New Issue: Indian Journal of International Law

The latest issue of the Indian Journal of International Law (Vol. 51, no. 4, October-December 2011) is out. Contents include:

• Articles
• Francesco Seatzu, On the Roles and Responsibilities of the World Bank and Its Affiliate Institutions in Agriculture and Water (Mis)Investments
• Robin Ramcharan, Business, Intellectual Property and Human Rights
• B.C. Nirmal, International Criminal Court and Trust Fund
• Recent Developments & Shorter Articles
• Anwar Sada, Is Saving Tomorrow the Message from Durban?
• Rashwet Shrinkhal, Climate Change: Issues of Climate Justice and Ethics

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 52, no. 4, Summer 2012) is out. Contents include:

• Andrew T. Guzman, Against Consent
• Oona A. Hathaway, Aileen Nowlan & Julia Spiegel, Tortured Reasoning: The Intent to Torture Under International and Domestic Law
• William Magnuson, The Domestic Politics of International Extradition
• John Norton Moore, Jus ad Bellum Before the International Court of Justice

New Issue: Michigan Journal of International Law

The latest issue of the Michigan Journal of International Law (Vol. 33, no. 2, Winter 2012) is out. Contents include:

• Jonathan H. Marks, Toward a Unified Theory of Professional Ethics and Human Rights
• Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court
• Nancy Amoury Combs, Legitimizing International Criminal Justice: The Importance of Process Control

New Issue: Journal of International Trade Law and Policy

The latest issue of the Journal of International Trade Law and Policy (Vol. 11, no. 2, 2012) is out. Contents include:

• Lekha Laxman & Abdul Haseeb Ansari, The interface between TRIPS and CBD: efforts towards harmonisation
• M. Rafiqul Islam, Shawkat Alam, & Pundarik Mukhopadhaya, Integrating trade in education services between Australia and India: Complementarities and challenges
• William Ridley & Stephen Devadoss, Analysis of the Brazil-USA cotton dispute
• Mohammad Masudur Rahman & Chanwahn Kim, Trade and investment potential among BCIM countries: prospects for a dynamic growth quadrangle
• Abiodun S. Bankole, Olanrewaju Olaniyan, M. Adetunji Babatunde, & Rifkatu Nghargbu, Does cross-border broadcast of foreign football change the demand pattern of domestic recreation?: Empirical study of imports of audiovisual services through digital satellite television

New Issue: World Politics

The latest issue of World Politics (Vol. 64, no. 3, July 2012) is out. Contents include:

• Xun Cao, Global Networks and Domestic Policy Convergence: A Network Explanation of Policy Changes
• Moonhawk Kim, Disguised Protectionism and Linkages to the GATT/WTO
• Amy H. Liu & Jacob I. Ricks, Coalitions and Language Politics: Policy Shifts in Southeast Asia
• Cheol-Sung Lee, Associational Networks and Welfare States in Argentina, Brazil, South Korea, and Taiwan
• Benjamin E. Goldsmith & Yusaku Horiuchi, In Search of Soft Power: Does Foreign Public Opinion Matter for US Foreign Policy?

Shan: The Legal Protection of Foreign Investment: A Comparative Study

Wenhua Shan (Xi'an Jiaotong Univ. - Law) has published The Legal Protection of Foreign Investment: A Comparative Study (Hart Publishing 2012). The table of contents is here. Here's the abstract:

The law of foreign investment is at a crossroads. In the wake of an unprecedented global financial crisis and a sharp surge of investment arbitration cases, states around the world are reflecting on the pros and cons of the current liberal investment regime and exploring new ways ahead. This book brings together leading investment lawyers from more than 20 main jurisdictions of the world to tackle the challenge of producing a first comparative study of foreign investment law. Based on the General and National Reports presented at the 'Protection of Foreign Investment' Session at the 18th International Congress of the International Academy of Comparative Law (Washington DC, July 2010), the book is a unique resource for investment lawyers.

Part I of the book presents a comparative overview of key aspects of foreign investment protection in the world today, including admission, investment contracts, treatment standards, tax regime and incentives, performance requirement, property and expropriation, monetary transfer and dispute settlement. Part II presents in-depth and detailed accounts of the investment laws of more than 20 jurisdictions, including Argentina, Australia, Canada, China, Croatia, Czech Republic, Ethiopia, France, Germany, Greece, Italy, Japan, South Korea, Macau, Peru, Portugal, Russia, Singapore, Slovenia, Turkey, the UK and the USA.

Conference: Society of International Economic Law Biennial Conference (Update)

As noted previously, the Society of International Economic Law will hold its Third Biennial Global Conference, July 12-14, 2012, in Singapore. The program is here. Conference papers are now available here.

Conference: First Contemporary Challenges of International Environmental Law

Today and tomorrow, June 28-29, 2012, the Faculty of Law, University of Ljubljana is hosting a two-day conference on "First Contemporary Challenges of International Environmental Law." The program is here. Here's the idea:

The aim of the conference is to critically asses the challenges posed by environmental protection at the international level and address them through the provision of creative international environmental law solutions. The conference, which addresses one of the most important topics for the future of humankind, is set up as an interdisciplinary debate between environmental scientists and law experts. It will thus offer a new forum for debate and innovative thinking in search of new international environmental law solutions in this part of Europe.

The conference participants will address the areas of climate change, forest, sea and biodiversity protection, including issues of sustainable development, human right to a clean environment, migation of populations, state responsibility, the role of non-state actors, as well as the importance of international legal regulation of these issues. The presenters at the conference are the leading experts in the field from Slovenia and abroad.

The intention of the conference is to establish a new platform for discussions on international environmental law, as the issues of international environmental law are seldome addressed and answered in such a comprehensive and interdisciplinary manner.

This year, when the international scientific and legal community celebrates the twentieth anniversary of the first United Nations Conference on Sustainable Development (Rio+20), the discussions at the First Contemporary Challenges Congerence of International Environmental Law will have a double significance. First, they will critically assess the current development in the field of international environmental law. Second, the presentations at the conference will also indicate the future directions of the international environmental law development and assess the outcomes of the Rio+20 conference, which will take place in Rio just one week earlier (June 20-22).

Sharp: Interrogating the Peripheries: The Preoccupations of Fourth Generation Transitional Justice

Dustin N. Sharp (Univ. of San Diego - School of Peace Studies) has posted Interrogating the Peripheries: The Preoccupations of Fourth Generation Transitional Justice (Harvard Human Rights Journal, forthcoming). Here's the abstract:

In the last three decades, the field of transitional justice has moved from the margins to the center of international attention and policy making. Some two decades after the term was coined, it has been normalized, institutionalized, and mainstreamed. Yet even as the field as a whole moves from the periphery to the center, embraced by global institutions like the United Nations, issues that have long lingered at the edges of the field itself remain little changed. Thus, for example, transitional justice continues to privilege civil and political rights over economic and social rights; international rules and standards over local and cultural norms and practices; and legal and technocratic solutions over political and contextual ones. Building upon Ruti Teitel’s notion of a “transitional justice genealogy,” this article argues that a new phase or “fourth generation” of transitional justice preoccupations has arisen, characterized in part by an increasing willingness to grapple with those issues that have historically sat at the periphery of transitional justice concern. While these concerns are not entirely new, they have taken on increasing prominence in recent years. Working through the dilemmas they raise at the level of theory, policy, and practice will be an important step in the development of the field of transitional justice in the years to come.

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 27, no. 6, June 2012) is out.

New Issue: International Negotiation

The latest issue of International Negotiation (Vol. 17, no. 2, 2012) is out. Contents include:

• James Goodby, Eight Negotiations – Seventeen Lessons
• Miles Hansen, Parallel Mediation: Ordering the Chaos of Multiparty Mediation
• Siniša Vuković, Coping with Complexity: Analyzing Cooperation and Coordination in Multiparty Mediation Processes
• Christian Downie, Toward an Understanding of State Behavior in Prolonged International Negotiations
• Elias L. Khalil, The Temper Tantrums of Nations: Why Would Weak Nations Challenge Hegemonic Nations?

Call for Papers: Institute for Transnational Arbitration Second Annual Winter Forum

The Institute for Transnational Arbitration has issued a call for papers for its Second Annual Winter Forum, to be held January 24-25, 2013, in Miami. Here's the call:

THE INSTITUTE FOR TRANSNATIONAL ARBITRATION

2ND ANNUAL WINTER FORUM

Biltmore Hotel

Miami

January 24-25, 2013

CALL FOR PAPERS

The Executive Committee and Academic Council of the Institute for Transnational Arbitration (ITA) are proud to announce that the second annual ITA Winter Forum will take place in Miami on January 24-25, 2013. Building on its successful launch in 2012, the Winter Forum will provide a unique opportunity for the exploration of scholarly papers and probing debate with a practical slant of topical issues in international arbitration.

The first half of the Winter Forum will showcase two works-in-progress, encompassing presentations by authors, commentary by internationally recognized academics and practitioners, and interactive discussion among all participants. Our objective is to integrate the unique insights of academics and practitioners, encourage cross-collaboration, and promote the evolution of international arbitration during a time of global transition. After a conversation over lunch with renowned authority Gary Born, chair of the International Arbitration Practice Group of WilmerHale, the Winter Forum will feature a Tylney-Hall-style discussion forum, before concluding with a select year-in-review of noteworthy events in international arbitration.

Possible Topics for Works-In-Progress

With this backdrop, we now initiate a call for works-in-progress. Keeping in mind ITA’s stated objective to provide “leading educational and professional activities for legal counsel, arbitrators, business executives, government officials, academics and other professionals through programs that examine, critique and seek to improve the practice and study of international arbitration and provide opportunities to enhance the arbitration community,” we encourage authors to consider a broad variety of topics. Possible topics might include exploration of:

• Emerging issues of substantive law in international commercial arbitration or international investment law;
• Consideration of procedural issues, including issues related to arbitrator selection and challenge, evidentiary considerations, preliminary measures, concurrent proceedings, and enforcement and review;
• The relationship between international commercial arbitration and investment law, as well as between these two pillars and other branches of law, such as intellectual property and environmental law;
• The recent jurisprudence of national courts related to international arbitration, either domestic or comparative, and the implications for basic concepts of jurisdiction, arbitrator competence and independence;
• Innovative research methodologies for the exploration and consideration of international arbitration and transnational dispute resolution;
• The interactions among arbitrators, scholars, practitioners, government officials and civil society groups active in international arbitration; and
• The consideration of international arbitration’s commercial impact, including implications of cost, the net value of arbitration and the opportunities to build sustainable dispute resolution into international business and investment.

We encourage the submission of works-in-progress from both scholars and practitioners, whether established or emerging. The Winter Forum seeks to integrate the diacritical insights and perspectives of both academics and practitioners across all levels – with distinction being the common criterion – as reflected by the rich offerings of the chosen works-in-progress of the first Winter Forum by The Honorable Charles N. Brower & Charles B. Rosenberg, The Iran-U.S. Claims Tribunal; Irene M. Ten Cate, Visiting Assistant Professor, Marquette University Law School; and Charles C. Correll, Jr. & Ryan J. Szczepanik, King & Spalding LLP, San Francisco.

Paper Submission and Selection

All proposals must be submitted by September 1, 2012, via email to ITAWinterForum2013@gmail.com in accordance with the following conventions. First, proposals should be made in a Word document that is no longer than 1,000 words. Second, your cover email should indicate your affiliated institution, your contact details and whether your paper has been submitted or accepted for publication elsewhere. In evaluating proposals, please note that priority will be given to unpublished papers and works-in-progress. Every paper proposal will be reviewed on a blind basis by at least two members of the Selection Committee (identified below).

We anticipate announcing the selected papers by October 1, 2012. Authors selected for the Winter Forum must be prepared to circulate a substantially complete draft of their paper no later than December 20, 2012.

While ITA cannot reimburse all travel expenses, selected authors will receive a waiver of the conference fee for the Winter Forum and two nights’ accommodation in Miami.

Paper Publication

Papers and commentary from previous scholarly events from the Academic Council have been published in the World Arbitration and Mediation Review (WAMR). While not required, there will be an opportunity to publish final versions of the works-in-progress selected for the Winter Forum in WAMR as well.

Enquiries

Please submit enquiries to either of the ITA Winter Forum 2013 Co-Chairs, Joseph Matthews (Joseph@colson.com) or Jarrod Wong (jwong@pacific.edu).

2013 ITA Winter Forum Selection Committee

Co-Chairs:

Joseph Matthews, Advocate, Arbitrator and Mediator, Colson Hicks Eidson, Miami, Florida and Washington, D.C.

Jarrod Wong, Associate Professor, University of the Pacific McGeorge School of Law

Committee Members:

José E. Alvarez, Herbert and Rose Rubin Professor of International Law, New York University School of Law

N. Jansen Calamita, School of Law, University of Birmingham; Director, Investment Treaty Forum, British Institute of International and Comparative Law

Raoul G. Cantero, Partner, White & Case, LLP, Miami, Florida

Teresa Cheng, Senior Counsel, Hong Kong SAR; Vice President of ICCA; Visiting Professor, School of Law, Tsinghua University

Jean E. Kalicki, Partner, Arnold & Porter LLP, Washington, D.C.

Margaret L. Moses, Professor of Law, Loyola University Chicago School of Law

Christoph H. Schreuer, Of Counsel, Wolf Theiss, Vienna

Robert-Jan Temmink, Barrister and Arbitrator, Quadrant Chambers, London

With the administrative support of David Winn, Director of the ITA.

New Issue: Yale Journal of International Law

The latest issue of the Yale Journal of International Law (Vol. 37, no. 2, Summer 2012) is out. Contents include:

• Jean Galbraith, Prospective Advice and Consent
• Margaux J. Hall & David C. Weiss, Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law
• Robert Howse & Joanna Langille, Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values

Rolland: Considering Development in the Implementation of Panel and Appellate Body Reports

Sonia Elise Rolland (Northeastern Univ. - Law) has posted Considering Development in the Implementation of Panel and Appellate Body Reports (Trade, Law and Development, Vol. 4, No. 1, pp. 150-199, Summer 2012). Here's the abstract:

Dispute settlement at the WTO does not end once the Panel and Appellate Body have issued their reports. Implementation proceedings, including arbitration on the reasonable time period for implementation, the level and manner of retaliation and further Panel proceedings on whether implementation has taken place, can be equally critical in order to secure compliance with the WTO agreements for developing members. Yet, either as complainants or as implementing parties, they may face specific challenges due to their socioeconomic vulnerabilities or costs associated with implementation. While the dispute settlement process includes a number of special and differential treatment (SDT) provisions for developing members, implementation proceedings offer much more limited safeguards and flexibilities, and their use by litigants and adjudicators has been very inconsistent. This article analyzes how members, parties, disputes, arbitrators, Panelists, the Appellate Body and the Dispute Settlement Body have addressed developmental claims and arguments in implementation proceedings. It finds that developing members have often argued that, based on SDT provisions, their development status should have a bearing on the time for implementation (by themselves or by an opposing party).

While arbitrators have been sensitive to such concerns, the time period granted has been rarely modified. By contrast, there are no specific SDT provisions relating to retaliation, yet arbitrators seem to have been more receptive to considering development-related arguments as part of their analysis. This may be a rare instance of development considerations being “mainstreamed” in the interpretation of WTO rules.

Beyond this doctrinal analysis, the article assesses the trajectory of attempts to reform implementation procedures from the Uruguay Round to the Doha Round. Drawing lessons from the practice of members and adjudicators, it offers a cautionary perspective on the likely effect of current proposals. The article concludes by offering avenues for improving the consideration of development and the consistency of arbitrators’ responses to developmental claims in implementation proceedings despite the absence of formal amendments or a Doha package.

Alford: The Self-Judging WTO Security Exception

Roger Paul Alford (Univ. of Notre Dame - Law) has posted The Self-Judging WTO Security Exception (2011 Utah Law Review 697). Here's the abstract:

This Article analyzes the WTO security exception, with a particular focus on State practice. In the absence of any GATT or WTO jurisprudence, State practice affords the best vehicle to understand the meaning of Article XXI. In the few instances when invocation of the security exception has been challenged, State practice suggests that the security exception is not judicially reviewable.

A critical question emerges from this analysis of State practice. If a Member State can avoid WTO obligations through a self-judging security exception, what is to prevent bad faith invocations? The WTO regime includes a number of devices to address this concern, including opting out of normal trade relations, opting in to deeper trade relations, granting preferential treatment to developing countries consistent with security interests, and protecting against the nullification or impairment of Member States’ legitimate expectations even in the absence of a WTO violation. These arrangements provide broad discretion to act in furtherance of the national interest without violating trade rules. As such, Member States quite often can advance national objectives without the need to invoke the security exception.

Notwithstanding these mitigating factors, a self-judging security exception poses grave risks. If abused, it could undermine the entire WTO regime. But the practice of WTO Member States is to invoke the security exception in good faith, with a margin of discretion. A Member State may do so because of a fear of sanction, out of a sense of norm legitimacy, or because it is in its self-interest to do so.

The Article concludes with brief reflections on why nations comply with the good faith obligation of a self-judging exception. Compliance with a self-judging rule offers useful insights into larger questions of why nations obey international law. Rational choice and normative theories best explain compliance with a self-judging international norm.

Tams: The Contentious Jurisdiction of the Permanent Court

Christian J. Tams (Univ. of Glasgow - Law) has posted The Contentious Jurisdiction of the Permanent Court (in The Legacy of the Permanent Court of International Justice, Malgosia Fitzmaurice & Christian Tams eds., forthcoming). Here's the abstract:

The paper analyses the PCIJ's system of contentious jurisdiction. It argues that while the PCIJ was dissolved 65 years ago, it laid the foundations of a jursdictional system based on consent that still applies today.

Vidmar: South Sudan and the International Legal Framework Governing the Emergence and Delimitation of New States

Jure Vidmar (Univ. of Oxford - Law) has posted South Sudan and the International Legal Framework Governing the Emergence and Delimitation of New States (Texas International Law Journal, forthcoming). Here's the abstract:

This Article identifies and analyzes the legal framework relevant for South Sudan’s emergence as a state and its international delimitation. It demonstrates that independence stemmed from the domestic constitutional arrangement. Referring to the practice of confining new international borders, the Article also argues that, contrary to Sudan’s argument, the 1956 colonial boundary does not apply automatically. Of central importance is the latest internal boundary. This arrangement foresees an exception to the 1956 line but has not been determined in accordance with applicable law.

Desierto: Calibrating Human Rights and Investment in Economic Emergencies: Prospects of Treaty and Valuation Defenses

Diane Alferez Desierto (Peking Univ. - School of Transnational Law) has posted Calibrating Human Rights and Investment in Economic Emergencies: Prospects of Treaty and Valuation Defenses (Manchester Journal of International Economic Law, forthcoming). Here's the abstract:

This article explores potential treaty defenses and valuation defenses for host States to mitigate or temporarily excuse non-performance of obligations owed to investors during economic emergencies, arising from the host State’s good faith performance of obligations under the International Covenant on Economic Social and Cultural Rights (ICESCR). Defenses under the Vienna Convention on the Law of Treaties (VCLT), such as the lex posterior rule of application of treaties in Article 30 or treaty interpretation in Article 31, are of limited utility for avoiding primary breaches of the investment treaty, since these defenses considerably depend upon the host State’s a priori notification of ICESCR obligations to investors at the time of the establishment of the investment. Lacking these revisions to the due diligence process, it is submitted that a host State can advance a more pragmatic defense by proposing equitable adjustments in the valuation of compensation, taking into account the host State’s good faith performance of ICESCR obligations. Adjustments are justifiable and appropriate, since tribunals tend to accept an unrealistic definition of the “fair market value” standard, based on market assumptions of perfect competition, for pre-crisis valuations of investments. The bloating of the pre-crisis valuation of an investment thus tends to increase its ultimate differential with the post-crisis valuation of an investment, leading to damage assessments beyond what parties could ordinarily have foreseen from the investment contract. While tribunals have predominantly referred to “compensation” within the general law of international responsibility, they have problematically neglected the counterpart practice of equitable adjustment within this legal regime.

New Issue: Michigan Journal of International Law

The latest issue of the Michigan Journal of International Law (Vol. 33, no. 1, Fall 2011) is out. Contents include:

• Eric Stein in Memoriam
• Contributions from James C. Hathaway, John H. Jackson, Theodore J. St. Antoine, Bruno Simma, Carl. A. Valenstein, Joseph Vining, William Adams, Susanne Baer, Lee C. Bollinger, and Jacques Bourgeouis
• Symposium: Successes and Failures in International Human Trafficking Law
• Bridgette A. Carr, Introduction
• Ambassador Luis CdeBaca, Keynote Address
• Jonathan Todres, Widening Our Lens: Incorporating Essential Perspectives in the Fight against Human Trafficking
• Saadiya Chaudary, An analysis of the Effectiveness of European Law
• Mohamed Y. Mattar, Human Rights Legislation in the Arab World: the case of Human Trafficking
• Max Waltman, Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law
• Jennifer Shkabatur, Global Panopticon – The Changing Role of International Organizations in the Information Age

Tams: The Sources of International Investment Law

Christian J. Tams (Univ. of Glasgow - Law) has posted The Sources of International Investment Law (in International Investment Law: The Sources of Rights and Obligations, Tarcisio Gazzini & Eric de Brabandere eds., forthcoming). Here's the abstract:

The paper discusses the sources of international investment law and comments on the special features of the investment law 'sources mix'.

Abbott & Snidal: Law, Legalization and Politics: An Agenda for the Next Generation of IR-IL Scholars

Kenneth W. Abbott (Arizona State Univ.) & Duncan Snidal (Univ. of Oxford) have posted Law, Legalization and Politics: An Agenda for the Next Generation of IR-IL Scholars (in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, Jeffrey L. Dunoff & Mark Pollack eds., forthcoming). Here's the abstract:

The intersection of international relations and international law (IR-IL) has developed into a sophisticated intellectual enterprise, yet there remains room for further advances. This chapter suggests a research agenda for the field as it moves into its next generation. Our argument turns on a series of conceptual pairings: IL and IR, law at a point in time and legalization over time, values and interests (and with them constructivist and rationalist analyses), and especially law and politics, which engage all the other concepts. Our approach seeks to avoid privileging either side of these pairings, which are often presented as dichotomies; indeed, the vitality of the IR-IL nexus lies in its ability to bring these elements together and exploit the synergies and tensions among them.

In exploring these pairings, we make several arguments. First, we note that IR-IL scholarship has been somewhat one-sided, with IR more frequently used to explain IL – mainly at a high level of generality. We argue that it is now time to reverse the gun sights: to ask what IL can contribute to IR, and what IR-IL has to offer traditional IL scholars and practitioners. Second, we observe that the “ism” wars between rationalism and constructivism have subsided in IR, but reawakened in the IR-IL setting. We argue that a unitary approach forfeits important intellectual advantages, including the ability to fully comprehend the interplay of law, legalization and politics, especially over time. Finally, we suggest several concrete areas for research that engage these themes, including a substantial agenda stemming from existing work, new forms of cooperation in the “penumbra” of international law, and opportunities to connect IR-IL with the practices of international law in ways that will contribute to the theoretical enterprise.

New Issue: Review of International Studies

The latest issue of the Review of International Studies (Vol. 38, no. 3, July 2012) is out. Contents include:

• Lene Hansen, Reconstructing desecuritisation: the normative-political in the Copenhagen School and directions for how to apply it
• Patricia Owens, Human security and the rise of the social
• Patrick Hayden, The human right to health and the struggle for recognition
• Barak Mendelsohn, God vs. Westphalia: radical Islamist movements and the battle for organising the World
• Elisa Wynne-Hughes, ‘Who would go to Egypt?’ How tourism accounts for ‘terrorism’
• Peter M.R. Stirk, The Westphalian model and sovereign equality
• Stefan Dolgert, Thucydides, amended: religion, narrative, and IR theory in the Peloponnesian Crisis

Vasquez: Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position

Carlos Manuel Vazquez (Georgetown Univ. - Law) has posted Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position (Notre Dame Law Review, Vol. 86, pp. 1495-1634, 2011). Here's the abstract:

In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they would prohibit the State courts from enforcing one of the two main forms of international law -- treaties -- as the U.S. Constitution by its terms requires State courts to give effect to the nation's treaties, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." But the federal Constitution does not expressly address the status of the other principal form of international law -- customary international law, or the unwritten law that governs the relations among states and "results from a general and consistent practice of states followed by them from a sense of legal obligation." These proposed State laws thus starkly raise the question whether the States may prohibit their courts from giving effect to the United States' obligations under customary international law.

This article offers a critique of the intermediate positions and, in the process, explicates and defends the modern position. Critics of the modern position often describe it as the claim that customary international law has the force of federal law always and for all purposes. But this uncompromising conception of the modern position is a phantom. Adherents of the modern position have always accepted that not all of customary international law binds foreign states or the federal Executive as a matter of U.S. domestic law. The heart of the modern position is that customary international law binds State actors and thus preempts State law applicable to State officials and private parties. The basic case for the modern position relies on an inference from the constitutional structure very similar to the one advanced by Bellia and Clark: Violations of customary international law risk retaliation against the nation as a whole. Permitting States to violate it allows States to externalize the costs of such violations, thus likely producing excessive violations.

Part I explicates and offers a preliminary defense of the modern position. It sets forth the affirmative case for the modern position based on constitutional structure, original intent, and pre- and post- Erie doctrine, responding to arguments put forward in the initial wave of revisionist scholarship, but deferring to part II responses to criticisms raised by scholars advancing intermediate positions. Part I shows that the basic structural case for the modern position was well understood by the Founders. Viewed in the light most favorable to the revisionist view, the evidence of original intent and the pre-Erie cases reflect two contending positions. The first is that the Constitution itself preempts State conduct that violates the state-to-state portion of the law of nations. The other is that customary international law had the status of general common law. Before Erie, the general common law was understood as different from either federal or State law, but was closer in operation to modern-day federal law than to modern-day State law. No one claimed that customary international law had a status comparable to modern-day State law.

Part II examines the intermediate positions and concludes that all but that of Bellia and Clark suffer from fundamental flaws. Ramsey's concept of "nonpreemptive federal law" is another name for State law. Thus, Ramsey's approach would replicate one of the problems that most concerned the Founders--the lack of federal judicial power to prevent or remedy violations of customary international law by the States. Young's proposal to employ choice-of-law rules to determine the applicability of customary international law satisfies Erie's requirement that all law applied in this country's courts be either State or federal, but only because choice-of-law rules are themselves creatures of either State or federal law. To the extent that Young would relegate the applicability of customary international law to State choice-of-law rules, his proposal would present severe difficulties stemming from the indeterminacy and inappositeness of such rules, and, like Ramsey's approach, would reproduce the problem that most concerned the Founders. Young's approach would alleviate these problems by allowing for the use of federal choice-of-law rules in some contexts, but he emphasizes that such rules would be applicable very rarely. Aleinikoff's approach would violate the one principle that all agree Erie establishes: that the substantive law applied in the State and federal courts must be the same. The intermediate position of Bradley, Goldsmith, and Moore is problematic because it would place inapposite limits on the judiciary's ability to enforce customary international law as federal law.

The intermediate approach proposed by Bellia and Clark is thoroughly convincing, but it is not really intermediate. Their structural argument for according preemptive force to some customary international law is basically the same as the strongest argument for the modem position. The flaw in their argument is that they do not take it far enough. Their structural argument actually provides substantial support for most of the modern position.

Part III reconsiders the modem position in the light of the revisionists' argument that the customary international law of today differs in important respects from the state-to-state branch of the law of nations as known to the Founders and as it existed before Erie. The revisionists' concerns about the indeterminacy of customary international law and the loosening of the requirements for recognizing such law have some validity and relevance, but these concerns can be adequately addressed by restricting the range of customary norms having preemptive force to those that satisfy a heightened standard of clarity and acceptance. The revisionists' concerns about the new subjects addressed by customary international law -- in particular, the fact that such law now addresses how a nation treats its own citizens-does not warrant any additional restriction.

The final part of the article addresses a seldom-analyzed aspect of the revisionist position--the claim that norms of customary international law that lack the force of preemptive federal law may be given the force of State law through incorporation by State legislatures or courts. The author argues that, for straightforward reasons, the States lack the power to make norms of customary international law applicable to foreign states or officials or federal officials. A State's incorporation of such norms against its own officials or against private parties would pose a less obvious structural problem: because customary international law evolves through the accumulation of state practice and opinio juris, State court decisions regarding the content of such law could, in combination with the acts of other States and foreign states, eventually result in the crystallization of norms of customary international law that the federal government does not support, or the erosion of norms that the federal government does support. State court decisions regarding the content of customary international law thus interfere with the federal executive branch's recognized power to speak for the United States at the international plane regarding the content of such law. This structural problem can be addressed either by denying the States the power to incorporate norms of customary international law or by recognizing the Supreme Court's jurisdiction to review decisions of the State courts regarding the content of customary international law even when such law is relevant to the case only because it has been incorporated as State law. The author concludes that the latter solution is preferable and that such review would be consistent with Article III.

Call for Submissions: Revista Española de Relaciones Internacionales

The Revista Española de Relaciones Internacionales is accepting submissions for its fourth volume, through July 27, 2012. For more information e-mail reri@difusionjuridica.es.

Knight & Egerton: The Routledge Handbook of the Responsibility to Protect

W. Andy Knight (Univ. of Alberta - Political Science) & Frazer Egerton (Government of Nova Scotia) have published The Routledge Handbook of the Responsibility to Protect (Routledge 2012). The table of contents is here. Here's the abstract:

This Handbook offers a comprehensive examination of the Responsibility to Protect norm in world politics, which aims to end mass atrocities against civilians. The Responsibility to Protect (R2P) is amongst the most significant norms in global politics. As the authoritative guide to R2P, this edited volume gathers together the most respected and insightful voices to address key issues related to this emerging norm.

Koh: The State Department Legal Adviser’s Office: Eight Decades in Peace and War

Harold Hongju Koh (Legal Adviser, U.S. Department of State) has published The State Department Legal Adviser’s Office: Eight Decades in Peace and War (Georgetown Law Journal, Vol. 100, no. 5, p. 1747, June 2012).

New Issue: Archiv des Völkerrechts

The latest issue of Archiv des Völkerrechts (Vol. 50, no. 1, March 2012) is out. Contents include:

• Abhandlungen
• Heike Krieger, Krieg gegen anonymous Völkerrechtliche Regelungsmöglichkeiten bei unsicherer Zurechnung im Cyberwar
• Julia Villotti, EU Membership of an internally divided State - the Case of Cyprus
• Beitrage und Berichte
• Magdalena Jankowska-Gilberg, Das Al-Skeini-Urteil des Europäischen Gerichtshofs für Menschenrechte - eine Abkehr von Banković?
• Abhandlungen
• Lars Schönwald, Der Abschuss von Zivilflugzeugen als ultima ratio zur Abwehr von sogenannten Renegades aus völkerrechtlicher Sicht

Helfer: The Burdens and Benefits of Brighton

Laurence R. Helfer (Duke Univ. - Law) has posted an ESIL Reflection on The Burdens and Benefits of Brighton. This is the inaugural essay in a new ESIL initiative, the purpose of which is to "offer up-to-date reflections on current topics or developments in international law in a way that is relatively accessible to non-experts." The editors of ESIL Reflections are Jan Klabbers, André Nollkaemper (editor in chief), and Thomas Skouteris. Further information can be found here on the European Society's newly redesigned website.

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 13, no. 3, 2012) is out. Contents include:

• David Collins, Sustainable International Investment Law after the Pax Americana: The BOOT on the Other Foot
• Patrick Dumberry & Gabrielle Dumas-Aubin, When and How Allegations of Human Rights Violations can be Raised in Investor-State Arbitration
• Lei Cai, Where does China Stand: the Evolving National Treatment Standard in BITs?
• Georgios I. Zekos, Arbitration’s status under EU law
• Bala Ramasamy & Matthew C.H. Yeung, Ethical Distance and Difference in Bilateral Trade
• Srilal M. Perera, Equity-Based Decision-Making and the Fair and Equitable Treatment Standard: Lessons From the Argentine Investment Disputes – Part II
• C. Chatterjee, A Critical Examination of Rule 41(5) of the ICSID Arbitration Rules, 2006

New Issue: Journal of International Maritime Law

The latest issue of the Journal of International Maritime Law (Vol. 17, no. 5, 2011) is out. Contents include:

• Articles
• Frank Stevens, Apportionment of damages under the Rotterdam Rules
• Derek Whayman, The limits of foreseeablility and The Achilleas
• Anastasiya Kozubovskaya-Pelle & Yang Wang, Who is the carrier in the carriage of goods by sea? Rotterdam Rules response from a French and English perspective
• Analysis and Comment
• Aleka Mandaraka Sheppard, The English courts apply business common sense to the interpretation of commercial contracts
• Mysterious disappearance clauses in cargo policies
• Edward Yang Liu, Transfer of property in the construction and sale of a newbuild vessel

Call for Submissions: Sustainable Development and International Investment Law: Bridging the Divide

The Vale Columbia Center on Sustainable International Investment has issued a call for submissions for papers on the topic "Sustainable Development and International Investment Law: Bridging the Divide" for publication in the Yearbook on International Investment Law & Policy. Here's the call:

Sustainable Development and International Investment Law: Bridging the Divide

We have seen a significant increase over the past decade in the number of investment treaties and treaty-based disputes, each contributing to the vast and evolving international investment regime, and each with important implications for sustainable development.

The proliferation of treaties stems from host states wanting to attract foreign investment and all of its potential associated benefits for development (i.e. job creation, broader tax base, improvement in infrastructure, technology and skill transfer etc.); the assumption has been that the investor protections afforded in these treaties will facilitate the flow of investment and the associated benefits. However, the rapid growth in the number of treaty-based claims filed by investors reflects investors’ increased willingness to safeguard their investments from any adverse state conduct. In addition to cases based on states’ wrongful conduct, a wide variety of domestic measures relevant to sustainable development, such as legitimate fiscal and industrial policy, environmental protection, and access to essential services, have also been challenged under the agreements. Such claims by investors, whether successful or not, can cause a state to think twice before adopting legitimate regulations, suggesting that treaties may in fact impede states’ policy space to promote sustainable development domestically. Investment treaties, therefore, can be seen to represent both a tool and a challenge for sustainable development.

The Vale Columbia Center on Sustainable International Investment (VCC) is issuing this call for papers to explore how to “bridge the divide” between achieving necessary protections of foreign investors while promoting the sustainable development of the host state. In this regard, the call for papers aims to foster analysis and ongoing discussion on ways in which sustainable development norms (broadly defined) can and/or do manifest themselves in international investment law. Topics that might be addressed by submissions include:

• An assessment of the investment treaty standards in relation to sustainable development
• The application of international law generally to investment disputes, and its implications for sustainable development
• Different approaches to investment treaty drafting to accommodate and further sustainable development
• Treaty interpretation techniques which encourage integration of norms related to sustainable development (including, but not limited to Article 31(3) of the Vienna Convention on the Law of Treaties)
• Standards of review in investment law
• A comparative analysis of investment law with other legal regimes that face similar issues relating to sustainable development (e.g. trade, human rights)
• The application of stabilization clauses in investment law
• Approaches to determining jurisdiction and admissibility of claims as they relate to the sustainable development
• Legal mechanisms for creating more sustainable partnerships between foreign investors and host states

Submissions are also welcomed on other topics not addressed above, but that otherwise relate to the theme of the call for papers.

Papers submitted will be considered for publication in the Yearbook on International Investment Law & Policy. Those interested in making a submission should submit an abstract no longer than 500 words. Finished papers and drafts are also welcome.

Abstracts should be emailed to Rahim Moloo, Senior Research Fellow, VCC (rahim.moloo@nyu.edu), and Lise Johnson, Lead Investment Law & Policy Researcher, VCC (lisejjohnson@gmail.com) by August 15, 2012. Finished papers will be due by October 31, 2012.

New Issue: Melbourne Journal of International Law

The latest issue of the Melbourne Journal of International Law (Vol. 12, no. 2, November 2011) is out. Contents include:

• Natalie Baird, To Ratify or Not to Ratify? An Assessment of the Case for Ratification of International Human Rights Treaties in the Pacific
• Takele Soboka Bulto, The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery?
• Rachelle Downie, Improving the Performance of Sport’s Ultimate Umpire: Reforming the Governance of the Court of Arbitration for Sport
• Simon Lester, The Problem of Subsidies as a Means of Protectionism: Lessons from the WTO EC — Aircraft Case

Kalbusch: Die römisch-katholische Kirche im System der Vereinten Nationen

Marco Kalbusch has published Die römisch-katholische Kirche im System der Vereinten Nationen (Duncker & Humblot 2012). Here's the abstract:

Die katholische Kirche ist weltumspannend strukturiert. Auf internationaler Ebene agiert sie durch den Heiligen Stuhl und verschiedene NGO, die mit ihr kirchenrechtlich verbunden sind. Anhand des Beispiels der Teilnahme der Kirche an der Arbeit der UNO wird die Einbeziehung der Kirche in die internationalen Rechtsbeziehungen untersucht. Marco Kalbusch zeigt, dass es sich dabei nicht um ein historisches Relikt, sondern um einen integralen Bestandteil des heutigen internationalen Rechtslebens handelt. Nach einer Bestandsaufnahme der internationalen Beziehungen der Kirche untersucht der Autor die Motive und die kanonischen Maßgaben für die Arbeit der Kirche in der UNO, gefolgt von einer völkerrechtlichen Untersuchung der verschiedenen Arten der Mitarbeit in den UNO-Organen. Er kommt zu dem Ergebnis, dass die Kirche alle Möglichkeiten des Kirchen- und Völkerrechts nutzt, um ihrer geistlichen Mission auf internationaler Ebene nachzukommen. Dabei kommt der UNO als wirkliche universale Organisation eine besondere Bedeutung zu: die Kirche setzt sich hier in allen Arbeitsbereichen und Organen für die Grundwerte und Prinzipien der internationalen Gemeinschaft ein, die von der geistlichen Würde des Menschen hergeleitet werden.

New Issue: Chinese Journal of International Law

The latest issue of the Chinese Journal of International Law (Vol. 11, no. 2, June 2012) is out. Contents include:

• Editorial Comments
• Julia Ya Qin, The Predicament of China's "WTO-Plus" Obligation to Eliminate Export Duties: A Commentary on the China-Raw Materials Case
• Articles
• Ahmad Ali Ghouri, Is Characterization of Treaties a Solution to Treaty Conflicts?
• Songling Yang, The Key Role of the WTO in Settling its Jurisdictional Conflicts with RTAs
• Comments
• Wenqiang Yin, Moratorium in International Law
• Guangjian Tu, Forum Non Conveniens in the People's Republic of China