by discussing the diverse conceptions of international economic regulation presented by Profs. Joerges, Stewart, Cottier and other contributors to this book. Section I begins with methodological questions of conceptualizing and analyzing international economic law (IEL). Section II discusses private ‘conflicts law approaches’ and criticizes their inadequate criteria for identifying under which conditions public international law ‘deserves recognition’. Section III gives an overview of the diverse ‘global administrative law’ (GAL) approaches and criticizes their often inadequate methodologies for determining ‘law’ as well as their neglect of constitutional rights. Section IV discusses the various ‘multilevel constitutional’ approaches to analyzing IEL and their foundation in ‘constitutional pluralism’. Section V suggests that collective supply of ‘global public goods’ – like protection of human rights, a mutually beneficial world trading system, international rule of law and prevention of climate change – requires more systematic, legal analysis of the collective action problems and of the interrelationships among national and international public goods. The various private and public, constitutional, administrative, international and cosmopolitan conceptions of international economic regulation complement each other without addressing the most important challenge of IEL in the 21st century, i.e. how global public goods can be collectively protected more effectively. Section VI concludes that – in citizen-driven areas like IEL and environmental pollution - the ‘collective action problems’ impeding effective protection of ‘global public goods’ require strengthening the ‘cosmoplitan’, rights-based foundations of IEL. The chapter identifies research questions meriting further research in order to make IEL a more effective instrument for promoting and protecting not only economic and human welfare, but also human rights, international rule of law and other international public goods beneficial for all human beings. My own ‘cosmopolitan propositions’ for addressing some of the regulatory problems are summarized in Tables 1 to 4 and explained in more detail in another, forthcoming monograph.
Article 23 of the Treaty on the Functioning of the European Union (TFEU) provides for the right of EU citizens to diplomatic and consular protection by Member States other than the State of nationality in the territory of a third country. But what are the concepts of diplomatic and consular protection embodied in that Article? Are those typical of public international law or rather novel concepts with autonomous meaning derived from EU law? This paper addresses this question and examines what are possible effects of Article 23 in terms of opposability of the concept of EU citizenship to third states as well as in terms of justiciability of the EU citizen’s right to obtain protection from a non national Member State in a third country. The paper concludes that political and legal practice of the EU and of Member States has yet to provide clear answers to these questions.
Sunday, October 31, 2010
Alter: Tipping the Balance: International Courts and the Construction of International and Domestic Politics
Most international relations approaches expect that states have unique preferences that international courts (ICs) must satisfying in order to be effective. Starting from the premise that states have within numerous conflicting preferences, I argue that ICs can act as tipping point actors, building and giving resources to compliance constituencies- coalitions of actors within and outside of states-- that favor policies that happen to also be congruent with international law. Through alliances with domestic interlocutors, ICs help reconstitute law, politics and national interests. The tipping point argument suggests that ICs are not dependent on governments, on government-defined interpretation of international rules, or on accepting as given a government’s claim about the national interest. International courts are independent actors, but the preferences of compliance partners matters more than the preferences of the litigant, the defendant state and perhaps even the IC judges in determining where law and politics are reconstituted. A comparison of the European Court of Justice to the Andean Tribunal of Justice, two institutionally similar and very active international courts that have behaved very differently, illustrates how domestic compliance partners shape international judicial behavior.