von Bernstorff: The Public International Law Theory of Hans Kelsen: Believing in Universal Law

Jochen von Bernstorff (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht) has published The Public International Law Theory of Hans Kelsen: Believing in Universal Law (Cambridge Univ. Press 2010). Here's the abstract:

This analysis of Hans Kelsen's international law theory takes into account the context of the German international legal discourse in the first half of the twentieth century, including the reactions of Carl Schmitt and other Weimar opponents of Kelsen. The relationship between his Pure Theory of Law and his international law writings is examined, enabling the reader to understand how Kelsen tried to square his own liberal cosmopolitan project with his methodological convictions as laid out in his Pure Theory of Law. Finally, Jochen von Bernstorff discusses the limits and continuing relevance of Kelsenian formalism for international law under the term of 'reflexive formalism', and offers a reflection on Kelsen's theory of international law against the background of current debates over constitutionalisation, institutionalisation and fragmentation of international law. The book also includes biographical sketches of Hans Kelsen and his main students Alfred Verdross and Joseph L. Kunz.

Neumann: Norway and Russia Agree on Maritime Boundary in the Barents Sea

Thilo Neumann (Bucerius Law School) has posted an ASIL Insight on Norway and Russia Agree on Maritime Boundary in the Barents Sea and the Arctic Ocean.

Meckenstock: Investment Protection and Human Rights Regulation: Two Aims in a Relationship of Solvable Tension

Cordula A. Meckenstock has published Investment Protection and Human Rights Regulation: Two Aims in a Relationship of Solvable Tension (Nomos 2010). Here's the abstract:

Investment protection and domestic human rights regulation are allegedly contradictory aims. The author examines the tension between these two legitimate aims that becomes evident with so-called stabilization clauses in State Contracts. Stabilization clauses are aimed at “freezing” the legal and economic framework of large investment projects in the according host state. They collide with subsequent domestic regulation for the purpose of implementing higher human rights standards. The author develops practical contractual instruments for the solution of the identified tension in future investment projects making use of the ongoing international debate as well as of a current case study.

Workshop: Ghandhi

Sandy Ghandhi (Univ. of Reading - Law) will give a talk today at the Oxford Public International Law Discussion Group on "The Human Rights Committee of the ICCPR and Problems of Implementation: Challenges and Prospects."

New Issue: International Arbitration Law Review

The latest issue of the International Arbitration Law Review (Vol. 13, no. 4, 2010) is out. Contents include:

• Christine Mcisaac, Challenging by the Rules of the Game: Certainty Through Procedural Harmonisation of Challenges in International Commercial Arbitration
• Joanna Dingwall, International Arbitration in Scotland: A Bold, New Future
• Steven H. Reisberg, Objections to the Jurisdiction of the Arbitration Tribunal Under the US Federal Arbitration Act: How to Preserve the Right to Judicial Review

New Issue: Stanford Journal of International Law

The latest issue of the Stanford Journal of International Law (Vol. 46, no. 1, Summer 2010) is out. Contents include:

• Benjamin Mason Meier, Global Health Governance and the Contentious Politics of Human Rights: Mainstreaming the Right to Health for Public Health Advancement
• Barry Sautman, Scaling Back Minority Rights?: The Debate about China's Ethnic Policies
• David Wallach, The Alien Tort Statute and the Limits of Individual Accountability in International Law

New Issue: Journal of International Maritime Law

The latest issue of the Journal of International Maritime Law (Vol. 16, no. 2, 2010) is out. Contents include:

• Konstantinos Bachxevanis, ‘Crew negligence’ and ‘crew’ incompetence': their distinction and its consequence
• Ling Li, Maritime liens and ship mortgages in bankruptcy — a comparison of recent Canadian, Chinese and US law
• Huijie Luo, Recent developments in Chinese maritime law

Workshops: Cogan, Hathaway & Shapiro

Jacob Katz Cogan (Univ. of Cincinnati - Law) will give a talk today at the Ohio State University Moritz College of Law Faculty Workshop on "The Coercive Turn in International Law."

Oona Hathaway (Yale Univ. - Law) & Scott Shapiro (Yale Univ. - Law) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on "Outcasting: Enforcement in Domestic and International Law."

Nystuen & Casey-Maslen: The Convention on Cluster Munitions: A Commentary

Gro Nystuen (Univ. of Oslo - Law) & Stuart Casey-Maslen (Geneva Academy of International Humanitarian Law and Human Rights) have published The Convention on Cluster Munitions: A Commentary (Oxford Univ. Press 2010). Here's the abstract:

This Commentary on the Convention on Cluster Munitions is a detailed assessment of the negotiation, content, and implications of the Convention, which is the latest treaty to ban a conventional weapon.

The treaty, which will enter into force as binding international law on 1 August 2010, bans the production, stockpiling, transfer, and use of all cluster munitions. The book describes what cluster munitions are, when and where they have been used, and what steps States Parties will need to consider in order to implement the treaty's provisions. The Commentary goes systematically through the Convention article by article, explaining the purpose of each provision, its background and negotiation, and the meaning of each paragraph and sub-paragraph.

Lowe & Tzanakopoulos on Econcomic Warfare and Humanitarian Intervention

Vaughan Lowe (Univ. of Oxford - Law) & Antonios Tzanakopoulos (Univ. of Glasgow - Law) have posted two of their entries in the Max Planck Encyclopedia of Public International Law: Economic Warfare and Humanitarian Intervention.

New Issue: Climate Law

The latest issue of Climate Law (Vol. 1, no. 2, 2010) is out. Contents include:

• Meinhard Doelle, Early experience with the Kyoto compliance system: Possible lessons for MEA compliance system design
• Athena Ballesteros, Smita Nakhooda, Jacob Werksman, & Kaija Hurlburt, Power, responsibility, and accountability: Rethinking the legitimacy of institutions for climate finance
• Alexander Zahar, Does self-interest skew state reporting of greenhouse gas emissions? A preliminary analysis based on the first verified emissions estimates under the Kyoto Protocol
• Greg Picker, Reflections on climate politics in a sunburnt country

de Búrca: The Road Not Taken: The EU as a Global Human Rights Actor

Gráinne de Búrca (Harvard Univ. - Law) has posted The Road Not Taken: The EU as a Global Human Rights Actor. Here's the abstract:

This paper challenges the traditional account of the EU’s engagement with human rights. The classic narrative begins with the silence of the EEC Treaty in 1957 and depicts a gradual engagement with human rights over the decades, culminating in the establishment of a substantial EU human rights regime in recent years. The paper provides an alternative account of the EU’s trajectory by returning to its origins in the 1950s and comparing the ambitious but long-forgotten plans for European Community engagement with human rights drafted in the early 1950s with today’s EU human rights framework. The paper argues that the current EU human rights system is in several ways less robust and less ambitious than that envisaged in the 1950s, and that the two main causes for criticism of today’s EU system – namely that it lacks a serious human rights mechanism, and that there is a double-standard as between internal and external human rights policies – have survived the changes introduced by the Lisbon Treaty and have to some extent been enshrined by those changes. The paper concludes by suggesting that the EU’s aspiration to be taken seriously as a global normative actor is hindered by its exceptionalism in this field.

Workshop: Tzanakopoulos

Antonios Tzanakopoulos (Univ. of Glasgow - Law) will give a talk today at the Oxford Institute for Ethics, Law and Armed Conflict on "Access to a Court and the Security Council: Implications for Normative Hierarchy."

Orakhelashvili: Review Essay on Scheinin & Kamminga's The Impact of Human Rights on General International Law

Alexander Orakhelashvili (Univ. of Birmingham - Law) has posted Review Essay on Scheinin & Kamminga, The Impact of Human Rights on General International Law (International Journal on Minority and Group Rights, 2010, 491-499).

Murphy: Book Review of Marc Weller's Contested Statehood: Kosovo’s Struggle for Independence

Sean D. Murphy (George Washington Univ. - Law) has posted Book Review of Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (George Washington International Law Review, forthcoming). Here's the abstract:

How an area measuring no more than about 11,000 square kilometers could become arguably “ground zero” for the formation of post-Cold War international law is a bit of a mystery, but the province (and now country) of Kosovo, in the late twentieth/early twenty-first centuries, somehow managed to pull off that feat. In Contested Statehood: Kosovo’s Struggle for Independence Marc Weller provides the best history to date of the Kosovo crisis from the end of the Cold War up to the point that Kosovo’s independence was declared in February 2008. In its July 2010 advisory opinion on that legality of that Declaration, the International Court of Justice avoided a lengthy account of Kosovo’s contemporary history, hewing closely to just those facts and law necessary to answer the narrow question before it. As such, anyone interested in the backdrop for the Court’s advisory opinion would do well to keep Contested Statehood close at hand.

New Volume: Australian International Law Journal

The latest volume of the Australian International Law Journal (Vol. 16, 2009) is out. Contents include:

• Roger S Clark, The Review Conference on the Rome Statut e of the International Criminal Court, Kampala, Uganda, 31 May-11 June 2010
• Matthew Gillett, Victim Participation at the International Criminal Court
• Emmi Okada, The Australian Trials of Class B and C Japanese War Crimes Suspects, 1945-51
• Susan Harris Miller, Wearing his Jacket: A Feminist Analysis of the Serious Crimes Process in Timor-Leste
• Robert Lancaster, Intervening Interests: Humanitarian and Pro-Democratic Intervention in the Asia-Pacific
• Brent Michael, Responding to Attacks by Non-State Actors: The Attribution Requirement of Self-Defence
• Kelisiana Thynne, Targeting the 'Terrorist Enemy': The Boundaries of Armed Conflict Against Transnational Terrorists
• Andrew Yuile, At the Fault-Lines of Armed Conflict: The 2006 Israel-Hezbollah Conflict and the Framework of International Humanitarian Law
• Irina Kolodizner, The Charter of Rights Debate: A Battle of the Models

Arsanjani, Cogan, Sloane & Wiessner: Looking to the Future: Essays on International Law in Honor of W. Michael Reisman

I am very pleased to announce the publication of Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff Publishers 2011), which I edited with Mahnoush H. Arsanjani (formerly, Director, Codification Division, U.N. Office of Legal Affairs), Robert D. Sloane (Boston Univ. - Law), and Siegfried Wiessner (St. Thomas Univ. - Law). Contents include:

• The Editors, Introduction
• Rosalyn Higgins, An Appreciation
• Harold Hongju Koh, Michael Reisman, Dean of the New Haven School of International Law
• Prosper Weil, L’honneur des juristes
• Siegfried Wiessner, Michael Reisman, Human Dignity, and the Law
• Adeno Addis, Law as a Process of Communication: Reisman Meets Habermas
• Mahnoush H. Arsanjani, Uses and Abuses of Illusion in International Politics
• James E. Baker, Prelude to Decision: Michael Reisman, the Intelligence Function, and a Scholar’s Study of Intelligence in Law, Process, and Values
• Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms
• Steve Charnovitz, How Nongovernmental Actors Vitalize International Law
• Menachem Mautner, Between Façades and Operational Codes: Michael Reisman’s Jurisprudence of Suspicion
• Jan Paulsson, Scholarship as Law
• Steven R. Ratner, Between Minimum and Optimum World Public Order: An Ethical Path for the Future
• Emmanuel Roucounas, The Users of International Law
• Gary J. Simson, Rethinking Choice of Law: What Role for the Needs of the Interstate and International Systems?
• Robert D. Sloane, More Than What Courts Do: Jurisprudence, Decision, and Dignity – In Brief Encounters and Global Affairs
• Eisuke Suzuki, Reconfiguration of Authority and Control of the International Financial Architecture
• Attila Tanzi, Remarks on Sovereignty in the Evolving Constitutional Features of the International Community
• Christian Tomuschat, International Law as a Coherent System: Unity or Fragmentation?
• J.H.H. Weiler, Entrenchment – Human and Divine: A Reflection on Deuteronomy 13:1-6
• Rüdiger Wolfrum, Obligation of Result v. Obligation of Conduct: Some Thoughts about the Implementation of International Obligations
• Nisuke Ando, Secession or Independence – Self-Determination and Human Rights: A Japanese View of Three Basic Issues of International Law Concerning “Taiwan”
• M. Cherif Bassiouni, Reflections on the Torture Policy of the Bush Administration (2001-2008)
• Lucius Caflisch, Waivers in International and European Human Rights Law
• Antonio Cassese, Reflections on the Current Prospects of International Criminal Justice
• Lung-chu Chen, Human Rights and World Public Order: Major Trends of Development, 1980-2010 and Beyond
• Christine Chinkin, U.N. Human Rights Council Fact-Finding Missions: Lessons from Gaza
• Aaron Xavier Fellmeth, Choice of Gender Identity in International Human Rights Law
• Jochen Abr. Frowein, The International Protection of Human Rights as an Element of World Order
• Christof Heyns & Magnus Killander, Towards Minimum Standards for Regional Human Rights Systems
• Kenneth C. Randall & Chimène I. Keitner, Sabbatino, Sosa, and “Super Norms”
• Luzius Wildhaber, Some Remarks about the Realistic Idealism of the European Court of Human Rights
• Guillermo Aguilar Alvarez & Santiago Montt, Investments, Fair and Equitable Treatment, and the Principle of “Respect for the Integrity of the Law of the Host State”: Towards a Jurisprudence of “Modesty” in Investment Treaty Arbitration
• José E. Alvarez, The Once and Future Foreign Investment Regime
• David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law
• Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo
• Rudolf Dolzer, Emergency Clauses in Investment Treaties: Four Versions
• Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines: The Persistence of a Martial Law Syndrome
• Francisco Orrego Vicuña, Softening Necessity
• William W. Park, Truth and Efficiency: The Arbitrator’s Predicament
• Christoph Schreuer, The Future of Investment Arbitration
• Hi-Taek Shin, The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea
• Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration
• Guiguo Wang, China’s Practice in International Investment Law: From Participation to Leadership in the World Economy
• Bernard H. Oxman, On Rocks and Maritime Delimitation
• Salman M.A. Salman, The Future of International Water Law: Regional Approaches to Shared Watercourses?
• Eyal Benvenisti, The Law on Asymmetric Warfare
• Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law
• Djamchid Momtaz, Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire
• Nicholas Rostow, U.N. Realities
• Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication and Its Role in an Era of Multiplication of Courts and Tribunals
• Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making
• Stephen M. Schwebel, Gorbachev Embraces Compulsory Jurisdiction

Alvarez: Are Corporations 'Subjects' of International Law?

Jose E. Alvarez (New York Univ. - Law) has posted Are Corporations 'Subjects' of International Law? (Santa Clara Journal of International Law, forthcoming). Here's the abstract:

Courts and scholars often attempt to draw legal conclusions from the status of entities, whether states, international organizations or corporations. Debates concerning whether corporations are “subjects” of international law and the legal conclusions that supposedly follow from this are particularly vociferous within Alien Tort Claims litigation in U.S. courts. Using the Supreme Court’s recent decision in Citizens United as a cautionary tale, the author argues that drawing legal conclusions from the fact of “subject-hood” is fraught with peril, particularly in the case of corporations. He argues that such top-down approaches are likely to lead to unintended consequences and that corporations, like international organizations, should more properly be seen as “participants” than “subjects.”

Conference: The Political Economy of U.S. Foreign Relations Law

The annual Duke-Harvard Foreign Relations Law Workshop will take place today at the Duke University School of Law. The topic is "The Political Economy of U.S. Foreign Relations Law." Here's the program:

• Session 1: War Powers
• Peter D. Feaver, Seven Provocations on Domestic Politics of Foreign Relations
• William G. Howell, Wartime Presidents
• Douglas L. Kriner, More than Meets the Eye: Congressional Checks on Presidential War-Making
• Commentator: Jide Nzelibe
• Session 2: Secrecy
• Benjamin O. Fordham, How Useful is Secrecy in American Foreign Policy?
• Jack L. Goldsmith, The Problem of Secret Executive Interpretations of War Powers Law
• Commentator: Oona Hathaway
• Session 3: Treaties, Executive Agreements, and Partisanship
• Oona A. Hathaway, Democracy in the Balance: Strengthening Accountability in U.S. International Lawmaking
• Judith Kelley & Jon Pevehouse, The Domestic Politics of the US Article II Process
• Jide Nzelibe, Our Partisan Foreign Affairs Constitution
• Edward T. Swaine, Valuing Agreements
• Commentators: Rachel Brewster and Ernie Young
• Session 4: International Trade and Other Delegations
• Daniel Abebe, Rethinking International Delegations
• Rachel Brewster, Supplying Compliance: Domestic Sources of Trade Law and Policy
• Judith Goldstein, Delegation of Tariff Setting Authority to the President
• Commentator: Larry Helfer
• Session 5: Congressional Action and Inaction
• Curtis A. Bradley, Congressional Inaction in Foreign Affairs
• Paul B. Stephan, The Political Economy of Extraterritoriality
• Ernest A. Young, The Political Dynamics of Dormant Foreign Affairs Preemption: Lessons from Immigration and Climate Regulation
• Commentator: Ed Swaine

Ochoa: Disintegrating Customary International Law: Reactions to Withdrawing from Custom

Christiana Ochoa (Indiana Univ. - Law) has posted Disintegrating Customary International Law: Reactions to Withdrawing from Custom. Here's the abstract:

Withdrawing from International Custom, a recent article by Curtis Bradley and Mitu Gulati, has sparked interest and debate. Bradley and Gulati’s article, develops with significant nuance and detail that, naturally, can be best understood by a careful reading of their work. In essence, it proposes a modification in customary international law (CIL) doctrine – a change that would permit states to unilaterally exit from existing customary international law. This Essay will act as a brief reflection on that article. In Part I, it will explore the analogies Withdrawing makes between CIL and contract and will argue, first that CIL and contract are not analogous and, second, that even to the extent that contract demonstrates how other doctrinal areas order exits from legal relationships, contract illustrates the point that unilateral exit is a recognized abdication of the exiting party’s obligations and that exit gives rise to legal liability. In Part II, it explores the analogies Withdrawing makes between governments and agents in order to unpack some of the theoretical political theory constructs on which Withdrawing relies, and to explore the limitations Withdrawing sets on the proposal for unilateral exit. Part III of this Essay will make an affirmative argument for symmetry between CIL formation doctrine and CIL disintegration doctrine. The current proposal anticipates that CIL formation would remain unchanged, but exit for any given state would be far more expeditious than is contemplated by current CIL exit formulations. This Part will illustrate that this proposal violates a strong presumption in favor of symmetrical entrenchment.

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 13, no. 6, November 2010) is out. Contents include:

• Simone Vezzani, Preliminary Remarks on the Envisaged World Health Organization Pandemic Influenza Preparedness Framework for the Sharing of Viruses and Access to Vaccines and Other Benefits
• Hans Morten Haugen, Access Versus Incentives: Analysing Intellectual Property Policies in Four UN Specialized Agencies by Emphasizing the Role of the World Intellectual Property Organization and Human Rights
• Graham Reynolds, All the Game's a Stage: Machinima and Copyright in Canada
• Yuan-Chen (Jessica) Chiang, Parallel Importation of Copyright Products in Taiwan: A Struggle with International Trade Policy

Murphy: Book Review of Alan Boyle and Christine Chinkin's The Making of International Law

Sean D. Murphy (George Washington Univ. - Law) has posted Book Review of Alan Boyle and Christine Chinkin, The Making of International Law (American Journal of International Law, forthcoming). Here's the abstract:

An extraordinary range of international "rules" or "norms" are created today through mechanisms that do not fit easily into the traditional sources of international law. In the making of international law, Professors Alan Boyle of the University of Edinburgh and Christine Chinkin of the London School of Economics set their sights on providing a broad account of such law-making, looking across different areas of organizational behavior, both governmental and non-governmental. Although this volume has some shortcomings, it is an excellent starting point for those interested in an engaging and informed survey of various ways in which international law is currently made, and points the direction for those who wish to embark on even deeper inquiries.

Franca Filho, Lixinski & Olmos Giupponi: The Law of MERCOSUR

Marcílio Toscano Franca Filho (State Univ. of Paraíba - Law), Lucas Lixinski (European Univ. Institute), & María Belén Olmos Giupponi (Universidad Rey Juan Carlos - Law) have published The Law of MERCOSUR (Hart Publishing 2010). Here's the abstract:

The Law of MERCOSUR presents both an overview and in-depth analysis of one of the world’s most important and increasingly influential economic organisations. The book comprises both a series of first-hand analyses of MERCOSUR by experts from countries in the MERCOSUR bloc, and also discussions from other parts of the world looking at MERCOSUR as global actor of ever-increasing importance. The book is divided into three main parts: the first analyses the key institutional legal aspects of MERCOSUR, looking at its history, the general theory of economic integration, and basic aspects relating to the functioning of MERCOSUR; the second examines specialised topics, including the regulation of the environment, human rights and the energy market in MERCOSUR; and in the third part the editors offer a translation of core MERCOSUR instruments, with the objective of furthering understanding of the economic bloc. Original in its conception, the book aims to fill a major gap in the English-language literature by offering a comprehensive and in-depth analysis of the Law of MERCOSUR, and it is hoped that it will become essential reading for those practitioners and academics who are interested not only in MERCOSUR, but in economic integration generally, in international trade, and in the regional aspects of the phenomenon of globalisation.

Workshop: Saxon

Dan Saxon (Lauterpacht Centre), will give a talk today at the Lauterpacht Centre for International Law's Friday Lunchtime Lecture Series on "The Philosophy of International Humanitarian Law. The First Leverhulme Lecture."

Leben: The Advancement of International Law

Charles Leben (University of Paris (Panthéon-Assas) - Law) has published The Advancement of International Law (Hart Publishing 2010). Here's the abstract:

Any talk of the advancement of international law presupposes that two objections are met. The first is the 'realist' objection which, observing the state of international relations today, claims that when it comes down to the important things in international life-war and peace, and more generally power politics among states-no real advancement has been made: international society remains a society of sovereign states deciding matters with regard solely to their own best interests and with international law all too often being no more than a thin cloak cast over the precept that 'might is right'. Against this excessive scepticism stands excessive optimism: international law is supposedly making giant strides forward thanks especially to the tremendous mass of soft law generated by international organisations over the past sixty years and more. By incautiously mixing all manner of customs, treaties, resolutions and recommendations, a picture of international law is painted that has little to do with the 'real world'.

This book is arranged into three sections. The first purports to show from the specific example of international investment law that the past half-century has seen the invention of two genuinely new techniques in positive law: state contracts and transnational arbitration without privity. This is 'advancement' in international law not because the techniques are 'good' in themselves (one may well think them 'bad') but because they have introduced legal possibilities into international law that did not exist heretofore. The second section examines the theoretical consequences of those new legal techniques and especially the way they affect the theory of the state. The third widens the field of view and asks whether European law has surpassed international law in a move towards federalism or whether it represents a step forward for international law.

These reflections make for a clearer theoretical understanding of what constitutes true advancement in international law. Such an understanding should give pause both to those who argue that hardly any progress has been made, and to those who are overly fanciful about progress.