Saturday, April 14, 2012

New Issue: Les Cahiers de l'Arbitrage

The latest issue of Les Cahiers de l'Arbitrage (2012, no. 1) is out. Contents include:
  • Commentaires sur le Règlement CCI
    • W. Lawrence Craig & Laurent Jaeger, The 2012 ICC Rules: Important Changes and Issues for Future Resolution
    • Hamid G. Gharavi & Marie Laure Bizeau, L’Article 10 du nouveau Règlement d’arbitrage de la CCI : Percées et formalisation de la pratique de la Cour sur la « Jonction d’arbitrages »
    • Eliseo Castineira, The Emergency Arbitrator in the 2012 ICC Rules of Arbitration
  • Elie Kleiman & Shaparak Saleh, Célérité et loyauté en droit français de l’arbitrage international : quels pouvoirs et quelles responsabilités pour les arbitres et les parties ?
  • Charles Poncet, When is a “Swiss” “award” appealable?

Friday, April 13, 2012

Lauterpacht Centre Friday Lunchtime Lecture Series for Easter Term 2012

Here's the schedule for the Lauterpacht Centre for International Law's Easter Term 2012 Friday Lunchtime Lectures:
  • April 27, 2012: Jean d'Aspremont (Univ. of Amsterdam - Law), Deformalization in International Law: The Temptation of a Move Away from the Theory of Sources
  • May 4, 2012: William K. Lietzau (U.S. Department of Defense), Detention of Terrorists in 21st Century Armed Conflict
  • May 11, 2012: Olivier de Frouville (Univ. of Montpellier 1 - Law), A Cosmopolitan Perspective on the Responsibility to Protect

Call for Papers: 2012 ASIL Research Forum (Reminder)

The American Society of International Law has issued a call for papers for its Research Forum, to be held at the University of Georgia School of Law, October 20-21, 2012. Proposals must be submitted by April 15. Details are available here.

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 52, no. 3, Spring 2012) is out. Contents include:
  • Ashley S. Deeks, “Unwilling or Unable”: Toward a Normative Framework for Extraterritorial Self-Defense
  • Alvaro Santos, Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil & Mexico
  • Andrew K. Woods, Moral Judgments & International Crimes: The Disutility of Desert
  • David Zaring, Finding Legal Principle in Global Financial Regulation
  • Jason Webb Yackee, Investment Treaties & Investor Corruption: An Emerging Defense for Host States

New Issue: International Community Law Review

The latest issue of the International Community Law Review (Vol. 14, no. 2, 2012) is out. Contents include:
  • Elijah Oluwatoyin Okebukola, A Universal Procedural Framework for War Crimes Tribunals
  • Jose Serralvo, Privatized Military Firms' Impunity in Cases of Torture: A Crime of Humanity?
  • Teshager Dagne, The Protection of Traditional Knowledge in the Knowledge Economy: Cross-Cutting Challenges in International Intellectual Property Law
  • Charles Poncelet, Access to Justice in Environmental Matters: Recent Developments

Kramer & van Rhee: Civil Litigation in a Globalising World

X.E. Kramer (Erasmus Univ. - Law) & C.H. van Rhee (Univ. of Maastricht - Law) have published Civil Litigation in a Globalising World (T.M.C. Asser Press 2012). The table of contents is here. Here's the abstract:
This book is an important contribution to the discussion about globalisation of civil procedure. Globalisation of legal matters and the inherent necessity of having to litigate in foreign courts or to enforce judgments in other countries considerably complicate civil proceedings due to great differences in civil procedure. This may jeopardise access to justice. As a result, the debate on the need for the harmonisation of civil procedure becomes ever more prominent. This book discusses the globalisation and harmonisation of civil procedure from various angles, including fundamental (international) principles of civil justice, legal history, private international law, law and economics and (European) policy. It offers important theoretical and practical perspectives and is valuable reading for, amongst others, academic researchers, policy makers, judges, legal practitioners and court bailiffs.

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 139, no. 1, Janvier-Février-Mars 2012) is out. Contents include:
  • Doctrine
    • Mariá Mercedes Albornoz, Une relecture de la convention interaméricaine sur la loi applicable aux contracts internatinaux à la lumière du règlement "Rome I"
    • Xavier Boucobza & Yves-Marie Serinet, Les principes du procès équitable dans l'arbitrage international
    • Gian Paolo Romano, Le droit international privé à l'épreuve de la théorie kantienne de la justice
    • Sandrine Maljean-Dubois, La portée des normes du droit interntional de l'environment à l'égard des enterprises
    • Ghislain Poissonnier, Préah Vihár : la temple de la discorde

Davis, Kingsbury, & Merry: Indicators as a Technology of Global Governance

Kevin E. Davis (New York Univ. - Law), Benedict Kingsbury (New York Univ. - Law), & Sally Engle Merry (New York Univ. - Anthropology) have published Indicators as a Technology of Global Governance (Law & Society Review, Vol. 46, no. 1, pp. 71–104, March 2012). Here's the abstract:
The use of indicators is a prominent feature of contemporary global governance. Indicators are used to compare and rank states for purposes as varied as deciding how to allocate foreign aid or investment and determining whether states have complied with their treaty obligations. This article defines the concept of an indicator, analyzes distinctive features of indicators as technologies of governance, and identifies various ways in which the use of indicators has the potential to alter the topology and dynamics of global governance. Particular attention is paid to how indicators can affect processes of standard setting, decisionmaking, and contestation in global governance. The World Bank Doing Business indicators and the United Nations Human Development Index are analyzed as case studies.

Thursday, April 12, 2012

Wouters & Burnay: The EU and Asia in the United Nations Security Council

Jan Wouters (Katholieke Universiteit Leuven - Law) & Matthieu Burnay (Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies) have posted The EU and Asia in the United Nations Security Council. Here's the abstract:
This contribution addresses the political and legal aspects of European and Asian membership and practice in the UNSC. First, it highlights the difficulties of the European Union (EU) becoming a fully-fledged actor in the UN. In particular, it examines how attempts to utilize the UN General Assembly (UNGA) as a gateway to enhancing the European international status have largely failed. Further, European divisions on UNSC reform show that most Member States still reason from a national perspective as far as this organ is concerned. Asia appears to be even more divided: its regional organisations have not been empowered to play a significant role within the UN and the continent faces heavy intra-regional divisions. Secondly, this contribution considers the voting behaviour of European and Asian countries in the UNSC. Here, it will be submitted that diverging interpretations of the concepts of sovereignty and peace and security explain these differences to a certain extent. However, in order to fully grasp the attitudes of the sole Asian P5 member - China - one must recognize that its primary driver is its perceived national interest and quest for domestic stability.

Call for Submissions: Aligning Human Rights and Investment Protection

Transnational Dispute Management has issued a call for submissions for a TDM special issue on "Aligning Human Rights and Investment Protection." Here's the call:

We hereby announce a forthcoming TDM special issue on "Aligning Human Rights and Investment Protection". Prof. Dr. Ursula Kriebaum (University of Vienna) will be editing this special issue which will analyse the possibility of courts and tribunals operating in the fields of human rights and international investment protection to take into account the concerns of the other field of law.

It is difficult to generalize the effects of investment on the enjoyment of human rights of the population of the host State. It is today acknowledged that investment is capable of generating economic growth, reducing poverty, increasing demand for the rule of law and contributing to the realization of human rights. For many countries the impact of private foreign investment flows on development is more significant than development aid by States and international Organizations. On the other hand, a number of human rights violations related to foreign investment have arisen and are likely to arise in the future.

Host States can intervene in investment operations to stop human rights abuses of an investor. But such measures may at the same time be an interference with the investor's rights protected under investment treaties. In such a situation the investor can bring a case before an investment tribunal. On the other hand host States can also remain passive and tolerate human rights abuses by investors. In such a situation an investment tribunal will not learn about the case, but the victims of the human rights violations may bring the case before a human rights court or treaty supervisory body.

This special issue will shed light on the interaction between human rights law and international investment law.

Possible topics may include:

  • Are human rights part of the applicable law in investment arbitration cases?
  • The approach of investment tribunals confronted with human rights sensitive cases.
  • Investors' human rights before investment tribunals.
  • Third party participation before investment tribunals and human rights courts.
  • Interim measures before investment tribunals and human rights courts: a comparative approach.
  • Human rights abuses linked to investments (not necessarily foreign) before human rights courts.
  • Investor protection by human rights courts.
  • The form and amount of compensation granted by human rights courts to victims of human rights abuses by investors.
  • Economic, social and cultural rights and foreign investment.
  • Issues of potential conflicts (whether real or perceived) between international investment law/tribunals and international human rights law/tribunals.
  • The interaction between national courts, human rights courts and investment tribunals.

We hereby invite all those with an interest in the subject to contribute articles or notes on one or several of the above topics or any other relevant issue. Publication is expected in the fourth quarter of 2012. Proposals for papers should be submitted to the editor by 1 June 2012.

Call for Papers: Canadian Council on International Law 2012 Annual Conference

The Canadian Council on International Law has issued a call for papers for its 41st Annual Conference, to take place November 8-10, 2012, in Ottawa. The theme is "SOS International Law: International Law in Times of Crisis and Emergency." Here's the call:

SOS International Law:

International Law in Times of Crisis and Emergency

November 8-10, 2012

Ottawa, Ontario

The Canadian Council on International Law invites paper proposals from faculty members, doctoral level graduate students in law and related disciplines, and practitioners, on topics dealing with the theme of its 41st Annual Conference: “SOS International Law: International Law in Times of Crisis and Emergency”.

Crises and emergencies come in many forms. They may be financial, environmental or purely political, as states break apart, governments are ousted or armed conflicts occur. From the financial turmoil in the United States and Europe, to the surge for democracy in the Arab world and resulting civil conflicts, to natural disasters in Haiti and Japan, and to the predicament of nuclear proliferation in Iran and elsewhere, international relations have been preoccupied by these crises and emergencies. And behind these newspaper headlines are countless crises averted or emergencies abated, where early intervention forestalls disasters before they emerge.

International reactions to emergencies and crises are the stuff of high politics. In some instances, international law may prove a useful tool in the decision-making of states confronting such calamities. In other cases, it seems woefully inadequate and plays at best a supporting role. What part is there for international law in dealing with crises and emergencies? Is international law capable of providing useful guidance during catastrophes? Or is it instead burdened with feet of clay?

The Canadian Council for International Law will grapple with these issues from the 8-10 November 2012 in Ottawa and invites the active participation of the international legal community.

Paper proposals in English or French should be no longer than a single page in length and should include a biographical statement or curriculum vitae. Proposals are due May 5, 2012 and should be sent to

Please note that the CCIL is unable to cover or subsidize travel to or accommodation for the Annual Conference.

Conference: Society of International Economic Law Biennial Conference

The Society of International Economic Law will hold its Third Biennial Global Conference, July 12-14, 2012, in Singapore, hosted by the National University of Singapore’s Centre for International Law and Faculty of Law. I noted the call for papers here. The program is now available here. Here's the idea:

Over the course of the last two decades, the communities of scholars, practitioners and others active in the area of international economic law have grown and diversified in ways that few could have predicted. The field of international economic law now includes a diverse array of participants and covers many new substantive issues. Inevitably, the term international economic law defies easy definition: it is at once both a fully integrated part of public international law and an identifiable field in its own right.

This conference provides an opportunity for exploring many different facets of international economic law. Given that the aim of the Society includes fostering research in the area of IEL and promoting cooperation among all parts within the field, the SIEL Global Conference offers a forum for those inside and outside academia to exchange pedagogical and research methods, as well as to explore greater cooperation among the many different constituencies of the field.

Luban: War as Punishment

David Luban (Georgetown Univ. - Law) has published War as Punishment (Philosophy & Public Affairs, Vol. 39, no 4, pp. 299–330, Fall 2011). Here's an excerpt:
Until recently, rulers routinely treated the punishment of affronts as a legitimate reason to make war. Today, warmaking to punish misbehaving princes may seem no better than warmaking to grab land, tribute, or glory. Under the Charter of the United Nations and customary international law, only self-defense counts as a legitimate reason for states to go to war. To be sure, individual political and military leaders can be punished for war crimes, including the crime of aggression. The International Criminal Court exists for just that purpose. But punishing leaders through a court of law is not the same as using warfare itself as the instrument of punishment. We may think that punishment by the sword, like wars of conquest, represents a lesser stage of civilization than we aspire to. This transformation in thinking about just cause raises two important questions: First, how did we get from there to here, from widespread acceptance of punishment as a just cause for war to widespread rejection of it? Second, and more important, is the question of whether the punishment of wrongdoing might actually be a just cause for war despite the modern narrowing of just cause to self-defense.

Stroup: Borders among Activists: International NGOs in the United States, Britain, and France

Sarah S. Stroup (Middlebury College - Political Science) has published Borders among Activists: International NGOs in the United States, Britain, and France (Cornell Univ. Press 2012). Here's the abstract:

In Borders among Activists, Sarah S. Stroup challenges the notion that political activism has gone beyond borders and created a global or transnational civil society. Instead, at the most globally active, purportedly cosmopolitan groups in the world—international nongovernmental organizations (INGOs)—organizational practices are deeply tied to national environments, creating great diversity in the way these groups organize themselves, engage in advocacy, and deliver services.

Stroup offers detailed profiles of these "varieties of activism" in the United States, Britain, and France. These three countries are the most popular bases for INGOs, but each provides a very different environment for charitable organizations due to differences in legal regulations, political opportunities, resources, and patterns of social networks. Stroup's comparisons of leading American, British, and French INGOs—Care, Oxfam, Médecins sans Frontières, Human Rights Watch, Amnesty International, and FIDH—reveal strong national patterns in INGO practices, including advocacy, fund-raising, and professionalization. These differences are quite pronounced among INGOs in the humanitarian relief sector, and are observable, though less marked, among human rights INGOs.

Stroup finds that national origin helps account for variation in the "transnational advocacy networks" that have received so much attention in international relations. For practitioners, national origin offers an alternative explanation for the frequently lamented failures of INGOs in the field: INGOs are not inherently dysfunctional, but instead remain disconnected because of their strong roots in very different national environments.

Wednesday, April 11, 2012

Virginia Journal of International Law Symposium

This week, the Virginia Journal of International Law and the Opinio Juris blog are hosting a symposium on articles published in the first two issues of Volume 52 of the Journal. Thus far, discussion has focused on: I. Glenn Cohen's (Harvard Univ. - Law) “Medical Tourism, Access to Health Care, and Global Justice” (with comments by Nathan Cortez (Southern Methodist Univ. - Law), Colleen M. Flood and Y.Y. Brandon Chen (Univ. of Toronto - Law), and Jeremy Snyder and Valorie A. Crooks (Simon Fraser Univ.)); Stephan W. Schill’s (Max Planck Institute for Comparative Public Law and International Law) “Enhancing International Investment Law’s Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach” (with comments by Anthea Roberts (London School of Economics - Law) and Jürgen Kurtz (Melbourne Univ. - Law)); and Gregory Shaffer (Univ. of Minnesota - Law) and Joel Trachtman's (Tufts Univ. - The Fletcher School) “Interpretation and Institutional Choice at the WTO” (with comments by Rachel Brewster (Harvard Univ. - Law), Robert Howse (New York Univ. - Law), and Joost Pauwelyn (Graduate Institute of International and Development Studies - Law)). Tomorrow, the focus will turn to Sungjoon Cho's (Chicago-Kent College of Law) “Beyond Rationality: Toward a Sociological Construction of the World Trade Organization” (with comments by Gregory Shaffer and Joel Trachtman, as well as Claire Kelly (Brooklyn Law School)), and on Friday the symposium will conclude with Aslı Ü. Bâli's (Univ. of California, Los Angeles - Law) “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example” (with comments by Tom Ginsburg (Univ. of Chicago - Law) and Hootan Shambayati (Florida Gulf Coast Univ.)) and Marco Ventoruzzo’s (Penn State Univ. - Law) “Like Moths to a Flame? International Securities Litigation After Morrison: Correcting the Supreme Court’s ‘Transactional Test’” (with comments by Hannah L. Buxbaum (Indiana Univ. – Law)).

McAdam: Climate Change, Forced Migration, and International Law

Jane McAdam (Univ. of New South Wales - Law) has published Climate Change, Forced Migration, and International Law (Oxford Univ. Press 2012). Here's the abstract:

Displacement caused by climate change is an area of growing concern. With current rises in sea levels and changes to the global climate, it is an issue of fundamental importance to the future of many parts of the world.

This book critically examines whether States have obligations to protect people displaced by climate change under international refugee law, international human rights law, and the international law on statelessness. Drawing on field work undertaken in Bangladesh, India, and the Pacific island States of Kiribati and Tuvalu, it evaluates whether the phenomenon of 'climate change-induced displacement' is an empirically sound category for academic inquiry. It does so by examining the reasons why people move (or choose not to move); the extent to which climate change, as opposed to underlying socio-economic factors, provides a trigger for such movement; and whether traditional international responses, such as the conclusion of new treaties and the creation of new institutions, are appropriate solutions in this context. In this way, the book queries whether flight from habitat destruction should be viewed as another facet of traditional international protection or as a new challenge requiring more creative legal and policy responses.

Williams: Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues

Sarah Williams (Univ. of New South Wales - Law) has published Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues (Hart Publishing 2012). Here's the abstract:

In recent years a number of criminal tribunals have been established to investigate, prosecute and try individuals accused of serious violations of international humanitarian law and international human rights law. These tribunals have been described as 'hybrid' or 'internationalised' tribunals as their structure and applicable law consist of both international and national elements. Six such tribunals are currently in operation: the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the International Judges and Prosecutors Programme in Kosovo, the War Crimes Chamber for Bosnia and Herzegovina, the Iraqi High Tribunal and the Special Tribunal for Lebanon. The Special Panels for Serious Crimes in East Timor suspended operation in May 2005, although there continues to be some international involvement in investigation and prosecution of serious crimes. Suggestions have also been made that this model of tribunal would be appropriate for the prosecution of atrocities committed in, among others, Burundi, the Sudan, the Democratic Republic of Congo, Kenya and Liberia, as well as for a wider range of international crimes, most recently piracy.

The key aims of this book are: to place the model of hybrid and internationalised tribunals in the context of other mechanisms to try international crimes; to examine the increasing demand for the establishment of hybrid and internationalised judicial institutions and the factors driving such demand; to define the category of 'hybrid and internationalised tribunals' by examining the key features of the existing and proposed hybrid or internationalised tribunals, as well as the features of those institutions with international elements that are generally excluded from this category; to determine the legal and jurisdictional bases of existing hybrid and internationalised tribunals; to analyse how the legal and jurisdictional basis of a tribunal affects other issues, such as the applicable law, the application of amnesties and immunities and the relationship of the tribunal with the host state, third states, national courts and other international criminal tribunals. The book concentrates on the definitional, legal and jurisdictional aspects of hybrid and internationalised criminal tribunals as this has been the subject of some confusion in arguments before the tribunals and in the judgments of the tribunals. In its concluding section, the book examines the future role of internationalised and hybrid criminal tribunals, particularly in light of the establishment of the ICC, and the potential use of such tribunals in other contexts. It also assesses how hybrid and internationalised tribunals fit into a 'multi-layered framework' of international criminal law and transitional justice.

New Issue: World Arbitration and Mediation Review

The latest issue of the World Arbitration and Mediation Review (Vol. 5, no. 3, 2011) is out. Contents include:
  • Editorial Comment
    • David D. Caron, The Independence and Impartiality of Legal Systems
  • Fault Lines In International Commercial Arbitration: Papers and Comments from the 8th Annual ITA-ASIL Conference
    • Lucy Reed, Introduction
    • Diane P. Wood, Keynote Address: The Quiet Convergence of Arbitration and Litigation
    • William Dodge, How National Is International Arbitration: Introduction to Session One
    • Gary Born, Arbitrability and Public Policy
    • Margaret L. Moses, Party Autonomy and Its Limits: Introduction to Session Two
    • Linda J. Silberman, The Supreme Court's Recent Perspective on Party Autonomy in Arbitration: What Does It Mean for the Proposed Ali Restatement on International Commercial Arbitration?
    • J. William Rowley & Robert Wisner, Party Autonomy and Its Discontents: The Limits Imposed by Arbitrators and by Mandatory Laws
  • Recent Events in the Americas
    • Arnoldo Wald, Comment: Nuovo Pignone v. Petromac: Amicus Curiae by the ICC Brazilian Committee

Moloo & Jacinto: Standards of Review and Reviewing Standards: Public Interest Regulation in International Investment Law

Rahim Moloo (Columbia Univ. - Vale Center) & Justin M. Jacinto (Curtis, Mallet-Prevost, Colt & Mosle LLP) have posted Standards of Review and Reviewing Standards: Public Interest Regulation in International Investment Law (Yearbook of International Investment Law and Policy, forthcoming). Here's the abstract:

In the late 1990s, investors began bringing claims under international investment treaties seeking compensation for harm caused to their investments by government regulatory measures that were, at least purportedly, aimed at addressing areas of legitimate public interest such as protection of human health or the environment. In response, observers raised concerns about the potential effect on countries’ ability to exercise their regulatory powers. Although international arbitral tribunals have spent more than a decade resolving such disputes, questions and concerns remain regarding the relationship between international investment law and public interest regulation. In the municipal context, judicial review of legislative and administrative decisions raises balance of powers concerns and questions about the relative roles and competencies of different government actors. When an international tribunal is the adjudicator, the dynamic is further complicated by concerns about infringements on state sovereignty and the accountability and legitimacy of the tribunal. Such concerns have raised questions about whether tribunals should adopt a deferential standard of review when adjudicating claims relating to public interest regulatory measures.

This article assesses the merits of adopting an additive deferential standard of review for adjudication of investment treaty claims relating to public interest regulatory measures. It finds that it is neither necessary nor appropriate for tribunals to adopt an additional deferential standard of review as a general matter (i.e., to govern the overall application of the treaty). The applicable investment treaty standards all contain aspects and terms which involve principles — requiring the weighing of different interests, as opposed to rules, which require the application of “norms which are always either fulfilled or not.” For this reason, inherent in the treaty standards is a textual basis for according some degree of deference to the ability of the country to regulate in the public interest. As opposed to a general deferential standard that is the same in all cases however, the text, though open-ended in some circumstances, and the evolution of the jurisprudence concerning the interpretation of certain key terms, provides guidance to the decision-maker as to the interests to be weighed and the degree of deference to be accorded to the state.

The article further finds that countries have not substantially abridged their ability to engage in bona fide regulatory conduct such that additional deference might be needed to respect a country’s sovereign right and responsibility to regulate in the public interest. As regards regulatory measures, the treaty standards are in large part concerned with precluding unreasonable conduct, particularly the use of a measure as a pretext for a wrongful purpose (e.g., discrimination or unjust enrichment), for which no deference is justified. The major exception to that characterization relates to the protection from indirect expropriation, if it is interpreted as allowing an investor to receive compensation for harm caused by a bona fide but disproportionately burdensome measure. Such a reading of the standard creates space for a conflict between a country’s treaty obligations and regulatory responsibilities. However, the interpretation also builds in a proportionality standard that allows tribunals to balance the governmental purpose against the investor’s rights.

Waters: Plucky Little Russia: Misreading the Georgian War Through the Distorting Lens of Aggression

Timothy William Waters (Indiana Univ. - Law) has posted Plucky Little Russia: Misreading the Georgian War Through the Distorting Lens of Aggression (Stanford Journal of International Law, forthcoming). Here's the abstract:

One might expect massed armor crossing an international frontier to constitute the paradigmatic example of aggression – a case perfectly fit to analyze with the rules of jus ad bellum – and in the first flush and shock of the Georgian War in 2008, this is exactly how Western leaders described Russia’s actions. Yet that August, a constellation of circumstances combined to produce an anomalous outcome: an international war without any aggressor or any wrongful violation of territorial integrity. In theory – in doctrine – this is not supposed to happen.

The key to this puzzle is the special regime created by the 1992 Sochi Agreement, which functioned as an internationalized mechanism regulating the internal conflict between Georgia and South Ossetia by creating a new territorial status within Georgia’s sovereignty. Once we view Sochi in this way, the performance of the various actors in August 2008 looks rather different: Rather than aggressors, Russian tanks are a responsive mechanism designed to stop Georgian incursions in violation of the Sochi regime – a mechanism, moreover, that actually worked as it was supposed to. Understanding the Georgian War in this way leads us to confront our present, dualistic approaches to sovereignty. Under international law, it is definitionally impossible for Georgia to aggress against itself or violate its own territorial integrity, and it is only because of the Sochi regime that we describe Georgia’s actions as wrongful.

In some ways, the 2008 war looks like part of a rising phenomenon: the effort to regulate the resort to violence within states. Indeed, the Sochi regime suggests a far better mechanism, since it creates a new category of protectable territory, rather than identifying levels of harm that trigger a reaction; this may be particularly useful in self-determination disputes, in which separatists challenge the very fact of the state’s sovereignty. Still, seeing the Georgian War in this way is not necessarily a source of optimism. Sochi was the product of a specific context, and there is no reason to suppose it is generalizable. But the greatest source of pessimism concerns the rhetorical reactions to the war: Western leaders resorted to the enchanted vocabularies of the jus ad bellum in ways that distracted them from the actual operation of the very mechanism regulating the underlying conflict. It seems we remain ill-equipped to recognize the real logic of efforts to regulate internal wars.

Tuesday, April 10, 2012

Wouters & Reydams: The Politics of Establishing International Criminal Tribunals

Jan Wouters (Katholieke Universiteit Leuven - Law) & Luc Reydams (Univ. of Notre Dame - Law) have posted The Politics of Establishing International Criminal Tribunals. Here's the abstract:
The legislative histories of international criminal tribunals generally are well-known and well-documented. The traditional focus on the legal framework, however, overlooks the fact that international criminal tribunals are the result of political processes involving a multitude of domestic and international actors pursuing their own interests. Each court is created at a given time, in pursuit of specific objectives, based on certain assumptions, and reflecting a particular distribution of power. As he depends on external support and cooperation for the accomplishment of his mission, an international prosecutor can ill afford to ignore the positions of the various stakeholders and the distribution of power among them. We argue that the politics of establishing an international criminal tribunal contain crucial clues about its future operation. Specifically, we contend that the political history of a tribunal foreshadows issues such as the strength of an international prosecutor’s mandate, available resources, (de facto) independence, procedural framework, selection of defendants, and cooperation from states.

New Issue: Asian Journal of WTO & International Health Law and Policy

The latest issue of the Asian Journal of WTO & International Health Law and Policy (Vol. 7, no. 1, March 2012) is out. Contents include:
  • Donald McRae, MFN in the GATT and the WTO
  • Rolf H. Weber, Regulatory Autonomy and Privacy Standards Under the GATS
  • William Onzivu, Regionalism and the Reinvigoration of Global Health Diplomacy, Lessons from Africa
  • Chuan-Feng Wu, Transnational Pharmaceutical Corporations' Legal and Moral Human Rights Responsibilities in Relation to Access to Medicines
  • Tong Qi, China's First Decade Experience in the WTO Dispute Settlement System
  • QingJiang Kong, U.S.-China Bilateral Investment Treaty Negotiations: Context, Focus, and Implications
  • Sherzod Shadikhodjaev, Customs Duty or Internal Charge? Revisiting the Delineation Issue Within Treaty Interpretation in China - Auto Parts Case
  • Chang-Fa Lo, Is it an Interpretation Issue or an Issue of Rebalancing the Poorer and Richer Countries Through Further Negotiations: A Book Review of "Interpreting TRIPS" by Professor Hiroko Yamane

Conference: Fordham's Seventh Annual Conference on International Arbitration and Mediation

Fordham Law School will host its Seventh Annual Conference on International Arbitration and Mediation, April 26-27, 2012, in London. The program is here.

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 13, no. 1, 2012) is out. Contents include:
  • An Chen, On the Source, Essence of “Yellow Peril“ Doctrine and Its Latest Hegemony “Variant“ - the “China Threat“ Doctrine: From the Perspective of Historical Mainstream of Sino-Foreign Economic Interactions and Their Inherent Jurisprudential Principles
  • Mark Augenblick & Alison B. Rousseau, Force Majeure in Tumultuous Times: Impracticability as the New Impossibility
  • Ramphul, Globalization and World Dairy Trade: An Assessment
  • Badar Alam Iqbal, Is SAFTA a Myth or Reality?
  • Ling Ling He & Razeen Sappideen, Mapping Anti-Dumping Disputes from 1995 to 2011: The Changing Pattern
  • Jacopo Tavassi, The regime of international investments within the Association Agreements: towards a new comprehensive regulation?

Dunoff & Pollack: What Can International Relations Learn from International Law?

Jeffrey L. Dunoff (Temple Univ. - Law) & Mark A. Pollack (Temple Univ. - Political Science) have posted What Can International Relations Learn from International Law? Here's the abstract:
International Relations has rediscovered the study of international law in recent years. And yet, this new “IL/IR” scholarship has been highly unbalanced, with political science scholars paying little or no attention to the potential contribution of international legal scholarship, which is seen as excessively formalist and blind to the realities of modern power politics. Ironically, by ignoring what lawyers know about how international law operates, IR scholars themselves unwittingly fall prey to a type of formalism that is insufficiently attentive to the practical realities of how the international legal order works. Happily, IR scholars can remedy these defects by drawing upon the theoretical frameworks and empirical analyses of their counterparts in law. To encourage such an engagement, this paper proceeds in three parts. Part I provides a thumbnail history of the relationship between the disciplines, including their post-war estrangement, the recent rapprochement, and the unbalanced terms of trade between the two disciplines today. Part II sets out a brief primer on the leading theoretical approaches to international law, demonstrating that the common image of international legal scholarship as overly formalistic and blind to political realities is simply incorrect, and that IL scholarship offers important insights into issues that political scientists care about. Part III turns more directly to how international legal thought can advance IR thinking. We identify several concepts – which we call process, power, pluralism, and normativity – that are central to legal analysis but often overlooked or treated differently in IR scholarship. Next, by way of example, we highlight three broad areas of inquiry – the making, interpretation, and enforcement of international law – where international law approaches can make a distinctive contribution to IR scholarship.

Monday, April 9, 2012

New Issue: Texas International Law Journal

The latest issue of the Texas International Law Journal (Vol. 47, no. 1, Fall 2011) is out. Contents include:
  • Karl S. Chang, Enemy Status and Military Detention in the War Against Al-Qaeda
  • Rebecca Ingber, Untangling Belligerency from Neutrality in the Conflict with Al-Qaeda
  • Kevin Jon Heller, The Law of Neutrality Does Not Apply to the Conflict with Al-Qaeda, and It Is a Good Thing, Too: A Response to Chang
  • Ariel Zemach, Reconciling Universal Jurisdiction with Equality Before the Law
  • Milan Markovic, The ICC Prosecutor’s Missing Code of Conduct

Lianos & Odudu: Regulating Trade in Services in the EU and the WTO: Trust, Distrust and Economic Integration

Ioannis Lianos (Univ. College London - Law) & Okeoghene Odudu (Univ. of Cambridge - Law) have published Regulating Trade in Services in the EU and the WTO: Trust, Distrust and Economic Integration (Cambridge Univ. Press 2012). The table of contents is here. Here's the abstract:
This volume assesses the viability of various theories of economic integration that take into account the legal, economic, political and social challenges of incorporating free trade with retaining the plurality of social welfare standards and consumer protection. Chapters cover the governance of trade in services at the European and global level; studies on the recent Services Directive and how this interacts with the principle of managed mutual recognition and harmonization in different sectors of trade in services (social services, financial services); the recent case law of the European Courts on the enforcement of the principle of free movement of services and how this accommodates various national public interest concerns; and the interaction of the freedom to provide services with fundamental rights, including social rights. The operation of the principle of managed mutual recognition in other economic integration regimes, in particular in the context of the WTO, is also discussed.

Solingen: Sanctions, Statecraft, and Nuclear Proliferation

Etel Solingen (Univ. of California, Irvine - Political Science) has published Sanctions, Statecraft, and Nuclear Proliferation (Cambridge Univ. Press 2012). The table of contents is here. Here's the abstract:
Some states have violated international commitments not to develop nuclear weapons. Yet the effects of international sanctions or positive inducements on their internal politics remain highly contested. How have trade, aid, investments, diplomacy, financial measures and military threats affected different groups? How, when and why were those effects translated into compliance with non-proliferation rules? Have inducements been sufficiently biting, too harsh, too little, too late or just right for each case? How have different inducements influenced domestic cleavages? What were their unintended and unforeseen effects? Why are self-reliant autocracies more often the subject of sanctions? Leading scholars analyse the anatomy of inducements through novel conceptual perspectives, in-depth case studies, original quantitative data and newly translated documents. The volume distils ten key dilemmas of broad relevance to the study of statecraft, primarily from experiences with Iraq, Libya, Iran and North Korea, bound to spark debate among students and practitioners of international politics.

Job Opening: American Society of International Law (Director, Education and Research Programs)

The American Society of International Law is seeking to hire a Director of its Education and Research Programs. Here's the announcement:

Director, Education and Research Programs

The American Society of International Law (ASIL), the leading society of international lawyers and scholars in the United States, is dedicated to promoting greater understanding of international law. It pursues this mission through training, education, and research programs serving judges, lawyers, law students, policy makers, the media, and the general public.

ASIL seeks an experienced international law professional to direct its Education and Research Programs. Managing a small staff, several consultants and pro bono fellows, ASIL member volunteers, and partner organizations, and working closely with the Executive Director and other senior staff, the Director will oversee and implement all aspects of the Education and Research Programs. Responsibilities include the development and presentation of educational curricula, publications, and resources for diverse constituencies, including through innovative new formats and media; development and administration of a research agenda, including oversight of ASIL task forces and working groups on a variety of international law topics and commission of and editorial responsibility for ASIL discussion papers; budgeting; grant writing; staff management; and oversight of the Society’s growing Continuing Legal Education (CLE) program. The Director will be the Society’s primary liaison to relevant advisory boards and ASIL committees, including the Society’s Judicial Advisory Board. The Director will also participate in the ASIL senior management team and contribute to the overall management of the organization.

Required: BA/BS and JD or equivalent graduate degree and 7-10 years’ relevant experience, reflecting increasing program management responsibility and solid grounding in international law. Strongly preferred: Experience in international law teaching and administration, oversight of CLE and/or judicial education programs; program management of think tank research activity; and grant writing or other donor relations. Language skills and experience working in international, multicultural environment a plus. Generous benefits and salary commensurate with experience. Candidates should send a cover letter, resume, and three references to, with “Director, Education and Research Programs” in the subject line. No calls please.

New Issue: Revue de Droit des Affaires Internationales

The latest issue of Revue de Droit des Affaires Internationales (2012, no. 1) is out. Contents include:
  • Thomas Kendra, La portée internationale des sentences arbitrales annulées dans leur pays d’origine : vers une approche internationale commune?
  • Ali Bencheneb, L’arbitrage et le role du juge d’appui en droits algérien et francais
  • Gregory Odry, Clause d’attribution exclusive de juridiction dans les performance bonds : qui s’en soucie ?
  • Aren Goldsmith & Lorenzo Melchionda, Third party funding in international arbitration: everything you ever wanted to know but were afraid to ask

Sunday, April 8, 2012

Kelley: Monitoring Democracy: When International Election Observation Works, and Why It Often Fails

Judith G. Kelley (Duke Univ. - Public Policy and Political Science) has published Monitoring Democracy: When International Election Observation Works, and Why It Often Fails (Princeton Univ. Press 2012). Here's the abstract:

In recent decades, governments and NGOs--in an effort to promote democracy, freedom, fairness, and stability throughout the world--have organized teams of observers to monitor elections in a variety of countries. But when more organizations join the practice without uniform standards, are assessments reliable? When politicians nonetheless cheat and monitors must return to countries even after two decades of engagement, what is accomplished? Monitoring Democracy argues that the practice of international election monitoring is broken, but still worth fixing. By analyzing the evolving interaction between domestic and international politics, Judith Kelley refutes prevailing arguments that international efforts cannot curb government behavior and that democratization is entirely a domestic process. Yet, she also shows that democracy promotion efforts are deficient and that outside actors often have no power and sometimes even do harm.

Analyzing original data on over 600 monitoring missions and 1,300 elections, Kelley grounds her investigation in solid historical context as well as studies of long-term developments over several elections in fifteen countries. She pinpoints the weaknesses of international election monitoring and looks at how practitioners and policymakers might help to improve them.