Symposium: Human Rights Litigation in State Courts and Under State Law

The current issue of the UC Irvine Law Review (Vol. 3, no. 1, 2013) contains a symposium on "Human Rights Litigation in State Courts and Under State Law." Contents include:

• Symposium: Human Rights Litigation in State Courts and Under State Law
• Christopher A. Whytock, Donald Earl Childress III, & Michael D. Ramsey, After Kiobel—International Human Rights Litigation in State Courts and Under State Law
• Paul Hoffman & Beth Stephens, International Human Rights Cases Under State Law and in State Courts
• Austen L. Parrish, State Court International Human Rights Litigation: A Concerning Trend?
• Patrick J. Borchers, Conflict-of-Laws Considerations in State Court Human Rights Actions
• Anthony J. Colangelo & Kristina A. Kiik, Spatial Legality, Due Process, and Choice of Law in Human Rights Litigation Under U.S. State Law
• Chimène I. Keitner, State Courts and Transitory Torts in Transnational Human Rights Cases
• David Kaye, State Execution of the International Covenant on Civil and Political Rights
• Michael D. Goldhaber, Corporate Human Rights Litigation in Non-U.S. Courts: A Comparative Scorecard

Zoppo: La soluzione delle controversie commerciali tra Stati tra multilateralismo e regionalismo

Laura Zoppo (Sapienza – Università di Roma - Law) has published La soluzione delle controversie commerciali tra Stati tra multilateralismo e regionalismo (Jovene 2013). Here's the abstract:

The book is about the relationship between the dispute settlement system of the WTO and those established under Regional Trade Agreements (RTAs). It aims to analyze this relationship in concrete terms, as it appears from the examination of the relevant cases and the study of the rules dedicated to its regulation. The book consists of three parts. The first one looks over the WTO law , especially with regard to the dispute settlement process and the rules which ensure compatibility between RTAs and the multilateral trading system. The second one provides an overview of the main existing forms of regional integration , with particular attention to the agreements for the settlement of disputes and the inclusion in such agreements of specific clauses of choice of forum . Finally , the third part studies the most significant cases of competition between alternative procedures in the resolution of trade disputes. In this regard , there are three main cases: the respondent's objection to jurisdiction, the competition between parallel proceedings and the succession between competing procedures . The study ends with a critical analysis of theoretical models for the resolution of conflicts between international jurisdictions and with the examination of their applicability to resolve conflicts of jurisdiction in the international trade area. Following, it focuses on the assessment of the technical applicability of the choice of forum clauses provided by RTAs to limit the exercise of jurisdiction by the WTO, and the importance given in the second proceeding to decisions issued in the first forum. In conclusion, although the proliferation of jurisdictions is now a widespread tendency in all areas of international law, conflicts of jurisdiction have specific characteristics in the field of trade, in which they appear as a particular aspect of the wider question of the interaction between the complex of multilateral trade agreements and other international agreements, as well as a consequence of the multiplication of RTAs.

Wuerth: International Law in Domestic Courts and the Jurisdictional Immunities of the State Case

Ingrid B. Wuerth (Vanderbilt Univ. - Law) has posted International Law in Domestic Courts and the Jurisdictional Immunities of the State Case (Melbourne Journal of International Law, Vol. 13, no. 2, 2012). Here's the abstract:

National court litigation in Greece and Italy prompted Germany to bring suit before the international Court of Justice (‘ICJ’), resulting in the Jurisdictional Immunities of the State judgment. The history of that litigation, as well as the ICJ’s judgment itself, raise two questions about the relationship between executive branches and courts. First, if national court decisions conflict with the views of the forum state’s executive branch, which controls for the purpose of determining state practice in customary international law? Secondly, are national courts more likely to produce ‘outlier’ decisions that challenge or undermine existing international law when the forum state’s executive branch fails to take a position in the litigation? This commentary explores these two questions and explains their significance in light of current developments in immunity and universal jurisdiction cases.

Conference: London International Boundary Conference

The inaugural London International Boundary Conference will take place on April 18 and 19, 2013 at the Royal Geographical Society, London. It will provide a unique and multidisciplinary insight into the complex world of international boundary and sovereignty disputes. Speakers at the Conference are among the world's leading experts and practitioners in the effective resolution of territorial disputes. They will examine recent developments in disputed “hotspots” around the world, and discuss new and emerging ideas for the resolution and management of territorial disputes, from legal, geopolitical, technical, commercial and other viewpoints. The Conference will examine how these varied, emerging perspectives might inform a more integrated approach to international boundary and territorial disputes. The Conference, which will be a not-for-profit event, will be hosted by Department of Geography, King’s College London, Volterra Fietta and the United Kingdom Hydrographic Office.

The Conference will also run a half-day technical workshop at King’s College London on the afternoon of April 17, 2013, offering a practical introduction to maritime limits and boundaries.

For further details (including speakers, pricing and registration), please visit the conference website. Places are limited.

Mylonas: The Politics of Nation-Building: Making Co-Nationals, Refugees, and Minorities

Harris Mylonas (George Washington Univ. - Political Science) has published The Politics of Nation-Building: Making Co-Nationals, Refugees, and Minorities (Cambridge Univ. Press 2013). Here's the abstract:

What drives a state's choice to assimilate, accommodate, or exclude ethnic groups within its territory? In this innovative work on the international politics of nation-building, Harris Mylonas argues that a state's nation-building policies toward non-core groups – any aggregation of individuals perceived as an ethnic group by the ruling elite of a state – are influenced by both its foreign policy goals and its relations with the external patrons of these groups. Through a detailed study of the Balkans, Mylonas shows that how a state treats a non-core group within its own borders is determined largely by whether the state's foreign policy is revisionist or cleaves to the international status quo, and whether it is allied or in rivalry with that group's external patrons. Mylonas injects international politics into the study of nation-building, building a bridge between international relations and the comparative politics of ethnicity and nationalism. This is the first book to explain systematically how the politics of ethnicity in the international arena determine which groups are assimilated, accommodated, or annihilated by their host states.

Symposium: Investment Treaty Arbitration: Approaching the System’s Adulthood

Today, the Harvard International Law Journal will host a symposium on "Investment Treaty Arbitration: Approaching the System’s Adulthood." The program is here. Here's the idea:

The conference will feature a keynote address by Judge Brower of the Iran-United States Claims Tribunal and three panels on: The Design of Investment Arbitration System: Consistency and Precedent; Remedies and Damages in Investment Arbitration; and Addressing Environmental, Human Rights and Development Issues in International Investment Arbitration

Conference: The Changing Face of Global Governance: International Institutions in the International Legal Order

Registration is now open for the Spring Conference of the International Law Association (British Branch) which will take place in Oxford on April 12 and 13. The theme of the conference is “The Changing Face of Global Governance: International Institutions in the International Legal Order.” The conference will explore the changing nature of international institutions and their impact on international governance, international law-making and law-enforcement. Papers address the role of international institutions in a wide range of areas, including the maintenance of peace and security, international economic law, environmental law, law of the sea, international criminal law, as well as the regulation of technology and health.

The Keynote Lecture and Inaugural Oxford Global Justice Lecture will be delivered by Patricia O’Brien, United Nations Under Secretary General for Legal Affairs and Legal Counsel. Papers will be presented by speakers drawn from academia as well as from the offices of legal counsel of international organizations and States. Plenary speakers include Dan Sarooshi, Nico Krisch, Alan Boyle, Guy Goodwin-Gill, Kristen Boon, Payam Akhavan and Charles Jalloh. The programme and registration details are available on the new website of the Public International Law Group in the Oxford Law Faculty.

Hafner-Burton: Making Human Rights a Reality

Emilie M. Hafner-Burton (Univ. of California, San Diego - School of International Relations and Pacific Studies) has published Making Human Rights a Reality (Princeton Univ. Press 2013). Here's the abstract:

In the last six decades, one of the most striking developments in international law is the emergence of a massive body of legal norms and procedures aimed at protecting human rights. In many countries, though, there is little relationship between international law and the actual protection of human rights on the ground. Making Human Rights a Reality takes a fresh look at why it's been so hard for international law to have much impact in parts of the world where human rights are most at risk.

Emilie Hafner-Burton argues that more progress is possible if human rights promoters work strategically with the group of states that have dedicated resources to human rights protection. These human rights "stewards" can focus their resources on places where the tangible benefits to human rights are greatest. Success will require setting priorities as well as engaging local stakeholders such as nongovernmental organizations and national human rights institutions.

To date, promoters of international human rights law have relied too heavily on setting universal goals and procedures and not enough on assessing what actually works and setting priorities. Hafner-Burton illustrates how, with a different strategy, human rights stewards can make international law more effective and also safeguard human rights for more of the world population.

New Issue: Journal of International Economic Law

The latest issue of the Journal of International Economic Law (Vol. 16, no. 1, March 2013) is out. Contents include:

• Julien Chaisse & Mitsuo Matsushita, Maintaining the WTO's Supremacy in the International Trade Order: A Proposal to Refine and Revise the Role of the Trade Policy Review Mechanism
• James Flett, WTO Space for National Regulation: Requiem for a Diagonal Vector Test
• Tania Voon, Discrimination in International Mobile Roaming Regulation: Implications of WTO Law
• Pasha L. Hsieh, Reassessing APEC’s role as a Trans-Regional Economic Architecture: Legal and Policy Dimensions
• Panagiotis Delimatsis, Transparent Financial Innovation in a Post-Crisis Environment
• Federico Lupo Pasini, Economic Stability and Economic Governance in the Euro Area: What the European Crisis can Teach on the Limits of Economic Integration
• Kara Leitner & Simon Lester, WTO Dispute Settlement 1995–2012—A Statistical Analysis

New Issue: Vanderbilt Journal of Transnational Law

The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 46, no. 1, January 2013) is out. Contents include:

• Anil Kalhan, “Gray Zone” Constitutionalism and the Dilemma of Judicial Independence in Pakistan
• Hallie Ludsin, Returning Sovereignty to the People
• Adam I. Muchmore, Jurisdictional Standards (and Rules)

New Issue: Michigan Journal of International Law

The latest issue of the Michigan Journal of International Law (Vol. 34, no. 1, Fall 2012) is out. Contents include:

• Omar M. Dajani, Contractualism in the Law of Treaties
• Anna T. Katselas, Do Investment Treaties Prescribe a Deferential Standard of Review? A Comparative analysis of the U.S. Administrative Procedure Act’s Arbitrary and Capricious Standard of Review and the Fair and Equitable Treatment and Arbitrary or Discriminatory Measures Treaty Standards
• Wentong Zheng, Reforming Trade Remedies

2013 ASIL Certificates of Merit for Scholarship

The American Society of International Law has announced its 2013 Certificates of Merit for Scholarship. The report of the committee is here (I had the honor of being a member). The recipients of the certificates are:

Certificate of Merit - Preeminent Contribution to Creative Scholarship: Jeremy Waldron, "Partly Laws Common to All Mankind": Foreign Law in American Courts (Yale Univ. Press 2012)


Certificate of Merit - High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars: Duncan B. Hollis, ed., The Oxford Guide to Treaties (Oxford Univ. Press 2012)



Certificate of Merit - Specialized Area of International Law: Petros C. Mavroidis, Trade in Goods (2d ed., Oxford Univ. Press 2012)

Milano: The Deterritorialization of International Law

Enrico Milano (Univ. of Verona - Law) has posted an ESIL Reflection on The Deterritorialization of International Law.

Ochoa: The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations

Juan Carlos Ochoa S. (Univ. of Oslo - Law) has published The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations (Martinus Nijhoff Publishers 2013). Here's the abstract:

The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations addresses a question of critical importance to policy-makers, international lawyers, academics, and affected societies throughout the world: Should victims of serious human rights violations be granted under international law the rights of access to and participation in criminal proceedings before international, hybrid and domestic tribunals?

Juan Carlos Ochoa applies a thorough analysis of international and comparative domestic law and practice to this question, taking into account a host of international human rights instruments and case law, the theory, law and practice of international and hybrid criminal tribunals, the law and practice in several domestic jurisdictions, and many theoretical and empirical studies. After first determining the current state of, and emerging trends in, international law in this area, he argues that the lack of recognition of these rights under customary international law is inadequate, because access to and participation in criminal proceedings for victims of these infringements are based on several internationally recognised human rights and principles, contribute to the expressivist objectives of these procedures, and are consistent with the principles that inform the enforcement of criminal law in democratic States. On this basis, Ochoa convincingly suggests concrete reforms.

Martin: WTO Dispute Settlement Understanding and Development

Mervyn Martin (Teesside Univ. - Law) has published WTO Dispute Settlement Understanding and Development (Martinus Nijhoff Publishers 2013). Here's the abstract:

This book examines the effectiveness of the WTO DSU in pursuing the developmental objectives of the WTO. Unregulated globalisation enabled developed countries to benefit more from the process. International trade theories emphasise on welfare enhancement and influenced the development of international trade cooperation. However, its development during the colonial era emphasised on protection of colonial interests. The WTO was meant to emphasise on a strengthened dispute settlement mechanism to support its diverse membership. It has failed to achieve this due to weak mechanisms for promoting developing country participation. The DSU review based on the draft negotiating proposal from the DSB reflects the on-going weakness of the DSU in pursuing developed country interests whilst ignoring major problems faced by developing countries in using the DSU. Five major issues in relation to the DSU are identified in this investigation. However, the Chairman’s text in no way addresses any of these.

Morgera, Buck, & Tsioumani: The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective

Elisa Morgera, Matthias Buck, & Elsa Tsioumani have published The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective: Implications for International Law and Implementation Challenges (Martinus Nijhoff Publishers 2013). The table of contents is here. Here's the abstract:

The Nagoya Protocol on Access and Benefit-sharing is an innovative multilateral environmental agreement that has significantly developed the international biodiversity regime. In addition, it has considerable implications for the rights of indigenous peoples and local communities, for research and commercial development activities in various sectors, as well as for food security, health, trade, oceans, and development cooperation. A prestigious group of international experts analyses the implications of the Nagoya Protocol for different areas of international law, and its implementation challenges in various regions, or of a cross-cutting nature. The volume thus combines the perspectives of legal scholars and of stakeholders involved in the negotiations of the Protocol and the preparations towards its entry into force.

Boon: The Role of Lex Specialis in the Articles on the Responsibility of International Organizations

Kristen Boon (Seton Hall Univ. - Law) has posted The Role of Lex Specialis in the Articles on the Responsibility of International Organizations (in Responsibility of International Organizations, Maurizio Ragazzi ed., forthcoming). Here's the abstract:

The International Law Commission’s (ILC) recent endeavor to progressively develop principles of responsibility applicable to international organizations (IOs) reignited an old debate: do IOs share a common set of core attributes? Or are they fundamentally sui generis, given their great variations in mandate, size, and power vis a vis member states? The comments submitted by IOs to the ILC demonstrate that there is very little consensus on the genus of IO, and consequently on the application of general rules to these increasingly important and pervasive bodies. Indeed, most IOs took the position that the founding premise of the international legal framework applicable to IOs should be speciality not generality.

Bettauer: Supreme Court May Consider How Broadly the “Necessary and Proper” Clause of the Constitution Authorizes Legislation to Implement Treaties

Ronald J. Bettauer (formerly, Deputy Legal Adviser, U.S. Department of State) has posted an ASIL Insight on Supreme Court May Consider How Broadly the “Necessary and Proper” Clause of the Constitution Authorizes Legislation to Implement Treaties.

New Issue: Journal of International Wildlife Law & Policy

The latest issue of the Journal of International Wildlife Law & Policy (Vol. 16, no. 1, January-March 2013) is out. Contents include:

• Arie Trouwborst, Bird Conservation and Climate Change in the Marine Arctic and Antarctic: Classic and Novel International Law Challenges Converging in the Polar Regions
• Cara Miller & Margi Prideaux, Proactive Cetacean Conservation in the Midst of ‘Data Deficiency’: Progress of the Convention on Migratory Species Cetacean Agreement in the Pacific Islands Region
• Julie Ayling, What Sustains Wildlife Crime? Rhino Horn Trading and the Resilience of Criminal Networks
• Robyn Allchin, Jamie Kirkpatrick & Lorne Kriwoken, On Not Protecting the Parrot: Impact of Conservation and Planning Legislation on an Endangered Species in Tasmania

New Issue: International Affairs

The latest issue of International Affairs (Vol. 89, no. 2, March 2013) is out. Contents include:

• Special Issue: The Middle East ten years after the invasion of Iraq
• Toby Dodge, State and society in Iraq ten years after regime change: the rise of a new authoritarianism
• Gareth Stansfield, The unravelling of the post-First World War state system? The Kurdistan Region of Iraq and the transformation of the Middle East
• Ali M. Ansari, L'état, c'est moi: the paradox of sultanism and the question of ‘regime change’ in modern Iran
• Fawaz A. Gerges, The Obama approach to the Middle East: the end of America's moment?
• Louise Fawcett, The Iraq War ten years on: assessing the fallout
• Anthony F. Lang Jr., From revolutions to constitutions: the case of Egypt
• Alex de Waal, African roles in the Libyan conflict of 2011
• Philip Robins, Turkey's ‘double gravity’ predicament: the foreign policy of a newly activist power
• Clive Jones & Beverley Milton-Edwards, Missing the ‘devils’ we knew? Israel and political Islam amid the Arab Awakening
• Lina Khatib, Qatar's foreign policy: the limits of pragmatism
• Patricia M. Lewis, A Middle East free of nuclear weapons: possible, probable or pipe-dream?
• Nathan E. Busch & Joseph F. Pilat, Disarming Libya? A reassessment after the Arab Spring
• Nicholas J. Wheeler, Investigating diplomatic transformations

Blum: The Individualization of War: From Collectivism to Individualism in the Regulation of Armed Conflicts

Gabriella Blum (Harvard Univ. - Law) has posted The Individualization of War: From Collectivism to Individualism in the Regulation of Armed Conflicts (in Law and War, Austin Sarat, Lawrence Douglas, & Martha Merrill Umphrey eds., forthcoming). Here's the abstract:

In a celebrated humanitarian move, wartime regulation has evolved from a predominantly state-oriented set of obligations — which viewed war as an inter-collective effort — to a more individual-focused regime. In fact, the regulation of armed conflict increasingly resembles, at least in aspiration, the regulation of police activities, in which it is the welfare of individuals, rather than the collective interest of the state, that takes center stage. I demonstrate that many contemporary debates over the laws of war, including the distinction between the jus ad bellum and jus in bello, proportionality, detention of combatants, and reparations for victims implicate exactly the tension between collectivism and individualism in the regulation of armed conflict. I further argue that notwithstanding the humanitarian benefits of the move to greater concern over the human rights of those affected by war, reimagining war as a policing operation harbors real dangers that must not be overlooked. These include imagining more of policing as war, inhibiting military action for the protection of others, and inviting more aggressive acts “short of war” against targets around the world.

Guiora: Targeted Killing: When Proportionality Gets All Out of Proportion

Amos N. Guiora (Univ. of Utah - Law) has posted Targeted Killing: When Proportionality Gets All Out of Proportion. Here's the abstract:

Targeted killing sits at the intersection of law, morality, strategy, and policy. For the very reasons that lawful and effective targeted killing enables the state to engage in its core function of self-defense and defense of its nationals, I am a proponent of targeted killing. However, my support for targeted killing is conditioned upon it being subject to rigorous standards, criteria, and guidelines. At present, new conceptions of threat and new technological capabilities are drastically affecting the implementation of targeted killing and the application of core legal and moral principles. High-level decision makers have begun to seemingly place a disproportionate level of importance on tactical and strategic gain over respect for a narrow definition of criteria-based legal and moral framework. Nonetheless, an effective targeted killing provides the state with significant advantages in the context of counterterrorism. Rather than relying on the executive branch making decisions in a “closed world” devoid of oversight and review, the intelligence information justifying the proposed action must be submitted to a court that would ascertain the information’s admissibility. The process of preparing and submitting available intelligence information to a court would significantly contribute to minimizing operational error that otherwise would occur.

d'Aspremont: An Autonomous Regime of Identification of Customary International Humanitarian Law: Do Not Say What You Do or Do Not Do What You Say?

Jean d'Aspremont (Univ. of Manchester - Law) has posted An Autonomous Regime of Identification of Customary International Humanitarian Law: Do Not Say What You Do or Do Not Do What You Say? (in Droit international humanitaire: un régime spécial de droit international?, R. van Steenberghe ed., forthcoming). Here's the abstract:

This chapter discusses the methodology of establishment of customary humanitarian law in the practice of the international criminal tribunal and the International Committee of the Red Cross (ICRC). After shedding some light in the difficulties inherent in the ascertainment of customary humanitarian law, the chapter discusses the extent to which practice shows a emancipation by these bodies from the general rule of recognition pertaining to the establishment of customary law. Although concluding that it is too early to speak about an autonomization of the rule of recognition regarding the establishment of customary humanitarian law (and hence a fragmentation of the theory of customary international law), this chapter submits that some emancipatory moves can be clearly observed in practice of criminal tribunals and the ICRC. This chapter ends with a few critical remarks on the narratives used by these bodies and their inclination to obfuscate their emancipatory moves behind discourses vindicating the monopoly of the general rule of recognition and the kinship between international humanitarian law and general public international law. Note: Downloadable document is in French.

Ohlin: The Capture-Kill Debate: Lost Legislative History or Revisionist History?

Jens David Ohlin (Cornell Univ. - Law) has posted The Capture-Kill Debate: Lost Legislative History or Revisionist History? Here's the abstract:

In a recent essay, Ryan Goodman offers a vigorous defense of the duty to capture under the law of war and concludes that attacking soldiers have a duty to use the least-restrictive means of accomplishing their objective. In particular, Goodman contends in his new intervention that the scholarly debate has relied on an impoverished reading of the legislative history of the key international protocols drafted in 1973 and 1974. Having unearthed a wealth of documents regarding those negotiations, he argues that: (i) the law of war already severely restricts the use of force in various contexts by virtue of specific prohibitions on methods of warfare; (ii) the law of war already prohibits killing enemy combatants who are rendered hors de combat; and (iii) the drafters of the Additional Protocols supported a “least-restrictive-means” interpretation of the concept of necessity, meaning that killing is only lawful when soldiers have no other way of neutralizing the enemy (e.g. capture is not feasible).

For reasons that I articulate in the present commentary, I believe that none of these arguments provides definitive support for a duty to capture under the laws of war. First, with regard to Goodman's first two arguments, one cannot move from a list of specific jus in bello prohibitions to a generalized principle regarding the nature of military necessity that then swallows and expands the specific rules. Second, the arguments ignore the Lieber Code's definition of military necessity as "all direct destruction of life or limb of armed enemies" and "those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war." Although the law of war has advanced considerably since Lieber, its general structure remains relatively unchanged. Third, the drafters of the Additional Protocol did not codify the least-restrictive means test; its provision on unnecessary suffering cannot be read to include it since unnecessary suffering and unnecessary killing are conceptually distinct.

Bungenberg, Reinisch, & Tietje: EU and Investment Agreements: Open Questions and Remaining Challenges

Marc Bungenberg (Universität Siegen - Law), August Reinisch (Universität Wien - Law), & Christian Tietje (Martin-Luther-Universität Halle-Wittenberg - Law) have published EU and Investment Agreements: Open Questions and Remaining Challenges (Nomos 2013). Here's the abstract:

The transfer of FDI competence to the EU with the Treaty of Lisbon opened the way for a more coherent EU international investment policy. Nevertheless, questions and challenges that need to be successfully addressed in order to achieve the dynamic EU investment policy desired by the EU treaty-makers are still unresolved. This volume focuses on topical and highly-debated issues including the role of the Member States during the negotiation and conclusion of future EU investment agreements and gives specific attention to the ongoing negotiations with Canada as well as the upcoming ones with China. Furthermore, it discusses the inclusion of investor-state dispute settlement provisions in these agreements as well as the status of national investment insurance systems in the wake of the Treaty of Lisbon.