This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the laws of war. This Article documents how this antebellum understanding about the protection of U.S. citizenship was challenged and overthrown during the first years of the Civil War. As articulated by Union statesmen, members of Congress, lawyers, soldiers and publicists, the rebels by seceding and seeking to throw off their allegiance to the United States and its Constitution, had forfeited their right to be protected by the Constitution. Henceforth, all military actions against them would be governed only by the loose standards of the international laws of war - the standards always applicable to foreign enemies. But if, at its option, the United States chose at times to deal with the rebels not as military enemies but as wayward citizens committing civil crimes like treason, then these citizens retained their pre-war constitutional entitlements. Thus the way the United States choose to respond to the rebels determined the applicable legal regime - whether the Constitution and other municipal protections would apply, or only the harsh laws of war. Starting in 1863 in the Prize Cases, and continuing until the end of the century, the Supreme Court decided over 300 cases arising out of the war. The Court adopted and articulated the theories about the relationship between the Constitution, citizenship, and the international laws of war that had been first developed out of the court in the early years of the war. These legal doctrines and understandings prevailed into the mid-twentieth century, until developments like the civil rights revolution and the increasing sense of judicial supremacy began to set the stage for today’s judicial management of the U.S. government’s relationship with military enemies under the aegis of the Constitution.
Saturday, February 12, 2011
Friday, February 11, 2011
- Obtaining Evidence from Non-Parties in International Arbitration in the United States - Report of the International Commercial Disputes Committee of the Association of the Bar of the City of New York
- Hans Smit, Does a "Silent" Arbitration Clause Preclude a Class Action? The Supreme Court's View
- Hans Smit, AT&T Mobility v. Concepcion: Can Class Actions Be Brought in Arbitration?
- Pedro Sousa Uva, A Comparative Reflection on Challenge of Arbitral Awards Through the Lens of the Arbitrator's Duty of Impartiality and Independence
- Mauro Rubino-Sammartano, Third Generation Arbitration by the European Court of Arbitration
The Andean Tribunal of Justice (ATJ) is a copy of the European Court of Justice (ECJ), and the third most active international court. This article reviews our findings based on an original coding of all ATJ preliminary rulings from 1984 to 2007, and over forty interviews in the region. We then compare Andean and European jurisprudence in three key areas: whether the tribunals treat the founding integration treaties as constitutions for their respective communities, whether the ATJ and ECJ have implied powers for Community institutions that are not expressly enumerated in the founding treaties, and how the tribunals conceive of the relationship between Community law and other international agreements that are binding on the Member States.
- Alejandro Anaya Muñoz, Explaining high levels of transnational pressure over Mexico: the case of the disappearances and killings of women in Ciudad Juárez
- Ruth Gaffney-Rhys, International law as an instrument to combat child marriage
- Sanae Fujita, The challenges of mainstreaming human rights in the World Bank
- Zia Akhtar, Curse of the Black Hills: breach of treaty and due process under the 5th Amendment
- Ebenezer Durojaye, Olufolake Sholola, & Charles Ngwena, A human rights response to cervical cancer in Africa
- Aoife Daly, The right of children to be heard in civil proceedings and the emerging law of the European Court of Human Rights
- Luke Glanville, Darfur and the responsibilities of sovereignty
- Sonja Grover, The Supreme Court of Canada's declining of its jurisdiction in not ordering the repatriation of a Canadian Guantanamo detainee: implications of the case for our understanding of international humanitarian law
- Articles on the Right to Water
- Rebecca Bates, The Road to the Well: An Evaluation of the Customary Right to Water
- Joyeeta Gupta, Rhodante Ahlers & Lawal Ahmed, The Human Right to Water: Moving Towards Consensus in a Fragmented World
- James Harnum, Deriving the Right to Water from the Right to Life, Liberty and Security of the Person: Section 7 of the Canadian Charter of Rights and Freedoms and Aboriginal Communities in Canada
- Anél du Plessis, A Government in Deep Water? Some Thoughts on the State's Duties in Relation to Water Arising from South Africa's Bill of Rights
- Philippe Cullet, Water Sector Reforms and Courts in India: Lessons from the Evolving Case Law
- Joseph B. Agyenim & Joyeeta Gupta, The Evolution of Ghana's Water Law and Policy
- Lynda Collins, Environmental Rights on the Wrong Side of History: Revisiting Canada's Position on the Human Right to Water
Thursday, February 10, 2011
In Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics, Commander James Kraska analyzes the evolving rules governing freedom of the seas and their impact on expeditionary operations in the littoral, near-shore coastal zone. Coastal state practice and international law are developing in ways that restrict naval access to the littorals and associated coastal communities and inshore regions that have become the fulcrum of world geopolitics. Consequently, the ability of naval forces to project expeditionary power throughout semi-enclosed seas, exclusive economic zones (EEZs) and along the important sea-shore interface is diminishing and, as a result, limiting strategic access and freedom of action where it is most needed.
Commander Kraska describes how control of the global commons, coupled with new approaches to sea power and expeditionary force projection, has given the United States and its allies the ability to assert overwhelming sea power to nearly any area of the globe. But as the law of the sea gravitates away from a classic liberal order of the oceans, naval forces are finding it more challenging to accomplish the spectrum of maritime missions in the coastal littorals, including forward presence, power projection, deterrence, humanitarian assistance and sea control. The developing legal order of the oceans fuses diplomacy, strategy and international law to directly challenge unimpeded access to coastal areas, with profound implications for American grand strategy and world politics.
Against the backdrop of the British-American law- and war-making of the first decade of the millennium, Fighting Monsters considers how the way we think about law affects the way we make war and how the way we think about war affects the way we make law. The discussion is founded upon four of the martial phenomena (aggressive or 'pre-emptive' war, targeted killings, torture and arbitrary detention) that unsettle our complacent and flabby understandings of what law is to a liberal democracy.
The author argues, first, that force is a quintessential albeit ambivalent element of any realistic, serviceable and intellectually coherent concept of law. Second, reappraising the classic question at the intersection of martial doctrine and political philosophy in its contemporary context, the author asserts that we need not, in fighting monsters, become monstrous ourselves; that fighting partisans does not entail our own partisanship; and that we can indeed govern without dirtying our hands.
Seeking to ground a total, essentialist and practical theory of legality's sordid relationship with brutality, the book encompasses language and image; war and crime; liberty, security and rationality; amity, enmity and identity; sex, terror and perversion; temporality, spirituality and sublimity; economy and hegemony; parliaments, the press and the public man.
- Hugh Thirlway, The Law and Procedure of the International Court of Justice, 1960-1989. Supplement, 2009: Parts Seven and Eight
- Shabtai Rosenne, Capacity to Litigate in the International Court of Justice: Reflections on Yugoslavia in the Court
- Jorge E. Viñuales, Foreign Investment and the Environment in International Law
- Jörg Kammerhofer, Gaps, the Nuclear Weapons Advisory Opinion and the Structure of International Legal Argument Between Theory and Practice
- Kristian Wohlström, On Disillusionment and Its Limits: Images of the Interwar Legal Project in International Relations and International Law
- Steffen Hindelang and Niklas Maydell, The EU’s Common Investment Policy – Connecting the Dots
- Marc Bungenberg, The Division of Competences Between the EU and Its Member States in the Area of Investment Politics
- August Reinisch, The Division of Powers Between the EU and Its Member States “After Lisbon”
- Markus Burgstaller, The Future of Bilateral Investment Treaties of EU Member States
- Jörg Philipp Terhechte, Art. 351 TFEU, the Principle of Loyalty and the Future Role of the Member States’ Bilateral Investment Treaties
- Tillmann Rudolf Braun, For a Complementary European Investment Protection
- Carsten Nowak, Legal Arrangements for the Promotion and Protection of Foreign Investments Within the Framework of the EU Association Policy and European Neighbourhood Policy
- Jöern Griebel, The New Great Challenge After the Entry Into Force of the Treaty of Lisbon: Bringing About a Multilateral EU-Investment Treaty
- André von Walter, Balancing Investors’ and Host States’ Rights – What Alternatives for Treaty-makers?
- Lars Markert, The Crucial Question of Future Investment Treaties: Balancing Investors’ Rights and Regulatory Interests of Host States
Wednesday, February 9, 2011
The Convention Relating to the Status of Refugees adopted on 28 July 1951 in Geneva provides the most comprehensive codification of the rights of refugees yet attempted. Consolidating previous international instruments relating to refugees, the 1951 Convention with its 1967 Protocol marks a cornerstone in the development of international refugee law. At present, there are 144 States Parties to one or both of these instruments, expressing a worldwide consensus on the definition of the term refugee and the fundamental rights to be granted to refugees. These facts demonstrate and underline the extraordinary significance of these instruments as the indispensable legal basis of international refugee law.
This Commentary provides for a systematic and comprehensive analysis of the 1951 Convention and the 1967 Protocol on an article-by-article basis, exposing the interrelationship between the different articles and discussing the latest developments in international refugee law. In addition, several thematic contributions analyse questions of international refugee law which are of general significance, such as regional developments and the relationship between refugee law and the law of the sea.
- Surya P. Subedi, Steven Wheatley, Amrita Mukherjee, & Sylvia Ngane, Introduction: The role of the special rapporteurs of the United Nations Human Rights Council in the development and promotion of international human rights norms
- Paulo Sergio Pinheiro, Being a special rapporteur: a delicate balancing act
- Rhona K.M. Smith, The possibilities of an independent special rapporteur scheme
- Lyal S. Sunga, How can UN human rights special procedures sharpen ICC fact-finding?
- Ted Piccone, The contribution of the UN's special procedures to national level implementation of human rights norms
- Joanna Naples-Mitchell, Perspectives of UN special rapporteurs on their role: inherent tensions and unique contributions to human rights
- Surya P. Subedi, The UN human rights mandate in Cambodia: the challenge of a country in transition and the experience of the special rapporteur for the country Amrita Mukherjee, The fact-finding missions of the special rapporteur on torture
- Allehone Mulugeta Abebe, Special rapporteurs as law makers: the developments and evolution of the normative framework for protecting and assisting internally displaced persons
- Christophe Golay, Claire Mahon, & Ioana Cismas, The impact of the UN special procedures on the development and implementation of economic, social and cultural rights
- Nigel S. Rodley, On the responsibility of special rapporteurs
This book examines how the United Nations Security Council, in exercising its power to impose binding non-forcible measures ('sanctions') under Article 41 of the UN Charter, may violate international law, in the sense of limits on its power imposed by the UN Charter itself and by general international law, including human rights guarantees. Such acts may engage the international responsibility of the United Nations, the organization of which the Security Council is an organ. It then proceeds to assess how and by whom the engagement of this responsibility can be determined. Most importantly, the book discusses how and by whom the responsibility of the UN for unlawful Security Council sanctions can be implemented. In other words, how the UN can be held to account for Security Council excesses.
The central thesis of this work is that States can respond to unlawful sanctions imposed by the Security Council, in a decentralized manner, by disobeying the Security Council's command. In international law, this disobedience can be justified as constituting a countermeasure to the Security Council's unlawful act. Recent practice of States, both in the form of executive acts and court decisions, demonstrates an increasing tendency to disobey sanctions that are perceived as unlawful. After discussing other possible qualifications of disobedience under international law, the book concludes that this practice can (and should) be qualified as a countermeasure.
Foreign investments are usually implemented through contracts between host States and foreign investors. These contracts and international investment treaties represent two different legal instruments that protect foreign direct investment. The co-existence of both instruments under international investment law has generated fundamental problems. By scrutinizing and tracing the increasingly divided jurisprudence on central aspects of treaty interpretation and analyzing the conflicting legal concepts applied by arbitral tribunals, this book represents a comprehensive examination of the complex relationship between the two in the field of investment treaty arbitration.
- Jordan Branch, Mapping the Sovereign State: Technology, Authority, and Systemic Change
- Helen V. Milner & Dustin H. Tingley, Who Supports Global Economic Engagement? The Sources of Preferences in American Foreign Economic Policy
- R. Charli Carpenter, Vetting the Advocacy Agenda: Network Centrality and the Paradox of Weapons Norms
- Sarah Sunn Bush, International Politics and the Spread of Quotas for Women in Legislatures
- Héctor Perla, Explaining Public Support for the Use of Military Force: The Impact of Reference Point Framing and Prospective Decision Making
- Eric Helleiner & Stefano Pagliari, The End of an Era in International Financial Regulation? A Postcrisis Research Agenda
Tuesday, February 8, 2011
This very brief case note discusses the R. (Smith) v. Oxford Assistant Deputy Coroner (Equality and Human Rights Commission intervening)  UKSC 29,  3 WLR 223 case, in which the UK Supreme Court decided that the ECHR will apply extraterritorially only to UK soldiers who finds themselves on a UK base; if they died outside an area under the UK's effective control, there would be no requirement for an Article 2 ECHR-compliant investigation into their death. The note argues that the Court's holding in Smith logically flows from the House of Lords judgment in Al-Skeini, but accordingly also rests on the (probably unwarranted) assumption that Al-Skeini was correctly decided.
- Nicholas Peacock, Arbitrating in "Developing" Arbitral Jurisdictions: A Discussion of Common Themes and Challenges Based on Experiences in India and Indonesia
- Paul Tan, Public Policy in Singapore: An Unruly Horse Rears its Head—AJT v AJU
- Devika Khanna, Early, Active and Effective Case Management in Arbitration: A Call to Reject Procedural Order No.1
- Huala Adolf, The Meaning of International Award under Indonesian Arbitration Law
The Faculty of Law - University of Salento
The Group of Lecce
are pleased to announce an
International Workshop on
Legitimacy and Efficiency in Global Economic Governance
06th – 07th May 2011 – Lecce, Italy
CALL FOR PAPERS
The international financial and economic crisis of 2007-2009 has shown the fallibility of the neoliberal paradigm that has dominated global economic governance over the last quarter century: regulatory and supervisory institutions have revealed their weaknesses, and markets have shown their limits to the rational allocation of risks and resilience to shocks. Scholars and policymakers across the world need to investigate how the traditional state-vs.-market relationship should be reconceived within a changing international financial architecture.
Against this background, this Workshop aims at stimulating further reflection on the complex theme of global economic governance by choosing legitimacy and efficiency as key concepts to investigate. According to this standpoint, we propose the following topics, under which the principles of legitimacy and efficiency will be articulated, and which could headline separate Workshop sessions: institutional aspects of global governance (e.g.: role of the G-20, reform of IMF and WB); development policies (e.g.: incentives to foreign direct investments, conditionality); international financial regulation (e.g.: role of soft law, prudential supervision, transparency); role of the state in the economy (e.g.: trade and technology policies, monetary issues, state insolvency).
The aim of this Workshop is to bring together a group of scholars and researchers from public and private sectors with a strong interest in global economic governance, coming from different backgrounds (economics, law, politics) and geographic regions. The Workshop will provide a unique opportunity for a fruitful debate on these crucial topics, fostered by the presence of distinguished discussants and will be opened to the participation of scholars from all over the world. A volume of selected proceedings should subsequently be published.
The Workshop will take place on 06th and 07th May 2011 at the Faculty of Law, University of Lecce, Italy. It will encompass four scientific sessions, each of them with three or four papers presented by researchers and scholars selected according to the submission procedure illustrated below.
Each session will be chaired by a distinguished scholar (among others Daniel Bradlow, Professor of International Law at the Faculty of Law of the American University Washington College of Law; Domenico Lombardi, President of the Oxford Institute for Economic Policy; Leonardo Martinez-Diaz, senior advisor of the U.S. Agency for International Development; Tamotsu Nishizawa, Director of the Institute of Economic Research, Hitotsubashi University), who will discuss the papers and chair the ensuing debates.
English will be the working language; simultaneous translation will also be available. Additional information will be posted on The Group of Lecce website as it becomes available, and the preliminary program will be posted on the same website upon the completion of the selection process.
Submission of Papers
Interested scholars and researchers should submit an abstract of a maximum of 500 words in Word Document format according to the above suggested topics. It should be written in English and sent to the email address, by Sunday, March 06, together with the applicant's curriculum vitae, and indicating ‘Global Economic Governance Workshop Application’ in the subject line. A number of authors will be selected and invited to submit their papers for presentation at the Workshop. Selected authors will be notified by Thursday, March 10. Papers need to be submitted by Friday, April 22.
Notification of acceptance and of day, time and presentation format will be sent by email to the authors. All submissions should reflect original work. Applications that are incomplete or received after the deadline will not be considered.
Submission of an abstract implies the willingness of the author to present a complete and final version of the paper at the Workshop.
Terms of Submission
Submission Deadline: 06th March
Acceptance Notification: 10th March
Final Papers Due: 22nd April
For questions related to abstract or paper submission, please contact the Organizing Committee.
The University of Salento and The Group of Lecce will provide coverage for selected speakers' accommodation fees. Travel expenses shall in any case be at the speaker’s cost.
The Scientific Committee is composed of:
Dr. Biagio Bossone, International Financial Advisor, former Executive Director at the WB.
Prof. Maria Chiara Malaguti, International Law, University of Salento
Prof. Susanna Cafaro, European Law, University of Salento
Prof. Nicola De Liso, Political Economy, University of Salento
Dr. Saverio Di Benedetto, Researcher in International Economic Law, University of Salento
The Organizing Committee is composed of:
Dr. Saverio Di Benedetto, Researcher in International Economic Law, University of Salento
Dr. Liboria Maggio, PhD candidate in Law and Economics, University of Salento
Dr. Roberta Marra, PhD candidate in Law and Economics, University of Salento
Modern theorists often use Immanuel Kant's work to defend the normative primacy of human rights and the necessity of institutionally autonomous forms of global governance. However, properly understood, his law of nations describes a loose and noncoercive confederation of republican states. In this way, Kant steers a course between earlier natural lawyers such as Grotius, who defended just-war theory, and visions of a global unitary or federal state. This substantively mundane claim should not obscure a more profound contribution to the science of international law. Kant demonstrates that his concept of law forms part of a logical framework by which to ascertain the necessary institutional characteristics of the international legal order. Specifically, his view is that the international legal order can only take a noncoercive confederated form as its subjects become republican states and that in these circumstances law can exist without a global state. Put another way, Kant argues that if we get state-building right, the law of nations follows.
- Tim McCormack, Why Consider Legal Challenges for International Policing?
- James Watson, Mark Fitzpatrick, & James Ellis, The Legal Basis for Bilateral and Multilateral Police Deployments
- Tony Murney, Sue-Ellen Crawford, & Andie Hider, Transnational Policing and International Human Development - A Rule of Law Perspective
- Boris Kondoch, The Applicability of Human Rights Standards to International Policing
- Katarina Grenfell, Accountability in International Policing
- Bruce 'ossie' Oswald, Detention by United Nations Peacekeepers: Searching for Definition and Categorisation
- Marjan Malešic, Civilian Crisis Management in the EU - Structural and Functional Aspects
- Muriel Asseburg & Ronja Kempin, ESDP in Practice: Crisis Management without Strategic Planning
- Daniel Keohane, Lessons from EU Peace Operations
- Frederik Naert, Legal Aspects of EU Military Operations
- Cedric De Coning & Karsten Friis, Coherence and Coordination The Limits of the Comprehensive Approach
Monday, February 7, 2011
Call for Papers for 2010 Yearbook
The Hague Yearbook of International Law is an annual peer-reviewed publication that provides a forum for analyzing the most recent trends in international law, which is shaped by the many international institutions that are based in The Hague. Thus, the Hague Yearbook of International Law is a reference tool for tracking the current trends in practice and scholarly discussions in international law broadly understood. Accordingly, the scope of the Hague Yearbook of International Law covers public international law, private international law, international criminal law as well as relevant European law.
The newly established Editorial Board consists of Dr. Nikos Lavranos, LLM (Editor-in-Chief), Dr. Ruth Kok, LLM (Vice-Editor in-Chief) and Dr. Hege Elisabeth Kjos, J.D. (General Editor).
The Editorial Board welcomes both longer in-depth articles (8,000-12,000 words) and shorter notes and commentaries (4,000-7,000 words), which analyze the most recent developments in international law that have a nexus with the international institutions based in The Hague.
The closing date for submission is 1 March 2011.
- Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law
- Pierre-Hugues Verdier, Mutual Recognition in International Finance
- David Schleicher, What if Europe Held an Election and No One Cared?
- Gabriella Blum, On a Differential Law of War
- John Armour, Jack B. Jacobs, & Curtis J. Milhaupt, The Evolution of Hostile Takeover Regimes in Developed and Emerging Markets: An Analytical Framework
- Gilbert Guillaume, The Use of Precedent by International Judges and Arbitrators
- W. Michael Reisman, Soft Law and Law Jobs
- Anastasios Gourgourinis, The Distinction between Interpretation and Application of Norms in International Adjudication
- Thomas Schultz, The Concept of Law in Transnational Arbitral Legal Orders and some of its Consequences
- Sébastien Manciaux, The Representation of States before ICSID Tribunals
- Zachary Douglas, The MFN Clause in Investment Arbitration: Treaty Interpretation Off the Rails
- August Reinisch, How Narrow are Narrow Dispute Settlement Clauses in Investment Treaties?
- Leonila Guglya, The Interplay of International Dispute Resolution Mechanisms: the Softwood Lumber Controversy
- Maud Piers, Consumer Arbitration in the EU: A Forced Marriage with Incompatible Expectations
- Isabelle Van Damme, On ‘Good Faith Use of Dictionary in the Search of Ordinary Meaning under the WTO Dispute Settlement Understanding’—A Reply to Professor Chang-Fa Lo
- Cesare P.R. Romano, A Taxonomy of International Rule of Law Institutions
- Ulf Linderfalk, International Legal Hierarchy Revisited - The Status of Obligations Erga Omnes
- Inger Österdahl, Challenge or Confirmation? The Role of the Swedish Parliament in the Decision-making on the Use of Force
- Peter Arnt Nielsen, The Hague Judgments Convention
- Stefanie Schmahl & Tobias Winkler, Schutz vor Armut in der EMRK?
- Dominik Eisenhut, Dominik Sovereignty, National Security and International Treaty Law: The Standard of Review of International Courts and Tribunals with regard to 'Security Exceptions'
- Beiträge und Berichte
- Bartłomiej Krzan, Frieden und Gerechtigkeit nach der Kampala-Konferenz: Einige Überlegungen zur Rolle des Sicherheitsrats in der Völkerstrafgerichtsbarkeit
- Jenny Döge, Cyber Warfare: Challenges for the Applicability of the Traditional Laws of War Regime
- Douglas Howland, The Wisconsin-Milwaukee Conference on International Law and World Order. Introduction
- Arnulf Becker Lorca, Sovereignty beyond the West: The End of Classical International Law
- Li Chen, Universalism and Equal Sovereignty as Contested Myths of International Law in the Sino-Western Encounter
- Douglas Howland, Contraband and Private Property in the Age of Imperialism
- Caroline Reeves, Sovereignty and the Chinese Red Cross Society: The Differentiated Practice of International Law in Shandong, 1914-1916
- Leonard V. Smith, The Wilsonian Challenge to International Law
- Kevin M. Doak, Beyond International Law: The Theories of World Law in Tanaka Kōtarō and Tsunetō Kyō
- Joachim Schwietzke, Ernest Satow's Guides to Diplomatic Practice. From the First Edition in 1917 to the Sixth Edition (2009)
Sunday, February 6, 2011
Heintze & Zwitter: International Law and Humanitarian Assistance: A Crosscut Through Legal Issues Pertaining to Humanitarianism
It is becoming increasingly apparent that there are major gaps in International Humanitarian Law and Public International Law in the area of humanitarian assistance. In response international organizations such as the UN and the EU are developing their own legal frameworks for humanitarian assistance and the body of customary law and so-called international disaster response law is growing steadily. This however shows that a coherent body of law is far from being a given. The legal reality of international law pertaining to emergency response is rather broadly spread over various international legal fields and related documents, covering situations of armed conflict and natural disasters. This book is one of the first attempts of linking different legal areas in the growing field of what could be called the international law of humanitarian assistance.