New Issue: Leiden Journal of International Law

The latest issue of the Leiden Journal of International Law (Vol. 25, no. 1, March 2012) is out. Contents include:

• International Legal Theory
• Nathaniel Berman, ‘The Sacred Conspiracy’: Religion, Nationalism, and the Crisis of Internationalism
• Lorenzo Zucca, Shedding Light on the Conspiracy: A Reply to ‘The Sacred Conspiracy: Religion, Nationalism, and the Crisis of Internationalism’
• Jean-Claude Monod, What's New in Our Current ‘International Secularism’?
• Nathaniel Berman, ‘Religion’, Genealogy, History: A Reply to Zucca and Monod
• International Law and Practice
• Jacob Stone, Arbitrariness, the Fair and Equitable Treatment Standard, and the International Law of Investment
• Björn Kunoy, The Terms of Reference of the Commission on the Limits of the Continental Shelf: A Creeping Legal Mandate
• Hague International Tribunals: International Court of Justice
• Cristina Hoss, Santiago Villalpando, & Sandesh Sivakumaran, Nicaragua: 25 Years Later
• Lori Fisler Damrosch, The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?
• Paul S. Reichler, The Impact of the Nicaragua Case on Matters of Evidence and Fact-Finding
• Marcelo Kohen, The Principle of Non-Intervention 25 Years after the Nicaragua Judgment
• International Criminal Court and Tribunals
• James G. Stewart, The End of ‘Modes of Liability’ for International Crimes
• Review Essay
• Martins Paparinskis, Investment Law of/for/before the Twenty-First Century

de Brabandere: P.R.I.M.E. Finance: The Role and Function of the New Arbitral Institution for the Settlement of Financial Disputes in The Hague

Eric de Brabandere (Leiden Univ. - Law) has posted an ASIL Insight on P.R.I.M.E. Finance: The Role and Function of the New Arbitral Institution for the Settlement of Financial Disputes in The Hague.

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

On March 2, 2012, the University of California, Irvine School of Law will host a symposium on "Human Rights Litigation in State Courts and Under State Law." The program is here. Here's the idea:

The practice and study of human rights litigation in the United States has generally focused on federal courts and federal law. Practitioners and scholars have devoted comparatively little attention to human rights litigation in state courts and under state law. Yet this approach to human rights litigation raises important and difficult questions about federalism, foreign relations, jurisdiction, choice of law, extraterritoriality and litigation strategy that have yet to be systematically explored.

This symposium will bring together leading practitioners and scholars with the goal of improving understanding of the challenging issues raised by human rights litigation in state courts and under state law.

Stone Sweet: Arbitration and Judicialization

Alec Stone Sweet (Yale Univ. - Law and Political Science) has posted Arbitration and Judicialization (Oñati Socio-Legal Series, Vol. 1, no. 9, 2011). Here's the abstract:

The arbitral world is at a crucial point in its historical development, poised between two conflicting conceptions of its nature, purpose, and political legitimacy. Formally, the arbitrator is an agent of the contracting parties in dispute, a creature of a discrete contract gone wrong. Yet, increasingly, arbitrators are treated as agents of a larger global community, and arbitration houses concern themselves with the general and prospective impact of important awards. In this paper, I address these questions, first, from the standpoint of delegation theory. In Part I, I introduce the basic “Principal-Agent” framework [P-A] used by social scientists to explain why actors create new institutions, and then briefly discuss how P-A has been applied to the study of courts. Part II uses delegation theory to frame discussion of arbitration as a mode of governance for transnational business and investment. In Part III, I argue that the International Center for the Settlement of Investment Disputes (ICSID) is presently in the throes of judicialization, indicators of which include the enhanced use of precedent-based argumentation and justification, the acceptance of third-party briefs, and a flirtation with proportionality balancing. Part IV focuses on the first wave of awards rendered by ICSID tribunals pursuant to Argentina’s response to the crushing economic crisis of 2000-02, wherein proportionality emerged, adapted from the jurisprudence of the Appellate Body of the World Trade Organization.

Osthoff: Weiterentwicklung des internationalen Menschenrechtsschutzes unter dem UN-Menschenrechtsrat?

Janine Osthoff has published Weiterentwicklung des internationalen Menschenrechtsschutzes unter dem UN-Menschenrechtsrat? Darstellung und Analyse des UN-Menschenrechtsrats und seines Kontrollregimes (Nomos 2012). Here's the abstract:

Das Instrumentarium der Vereinten Nationen auf dem Gebiet der Menschenrechte zu stärken, um die effektive Ausübung aller Menschenrechte zu gewährleisten, war das mit der Einsetzung des UN-Menschenrechtsrats verfolgte Ziel. Fünf Jahre später hat der UN-Menschenrechtsrat in der deutschen Rechtswissenschaft noch immer kaum Aufmerksamkeit gefunden. Dabei steht er als Nachfolgeorgan der UN-Menschenrechtskommission, die er 2006 abgelöst hat, nunmehr im Zentrum der politischen Menschenrechtsarbeit der Vereinten Nationen. Insoweit nimmt er durch das Fortschreiben von Standards im Bereich der Menschenrechte sowie Reaktion auf menschenrechtliche Missstände eine wichtige Aufgabe wahr.

Das Werk befasst sich mit diesem für den Bereich des Menschenrechtsschutzes so bedeutsamen Gremium und bietet eine umfassende Darstellung und Analyse des UN-Menschenrechtsrats und seines Kontrollregimes. Dazu ordnet das Werk den UN-Menschenrechtsrat in seinen historischen, rechtlichen und politischen Kontext ein und analysiert seine Neuerungen – stets vor dem Hintergrund der Frage, inwieweit der internationale Menschenrechtsschutz unter dem UN-Menschenrechtsrat eine Weiterentwicklung erfahren hat.

Northwestern University School of Law International Law Colloquium

Here's the schedule for the Northwestern University School of Law's International Law Colloquium for Spring 2012:

• January 17, 2012: Michael Ramsey (Univ. of San Diego - Law), Two Forms of Argument from Custom
• January 31, 2012: Andrew Spalding (Chicago-Kent Law School), Four Uncharted Corners of Anti-Corruption Law: In search of Remedies to the Sanctioning Effect
• February 14, 2012: Robert Delahunty (Univ. of St. Thomas - Law), Nationalism, Statism and Cosmopolitanism
• February 28, 2012: Christina Davis (Princeton Univ. - Politics and Woodrow Wilson School of Public and International Affairs), tba
• March 27, 2012: Ian Hurd (Northwestern Univ. - Political Science), tba
• April 10, 2012: Paul Stephan (Univ. of Virginia - Law), Courts on Courts: Empathy and Autism in International Encounters

Schicho: State Entities in International Investment Law

Luca Schicho has published State Entities in International Investment Law (Nomos 2012). Here's the abstract:

International arbitral tribunals increasingly deal with cases in which the conduct of State entities enjoying separate legal personality harmed foreign investors. The book discusses the attribution of conduct of such entities in international investment law. Their conduct is, opposed to the conduct of actual State organs, not automatically attributable to the State, but only when the requirements of a specific rule of attribution are met. The author analyses these rules of attribution under public international law with the help of the ILC Articles on State Responsibility. Based on this analysis, the author examines the application of these rules in the jurisprudence of investment arbitration. Previous jurisprudence in this field has been relatively inhomogeneous and often lacked a sufficient distinguishing between the different rules of attribution. Concluding, the author argues in favour of strictly distinguishing between the rules and relying on the ILC Articles.

Vale Columbia Center International Investment Law and Policy Speaker Series

Here's the schedule for the Vale Columbia Center on Sustainable International Investment's Spring 2012 International Investment Law and Policy Speaker Series:

• February 20, 2012: Katia Yannaca-Small (OECD), The Quest for Consistency in International Investment Law and Arbitration: How Realistic and Significant?
• February 27, 2012: Joseph Bell (Hogan Lovells US LLP), A Host Government Perspective
• March 5, 2012: Sophie Nappert (Avocat and Solicitor of the Supreme Court of England and Wales), Dealing in Uncertainty: Scientific Evidence Before Investment Tribunals
• March 19, 2012: Michael Nolan (Milbank, Tweed, Hadley & McCloy), The Dynamic Relationship Between the Customary International Law of Investment Protection and Bilateral Investment Treaties
• March 26, 2012: Surya P. Subedi (Univ. of Leeds - Law), The Problems and Prospects for a Global Comprehensive Treaty on the Regulation of Foreign Investment
• April 2, 2012: Alejandro Garro (Columbia Univ. - Law and Parker School of Foreign and Comparative Law), State Responsibility and Unusual Circumstances
• April 23, 2012: George Bermann (Columbia Univ. - Law), Navigating EU Law and the Law of International Arbitration

New Volume: Canadian Yearbook of International Law

The latest volume of the Canadian Yearbook of International Law (Vol. 48, 2010) is out. Contents include:

• Articles
• Christopher K. Penny, Obeying Restraints: Applying the Plea of Superior Orders to Military Defendants before the International Criminal Court
• Robin F. Holman, The Rogue Civil Airliner and International Human Rights Law: An Argument for a Proportionality of Effects Analysis within the Right to Life
• Charles Riziki Majinge, Regional Arrangements and the Maintenance of International Peace and Security: The Role of the African Union Peace and Security Council
• Géraud de Lassus Saint-Geniès, Les piliers économique et environnemental du développement durable: conciliation ou soutien mutuel? L’éclairage apporté par la Cour internationale de Justice dans l’Affaire des Usines de pâte à papier sur le fleuve Uruguay (Argentine c Uruguay)
• Notes and Comments
• Drew Tyler, Does the Charter Float? The Application of the Canadian Charter of Rights and Freedoms to Canada’s Policing of High Seas Fisheries
• Daniel H. Meester, The International Court of Justice’s Kosovo Case: Assessing the Current State of International Legal Opinion on Remedial Secession

Haque: Killing in the Fog of War

Adil Ahmad Haque (Rutgers Univ., Newark - Law) has posted Killing in the Fog of War. Here's the abstract:

This article answers two of the most urgent and important questions facing the contemporary law of armed conflict. First, how certain must a soldier be that a given individual is a combatant and not a civilian before attacking that individual? Second, what risks must soldiers accept to themselves and to their mission in order to reduce the risk of mistakenly killing civilians?

In the absence of clear legal rules, leading states, scholars, and practitioners have embraced a Balancing Approach according to which both the required level of certainty and the required level of risk vary with the balance of military and humanitarian considerations. However, this article shows that the Balancing Approach ignores the moral asymmetries between killing and letting die and between intentionally and unintentionally killing civilians. As a result, in a wide variety of situations, the Balancing Approach would permit soldiers to intentionally kill individuals who are probably, much more likely, or almost certainly civilians rather than combatants. These implausible implications expose the fatal defects of the Balancing Approach and demonstrate the need for a morally defensible alternative.

To meet this need, this article develops a deontological account of both the required level of certainty and the required level of risk. The first part of this new account, Deontological Targeting, prohibits a soldier from intentionally killing an individual whom she believes is a civilian or whom she does not reasonably believe is a combatant. These constraints establish a minimum threshold of certainty that soldiers must reach before using deadly force. Above the reasonable belief threshold, the required level of certainty varies with the relative costs of error but, crucially, also reflects the moral asymmetry between killing and letting die. In particular, except in rare cases, targeted killing operations against individuals who pose no immediate threat are permissible only if there is conclusive reason to believe that the individuals are combatants.

The second part of this new account, Deontological Precaution, requires, at a minimum, that soldiers take as much risk as necessary to reach the required level of certainty. In addition, soldiers must take further precautions unless doing so would increase the risk to the soldiers substantially more than doing so would decrease the risk to civilians. If soldiers are unwilling or unable to reach the required level of certainty or accept the required level of risk then they must hold their fire.

The article concludes by distilling these complex moral principles into new legal rules, reinterpretations of existing legal rules, and model rules of engagement in which soldiers can be trained and that can guide soldiers through the fog of war.

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 52, no. 2, Winter 2012) is out. Contents include:

• Aslı Ü. Bâli, The Perils of Judicial Independence: Constitutional Transition and the Turkish Example
• Sungjoon Cho, Beyond Rationality: A Sociological Construction of the World Trade Organization
• Mehrdad Payandeh, The United Nations, Military Intervention, and Regime Change in Libya
• Marco Ventoruzzo, Like Moths to a Flame? International Securities Litigation After Morrison: Correcting the Supreme Court’s “Transactional Test”

Moyn: From Antiwar Politics to Antitorture Politics

Samuel Moyn (Columbia Univ. - History) has posted From Antiwar Politics to Antitorture Politics. Here's the abstract:

This paper examines the political status and cultural salience in the United States of the law of war during the era of the Vietnam conflict, for the sake of comparison with the post-9/11 centrality of concerns about detention and torture. The main question is why, when the violations of the laws of war were so much worse in the earlier period, they were not the fulcrum of public debate around war. The answer proposed is that the presence of a powerful social movement agitating against the war itself -- which meant concern about aggressive warfare to the extent international law figured in public debate at all -- marginalized concerns about the conduct of war. Even once My Lai came to light, atrocity consciousness fed an antiwar movement. The main groups and figures covered are the Lawyers Committee Concerning American Policy in Vietnam, Richard Falk of Princeton University, and Telford Taylor of Columbia University.

Symposium: Conflicts of Interest: Resolving Differences in Global Legal Norms

This Friday, February 10, 2012, the Virginia Journal of International Law will host a symposium on "Conflicts of Interest: Resolving Differences in Global Legal Norms." The program is here. Here's the idea:

The Symposium will present a set of panels discussing the issues surrounding conflicting legal norms found in the United States and other foreign jurisdictions. As domestic laws continue to extend their reach beyond the borders of a single jurisdiction, the United States and its institutions must confront the question of how to resolve these differences.

Symposium: Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law

The Goettingen Journal of International Law, in cooperation with the Institute of International and European Law, Georg-August-Universität Göttingen, and the Minerva Center for Human Rights, Hebrew University of Jerusalem, will host a symposium on "Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law," March 9-10 2012, in Göttingen. The program is here. Here's the idea:

International constitutionalism is in the focus of contemporary international legal debate and practice, as evidenced by the recent Kadi-Jurisprudence of the European Courts and the burgeoning literature that employs constitutional as well as fragmentation terms with respect to modern international law – dealing with the pluralistic structure of modern international law, post-national law and constitutional pluralism. This seemingly new discourse is all-pervasive, with implications in international politics, law, trade and human rights.

However, this project maintains that this is not an entirely new discourse. Its precursors can be found in what could be considered to be a "German" constitutional approach towards International Public Law (Völkerrecht) that has been characterized by a strong constitutional understanding for centuries. While the roots of the discussion can be traced back to the Eighteenth Century, this has especially been the case in the Twentieth Century, as discernable in German and Austrian teachings, from the scholarship of Albert Verdross (with his 1926 'Verfassung der Völkerrechtsgemeinschaft') to Bardo Fassbender's contemporary analysis of the UN Charter as an international constitution.

The cooperation between the Minerva Center for Human Rights (Hebrew University Jerusalem), the Institute of International and European Law, Georg-August-Universität Göttingen and the Goettingen Journal of International Law (GoJIL) investigate the historical development and gradual crystallization of a "German" constitutional approach in both theoretical and practical aspects. The project also fosters the current debate on modern international law with regard to constitutionalization and fragmentation trends. European constitutional thinking with respect to international law will play a role as well as current ideas of international constitutionalization in international organizations and tribunals, mainly the International Court of Justice, the European Court of Justice, and the WTO.

New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 27, no. 1, 2012) is out. Contents include:

• E.J. Molenaar, Fisheries Regulation in the Maritime Zones of Svalbard
• Irina Buga, Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals
• Olya Gayazova, The North Pole Seabed Nature Reserve as a Provisional Arrangement
• Robert A. Makgill & Hamish G. Rennie, A Model for Integrated Coastal Management Legislation: A Principled Analysis of New Zealand's Resource Management Act 1991

deGuzman & Schabas: Initiation of Investigations & Selection of Cases

Margaret M. deGuzman (Temple Univ. - Law) & William A. Schabas (Middlesex Univ. - Law) have posted Initiation of Investigations & Selection of Cases (in Towards Codification of General Rules and Principles of International Criminal Procedure, Goran Sluiter ed., forthcoming). Here's the abstract:

Decisions about when to initiate investigations and which cases to prosecute are among the most difficult and contested choices international courts face. This chapter is part of a project aimed at developing general rules and principles of international criminal procedure. Its central aim therefore is to ascertain whether any general rules or principles govern decisions about which situations to investigate and which cases to prosecute. The chapter scans the available sources for principles or rules that either limit the discretion of decision-makers with regard to selection decisions or mandate certain considerations or courses of action. Perhaps unsurprisingly, we identify only a few applicable general principles, concluding instead that such selection decisions are largely a matter of policy. The most important principle that limits discretion in selection decisions is that of equality along with its corollary, the prohibition against invidious discrimination, and the related principle of impartiality. The law and practice also reveal a principle that charges should not be brought without sufficient evidence as well as a developing principle of independence – prosecutors should not take instruction from outside sources with regard to particular cases. After identifying these principles, we briefly suggest some issues that should be more fully considered as the law and practice related to selection decisions develops. In particular, additional attention should be focused on the manner in which selection decisions contribute to accomplishing and prioritizing the various goals and objectives of international criminal law.

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 12, no. 1, 2012) is out. Contents include:

• Barbara Goy, Individual Criminal Responsibility before the International Criminal Court
• Matteo Crippa, A Long Path toward Reconciliation and Accountability: A Truth and Reconciliation Commission and a Special Chamber for Burundi?

New Issue: International Community Law Review

The latest issue of the International Community Law Review (Vol. 14, no. 1, 2012) is out. Contents include:

• Ulf Linderfalk, What Is So Special About Jus Cogens? - On the Difference between the Ordinary and the Peremptory International Law
• Karol Karski, The International Legal Status of the Sovereign Military Hospitaller Order of St. John of Jerusalem of Rhodes and of Malta
• Barbara K. Woodward, The Roles of Non-State Actors in Lawmaking within the Global Intellectual Property Regimes of WIPO and TRIPs
• Hiroshi Maruyama, Ainu Landowners' Struggle for Justice and the Illegitimacy of the Nibutani Dam Project in Hokkaido Japan

New Issue: Journal of International Arbitration

The latest issue of the Journal of International Arbitration (Vol. 29, no. 1, February 2012) is out. Contents include:

• Patrick Dunaud & Maria Kostytska, Declaratory Relief in International Arbitration
• Vesna Lazić, The Commission’s Proposal to Amend the Arbitration Exception in the EC Jurisdiction Regulation: How ‘Much Ado about Nothing’ Can End Up in a ‘Comedy of Errors’ and in Anti-suit Injunctions Brussels-style
• Antoine Martin, Investment Disputes after Argentina’s Economic Crisis: Interpreting BIT Non-precluded Measures and the Doctrine of Necessity under Customary International Law
• Ruslan Mirzayev, International Investment Protection Regime and Criminal Investigations
• John Gaffney, Non-party Autonomy: Displacing the Negative Effect of the Principle of ‘Competence-Competence’ in England?
• Jennifer Kirby, Finality and Arbitral Rules: Saying an Award Is Final Does Not Necessarily Make It So

New Issue: Review of International Organizations

The latest issue of the Review of International Organizations (Vol. 7, no. 1, March 2012) is out. Contents include:

• Christopher L. Pallas & Johannes Urpelainen, NGO monitoring and the legitimacy of international cooperation: A strategic analysis
• Molly E. Bauer, Cesi Cruz & Benjamin A. T. Graham, Democracies only: When do IMF agreements serve as a seal of approval?
• Roland Vaubel, Bernhard Klingen & David Müller, There is life after the Commission: An empirical analysis of private interest representation by former EU-commissioners, 1981–2009
• Mark S. Copelovitch & David Ohls, Trade, institutions, and the timing of GATT/WTO accession in post-colonial states

Wilson: Aggression, Crime and International Security

Page Wilson (Royal Military Academy Sandhurst - International Affairs) has published Aggression, Crime and International Security: Moral, Political and Legal Dimensions of International Relations (Routledge 2012). Here's the abstract:

Aggression, Crime and International Security examines the concept of aggression in international relations and how it has been dealt with by international law and collective security organisations.

This book analyses the evolution of the concept of aggression in international relations from World War I to the post-Rome Statute era. It charts the emergence of two competing visions of this notion: on the one hand, as a triggering mechanism for collective security enforcement among states, and, on the other, as an international crime giving rise to individual responsibility. The author argues that despite certain contemporary international trends suggesting a shift away from traditional, state-centric power structures towards a more cosmopolitan, globalized polity, the history of the concept of aggression demonstrates just how far away this is in reality. By examining aggression in theory and practice at the League of Nations, the Nuremberg and Tokyo Trials, the United Nations, the conference establishing the Rome Statute, and beyond, the book reveals the recurring moral, political and legal challenges this concept poses - challenges which continue to be at the forefront of thinking about international relations today.

Conforti: An Introduction to International Law

Benedetto Conforti (Univ. of Naples “Federico II” - Law; formerly, Judge, European Court of Human Rights) has published An Introduction to International Law (Martinus Nijhoff Publishers 2012). Here's the abstract:

This book touches upon the main subjects in public international law, with special emphasis on the application of international rules within the national legal orders. The treatment of the matter is based on the practice, particularly on the case law of international and domestic courts. The main characteristic of the book is the very extensive discussion of the role of domestic courts, as well as public officials, in order to achieve the effectiveness of international law. National judges, who are considered the principal addressees of the book, are viewed as a sort of propelling force behind international law to the extent that they perceive the need to realize that international solidarity which is too often lacking at the level of governments.

Conference: ASIL Annual Meeting 2012 (Update)

As noted previously, the 106th Annual Meeting of the American Society of International Law will take place March 28-31, 2012, in Washington, DC. The theme is "Confronting Complexity." The program is now available here (click on "program").

Programa "García Pelayo" Seminario de investigadores

The schedule for the García Pelayo seminars that will take place at the Centro de Estudios Politicos y Constitucionales in Madrid from February 2012 through June 2012 is available here.

Conference: Regional Human Rights Systems – Tools for Social Justice?

On March 16, 2012, the Netherlands Institute of Human Rights (SIM) will host a thirtieth anniversary conference on the topic "Regional Human Rights Systems – Tools for Social Justice?" The program is here. Here's the idea:

Exclusion of Roma from adequate education in Europe, land-grabbing from indigenous peoples in the Americas, lack of jobs in the Middle East, violation of property rights in Asia or water pollution in Africa - all of these are serious challenges for social justice around the globe. Human rights have always been tools in social struggles, but how do they adapt to old and new forms of social injustice and exclusion? What role is there for the regional protectors of human rights: the courts, committees and commissions that were or are about to be set up and are in the process of major changes to promote and monitor basic guarantees of human rights and dignity? Are they equipped to deal with the challenges of social justice? Do they provide the best legal and political instruments to implement and guarantee justice for all? Do they function as de facto allies of civil society organisations or are they too detached from the realities on the ground? Through which channels and to what extent do the rulings of these mechanisms have an effect upon the states and societies in which the violations occurred? In addressing these questions, the conference aims to critically compare the impact of human rights mechanisms in the various regional contexts.

The speakers will focus on the question of effective social justice that is at the same time adaptive to regional specifics and complies with global human rights norms and standards.