- Canfor Corp. v. United States of America; Tembec v. United States of America; Terminal Forest Products Ltd. v. United States of America: Joint Order on the Cost of Arbitration and for the Termination of Certain Arbitral Proceedings, July 19, 2007 (UNCITRAL Rules) (North American Free Trade Agreement, Chapter 11)
- Soufraki v. United Arab Emirates: Decision of the Ad Hoc Committee on the Application for Annulment, June 5, 2007; Separate Opinion and Statement of Dissent, May 27, 2007; Rectification of the Decision of the Ad Hoc Committee, August 13, 2007 (Italy-United Arab Emirates Bilateral Investment Treaty) (ICSID Case No. ARB/02/7)
- Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines: Award and Dissenting Opinion, August 16, 2007 (Germany-Philippines Bilateral Investment Treaty) (ICSID Case No. ARB/03/25)
- Compañiá de Aguas del Aconquija S.A. & Vivendi Universal S.A. v. Argentine Republic: Award, August, 20, 2007 (Argentina-France Bilateral Investment Treaty) (ICSID Case No. ARB/97/3)
- Sociedad Anónima Eduardo Vieira v. Republic of Chile: Award and Dissenting Opinion, August 21, 2007 (Chile-Spain Bilateral Investment Treaty) (ICSID Case No. ARB/04/7)
Saturday, September 8, 2007
Recent Investment Treaty Arbitration Decisions and Awards
Friday, September 7, 2007
Bellinger: Legal Issues in the War on Terrorism
[W]hat are the differences between Dr. Voneky's approach, which acknowledges that terrorists are "offensive civilians" who may lawfully be targeted in military actions, and our approach, which categorizes these individuals as "unlawful enemy combatants"? Under both models, a State can use military force to respond to the threat posed by dangerous terrorists, can detain for the duration of the conflict those individuals who continue to pose a threat, and must treat individuals involved in a non-international armed conflict consistently with Common Article 3. While there may indeed be substantive differences between our approaches, I would suggest that it would be more productive to confront directly the question of how and when terrorists may be targeted and how they should be treated as detainees, rather than engage in theoretical arguments about legal categories. For example, Dr. Voneky's article argues that only terrorists who have a combat mission can be lawfully targeted by military force. But who has a "combat mission"? Is it just the terrorist who straps on the suicide vest? What about the vest maker? For years, numerous law of war experts have grappled with these issues at a series of expert meetings co-organized by the ICRC and the TMC Asser Institute that has focused on the meaning of "direct participation in hostilities." Although the experts’ work is not finished, I am aware that it delves into these difficult questions, and I look forward to reading it.
. . . Ultimately, my hope is that this conversation [regarding the legal framework for the use of force and detention of combatants in an armed conflict with non-state actors] will result in the recognition that the threat posed by al Qaida does not neatly fit within existing legal frameworks, contrary to Dr. Voneky's conclusion. Common Article 3, while containing important baseline protections, does not provide a comprehensive set of rules to govern detention of combatants in non-international armed conflict. More and more, those in the international community are recognizing the limitations of existing law, as reflected in the growing number of international governmental and academic conferences dedicated to discussing this issue. Some governmental officials forthrightly have expressed their agreement that the law in this area needs further development. OSCE Special Rapporteur for Guantanamo Anne Marie Lizin recognized in her report from last July that "there is incontestably some legal haziness" regarding the legal status of members of international terrorist organizations. Indeed, she recommended the formation of an international commission of legal experts to examine the question. Likewise, at last year's U.S.-E.U. summit, then-Austrian Chancellor Wolfgang Schussel acknowledged that we face legal "gray areas" regarding detention of terrorists. More recently, the Foreign Affairs Committee of the UK House of Commons wrote that the Geneva Conventions dealt inadequately with the problems posed by international terrorism, and called on the UK government, in connection with States Parties to the Geneva Conventions and the International Committee of the Red Cross, to work on updating these Conventions for modern problems. Although we do not - and will not - always see eye to eye with our European allies, I am encouraged that we have reached some degree of common ground, and that there is a growing acknowledgment that international terrorist organizations like al Qaida do not fit neatly into the existing international legal system.
Conference: What's Next in International Investment Law and Policy? (Update)
Sachs: Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law
Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadopted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations, grounded in regime theory from political science. Based on the model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: 1) interest conflicts between developed and developing states; 2) high transaction costs and low expected payoffs; and 3) incorporation of treaty provisions that are too onerous for states to accept. I conclude that strengthening tort remedies will require changing the substantive content of liability treaties and the process of negotiating them. I also show how liability principles can be strengthened outside the treaty-making process through diffusion of norms against transboundary environmental damage.
Thursday, September 6, 2007
Horn & Mavroidis: The American Law Institute Reporters' Studies on WTO Case Law
This compendium brings together the entire output to date of the American Law Institute (ALI) project on World Trade Organization Law. Reporters' Studies are offered on all disputes from the adjudicating bodies of the WTO in recent years, including those concerning Foreign Sales Corporations (FSC), the Byrd Amendment and the long-lasting US-Canada softwood lumber conflict. Each case is jointly evaluated by well-known experts in trade law and international economics. ALI Reporters critically review the jurisprudence of WTO adjudicating bodies and evaluate whether the ruling "makes sense" from an economic as well as a legal point of view, and, if not, whether the problem lies in the interpretation of the law or the law itself. The Studies do not always cover all issues discussed in a case, but they seek to discuss both the procedural and the substantive issues that form, in the Reporters' view, the "core" of the dispute.
New Issue: European Human Rights Law Review
- Max du Plessis, Terrorism and National Security: The Role of the Judiciary in a Democratic Society
- David Mead, The Right to Peaceful Protest under the European Convention on Human Rights - A Content Study of Strasbourg Case Law
- Kate Parlett, Universal Civil Jurisdiction for Torture
- Marny Requa, Truth, Transition and the Inquiries Act 2005
- Chara Bakalis, ASBOs, "Preventive" Orders and the European Court of Human Rights
- Sejal Parmar, Vilho Eskelinen v Finland: The Further Extension of ECHR Article 6 to Disputes Concerning Civil Servants
Conference: To Prevent and to Punish
Sixty years ago, on June 11, 1947, Raphael Lemkin, working with the U.N. Secretariat legal staff, completed the first draft of the Genocide Convention, launching the intense negotiations that would conclude in the U.N.’s adoption of the Convention in December 1948. Today, the Genocide Convention has 137 parties, and after years of dormancy, the Convention has become an important legal tool in the international effort to end impunity for the worst crime known to humankind. The past year alone has witnessed important cases based on the Genocide Convention before the International Court of Justice, the ad hoc international criminal tribunals, and the domestic courts of several countries. To commemorate the sixtieth anniversary of the negotiation of the Genocide Convention, the Frederick K. Cox International Law Center at Case Western Reserve University is hosting a major international symposium featuring two-dozen of the world’s leading academic experts, high level government officials, and most distinguished jurists and practitioners in the field.
Breitenmoser, et al.: Wildhaber Festschrift
Wednesday, September 5, 2007
Treaty Transmittals: Marine Pollution Convention Protocol and Nuclear Material Convention Amendment
- the 1996 Protocol to [the] Convention on Prevention of Marine Pollution by Dumping of Wastes (Treaty Doc. No. 110-5); and
- the Amendment to [the] Convention on Physical Protection of Nuclear Material (Treaty Doc. No. 110-6).
Shultz: How to Gain a Climate Consensus
We in the United States - and we as global citizens - live in what is, in many respects, a golden moment. Economic growth is globally strong, and, if security threats can be contained, this expansion, with some ups and downs, can be sustained.
Strong growth means increased use of energy at a pace that can strain the capacity to supply what is needed at a reasonable price. This highlights two urgent questions: how to use energy without producing excess greenhouse gases that create disruptive conditions on a global scale; and how to reduce the threat to national security from excess dependence on oil.
The greenhouse gas problem is more broadly recognized today than it was during the Kyoto Protocol negotiations. Moreover, the protocol is running its course, so a new treaty is needed. That treaty should have a different structure - one that ultimately achieves universality.
During the Reagan administration, we faced the problem of depletion of the ozone layer, and negotiations resulted in the Montreal Protocol. To be sure, the problem then was less complex than that of today. However, there are parallels, and lessons from the Montreal Protocol can be useful.
The reductions called for in ozone-depleting substances were aggressive but realistic in that they could be undertaken without severe economic damage, in part because demand triggered the development by private industry of needed chemicals and appliances.
Because we in the United States were ready to take action, we could ask others to act as well.
The protocol also recognized the importance of a little wiggle room, so provision was made for the possibility of special arrangements among countries.
The countries with low per capita incomes were integral to the process and were given special treatment in terms of trading rules and the establishment of a fund that could help them meet their obligations.
What can we learn from this? Here are some guiding principles:
- The process benefited greatly from strong U.S. leadership. We were the science leader, the moral leader and the diplomatic leader. Yes, those of us working for an agreement, notably John Negroponte, now deputy secretary of state, faced internal opposition; there were doubts about the reality of the problem and that reasonable solutions could be identified and implemented. But at all the crunch points, Ronald Reagan was there for us. The president cleared the way, and in the end he called the result a "monumental achievement." The Senate readily gave its consent to ratification.
- Universality of coverage is a necessary goal. The world must be represented at the table. Interests and capabilities vary widely. Patience and flexibility are key. We must focus on the countries that matter most and explore shared interests, identify respective vulnerabilities and adaptive options, and share views on scientific and technological advances. We could explore the possibility of industry-specific solutions within such groups as air transport, automotive, steel and electric utilities. One caution: Holdouts must not be allowed to get special treatment.
- The negotiating structure must involve constituencies because, in the end, they will bear the weight of necessary actions. At all costs, we must avoid what happened at Kyoto, where we signed the protocol after the Senate, by unanimous vote, advised President Bill Clinton not to conclude a treaty that lacked commitments by developing countries. In other words, our negotiator had lost touch with his constituency.
- The use of economic incentives (caps and trading rights, and carbon taxes) is essential to avoid disastrously high costs of control. The cap-and-trade system has been highly successful in reducing sulfur dioxide emissions by electricity utilities in the United States. That system relies on a scientifically valid and accepted emission-measurement system used by a clearly identified and homogeneous set of utilities. Fortunately, such a careful system of measurement exists for a viable greenhouse gas regimen. The product of collaboration between the World Resources Institute and the World Business Council for Sustainable Development, these standards for accounting and reporting greenhouse gases should be duly understood and adopted. Even with clear units of account, however, large problems arise as the coverage and heterogeneity of the system grow. And for trading across borders, the system needs to be accepted among the trading partners. Scams are easy to imagine. No nation should be allowed to trade without a verifiable, transparent system of measuring and monitoring of reductions, and holding emitters accountable. In many respects, a straight-out carbon tax is simpler and likelier to produce the desired result. If the tax were offset by cuts elsewhere to make it revenue-neutral, acceptability would be enhanced.
- Do not expect China, India and other developing countries to accept what amounts to a cap on economic growth. They will not - and cannot - do that. We must create market incentives for them to cut emissions while continuing to grow and find actions that are economically feasible in a relatively low-income environment. We may also need to give them extra time, even allowing some short-term emissions growth, before requiring them to reduce their emissions. This is similar to the way we accommodated developing countries under the Montreal Protocol.
- Another imperative, a derivative of the previous point, is the need to deal effectively with issues of intellectual property. The obligation to reward innovators must be reconciled with the needs of low-income societies.
- The negotiations should not conclude until important first steps are identified and agreed upon so that everyone takes some action.
As we consider a new treaty, we must recognize that one size will not fit the world, even though some technologies may have wide, even universal, application. The Montreal Protocol, as a successful environmental treaty, provides a model for establishing a process with wide agreement to take important action.
Workshop: Lee on Theorizing the Foreign Affairs Constitution
Pollack: Principal-Agent Analysis and International Delegation
The principal-agent (PA) approach has recently become the dominant approach to the study of delegation in both comparative and international politics. Despite these purported benefits, a growing number of critics have taken exception to both the theoretical assumptions and the empirical claims of PA analysis. Such critiques, it is argued, fall into three groups. The first are the red herrings, the critiques that arise from a misunderstanding or misrepresentation of what PA approaches and their practitioners actually argue. The second and more interesting set of critiques raise the distinction between agents and trustees, questioning applicability of PA analysis to the latter - although it is argued that this distinction needlessly dichotomizes a continuum of agent discretion and a range of motivations for delegation, and strictly defined is of little relevance to the universe of empirical cases that scholars might seek to explain. The third and final group of critiques argue that PA approaches systematically fail to predict correctly either (a) the reasons and the conditions under which political principals delegate powers to agents, or (b) the conditions under which agents enjoy autonomy and influence in domestic and international politics.
Tuesday, September 4, 2007
Conference: What's Next in International Investment Law and Policy?
Against the background of the growth of foreign direct investment, the proliferation of international investment agreements and the rise of investment disputes, the Conference - entitled "What’s Next in International Investment Law and Policy? Improving the International Investment Law and Policy System" - will identify some of the challenges that the international investment law and policy system is facing and discuss the way forward.
More specifically, the Conference will examine the expectations of key stakeholders as regards the international investment law and policy system. It will also look at the implications of a rise of FDI protectionism and, related to that, address the question of whether there may be a need to recalibrate this system by looking, inter alia, at key investor protection standards; corporate social responsibility; home country measures; and the special role that developing countries can play in further developing and strengthening the current system.
Workshop: Franck on Empirical Analysis of Investment Treaty Arbitration
Hakimi: To Condone or Condemn? Regional Enforcement Actions in the Absence of Security Council Authorization
The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second system (here referred to as the operational system), the international community may discreetly tolerate a deviation from the Charter rule depending on the substantive interests at stake, the circumstances surrounding the lack of authorization, and the characteristics of the acting regional arrangement. In the event of a tolerated deviation, however, no actor acknowledges that it is participating in or tolerating a deviation. Instead, international actors resort to a variety of techniques to maintain the integrity of the Charter rule and to suppress acknowledgement of the operational system. After demonstrating that the Charter system and the operational system coexist in this area, this Article examines the general parameters of the operational system. It concludes that, so long as the Security Council remains ineffective in satisfying the international community's substantive legal interests, the operational system will - and should - continue to coexist with the Charter system. The application of law in this area, therefore, cannot be fully understood without an appreciation for the role and parameters of the operational system.
New Issue: International Journal of Transitional Justice
- Rosalind Shaw, Memory Frictions: Localizing the Truth and Reconciliation Commission in Sierra Leone
- Louise Mallinder, Can Amnesties and International Justice be Reconciled?
- Phuong Pham & Patrick Vinck, Empirical Research and the Development and Assessment of Transitional Justice Mechanisms
- Ron Dudai, A Model for Dealing with the Past in the Israeli–Palestinian Context
- Hakeem O. Yusuf, Travails of Truth: Achieving Justice for Victims of Impunity in Nigeria
- Ezekiel Pajibo, Civil Society and Transitional Justice in Liberia: A Practitioner's Reflection from the Field
- Alexander Loden, Civil Society and Security Sector Reform in Post-conflict Liberia: Painting a Moving Train without Brushes
Hakimi: Current Development, The Council of Europe Addresses CIA Rendition and Detention Program
This "current development" piece examines the response of the Council of Europe to evidence that European states participated in the CIA detention and rendition program. Most notably, the Council's Venice Commission issued a legal opinion concluding that participation in the CIA program is incompatible with the European Convention of Human Rights (ECHR); and that member states are obligated, not only to refrain from participating themselves in the program, but also to prevent other states from engaging in it in member state jurisdictions. With that latter conclusion, the Commission imposes on member states the obligation to police the activities of other states and effectively imputes to those other states obligations under the ECHR. This is likely to complicate future U.S. efforts to engage in intelligence operations in, through, or with Europe.
Monday, September 3, 2007
Shelton: An Introduction to the History of International Human Rights Law
As part of a lecture series given at the International Institute of Human Rights, in Strasbourg, France, in July 2003, the author presents an overview of the history of international human rights law. The author explores numerous religious, political, cultural, philosophical, economic and intellectual movements throughout history that have informed and guided the development of human rights law on the global stage. In doing so, the author examines the moral and ethical dimensions which underpin international human rights law, including what she defines as the innate human desire for protection from abuse. The author highlights the world's most significant historical events and people who have influenced modern concepts of human rights law. Despite the many successes of the human rights movement, the author draws attention to international institutions established to protect human rights, which are often too weak to address many contemporary human rights violations and atrocities occurring in failed states or at the hands of non-state actors. As this area of international law continues to develop, these shortcomings must be addressed if human rights progress is to continue.
Gopalan: From Darfur to Sinai to Kashmir: Legalization and Ethno-Religious Conflicts
This paper attempts to examine agreements between two high conflict states - India and Pakistan - in comparison with those between parties characterized by high degrees of conflict along ethnic and religious lines, from a theoretical perspective with a view to determining if legalization has any correlation between the commitments embodied in agreements between such states and the degree of compliance. For purposes of comparison, I examine the historic agreement between Israel and Egypt, and the Darfur Peace Agreement (DPA) as exemplars of similar conflicts where legalization has salience. I adopt the lens of legalization articulated by Abbott, et al, and bring recent advances from the intersection of international relations theory and international law to the design and structuring of agreements between states beset by persistent hostilities. I analyse agreements between India and Pakistan, Israel and Egypt, and the Darfur Peace Agreement, to demonstrate that agreements that are high on the precision-obligation-delegation matrix enjoy higher degrees of success than those that are low on this matrix when concluded between high conflict states. I conclude by arguing that India and Pakistan should aim for hard legalization to solve the Kashmir dispute, and that they must learn from the painful experience of the Darfur Peace Agreement and include non-state actors as signatories to any agreement.
Kiss & Shelton: Strict Liability in International Environmental Law
The principle that a State is responsible for causing environmental harm outside its territory in breach of an international obligation has been slow to evolve to address the allocation of loss due to accidents. In settling the well-known dispute between the United States and Canada concerning the activities of the Canadian smelter located in Trail, British Columbia, the arbitral tribunal asserted a general duty on the part of the State to protect other States from injurious acts by individuals (both state and non-state actors) within its jurisdictions. The tribunal, however, noted the difficulty determining what constitutes an injurious act, but it may be concluded that a State's failure to regulate or prevent serious harm from polluting activities, in instances where it would protect its own inhabitants, would constitute a wrongful act. The Trail Smelter arbitration left open the question of whether a State exercising all due diligence would be liable if transfrontier harm results despite the State's best efforts - whether there would be strict liability.
States appear hesitant to accept international rules that would oblige them to restrict or accept liability for activities whose harmful environmental consequences are likely to be limited to their own territory. Here, economic interests play a major political role. However, specific activities such as nuclear activities and marine pollution present a significant risk for the environment of the commons or of other States. While international law has been slow in placing the risk of loss on the actor profiting from the enterprise, economic globalization potentially could lead to progress by harmonizing the conditions of operation in certain fields of activities dangerous to human health and to the environment.
New Blog: International Law Observer
[The] Blog will . . . promote the critical debate on up-to-date legal developments in international law, by reporting on recent developments in the academic field(s), informing on influential case-law of (inter-)national tribunals and courts and presenting international custom and important legislation by international organizations. We hope that this Blog will contribute to the constructive exchange of ideas between scholars, practitioners and other active users and visitors of Legal-Weblogs.
New Issue: Review of European Community & International Environmental Law
- Articles on the Implementation of International Environmental Law by the Private Sector
- Maria Ivanova, David Gordon & Jennifer Roy, Towards Institutional
Symbiosis: Business and the United Nations in Environmental Governance
- Linda Siegele & Halina Ward, Corporate Social Responsibility: A Step Towards Stronger Involvement of Business in MEA Implementation?
- Kati Kulovesi, The Private Sector and the Implementation of the Kyoto Protocol: Experiences, Challenges and Prospects
- Benjamin Cashore, Graeme Auld, Steven Bernstein & Constance McDermott, Can Non-state Governance ‘Ratchet Up’ Global Environmental Standards? Lessons from the Forest Sector
- Kishan Khoday, Mobilizing Market Forces to Combat Global Environmental Change: Lessons from UN Private Sector Partnerships in China
- General Articles
- Arie Trouwborst, The Precautionary Principle in General International Law: Combating the Babylonian Confusion
- Rosemary Rayfuse, Melting Moments: The Future of Polar Oceans Governance in a Warming World
- A.D. Martin, C.K. Mayers & C.M. France, The EU Restriction of Hazardous Substances Directive: Problems arising from Implementation Differences between Member States and Proposed Solutions
- Kyla Tienhaara, Third Party Participation in Investment-Environment Disputes: Recent Developments
Sunday, September 2, 2007
New Issue: Journal of World Trade
- Laura J. Loppacher, William A. Kerr & Richard R. Barichello, The Debate on Improving Implementation of the Regionalization Chapter of the SPS Agreement: Real Problems or Disguised Protectionism?
- Maureen Irish, GSP Tariffs and Conditionality: A Comment on EC-Preferences
- Gilbert Gagné, Policy Diversity, State Autonomy, and the US-Canada Softwood Lumber Dispute: Philosophical and Normative Aspects
- Deli Yang & Mahmut Sonmez, Economic and Cultural Impact on Intellectual Property Violations: A Study of Software Piracy
- Roman Grynberg & Veniana Qalo, Migration and the World Trade Organization
- Chan-Mo Chung, Interpretation of "Interconnection" by the WTO Mexico-Telecommunications Panel: A Critique
- Junrong Song, A Comparative Study on the Trade Barriers Regulation and the Foreign Trade Barriers Investigation Rules
- Mira Burri Nenova, The Law of the World Trade Organization and the Communications Law of the European Community: On a Path of Harmony or Discord?