This article explores the background to, and significance of, the Russian renationalization of the Yukos energy conglomerate through a tax assessment followed by an asset auction, then a bankruptcy proceeding. In a nutshell, the rise and fall of Yukos illuminates four narratives about the modern world economy. First, it exposes the challenges – some might say insuperable barriers – to creation of a liberal society on Russian soil. Second, it shows the deep problems with top-down law reform in societies undergoing rapid and wrenching political, economic and social change. Third, it demonstrates how renationalization works in a particularly high-stakes context. Finally, it reveals the capabilities and limits of international dispute settlement through courts, arbitration, and diplomacy when confronting profound conflicts between private rights and fiercely guarded national interests.
Saturday, September 1, 2012
Friday, August 31, 2012
- Special Issue: Hegemony and asymmetry in transboundary river basins
- Jeroen Warner & Neda Zawahri, Hegemony and asymmetry: multiple-chessboard games on transboundary rivers
- Jeroen Warner, The struggle over Turkey’s Ilısu Dam: domestic and international security linkages
- Paula Duarte Lopes, Governing Iberian Rivers: from bilateral management to common basin governance?
- Neda A. Zawahri & Oliver Hensengerth, Domestic environmental activists and the governance of the Ganges and Mekong Rivers in India and China
- Diana Suhardiman & Mark Giordano, Process-focused analysis in transboundary water governance research
Buyse: The Court’s Ears and Arms: National Human Rights Institutions and the European Court of Human Rights
This book chapter explores the ways through which human rights protection in the European system can be improved by national human rights institutions (NHRIs). NHRIs can play a key role in strengthening the supervision and implementation of the European Convention of Human Rights (ECHR) before, during and after the procedure in Strasbourg. In the first phase, NHRIs can help to better inform the public about the Convention system, specifically about the admissibility criteria, and give advice to potential applicants. During the proceedings before the European Court, NHRIs can bring in an independent national perspective - or as a group of NHRIs, a comparative European perspective - by way of a third party intervention. Finally, once the Court has delivered its judgment, NHRIs can facilitate implementation nationally through their advisory, agenda-setting and watchdog functions. In doing so, NHRIs can be highly important channels of information from the national level to the European Court and vice versa.
This paper, presented to the 25th Sokol Colloquium on Private International Law in April 2012, and slated for publication in a forthcoming book resulting from the Colloquium, discusses the International Court of Justice’s judgment in Jurisdictional Immunities of the State (Germany v. Italy). It locates the decision in the context of an ongoing debate over the exclusive role of states in the creation of international law. It argues that the decision provides a strong endorsement of the monopoly of states over the production of international law and speculates as to why an international tribunal such as the Court is more likely to take this stance than is a national court, such as Italy’s Corte Suprema di Cassazione.
Htun & Weldon: The Civic Origins of Progressive Policy Change: Combating Violence against Women in Global Perspective, 1975–2005
Over the past four decades, violence against women (VAW) has come to be seen as a violation of human rights and an important concern for social policy. Yet government action remains uneven. Some countries have adopted comprehensive policies to combat VAW, whereas others have been slow to address the problem. Using an original dataset of social movements and VAW policies in 70 countries over four decades, we show that feminist mobilization in civil society—not intra-legislative political phenomena such as leftist parties or women in government or economic factors like national wealth—accounts for variation in policy development. In addition, we demonstrate that autonomous movements produce an enduring impact on VAW policy through the institutionalization of feminist ideas in international norms. This study brings national and global civil society into large-n explanations of social policy, arguing that analysis of civil society in general—and of social movements in particular—is critical to understanding progressive social policy change.
All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties along a fault line: Treaties that govern the behavior of state parties and their agents fall on one side. Treaties in the second category — those I call “persuasion” treaties — commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, we simply cannot address critical global problems without them.
I use the term “persuasion” in order to communicate the observation that the success — and sometimes the very existence — of treaties in this class depends upon whether state parties can successfully enlist private sector support. The theory builds on recent scholarship that identifies the depth of regulatory interdependence between private and public sector actors. Business entities may choose either to cooperate with or to impede domestic regulatory regimes, and their decisions are not fully susceptible to legal control. The business choice is significant on the international stage: without a successful domestic regulatory regime, a state will not be able to keep corresponding international commitments. Moreover, many states do not commit to treaties they cannot implement or enforce. Thus, persuasion treaty regimes must attract the support of relevant business entities, either ex ante (to secure international agreement), or ex post (to achieve results).
This article considers whether the prospect of increased competition in the regulation of international bribery is desirable or not. It explores the factors that can determine whether this competition will augment or diminish global welfare. Its conclusion is optimistic. Based on what we know about the general dynamics of regulatory competition, the risk that multiple anticorruption regimes will lead to confusion, obstruction of valuable transactions, or a kind of arms race among states seeking to protect national champions is low. Conversely, the likelihood that multiple, often overlapping regimes will decrease the incidence of welfare-diminishing corruption is high. The article initially was presented at a conference organized by the Virginia Journal of International Law and the John Bassett Moore Society of International Law.
Thursday, August 30, 2012
- Dan Banik, Human Rights for Human Development: The Rhetoric and the Reality
- Cecilia M Bailliet, Persecution in the Home - Applying the Due Diligence Standard to Harmful Traditional Practices within Human Rights and Refugee Law
- David L Richards, Mandy M Morrill & Mary R Anderson, Some Psycho-Social Correlates of US Citizen Support for Torture
- Burghard Piltz, The Proposal for a Regulation on a Common European Sales Law and more particular its Provisions on Remedies
- Pietro Franzina & Alberto De Franceschi, Jurisdiction over sales contracts under the Brussels I regulation: the relevance of standard trade terms
Chesney: Beyond the Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture of Counterterrorism
By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government’s use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations). That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan as to which the law of armed conflict clearly applies, and the existence of a relatively-identifiable enemy in the form of the original al Qaeda organization.
Several long-term trends contribute to the erosion of these stabilizing factors. Most obviously, the overt phase of the war in Afghanistan is ending. At the same time, the U.S. government for a host of reasons places ever more emphasis on what we might call the “shadow war” model (i.e., the use of low-visibility or even deniable means to capture, disrupt, or kill terrorism-related targets in an array of locations around the world). The original Al Qaeda organization, meanwhile, is undergoing an extraordinary process of simultaneous decimation, diffusion, and fragmentation, one upshot of which has been the proliferation of loosely-related regional groups that have varying degrees of connection to the remaining core al Qaeda leadership.
These shifts in the strategic posture of both the United States and al Qaeda profoundly disrupt the stability of the current legal architecture upon which military detention and lethal force rest. Specifically, they make it far more difficult (though not impossible) to establish the relevance of the law of armed conflict to U.S. counterterrorism activities, and they raise exceedingly difficult questions regarding just whom these activities lawfully may be directed against. Critically, they also all but guarantee that a new wave of judicial intervention to consider just those questions will occur. Bearing that in mind, I conclude the paper by outlining steps that could be taken now to better align the legal architecture with the trends described above.
The Convention to End All Forms of Discrimination Against Women (CEDAW) is an international bill of rights for women. CEDAW has set the standard for eliminating legal and cultural obstacles to the achievement of equality between men and women around the world. One hundred eighty seven countries have ratified CEDAW since the United Nations' General Assembly approved it on December 18, 1979. Seven member-states of the United Nations have yet to ratify it: Iran, Palau, Somalia, Sudan, South Sudan, Tonga — and the United States. This makes the US the only industrialized democracy in the world that has not ratified CEDAW. What impact would CEDAW have in the United States? More precisely, what effect would CEDAW have on domestic women’s rights policy that is not possible, or less likely, otherwise? Activists on both sides of the debate make a series of claims about the impact of CEDAW. Advocates maintain that the Convention will strengthen US foreign policy but will have relatively little impact in the United States because American women already enjoy all the rights that CEDAW guarantees. Opponents, on the other hand, predict that dire consequences will ensue if the US ratifies CEDAW. I demonstrate that CEDAW could strengthen the rights that American women enjoy, especially in the area of violence against women. CEDAW guarantees women from protection from discrimination whether public or private actors cause the harm — but the American constitution does not protect US citizens from harm caused by private individuals.
Ritter & Wolford: Capture, Surrender, and Reward: Warrant Enforcement and the Efficacy of International Criminal Tribunals
International criminal tribunals cannot capture their own suspects, and states are often hesitant to put forth effort to capture suspects on their territory. However, many suspects have appeared before international courts, sometimes after capture but also after surrender, and in some cases states have worked hard to capture them in order to reap political rewards promised by interested third parties. How does the combination of domestic politics and potential international rewards affect this basic problem of capture? We analyze a game-theoretic model of the interactions between a suspect, the state in which he resides, and an interested state or international institution, deriving predictions over when and how suspects are likely to surrender or be captured. We then test these implications against a newly collected dataset of all individuals indicted by the International Criminal Tribunal for the Former Yugoslavia.
The question of expropriation is at the heart of modern foreign investment law, yet remains an area of great uncertainty and ambiguity. Neither treaty law nor existing jurisprudence provides clarity on the questions of when government action amounts to an expropriation or what to do if does.
This Article provides a framework for approaching questions of expropriation that helps understand the key questions that must be addressed by investment tribunals or, for that matters, host countries and investors. We begin with the neutral category of takings, meaning any government action that negatively affects that value of an investment. We argue that a taking that is more than de minimis is an expropriation unless it promotes public welfare (which we also term “super public purpose”) or is incidental to normal government activity. Whether the taking is an expropriation or not, we must next ask if it is unlawful. As is well known, an expropriation is lawful if it is made for a public purpose, is non-discriminatory, satisfies due process, and if the required compensation is paid. Whether lawful or not, the taking must not violate the fair and equitable obligation. Finally, the Article considers the compensation owed (if any) under each of the four categories constructed above: a lawful expropriation, an unlawful expropriation, an unlawful non-expropriatory taking, and, of course, a lawful non-expropriatory taking.
Our approach to questions of expropriation cannot offer a simple and obvious result in every dispute. No discussion of the topic could do so. It does, however, guide the analysis and identify the key questions that must be answered in order to determine the legal implications of a governmental taking. In so doing, it offers a more coherent view of the international investment law of expropriation.
Wednesday, August 29, 2012
Buthe & Milner: The Interaction of International and Domestic Institutions: Preferential Trade Agreements, Democracy, and Foreign Direct Investment
Foreign direct investment (FDI) has come to be seen as a promising avenue for boosting economic development. As a consequence, most developing countries now seek to attract FDI, often by making ex ante promises to foreign investors not to pass laws or regulations — or refrain from other actions — that would diminish the value of the investment ex post. But how credible are such promises? A number of recent studies have examined the effect of domestic institutions (veto players, democracy, etc.) on the credibility of commitments by developing country governments toward foreign private economic actors, such as foreign investors. In addition, a few studies have examined the effect of international institutions on the credibility of such commitments. We examine the interaction of domestic and international institutions in promoting FDI. We show theoretically and empirically that democratic domestic institutions help attract more FDI into developing countries only in the context of economically liberal international institutions.
Attribution of conduct to the State is of central importance in WTO law as well as in other parts of international law. It is largely based on the concept of State organ since « the conduct of any State organ shall be considered an act of that State under international law » (article 4 ASRIWA). This contribution aims at examining how WTO law captures this concept, in a context of fragmentation of State apparatuses. At first sight, differences between general international law and WTO law seem to appear. While the first undoubtedly includes the territorial divisions of the State in the category of State organs, the latter seems to exclude them. Conversely, while the second expands the class of organs to include functional divisions, the first does not seem to consider it. But appearances are deceptive. In one case as in the other, a closer examination reveals reconciliations. In the first case, because the WTO law aligned with general international law by assimilating territorial divisions to organs of its members. In the second case, because the concept of State organ as designed in general international law is wider than it seems and is therefore likely to include functional divisions. Note: Downloadable document is in French.
Call for Papers
ASIL International Organizations Interest Group
The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on Saturday, December 1, 2012, at the Arizona State University Building in Washington, DC, 1834 Connecticut Avenue, NW, Washington, DC 20008.
If you are interested in presenting a paper at the workshop, please submit an abstract to Lorena Perez (lperez[at]oas.org), Justin Jacinto (jjacinto[at]curtis.com) and David Gartner (David.Gartner[at]asu.edu) by the end of the day on September 21. Abstracts should be a couple of paragraphs long but not more than one page. Papers should relate to the subject "international organizations."
Papers selected for presentation are due no later than November 17, as they will be pre-circulated. Papers should not yet be in print; ideally, authors will have time to make revisions based on the comments from the workshop.
The workshop's format will be as follows. Each paper will be introduced by a commentator, after which the author will have the opportunity to respond if he or she wishes. The floor will then be opened up for discussion. The workshop is conducted on the assumption that everyone has read all of the papers in advance. After we have selected papers, we will ask for volunteers to serve as commentators. One need not present a paper or comment on a paper to participate. Registration for the workshop will open in October.
Please do not hesitate to contact us should you have any questions about the workshop or paper submissions.
Lorena Perez and Justin Jacinto
Interest Group Co-Chairs
Interest Group Vice-Chair
Tuesday, August 28, 2012
Cet ouvrage aborde de manière systématique, innovante et actualisée la question de la légitime défense en droit international public. Il s’agit de la première étude francophone entièrement consacrée à cette question. Elle est principalement fondée sur une analyse approfondie de la pratique contemporaine des états relative à l’emploi de la force. Tous les cas problématiques récents (tels que l’intervention des états-Unis en Afghanistan et les incursions d’Israël dans les territoires arabes voisins) y reçoivent une attention particulière. La pratique ancienne (comme la célèbre affaire du Caroline) y est également étudiée dans la mesure où elle permet d’éclairer les débats actuels relatifs à la légitime défense.
L’étude remet en cause le bien-fondé des réponses traditionnellement apportées aux questions récurrentes posées en la matière et aboutit à des conclusions nouvelles par rapport à la doctrine classiquement publiée à ce sujet. Elle offre un regard neuf sur les problématiques, très controversées, que suscitent certains emplois récents de la force (terrorisme, armes nucléaires, etc.) et, en particulier, sur la question du droit de réagir en légitime défense à des attaques non étatiques ou à une menace d’agression armée. Elle aborde également des questions, comme la preuve de la légitime défense, qui n’ont encore jamais fait l’objet d’une analyse systématique dans les études classiques relatives à l’emploi de la force.
Plus généralement, l’ouvrage propose une conception globale du droit de légitime défense, qui permet de concilier les approches extensives et restrictives de ce droit et d’éviter les écueils auxquels chacune de ces approches semble conduire.
Pernice, Müller, & Peters: Konstitutionalisierung jenseits des Staates: Zur Verfassung der Weltgemeinschaft und den Gründungsverträgen internationaler Organisationen
Das Völkerrecht befindet sich in einem stetigen Prozess der Konstitutionalisierung, zu dem internationale Organisationen einen entscheidenden Beitrag leisten. Der Band vereint juristische, philosophische und politikwissenschaftliche Perspektiven auf diese Entwicklung: Welche Rolle spielt die Konstitutionalisierung einzelner internationaler Organisationen für die des Völkerrechts in seiner Gesamtheit? Mit welchen rechtlichen Mechanismen wird der Prozess gestaltet? Welche Bedeutung hat das ius cogens, welche Funktion erfüllt die UN-Charta, wie relevant ist Supranationalität? Wie kann man Verantwortung für Konstitutionalisierung konzeptionell fassen, und welche Legitimationsprobleme stellen sich? Lässt sich dieser Vorgang mit dem Prinzip der kollektiven Selbstbestimmung vereinbaren? Und wie wirkt sich das Verfahren einer Verfassungsgebung durch völkerrechtliche Verträge auf deren öffentliche Akzeptanz aus?
Mit der Annäherung an diese Fragen soll der Sammelband zu einem interdisziplinären Verständnis der Entwicklung globaler Institutionen beitragen.
En términos antes inimaginables, diversos factores (el derretimiento del hielo, el desarrollo tecnológico, etc.) están convirtiendo el océano Ártico en una vía marítima navegable y en una zona de explotación comercial, es decir, el Ártico está adquiriendo una nueva visibilidad internacional. La Convención sobre Derecho del Mar de 1982 no fue redactada teniendo en cuenta las extraordinarias consecuencias de la fusión del hielo en las aguas del Ártico. Como nuevo reto para el Derecho Internacional del Mar, su interpretación teleológica podría llevar a una labor constructiva en la que el significado histórico, en particular, de la Convención sobre Derecho del Mar de 1982 se adaptara normativamente a las nuevas realidades y necesidades que han conducido a la actual visibilidad del Ártico en su singularidad y en el contexto de un orden internacional interdependiente que caracteriza el mundo del siglo XXI en el que vivimos.
Customary international law (CIL) is the general and consistent practice of states followed by them from a sense of legal obligation. While CIL is a widely accepted source of international law, it is poorly understood and has so far eluded systematic empirical analysis. We develop a theory of why and how CIL changes and test the observable implications of this theory with newly collected data on the CIL rule of sovereign immunity, under which states are immune from the jurisdiction of domestic courts in other states. The data document if and when states switched from the older rule of absolute immunity to restrictive immunity, which carves out exceptions for commercial activity.
Existing theories model CIL as a stable cooperative equilibrium in a repeated prisoner’s dilemma enforced primarily by targeted reciprocity and retaliation. In contrast, we argue that several features of CIL reduce the effectiveness of such strategies as a source of norm stability. Our model suggests instead that the potential precedential effects of defection determine the stability of CIL norms. States derive less benefits from absolute immunity the fewer of their trading partners practice it. Thus, states know that their decision to defect affects the decisions of others. This might lead them to practice absolute immunity at home if their preference for enjoying absolute immunity abroad is sufficiently high.
We test these ideas using new data on the sovereign immunity practices of 121 states. We find no evidence that defectors were punished with reciprocal behavior or retaliation. Instead, our regression analyses find that states became more likely to switch as the amount of foreign activity within their borders increased and as more of their export partners switched. Early defectors were generally small countries, which is inconsistent with threats of retaliation being the source of norm stability but supports the idea that countries whose behavior has small expected precedential effects defect first. Qualitatively, decisions to defect were motivated with reference to precedents set by the behavior of others, rather than as responses to specific instances of defection.
- Robert D. Sloane, On the Use and Abuse of Necessity in the Law of State Responsibility
- Agora: Kiobel
- Attorney General Bradford’s Opinion and the Alien Tort Statute Curtis A. Bradley
- Carlos M. Vázquez, Alien Tort Claims and the Status of Customary International Law
- Brian Richardson, The Use of Vattel in the American Law of Nations
- Editorial Comment
- Steve Charnovitz, Correcting America’s Continuing Failure to Comply with the Avena Judgment
- Notes and Comments
- Stephen M. Schwebel, The Nicaragua Case: A Response to Paul Reichler
- Paul S. Reichler, Paul Reichler’s Rejoinder
- Current Developments
- Jacob Katz Cogan, The 2011 Judicial Activity of the International Court of Justice
Monday, August 27, 2012
Paik, Lee, & Tan: Asian Approaches to International Law and the Legacy of Colonialism: The Law of the Sea, Territorial Disputes and International Dispute Settlement
The chapters in this volume address international legal issues impacted by the legacy of the Asian region’s historical experience with colonialism and its current standing in the international system. This volume provides a perspective on these issues from Asian legal scholars who have embarked on an analysis and discussion of the various ways in which international law and the international legal process can resolve these issues in a manner that is appropriate for the region.
The book examines the interconnections between diverse topics, such as current territorial disputes over maritime areas (which includes disputes over maritime delimitation) and the scope of exclusive economic zones in East and Southeast Asia, both of which are aspects of some of the critical political, economic, and legal issues presently confronting the region. These territorial and maritime disputes are partially due to the geography of the region, but the editors make a convincing argument for the genesis of these disputes being rooted in the legacy of the region’s colonial past; a legacy which has confounded attempts at resolution of these disputes and still deeply influences international relations in the region.
The World Trade Organization (WTO) dispute settlement system, has succeeded, since its establishment in 1995, in generating a perception that the DSU offers one of the most advanced multilateral adjudicatory systems that exist today, principally because of the large volume of cases it has attracted and settled. Despite a high record of satisfactory settlements of disputes and tall claims in appreciation, there is an equal amount of scepticism, particularly about the nature and content of remedies for violations of WTO rights and obligations. This book presents a critical review on the problems stemming from the nature and scope of the WTO remedies and its enforcement. The study highlights in a comparative perspective the lacunas and inadequacies in the current system, and in the process, accentuates the detrimental nature of the WTO remedies on the interest of the developing and least developing countries.
- Michael Contarino, Melinda Negrón-Gonzales, & Kevin T. Mason, The International Criminal Court and Consolidation of the Responsibility to Protect as an International Norm
- Hugh Breakey, Protection Norms and Human Rights: A Rights-Based Analysis of the Responsibility to Protect and the Protection of Civilians in Armed Conflict
- Adrian M. Gallagher, A Clash of Responsibilities: Engaging with Realist Critiques of the R2P
- Special Issue: A Critical Analysis of the New European Sales Law
- Larry A. DiMatteo, Common European Sales Law: A critique of its rationales, functions, and unanswered questions
- Rafael Illescas Ortiz & Pilar Perales Viscasillas, The scope of the Common European Sales Law: B2B, goods, digital content and services
- Fryderyk Zoll, The binding power of the contract: Protection of performance in the system of the Common European Sales Law
- Ulrich Magnus, Interpretation and gap-filling in the CISG and in the CESL
- Christian Twigg-Flesner, Dealing with informational asymmetries under the proposed CESL and CISG
- Hector L. MacQueen, Change of circumstances: CISG, CESL and a case from Scotland
- Karl-Heinz Ladeur, Constitutionalism and the State of the 'Society of Networks': The Design of a New 'Control Project' for a Fragmented Legal System
- Thomas Finegan, Neither Dualism nor Monism: Holism and the Relationship between Municipal and International Human Rights Law
- Joel P. Trachtman, Fragmentation, Coherence and Synergy in International Law
- Mark Retter, Jus Cogens: Towards an International Common Good?
Sunday, August 26, 2012
Cyber-attacks have become increasingly common in recent years. Capable of shutting down nuclear centrifuges, air defense systems, and electrical grids, cyber-attacks pose a serious threat to national security. As a result, some have suggested that cyber-attacks should be treated as acts of war. Yet the attacks look little like the armed attacks that the law of war has traditionally regulated. This Article examines how existing law may be applied — and adapted and amended — to meet the distinctive challenge posed by cyber-attacks. It begins by clarifying what cyber-attacks are and how they already are regulated by existing bodies of law, including the law of war, international treaties, and domestic criminal law. This review makes clear that existing law effectively addresses only a small fraction of potential cyber-attacks. The law of war, for example, provides a useful framework for only the very small number of cyber-attacks that amount to an armed attack or that take place in the context of an ongoing armed conflict. This Article concludes that a new, comprehensive legal framework at both the domestic and international levels is needed to more effectively address cyber-attacks. The United States could strengthen its domestic law by giving domestic criminal laws addressing cyber-attacks extra-territorial effect and by adopting limited, internationally permissible countermeasures to combat cyber-attacks that do not rise to the level of armed attacks or that do not take place during an ongoing armed conflict. Yet the challenge cannot be met by domestic reforms alone. International cooperation will be essential to a truly effective legal response. New international efforts to regulate cyber-attacks must begin with agreement on the problem — which means agreement on the definition of cyber-attack, cyber-crime, and cyber-warfare. This would form the foundation for greater international cooperation on information sharing, evidence collection, and criminal prosecution of those involved in cyber-attacks — in short, for a new international law of cyber-attack.