After ten years the Doha Development Round is effectively dead, at least in its present form. A broadly comprehensive round of trade negotiations reminiscent of Doha or the Uruguay Round will not likely be attempted again in the foreseeable future. While some have suggested that Doha’s demise threatens the continued existence of the GATT/WTO system, even with some risks of increasing protectionism the United States, the European Union (EU), Japan, Brazil, China and India, among others, have far too much to lose to make abandoning the WTO a rational option. If there is reason for cautious optimism post-Doha it is because there are alternatives to a comprehensive package of new or amended multilateral agreements. They include existing and future “plurilateral” trade agreements, new or revised regional trade agreements (RTAs) covering both goods and services, and liberalized national trade laws and regulations in the WTO member nations. This article discusses the alternatives, which while less than ideal may provide an impetus for continuing trade liberalization both among specific countries and in some instances world-wide.
Saturday, January 14, 2012
Friday, January 13, 2012
- Benoît Merkt, Thomas Cottier, père de la loi sur la marché intérieur suisse
- Erik Evtimov, Internationales Eisenbahnrecht mit einer Vaterfigur
- Regula Dettling Ott, «Vom Winde verweht»: International aviation law
- Marion Panizzon, Good faith in the law of the World Trade Organization
- Panagiotis Delimatsis, Good faith and the proliferation of international courts
- Luzius Wasescha, WTO Green Room: A historical and hysterical place
- John Gero, Thomas Cottier and the TRIPS negotiations: A Canadian view
- Bruce Wilson, Thomas Cottier and the TRIPS negotiations: A United States view
- Franz Blankart, «We cannot use him because he is too intelligent...»
- Mireille Cossy, Some improvements of the GATT dispute settlement mechanism
- Thomas Cottier, It is all about trust
- Luzius Wasescha, A tribute and testimony of friendship to Thomas Cottier
- Serge Pannatier, L‘interaction entre le commerce et l‘environnement
- Arthur Appleton, Thomas Cottier and the World Trade Institute
- Christophe Germann, L‘apport positif du droit de l‘OMC à la diversité culturelle
- Luzius Wasescha, GATS and cultural diversity: «Je ne suis qu‘un petit marchand de tapis...»
Ssenyonjo: The African Regional Human Rights System: 30 Years after the African Charter on Human and Peoples' Rights
The African human rights system has undergone some remarkable developments since the adoption of the African Charter on Human and Peoples’ Rights, the cornerstone of the African human rights system, in June 1981. The year 2011 marked the 30th anniversary of the adoption of the African Charter. It also marked 25 years since the African Charter entered into force on 21 October 1986.
This book aims to provide reflections on most of the major human rights issues in the past 30 years of the African human rights system in practice and discussion on the future: the African Charter’s impact and contribution to the respect, protection and promotion of human rights in Africa; the contemporary challenges faced by the African Human rights system in responding adequately to the demands of rapidly evolving African societies; and how the African human rights system can be strengthened in the future to ensure that the human rights protected in the African Charter, as developed in the jurisprudence of the African Commission since the Commission was inaugurated in 1987, are realised in practice.
The chapters in this volume bring together the work of 20 human rights scholars and practitioners, with expertise in human rights in Africa, under the following general themes: rights and duties in the African Charter; rights of the vulnerable under the African system; implementation mechanisms for human rights in Africa; and towards an effective African regional human rights system.
- January 20, 2012: Daniel Bethlehem (20 Essex Street Chambers), TBA
- January 26, 2012: Martti Koskenniemi (Univ. of Helsinki - Law), The Politics of International Law (Note: Thursday Meeting)
- January 27, 2012: Alejandro A. Escobar (Baker Botts LLP), Private Investment Claims for Public International Law Rights: Implementation and Preclusion of Claims
- February 3, 2012: Frank J. Garcia (Boston College - Law), Putting the 'Trade' Back in Free Trade: Trade Agreements and the Framework for Consensual Bargains
- February 10, 2012: Thomas Giegerich (Univ. of Kiel - Law), Can the German Constitutional Court Function as Europe's Ultimate Arbiter?
- February 17, 2012: Christine Bell (Univ. of Edinburgh - Law), TBA
- February 24, 2012: Renata Tardioli (Aceh Monitoring Mission), EU Efforts in Conflict Management, Promotion of Democracy and Electoral Assistance: The Experience of Aceh
- March 2, 2012: Yuval Shany (Hebrew Univ. of Jerusalem - Law), Hersch Lauterpacht Lectures Q&A Session
- March 9, 2012: Melaku Desta (Univ. of Dundee - Law), Soft Law and the WTO
- March 16, 2012: Daniel Joyner (Univ. of Alabama - Law), Iran's Nuclear Programme and International Law
The book investigates the debates of the direct effect of WTO agreements. There are three reasons why the consideration of direct effect is significant. First, direct effect is concerned with the separation of powers, specifically with the extent of involvement of the judicial branch of the member state in enforcing its obligations. Second, the effectiveness of WTO agreements depends more and more on the cooperation of national courts. Several WTO agreements have circumvented the legislative branch and set forth specific rules that the executive branches of the members must respect. Third, direct effect relates to legal protection for individuals who engage in international trade and could grant greater protection for the interests of individuals. This research aims at giving answers to the debate of whether the direct effect of WTO agreements should be granted. The subordinated and interrelated aims are to clarify the positions of major members and their reasons, to search grounds for granting the direct effect of WTO agreements, and to identify the difficulties arising thereby.
- Mitsuo Matsushita, Export Control of Natural Resources - WTO Panel Ruling on the Chinese Export Restrictions of Natural Resources
- Diane A. Desierto, Development as an International Right: Investment in the new Trade-Based IIAs
- Patrick Wieland, Why the Amicus Curia Institution is Ill-suited to address Indigenous Peoples’ Rights before Investor-State Arbitration Tribunals: Glamis Gold and the Right of Intervention
- Notes and Comments
- Petros C. Mavroidis, Doha, Dohalf or Dohaha? The WTO Licks its Wounds
- Claus D. Zimmermann, Toleration of Temporary Non-Compliance: The Systemic Safety Valve of WTO Dispute Settlement Revisited
- Melissa Blue Sky, Developing Countries and Intellectual Property Enforcement Measures: Improving Access to Medicines through WTO Dispute Settlement
Thursday, January 12, 2012
- S. Gozie Ogbodo, The International Responsibility of Maintaining a Sustainable Sovereign Debt in Nigeria
- Valentina Sara Vadi, Through the Looking-Glass: International Investment Law through the Lens of a Property Theory
- Kasturi Das, Can Border Carbon Adjustments Be WTO-Legal?
- Johan Westberg, Trade and Climate Change beyond Doha – Towards Precarious Times of Transition for Multilateralism
Cohen & Shany: Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts
The purpose of the present article is to critically evaluate the contemporary international law obligation to investigate military conduct in times of conflict and to identify relevant normative trends. In a nutshell, we argue that the traditional focus on the Geneva grave breaches regime in the context of military investigations is misplaced. The duty to investigate is far broader – encompassing the alleged violation of many other norms of IHL and IHRL.
Sykes: Corporate Liability for Extraterritorial Torts Under the Alien Tort Statute and Beyond: An Economic Analysis
Litigation against corporate defendants under the Alien Tort Statute is largely an effort to enlist multinational business interests in a laudable effort to reign in the human rights abuses of repressive regimes. The hard question is whether the costs of this now extensive litigation (and related litigation under state tort law) are worth the benefits. This essay offers number of reasons for skepticism in that regard, although I stipulate that the ultimate answer to this question turns on empirical judgments. Courts considering the difficult issues that arise in these cases should at least be mindful of the possibility that corporate liability may impose great costs on firms subject to suit in the United States while accomplishing little or nothing to improve human rights. And if the door to corporate liability is to remain open, careful attention to the standards for aiding and abetting liability, to the requirements for vicarious liability, and to the measure of damages can both cabin and calibrate corporate liability in ways that enhance its potential to afford constructive incentives.
Lupu & Voeten: Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights
Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince ‘lower’ (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways.
Wednesday, January 11, 2012
- Francisco Jiménez García, La responsabilidad directa por omisión del Estado más allá de la diligencia debida. Reflexiones a raíz de los crímenes "feminicidas" de Ciudad Juarez
- Nicolas Carrillo Santarelli & Carlos Espósito, Los jueces nacionales como garantes de bienes jurídicos humanitarios
- Eva Díez Peralta, Los derechos de la mujer en el Derecho internacional
- Josep María Fontanellas i Morell, La forma de la designación de ley en la propuesta de Reglamento europeo en materia de sucesiones
- Carlos R. Fernández Liesa, El asunto Couso en los tribunales nacionales y en las relaciones internacionales
- Björn Arp, Dos males, un bien no hacen: el asunto Cassirer ante los tribunales estadounidenses y la inmunidad de jurisdicción de España
Shany: Judicial Independence as an Indicator of International Court Effectiveness: A Goal-Based Approach
The chapter seeks to contribute to the debate on the relationship between judicial independence and international court effectiveness by applying to it a model for international judicial effectiveness developed by the author elsewhere. In doing so, I hope to illustrate some of the problems attendant to the “broad brush” position taken by writers who have claimed a correlation between high levels of judicial independence and low levels of effectiveness. I posit that the proper question we should be discussing is not whether judicial independence is generally conducive to international court effectiveness (a question that assumes a linear relationship between the two variables); instead, we should ask questions such as which international courts are better served by judicial independence? what level of actual independence should courts strive to attain? what image of independence should they seek to project?
- Special Issue: Indigenous peoples' rights: new perspectives
- Mauro Barelli, Free, prior and informed consent in the aftermath of the UN Declaration on the Rights of Indigenous Peoples: developments and challenges ahead
- Marco Odello, Indigenous peoples' rights and cultural identity in the inter-American context
- Kristin Hausler, Indigenous perspectives in the courtroom
- Heather A. Northcott, Realisation of the right of indigenous peoples to natural resources under international law through the emerging right to autonomy
- Sheryl R. Lightfoot, Selective endorsement without intent to implement: indigenous rights and the Anglosphere
- Sarah Sargent, Transnational networks and United Nations human rights structural change: the future of indigenous and minority rights
- Fiona Batt, Ancient indigenous deoxyribonucleic acid (DNA) and intellectual property rights
- Enzamaria Tramontana, Civil society participation in international decision making: recent developments and future perspectives in the indigenous rights arena
- Shayna Plaut, ‘Cooperation is the story’ – best practices of transnational indigenous activism in the North
- Jennifer Huseman & Damien Short, ‘A slow industrial genocide’: tar sands and the indigenous peoples of northern Alberta
This article explores why governments commit to human rights enforcement by joining the International Criminal Court (ICC). Compared with other international institutions, the ICC has substantial authority and autonomy. Since governments traditionally guard their sovereignty carefully, it is puzzling that the ICC was not only established, but established so rapidly. Looking beyond traditional explanations for joining international institutions, this study identifies a new causal factor: a country’s dependence network, which consists of the set of other states that control resources the country values. This study captures different dimensions of what states value through trade relations, security alliances, and shared memberships in international organizations. Using event history analysis on monthly data from 1998 to 2004, we find that dependence networks strongly affect whether and when a state signs and ratifies the ICC. Some types of ratification costs also influence state commitment, but many conventional explanations of state commitment receive little empirical support.
The discourse on global constitutionalism has been gaining momentum among public international lawyers. This paper endeavors to understand the discourse by focusing on international lawyers, and seeks to explain what it is that draws them to the debate. It emerges that the idea of global constitutionalism embodies important concerns of public international lawyers about the current status of their field as a result of globalization. I suggest that there are three principal motivations that explain the tenacity of the debate: first, international lawyers are interested in the allocation of power in the international sphere. Constitutionalism seemingly provides a suitable tool for restricting political power through legal expertise, while at the same time constituting power in a globalized world. Second, international lawyers have a deeply entrenched interest in seeing the regulation of international society through law. The pull of this argument lies in the preservation of the status of international law as a profession at the heart of social change. Third, a strong motivation to engage in global constitutionalism is that it may be a means of ensuring the legitimation of international law itself. Global constitutionalism appears to offer the irresistible prospect of awarding legitimacy to international law by providing it with a legal framework with moral authority. These motivations all have in common that they allow international lawyers to declare and perpetuate their own relevance in a globalized world. Lastly, I consider just how irresistible the idea of global constitutionalism is.
Tuesday, January 10, 2012
The Travaux Préparatoires of the Crime of Aggression contains a complete documentation of the fifteen years of negotiations which led up to the historic adoption of the amendments to the Rome Statute of the International Criminal Court at the 2010 Review Conference in Kampala. Arranged chronologically, it includes all relevant official Chairman's drafts, non-papers, country proposals, meeting reports and summary records, as well as selected unpublished materials and transcripts from the dramatic negotiations at the Review Conference. Three introductory articles, each written from the perspective of an insider, put the Kampala compromise into context and explore the amendments on the crime of aggression, their negotiation history and the intentions of the drafters.
- Laurence Burgorgue-Larsen, Le bannissement de l’impunité : décryptage de la politique jurisprudentielle de la Cour interaméricaine des droits de l’homme
- Ghislain Otis & Aurélie Laurent, Le défi des revendications foncières autochtones : la Cour européenne des droits de l’homme sur la voie de la décolonisation de la propriété ?
- Nathalie Vaiter-Romain, La Cour européenne des droits de l'homme, juge du « provisoire » : effet de miroir ou réalité ?
- Marie-Françoise Valette, La vulnérabilité de l’enfant au gré des migrations
- Tatiana Gründler, La protection des droits sociaux par le Comité européen : entre réticence des Etats et indifférence de l’Union européenne (obs/s. Comité eur. drts. sociaux,Confédération générale du travail C.G.T. c. France, 23 juin 2010; Comité eur. drts. sociaux,Confédération française de l’encadrement C.F.E.-C.G.C. c. France, 23 juin 2010)
- Anne Danis-Fâtome, Le « non » français au mariage homosexuel - Une illustration de la complexité des rapports entre les faiseurs de droit sur la scène française et européenne (obs/s. Cons. const. fr., Q.P.C., Mme Corine C. e.a., 28 janvier 2011)
- Denis Martin, La discrimination fondée sur le sexe dans l’octroi de prestations sociales : un peu, beaucoup, … pas du tout (obs/s. Cour eur. dr. h., Andrle c. République tchèque, 17 février 2011)
- Nathalie Droin, L’exception de vérité des faits diffamatoires de plus de dix ans : chronique d’une disparition annoncée en France (obs/s. Cons. const. fr., Q.P.C., Mme Térésa C. e. a., 20 mai 2011)
- Eric David, L’arrestation d’un étranger « convoqué » comme témoin : la loyauté en question devant la Cour européenne des droits de l’homme (obs/s. Cour eur. dr. h., Adamov c. Suisse, 21 juin 2011)
In The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time, Jared Genser and Irwin Cotler provide a comprehensive overview on how this contemporary principle of international law has developed and analyze how best to apply it to current and future humanitarian crises. The "responsibility to protect" is a doctrine unanimously adopted by the UN World Summit in 2005, which says that all states have an obligation to protect their own citizens from mass atrocities, which includes genocide, war crimes, crimes against humanity, and ethnic cleansing. Its adoption and application has generated a passionate debate in law schools, professional organizations, media and within the U.N. system.
To present a full picture of where the doctrine now stands and where it could go in the future, editors Jared Genser and Irwin Cotler have assembled a global team of authors with diverse backgrounds and differing viewpoints, including Edward Luck, the UN Secretary-General's Special Advisor on the Responsibility to Protect. Genser and Cotler balance the pro-RtoP chapters with more skeptical arguments from agency staff and scholars with long experience in addressing mass atrocities. Framed by a Preface from Desmond Tutu and Vaclav Havel and a Conclusion from Gareth Evans, these in-depth and authoritative analyses move beyond theory to demonstrate how RtoP has worked on the ground and should work if applied to other crises. The global focus of this book, as well as its detailed application of the principle in case studies make it uniquely useful to staff at international organizations and NGOs considering use of the principle in a given circumstance, to scholars providing advice to governments, and to students seeking guidance on this still-expanding subject.
The link between health and human rights has been recognised for many years, but the increasing visibility of the right to health in international law has been a distinct feature of the last decade. It has been embraced by actors within civil society, academics, health professionals, lawyers and courts in several jurisdictions as a tool to address health inequalities at the local and global level, in matters ranging from access to medicines and the availability of affordable health care to sexual and reproductive health. But it has equally been the subject of derision and scorn by human rights sceptics who have described it as lacking foundation, nebulous, and incapable of implementation.
This book seeks to offer a comprehensive discussion of the status and meaning of the right to health in international law. It traces the history of this right to reveal its nexus with public health and the long-standing recognition that a State has a responsibility to attend to the health needs of its population. It also offers a theoretical account of its conceptual foundations which challenges the position held by many philosophers that health is undeserving of the status of a human right. By developing an interpretative methodology, the book provides a persuasive account of the meaning of the right to health and the obligations it imposes on States. This process reveals an understanding of the right to health that, while challenging, remains practical and capable of guiding States that are genuinely committed to addressing the health needs of their population.
Monday, January 9, 2012
Investment treaty tribunals at numerous occasions had to deal with the impact the illegality of an investment made in the host State had on its protection under international investment treaties and in investor-State arbitration. In this context, tribunals had to interpret different “in accordance with host State law” - clauses contained in international investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present paper traces this increasingly complex jurisprudence and embeds it into a general framework as regards the relationship between breaches of domestic law and investment treaty protection. Although some differences are noticeable between both situations, most importantly as regards the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the paper suggests that there is considerable convergence as regards the conditions under which breaches of domestic law affect the protection of foreign investors under international law. This unveils the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.
- Foreign State Immunity at Home and Abroad (Cont.)
- Harold Hongju Koh, Foreign Official Immunity After Samantar: A United States Government Perspective
- Beth Stephens, Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses
- Lori Fisler Damrosch, Changing the International Law of Sovereign Immunity Through National Decisions
- Elena Sciso, Italian Judges' Point of View on Foreign States' Immunity
- Ingrid Wuerth, Symposium Epilog: Foreign Sovereign Immunity at Home and Abroad
- Ozan O. Varol, The Origins and Limits of Originalism: A Comparative Study
- Intisar A. Rabb, The Islamic Rule of Lenity: Judicial Discretion and Legal Canons
- John Campbell, Litigating Human Dignity: The Roman-Dutch Common Law
- Paul De Hert & Eugenio Mantovani, Specific Human Rights for Older Persons?
- Janne Rothmar Herrmann & Brigit Toebes, The European Union and Health and Human Rights
- Thomas Papadopoulos, Criticising the horizontal direct effect of the EU general principle of equality
- Maria Suchkova, An analysis of the institutional arrangements within the Council of Europe and within certain Member States for securing the enforcement of judgments
- Rachel Murray, The African Court on Human and Peoples' Rights' Order for Provisional Measures against Libya: Greater Promise for Implementation of Human Rights in Africa?
- Róisín Burke, Attribution of Responsibility: Sexual Abuse and Exploitation, and Effective Control of Blue Helmets
- Claire Breen, The Edges of Extraterritorial Jurisdiction: The Integration of Economic, Social and Cultural Rights into Peace Support Operations
- Dieter Fleck, The Responsibility to Rebuild and Its Potential for Law-Creation: Good Governance, Accountability and Judicial Control
- Bryn Hughes, Peace Operations and the Political: A Pacific Reminder of What Really Matters
- Yee-Kuang Heng, Confessions of a Small State: Singapore's Evolving Approach to Peace Operations
- Kirsten Johnson, Gillian Morantz, Helen Seignior, Tanya Zayed, & Shelly Whitman, From Youth Affected by War to Advocates of Peace, Round Table Discussions with Former Child Combatants from Sudan, Sierra Leone and Cambodia
- Geoffrey Cain, How Can an Information Campaign Win Support for Peacekeeping?
Call for Papers / Conference Announcement
ASIL Private International Law Interest Group
What is Private International Law?
Globalization increases the importance of private actors and private arrangements. And yet, while other disciplines are responding to these challenges, private international law seems mired in its past, unable to reform sufficiently. This suggests that it is time to ask foundational questions about our field. What is private international law today? Does it promote any polices or values, and if so, which are those? Is it just rules designating the applicable law? Does it include conflicts rules for public law? Should it include substantive private law? Privately made law beyond the state? What is its place in international law more generally, especially vis-à-vis public international law? What is its role in global governance? And is private international law relevant today, or can its former functions be fulfilled by other areas of the law?
In order to kindle this debate, the Private International Law Interest Group of the American Society of International Law is launching a call for papers that answer some or all of these foundational questions. Those interested in participating should submit an abstract no longer than 500 words. Finished papers and drafts are welcome as well. The deadline for submission of abstracts is May 15, 2012.
On 5/6 October 2012, the ASIL Private International Law Interest Group will, together with the Center for International and Comparative Law at Duke University, organize a 1½ day conference to discuss selected papers and ideas emerging from this call. We also plan to publish the papers selected for presentation in a special edition of an international law journal or a volume of collected papers. The venue of the conference and place of publication will be announced in early 2012.
A special invitation goes to authors under 35 years of age. The author under 35 of the best finished paper will be the winner of this year’s Private international Law Prize of the American Society of International Law. The prize money ($500) will be paid as a stipend to enable the author to participate in the conference and present his or her paper.
Submissions should be emailed to Ralf Michaels (michaels[at]law.duke.edu) and Rahim Moloo (rahim.moloo[at]nyu.edu) by May 15, 2012. Decisions on both invitations to present at the conference and on the ASIL Prize will be made by July 1.
Sunday, January 8, 2012
- Symposium in Honour of Professor Otto Triffterer’s 80th Birthday
- Kai Ambos, Preface to the Special Symposium in Honour of Professor Otto Triffterer’s 80th Birthday
- Kurt Schmoller & Astrid Reisinger Coracini, In Pursuit of International Criminal Justice: Honouring Otto Triffterer’s 80th Birthday
- Anita Ušacka, Promises Fulfilled? Some Reflections on the International Criminal Court in Its First Decade
- William A. Schabas, The International Criminal Court at Ten
- Daniel David Ntanda Nsereko, The Kampala Review Conference: The Capstone of the Rome System
- Roger S. Clark, Some Aspects of the Concept of International Criminal Law: Suppression Conventions, Jurisdiction, Submarine Cables and the Lotus
- Otto Triffterer, Closing Remarks and a Vision: International Criminal Justice and the “Well-Being of the World”
- Jernej Letnar Černič, Shaping the Spiderweb: Towards the Concept of Joint Commission Through Another Person Under the Rome Statute and Jurisprudence of the International Criminal Court
- Theodore A. De Roos & Johannes F. Nijboer, Wrongfully Convicted: How the Dutch Deal with the Revision of Their “Miscarriages of Justice”
- Vladimir Tochilovsky, Special Commentary: International Criminal Justice – Some Flaws and Misperceptions