Saturday, September 22, 2007

Hestermeyer: Human Rights and the WTO

Holger P. Hestermeyer (Max Planck Institute for Comparative Public Law and International Law) has published Human Rights and the WTO: The Case of Patents and Access to Medicines (Oxford Univ. Press 2007). Here's the abstract:

The international trading system has come under increasing attack by activists as being in conflict with human rights law, yet some have defended the system as contributing more to the fulfillment of human rights than many other areas of international law. This study examines the alleged conflict of WTO law with international human rights law, using one of the most prominent examples of such a conflict: the one that exists between international patent law, and access to medication as guaranteed by the International Covenant on Economic, Social and Cultural Rights. This highly controversial political issue of the appropriate use of international patent law on life saving medicines gained the world's attention during the discussion about the price of AIDS medication, but recent instances also include the availability of the patented medication for bird flu and for anthrax.

The book discusses both the patent law and the international human rights law involved in great depth, distinguishing between obligations under different human rights instruments and including a highly readable introduction into both areas of law. It then explains the concept of conflict between legal regimes and why patent law and human rights law are in conflict. The current state of international law on the conflict between legal regimes and the origin of such conflicts is analyzed, covering such issues as hierarchy in international law and introducing the concept of 'factual hierarchy'. The book then turns to the role of human rights law in the WTO system, concluding that such law currently is limited to aiding the interpreting of the WTO agreements. It shows how a further integration of human rights law could be achieved and describes the progress made towards accommodating human rights concerns within the TRIPS Agreement, culminating in the first ever decision to amend a core WTO Agreement in December 2005.

Annual Report of the ICTR

Come August and September a slew of annual reports of UN components make their way to New York in time for the new General Assembly session. On Thursday, the UN released the annual report of the International Criminal Tribunal for Rwanda for 2006-2007. The UN News Service story is here.

Friday, September 21, 2007

IMF: Managing Director Selection Pending

Reportedly, the IMF Executive Board will announce its selection of the new managing director a week from today, September 28. This follows its interviews this week of the two candidates, Dominique Strauss-Kahn (yesterday) and Josef Tošovský (Tuesday). Their statements to the Executive Board are available here (Strauss-Kahn) and here (Tošovský).

Swaine: Taking Care of Treaties

Edward T. Swaine (George Washington Univ. - Law) has posted Taking Care of Treaties (Columbia Law Review, forthcoming). Here's the abstract:

There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope with breaches, accordingly, risks distorting the positive law or vesting the President with a potentially boundless authority – or, in the alternative, risks a recurring gap between our international obligations and our domestic law.

The Take Care Clause affords a surprisingly well-tailored solution. Take care authority has been neglected in recent discourse, and not without reason. On the one hand, it is not obvious that it encompasses treaties, or licenses presidential authority beyond the capacity to ensure compliance within the executive branch; on the other hand, it smacks of unbridled executive power. These objections can be met. As the Article explains, the Take Care Clause includes treaties, including - critically - some treaties conventionally labeled as non-self-executing, and permits presidential authority beyond self-regulation. The text, case law, and practice further support the idea that this authority may be divested by the Constitution, by treaty, or by statute, and must satisfy additional criteria that guard against vesting the president with plenary lawmaking authority.

The Article explains how this theory applies to potential controversies involving compliance with the decisions of international tribunals (like those of the International Court of Justice, or arising under the WTO or the Law of the Sea Convention), legislative decisions by institutions like the Security Council (such as a resolution enabling war crime proceedings against former U.S. officials), and finally treaties that afford no recourse to international mechanisms. The result is a theory that reinforces congressional supremacy without requiring that treaty obligations founder upon it.

Treaty Transmittal: Treaty with United Kingdom Concerning Defense Trade Cooperation

Yesterday, the President transmitted to the Senate, for its advice and consent to ratification, the Treaty with United Kingdom Concerning Defense Trade Cooperation. The transmittal package (Treaty Doc. 110-7) is available here. The treaty was signed by President Bush and then-Prime Minister Blair on June 21, 2007. A State Department fact sheet lists the following "key elements" of the treaty:

The Defense Trade Cooperation Treaty will permit the export of certain U.S. defense articles and services to the U.K. Government and select British companies that meet specific requirements, without U.S. export licenses or other prior approvals. It also ensures the continuation of the British policy of not requiring a license for the export of U.K. defense articles and services to the United States.

The Treaty will create an approved community of the two governments and selected defense companies. Most U.S. defense articles will be eligible to be exported into and within this community without prior U.S. Government licenses or other authorizations as long as the exports are in support of:

  • Combined U.S.-U.K. military or counterterrorism operations.
  • Joint U.S.-U.K. cooperative security and defense research, development,
    production, and support programs.
  • Specific security and defense projects that are for U.K. Government use
  • U.S. Government end-use.

The State Department's Directorate of Defense Trade Controls reviewed more than 70,000 cases in 2006. By removing the need to review licenses for exports to the United Kingdom in support of joint operations and U.K. Ministry of Defense programs, this treaty will allow the Directorate of Defense Trade Controls to redirect some of its resources elsewhere.

The Strategic Security Blog provides background here. On September 5th, the United States also signed a Defense Trade Cooperation Treaty with Australia. The State Department fact sheet is here.

Ip: Comparative Perspectives on the Detention of Terrorist Suspects

John Ip (Univ. of Auckland - Law) has posted Comparative Perspectives on the Detention of Terrorist Suspects (Transnational Law & Contemporary Problems, Vol. 16, p. 773, 2007). Here's the abstract:

The detention of terrorist suspects by the United States at various locations around the world, most notably Guantanamo Bay Naval Base, is one of the most obvious results of the war on terror. The detention of terrorist suspects at Guantanamo is an example of detention outside the criminal justice paradigm. The United States, however, is not alone in doing this.

This article examines the different approaches taken by the United States, the United Kingdom, Canada and New Zealand in relation to the detention of terrorist suspects. Whereas the United States detains terrorist suspects using a detention model that selectively utilises law of war concepts, the other jurisdictions surveyed employ a model based on immigration law. Both models permit detention with fewer due process protections. Both models have, in practice, also resulted in the differential treatment of foreign terrorist suspects. The article concludes by discussing how the courts in each jurisdiction have dealt with the cases concerning the detention of terrorist suspects.

Kelley: Assessing the Complex Evolution of Norms: The Rise of International Election Monitoring

Judith G. Kelley (Duke - Public Policy & Political Science) Assessing the Complex Evolution of Norms: The Rise of International Election Monitoring (International Organization, forthcoming). Here's the abstract:
Given that states have long considered elections a purely domestic matter, the dramatic growth of international election monitoring in the 1990s was remarkable. Why did states allow international organizations and NGOs to interfere and why did international election monitoring spread so quickly? Why did election monitoring become institutionalized in so many organizations? Perhaps most puzzling, why do countries invite monitors and nevertheless cheat? This article develops a rigorous method for investigating the causal mechanisms underlying the rise of election monitoring, and “norm cascades” more generally. The evolution and spread of norms, like many other social processes, are complex combinations of normative, instrumental, and other constraints and causes of action. The rise of election monitoring has been driven by an interaction of instrumentalism, emergent norms, and fundamental power shifts in the international system. By dissecting this larger theoretical complexity into specific sub-claims that can be empirically investigated, this article examines the role of each of these causal factors, their mutual tensions, and their interactive contributions to the evolution of election monitoring.

Cross: Arbitration as a Means of Resolving Sovereign Debt Disputes

Karen Halverson Cross (John Marshall Law School, Chicago) has posted Arbitration as a Means of Resolving Sovereign Debt Disputes. Here's the abstract:

In September 2006, a group of Italian holders of Argentine defaulted debt submitted a request for arbitration to the International Centre for Settlement of Investment Disputes (ICSID), claiming that Argentina's actions in connection with debt issued by it and held by the Italian claimants breached Argentina's obligations under a bilateral investment treaty (BIT) between Argentina and Italy. Although arbitration of sovereign debt disputes is not unprecedented, it is unusual. Contracts with sovereign debtors typically provide, not for arbitration of disputes, but rather submission to the jurisdiction of courts of the creditors' choosing.

This article considers several questions. The narrow question, which is implicated by the Italian bondholders' claim, is whether ICSID has jurisdiction to resolve a dispute brought by holders of defaulted sovereign debt pursuant to a BIT. The more general question, however, is why the Italian bondholders are attempting to invoke arbitration rather than litigating the dispute in New York court. This article suggests that in the sovereign debt context, arbitration is potentially a more attractive dispute resolution mechanism than litigation. The persistent absence of arbitration clauses from sovereign debt contracts may be attributable to the lock-in effects of standardized contract terms, and not to the relative merits of arbitration versus litigation.

Ochoa: From Odious Debt to Odious Finance

Christiana Ochoa (Indiana Univ., Bloomington - Law) has posted From Odious Debt to Odious Finance: Avoiding the Externalities of a Functional Odious Debt Doctrine (Harvard International Law Journal, forthcoming). Here's the abstract:

This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the unintended consequences and externalities that would ensue if this doctrine were ever made regularly operative. The enlivened scholarly debate surrounding the odious debt doctrine assumes that debt is the sole finance vehicle for despotic governments. This is simply not the case.

Debt is not the sole finance vehicle; despots are able to raise funds through a wide variety of other methods. These include the pillaging of the nation's natural resources, property, and other valuable asset as well as the exploitation of the nation's human resources. In a world with a functional odious debt doctrine one can envision that despotic leaders, facing great difficulty in accessing private or public loans, may rely more heavily on these alternative sources of funds. Furthermore, although debt can be crippling for developing countries and merits the attention it has received, these alternative methods of despotic financing may in fact be yet more adverse than debt in both the short and long term.

This Article investigates the contents of the odious debt doctrine to query what characteristics make debt odious rather than simply onerous. It then seeks to establish that there may be little distinction between those characteristics as they apply to debt and as they apply to other types of transnational financial obligations and financing arrangements. Finally, the Article posits that if there is, in fact, little distinction, there may be valuable lessons to be learned from the odious debt doctrine for application to other types of transnational financing arrangements, and proposes that an "odious finance doctrine" is the better approach. The contours of such an odious finance doctrine are presented herein.

Roth: The Entity That Dare Not Speak Its Name

Brad R. Roth (Wayne State Univ. - Law) has posted The Entity that Dare Not Speak its Name: Unrecognized Taiwan as a Right-Bearer in the International Legal Order. Here's the abstract:
James Crawford's magisterial 2006 second edition of The Creation of States in International Law, updating his 1979 text in light of the intervening period's vast accumulation of international practice, was much awaited in Taiwan, which has seen a major transformation in its external relations over the last quarter-century. Though Crawford asserts that "the suppression by force of 23 million people cannot be consistent with the [United Nations] Charter," and that therefore "[t]o that extent there must be a cross-Strait boundary for the purposes of the use of force,” he finds that "Taiwan is not a State because it still has not unequivocally asserted its separation form China and is not recognized as a State distinct from China." Apart from its dysfunctionality in encouraging Taiwanese to believe that a more definitive expression of their desire for statehood is all that stands in the way of their goal, Crawford's analysis is not persuasive on the merits. Contrary to the prevailing objective theory of statehood that Crawford reaffirms, it is the tacit positions adopted by reacting states, whether in coordination or simply in the aggregate, that determine whether an entity possesses the rights, powers, obligations, and immunities of statehood. By this gauge, Taiwan's legal status is indeterminate. There is much concrete behavior of the community of states toward Taiwan that confutes the official rhetoric of non-recognition of Taiwan's independence. The case for attributing to Taiwan the properties of statehood improves the more that Taipei can establish external relationships beyond the permissible confines of mere de facto recognition and inconsistent with the PRC assertions of sovereign prerogative over Taiwan's external affairs.

Thursday, September 20, 2007

IMF: U.S. Announces Its Support for Strauss-Kahn

Ever since the EU endorsed Dominique Strauss-Kahn (DSK) for the position of managing director of the IMF, the United States has played it coy regarding its support for DSK. There was little doubt that the United States would come through in the end (especially when the only other candidate was nominated by Russia), but for reasons about which we can only speculate the Treasury Department waited to make its endorsement public. Yesterday, the wait ended. In a statement, Treasury Secretary Paulson "urge[d] the Board to positively consider the candidacy of Dominique Strauss-Kahn to succeed Rodrigo de Rato." The statement's timing was not random. The IMF Executive Board is interviewing the two managing director candidates this week. And DSK's interview will take place today. The Executive Board has not announced when it will make a decision, but one imagines that it will be soon, as Rodrigo de Rato intends to leave the IMF at the conclusion of the World Bank Group-IMF Annual Meetings, which begin a month from today. With U.S. support, though, there is no doubt that DSK will get the nod.

Heller: Review Essay, Deconstructing International Criminal Law

Kevin Jon Heller (Univ. of Auckland - Law) has posted Review Essay, Deconstructing International Criminal Law (Michigan Law Review, forthcoming). Here's the abstract:

In "Atrocity, Punishment, and International Law" (Cambridge University Press, 2007), Mark Drumbl provides an important and compelling critique of international criminal law's ability to deliver transitional justice in societies that have experienced mass atrocity. In his view, the individualized liberal-legalist criminal trials favored by international criminal law - as exemplified by the ICTY, ICTR, ICC, and the numerous hybrid tribunals - have two basic flaws: they fail to account for the collective nature of mass atrocity, because they cannot reach bystanders, states, and international organizations, all of whom play a necessary role in its perpetration; and their selectivity and relatively lenient sentences deprive them of meaningful retributive or deterrent value. Those limitations do not make such trials superfluous, but they indicate that international criminal law needs to be pluralized in two important ways: vertically, in terms of the allocation of authority between international tribunals and national and local transitional-justice institutions; and horizontally, in terms of the kinds of accountability mechanisms national and local institutions use to address mass atrocity.

This review essay agrees with Drumbl's deconstruction of international criminal law, but argues that his proposed reconstitution of it is likely to be both less effective and less just than he believes. After summarizing Drumbl's argument, the essay identifies three basic problems with his proposals for vertical pluralization: (1) very few national or local transitional-justice institutions will satisfy the requirements for qualified deference; (2) in the wrong hands, Drumbl's requirement that such institutions avoid inflicting "great evils" on victims or third-parties could easily devolve into little more than a modern-day repugnancy clause, imposing Western values on those who knowingly reject them; and (3) it is not clear why it should never be acceptable to tolerate a "great evil" in the name of peace. The essay then discusses two basic problems with his proposals for horizontal pluralization, focusing on his support for non-punitive collective sanctions: (1) in order to avoid being retributively unjust, collective sanctions would have to be imposed using the same liberal-legalist procedures that paralyze international criminal trials; and (2) only retributively unjust collective sanctions could effectively deter mass atrocity.

Dimitrijević & Milanović: The Strange Story of the Bosnian Genocide Case

Vojin Dimitrijević (Belgrade Centre for Human Rights) & Marko Milanović (Belgrade Centre for Human Rights) have posted The Strange Story of the Bosnian Genocide Case (Leiden Journal of International Law, forthcoming). Here's the abstract:

In February 2007, the International Court of Justice rendered its judgment on the merits of the Genocide case, thereby writing the final chapter to a story which has been pending before it for some 14 years. This judgment will certainly prove to be one of the ICJ's most significant, both legally and politically. In brief, the Court concluded that genocide was perpetrated in Bosnia by the Bosnian Serb armed forces, but solely in the town of Srebrenica in July 1995, that Serbia was neither responsible for the commission of that genocide nor complicit in it, but that it was responsible for failing to prevent it and for failing to punish its perpetrators.

The purpose of this article will not be to parse the paragraphs of the judgment in meticulous legal analysis, a worthy endeavour though that might be. This article will instead try to explore the context and the multifaceted peculiarity of this case, which is at least as great as its importance, and the examination of which is absolutely necessary for a proper understanding of its outcome.

Almost every aspect of the Genocide case is odd. At one level, this case was never really about genocide, or at least genocide as international lawyers think of the term. Moreover, while the case was pending both of the parties underwent a series of crucial transformations. Even if, formally speaking, their legal personality remained the same, the parties were anything but the same in 1993, when the application was submitted, in 1996, when the Court decided on its jurisdiction, and in 2007, when the final judgment was rendered.

The ICJ was also, probably for the first time in its history, faced with a case in which the principal, underlying dispute was actually within the applicant state itself, between the Bosniaks (Bosnian Muslims) and the Bosnian Serbs, whose army committed the Srebrenica genocide, and who actively tried to obstruct the progress of the Genocide case at every turn. The case is also notorious for a number of unprecedented procedural maneuvers. The article will explain both the progress and the outcome of the case in the context of the wider political disputes within Bosnia and Serbia.

Parchomovsky & Siegelman: Bribes v. Bombs: A Study in Coasean Warfare

Gideon Parchomovsky (Univ. of Pennsylvania - Law) & Peter Siegelman (Univ. of Connecticut - Law) have posted Bribes v. Bombs: A Study in Coasean Warfare. Here's the abstract:
The use of bribes to co-opt an enemy's forces can be a more effective way to wage war than the conventional use of force: Relative to bombs, bribes can save lives and resources, and preserve civic institutions. This essay evaluates the efficacy and normative desirability of selectively substituting bribes for bombs as a means of warfare. We show how inter-country disparities in wealth, differences in military strength, the organization of the bribing and recipient forces, uncertainty about the outcome of the conflict, and communications technology can contribute to the efficacy of bribes. We discuss methods for enforcing bargains struck between opposing forces, a key problem in structuring bribes. We also examine the legal status of bribe agreements, under both international and U.S. law. While the former apparently views bribery as legitimate means of warfare, the latter poses a potentially significant obstacle by refusing on public policy grounds to enforce secret contracts made with foreign agents.

Voon: Cultural Products and the World Trade Organization

Tania Voon (Univ. of Melbourne - Law) has published Cultural Products and the World Trade Organization (Cambridge Univ. Press 2007). Here's the abstract:
Debate about trade and culture has a long history, but the application of WTO rules to cultural products such as films, radio and books remains one of the most divisive issues in the organisation. After assessing the economic and social arguments for treating cultural products differently from things like steel or wheat, this book explains how the vastly different views of WTO Members in earlier negotiations led to an outcome that is disappointing for all. It goes on to provide a comprehensive evaluation of possible solutions, including evolution of the law through WTO dispute settlement, a new agreement outside the WTO, and reforms to improve the balance between trade liberalisation and cultural policy objectives. As UNESCO’s new convention affecting trade and cultural diversity is due to enter into force in 2007 and the WTO’s Doha Round of negotiations is stumbling, the need for such an evaluation is pressing.

Wednesday, September 19, 2007

Conference: New Developments in State Immunity

The British Institute of International and Comparative Law, Queen Mary, University of London, and Eversheds will host a conference on New Developments in State Immunity in London, October 10, 2007. The program is available here. Speakers include: Judge Tullio Treves; Sir Michael Wood; Gerhard Haffner; Brigitte Stern; Stewart Shackleton; Philippa Casey; Alejandro Escobar; Maurice Mendelson; Eileen Denza; Dan Sarooshi; Khawar Qureshi; Romesh Weermantry; Charles N. Brower; Bill Bowring; Craig Barker; and Malcolm Shaw. Session topics include: Bringing Suit Against States and State Officials; State Enterprises; International Entities; Enforcement of Judgements and Awards; and Human Rights.

Danner & Simmons: Credible Commitments and the International Criminal Court

Allison Marston Danner (Vanderbilt - Law) & Beth Simmons (Harvard - Government) have posted Credible Commitments and the International Criminal Court. Here's the abstract:
The International Criminal Court (ICC) is the most comprehensive effort to date to deal with justice, peace and security at the international level. There is a good deal of debate over whether the Court will make any important contribution in this regard, and certainly a dearth of theorizing as to why any state would sacrifice its sovereignty to join. In this paper, we argue that the ICC can be understood as a mechanism to enhance government's ability to make credible commitments to their domestic populations (including their opponents) that they will refrain from atrocities in civil war situations. States that have credible ways to punish potential perpetrators shy away from the court despite their experience with civil conflicts. We also present statistical evidence of tentative moves toward peace for those countries that have experienced civil war, lack domestic accountability mechanisms, and have ratified the ICC statutes. This evidence suggests that the ICC is in fact perceived by parties involved in local conflicts as a way to tie their hands with respect to warfighting tactics, on the condition that they have no credible way domestically to do so. This implies that the ICC does in fact have a useful role to play in budging parties in civil conflict toward peaceful settlements.

Sadat: Extraordinary Rendition, Torture and Other Nightmares from the War on Terror

Leila N. Sadat (Washington Univ., St. Louis - Law) has posted Extraordinary Rendition, Torture and Other Nightmares from the War on Terror (George Washington Law Review, forthcoming). Here's the abstract:
This article examines the U.S. practice of extraordinary rendition, a method of transferring detainees abroad for detention and interrogation either from the United States, on behalf of the United States, or from occupied Iraq. It concludes that rendition does not comply with either international human rights norms or the laws of war. The article examines the Nuremberg consensus arrived at following the Second World War, which provided for individual criminal responsibility for the commission of crimes under international law, and suggests that following the Nuremberg principles would be more effective than extralegal government activity. The article disputes the propositions of conservative government lawyers and their academic surrogates that Geneva law is now either quaint or obsolete; instead, it argues that the government has made what is, at best, a tenuous case that Geneva law and international human rights norms are inconvenient. If the administration is sincere in its claim that new international legal paradigms must be adopted in order to successfully combat the scourge of international terrorism, the appropriate vehicle to do so would be the establishment of new multilateral regimes that attract broad international support, not creative are interpretations of the law that are patently inconsistent with prior U.S. and international understandings.

New Issue: International Organizations Law Review

The latest issue of the International Organizations Law Review (Vol. 4, no. 1, April 2007) is out. Contents include:
  • A.S. Muller, IO=M4, or the Four Corners of the Universe of International Organizations
  • Anthony J. Miller, United Nations Experts on Mission and their Privileges and Immunities
  • Jan Klabbers, Safeguarding the Organizational Acquis: The EU's External Practice
  • Jean d'Aspremont, Abuse of the Legal Personality of International Organizations and the Responsibility of Member States
  • Julien Fouret, The World Bank and ICSID: Family or Incestuous Ties?

New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 22, no. 3, September 2007) is out. Contents include:
  • Symposium to Mark the Tenth Anniversary of ITLOS: The Jurisprudence of the International Tribunal of the Law of the Sea: Assessment and Prospects
    • Michael Wood, The International Tribunal for the Law of the Sea and General International Law
    • Alan Boyle, The Environmental Jurisprudence of the International Tribunal for the Law of the Sea
    • Robin Churchill, The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?
    • Thomas A. Mensah, The Tribunal and the Prompt Release of Vessels
    • Francisco Orrego Vicuna, The International Tribunal for the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems

Tuesday, September 18, 2007

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 10, nos. 3-4, July 2007) is out. Contents include:

  • Christophe Charlier & Mai-Anh Ngo, An analysis of the European Communities: Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs Dispute
  • Ying Zhan & Xuezhong Zhu, Intellectual Property Right Abuses in the Patent Licensing of Technology Standards from Developed Countries to Developing Countries: A Study of Some Typical Cases from China
  • Jakkrit Kuanpoth, Patents and Access to Antiretroviral Medicines in Vietnam after World Trade Organization Accession
  • Saleh Al-Sharieh, Birth, Retreat and Renaissance: The Lifecycle of Balance under the Canadian Copyright Law
  • Christiane Gerstetter, Benjamin Görlach, Kirsten Neumann, & Dora Schaffrin, The International Treaty on Plant Genetic Resources for Food and Agriculture within the Current Legal Regime Complex on Plant Genetic Resources
  • Catherine Bond, Abi Paramaguru, & Graham Greenleaf, Advance Australia Fair? The Copyright Reform Process

Workshop: Jackson on "Constitutional Engagement with the Transnational"

Vicki Jackson (Georgetown Univ. - Law) will give a talk today at the Georgetown University Law Center's Faculty Workshop on "Constitutional Engagement with the Transnational."

Knox: Horizontal Human Rights Law

John H. Knox (Wake Forest Univ. - Law) has posted Horizontal Human Rights Law (American Journal of International Law, forthcoming). Here's the abstract:

Is international human rights law vertical, running solely between individuals and states? Or should it be horizontal as well, creating private duties on the part of individuals and corporations? In recent years, many advocates have argued that human rights law should impose more duties directly on private actors. These proposals often overlook how human rights law already carefully addresses private duties.

Human rights law has tacitly distinguished between duties owed by the individual to his or her state that run conversely to the duties of the state to promote and protect the individual's human rights, and duties on the part of individuals that correlate to the human rights of others. Converse duties are dangerous because governments may rely on them to offset their own duties. As a result, human rights law generally refuses to list converse duties and restricts the authority of governments to use such duties to limit human rights. Correlative duties can further the enjoyment of human rights, but human rights law imposes only a few correlative duties directly. Instead, it has developed a complex approach that relies largely on governments to impose private duties in the course of complying with their own duties under human rights law.

The article argues that this approach makes sense for political and practical reasons. It suggests that proposals for private duties should meet a two-part test: they should not open the door to converse duties; and they should build on, rather than undermine, the existing system of correlative duties. The article applies this test to two proposals recently presented to the UN Human Rights Commission: a draft declaration of human social responsibilities, and draft norms setting out corporate obligations under human rights law. It concludes that neither proposal meets these requirements.

Mitchell & Voon: Free Trade Agreements and Public International Law

Andrew D. Mitchell (Univ. of Melbourne - Law) & Tania S. Voon (Univ. of Melbourne - Law) have posted Free Trade Agreements and Public International Law (in Bilateral and Regional Trade Agreements: Commentary and Analysis, forthcoming). Here's the abstract:

From the first report of the Appellate Body of the World Trade Organization ('WTO')in 1996 to Joost Pauwelyn's seminal work in 2003, commentators and practitioners alike have been grappling with the thorny relationship between the WTO and public international law. More recently, problems in interpreting and applying WTO provisions in the light of customary
international law and non-WTO treaties have come to reflect a concern regarding 'fragmentation' of international law more generally. One reason for this potential fragmentation lies in the disparate dispute settlement mechanisms under various international legal systems, including free trade agreements ('FTAs').

As negotiations in the Doha Round sputter, and FTAs proliferate, the relationship between FTAs and other institutions and aspects of public international law becomes all the more crucial. States evaluating the benefits of FTAs must be fully aware of the broader international context into which they are born and the implications of international law as each FTA develops. Moreover, existing FTA members may seek additional certainty about their FTA rights and obligations and the likely outcome in the event of a dispute relating to other areas of international law. More broadly, an investigation into the relationship between public international law and FTAs provides an additional case study of the perceived problem of fragmentation of international law.

In this chapter, we focus on two primary sources of public international law, namely treaties and customary international law. We also take into account two other sources of public international law, namely general principles of law and judicial decisions and leading commentary. All four sources are included in Article 38(1) of the Statute of the International Court of Justice ('ICJ Statute'), which is often recognised as providing an informal list of the sources of international law.

Gostin: Toward a Framework Convention on Global Health

Lawrence O. Gostin (Georgetown Univ. - Law) has posted Meeting Basic Survival Needs of the World's Least Healthy People: Toward a Framework Convention on Global Health (Georgetown Law Journal, forthcoming). Here's the abstract:

This article searches for solutions to the most perplexing problems in global health - problems so important that they affect the fate of millions of people, with economic, political, and security ramifications for the world's population. There are a variety of solutions scholars propose to improve global health and close the yawning health gap between rich and poor: global health is in the national interests of the major State powers; States owe an ethical duty to act; or international legal norms require effective action. However, arguments based on national interest, ethics, or international law have logical weaknesses. The coincidence of national and global interests is much narrower than scholars claim. Ethical arguments unravel when searching questions are asked about who exactly has the duty to act and at what level of commitment. And international law has serious structural problems of application, definition, and enforcement.

What is truly needed, and which richer countries instinctively do for their own citizens, is to meet what I call "basic survival needs." By focusing on the major determinants of health, the international community could dramatically improve prospects for good health. Basic survival needs include sanitation and sewage, pest control, clean air and water, tobacco reduction, diet and nutrition, essential medicines and vaccines, and functioning health systems. Meeting everyday survival needs may lack the glamour of high-technology medicine or dramatic rescue, but what they lack in excitement they gain in their potential impact on health, precisely because they deal with the major causes of common disease and disabilities across the globe.

If meeting basic survival needs can truly make a difference for the world's population then how can international law play a constructive role? What is required is an innovative way of structuring international obligations. A vehicle such as a Framework Convention on Global Health (FCGH) could powerfully improve global health governance. Such a Framework Convention would commit States to a set of targets, both economic and logistic, and dismantle barriers to constructive engagement by the private and charitable sectors. It would stimulate creative public/private partnerships and actively engage civil society stakeholders. A FCGH could set achievable goals for global health spending as a proportion of GNP; define areas of cost effective investment to meet basic survival needs; build sustainable health systems; and create incentives for scientific innovation for affordable vaccines and essential medicines.

This article first examines the compelling issue of global health equity, and inquires whether it is fair that people in poor countries suffer such a disproportionate burden of disease and premature death. Second, the article explains a basic problem in global health: why health hazards seem to change form and migrate everywhere on the earth. Third, the article inquires why governments should care about serious health threats outside their borders, and explores the alternative rationales: direct health benefits, economic benefits, and improved national security. Fourth, the article describes how the international community focuses on a few high profile, heart-rending, issues while largely ignoring deeper, systemic problems in global health. By focusing on basic survival needs, the international community could dramatically improve prospects for the world's population. Finally, the article explores the value of international law itself, and proposes an innovative mechanism for global health reform - a Framework Convention on Global Health.

Monday, September 17, 2007

Conference: Collective Rights Management of Copyright and Neighboring Rights in North America

The World Intellectual Property Organization (WIPO), Vanderbilt University Law School, and the International Confederation of Societies of Authors and Composers (CISAC), with the support of music rights organizations BMI, ASCAP, and SESAC, are sponsoring a conference on Collective Rights Management of Copyright and Neighboring Rights in North America, at Vanderbilt University Law School in Nashville, Tennessee, October 17-19, 2007. The program is available here. Why attend?
The conference aims to address important aspects of rights management in today’s dynamic digital landscape including the challenges that have been raised in North America (and beyond) by new technologies and the solutions that collective management organisations have come up with to deal with them. The program consists of a series of panel discussions on topics such as the application of international treaties; emerging services; licensing, documentation and distribution issues; collective management in developing countries; mechanical rights; and enforcement. Panelists and speakers include lawyers, academics, industry figures, policymakers and authors’ societies’ representatives. This conference, which is open to all, will gather all key players with a stake in copyright to discuss and analyse business models that are capable of meeting the needs of rights owners, users and the public, underlining the important role that collective management plays in maintaining equilibrium between them.

Workshops: Law & Sykes

David S. Law (Univ. of San Diego - Law) will give a talk today at Hofstra University School of Law's Faculty Workshop on "Globalization and the Future of Constitutional Rights."

Alan O. Sykes (Stanford - Law) will give a talk today at the University of Virginia School of Law's Law and Economics Workshop on "Transnational Forum Shopping as a Trade and Investment Issue."

Bermann & Mavroidis: WTO Law and Developing Countries

George A. Bermann (Columbia Univ. - Law) & Petros C. Mavroidis (Columbia Univ. - Law) have published WTO Law and Developing Countries (Cambridge Univ. Press 2007). Contents include:
  • Petros Mavroidis & George Bermann, Introduction
  • Edwini Kessie, The legal status of special and differential treatment provisions under WTO agreements
  • Nuno Limao & Marcela Olarreaga, Trade preferences to small developing countries
  • Frederick M. Abbott, China in the WTO 2006: Law and its limitations in the context of TRIPS
  • Juan A. Marchetti, Developing countries in the WTO service negotiations: doing enough?
  • Kal Raustiala, Comment on Marchetti
  • Jayashree Watal, Developing countries and the protection of intellectual property rights: current issues in the WTO
  • Hakan Nordstrom, Participation of developing countries in the WTO - new evidence based on the 2003 official records
  • Jeffrey Dunoff, Comment on Nordstrom
  • Marc Busch & Eric Reinhardt, Developing countries and GATT/WTO dispute settlement
  • Niall Meagher, Representing developing countries in WTO dispute settlement proceedings
  • Chad P. Bown, Comment on Meagher
  • Mateo Diego-Fernandez, Compensation and retaliation: a developing country’s perspective
  • Gene Grossman & Alan Sykes, A preference for development: the law and economics of GSP
  • Joel Trachtman, Jeffrey Dunoff, & Jeffrey Kenner, Comments on Grossman and Sykes
  • Anastasios Tomazos, The GSP fallacy: a critique of the appellate body’s ruling in the GSP case on legal, economic, and political/systemic grounds
  • Patrick Low, Is the WTO doing enough for developing countries?
  • Wilfred J. Ethier, Comment on Low

New Issue: International Arbitration Law Review

The latest issue of the International Arbitration Law Review (Vol. 10, no. 4, August 2007) is out. Contents include:
  • Richard Garnett & Keith Steele, In Search of An Appropriate Standard for Reasons in Arbitral Awards
  • Howard Yinghao Yang, Cietac Arbitration Clauses Revisited
  • Leon Trakman, The Impartiality and Independence of Arbitrators Reconsidered
  • Alexander Trukhtanov, Anti-Suit Injunctions in Support of Arbitration - Is the ECJ About to Take Away the English Courts' Powers?
  • Patrick Angénieux, Anti-Arbitration Injunctions Restraining Arbitrations Subject to the Arbitration Act 1996

Sunday, September 16, 2007

Kenyon & Feakes: The Creation of the OPCW

Ian R. Kenyon (University of Sussex - SPRU Science and Technology Policy Research & University of Southampton - Mountbatten Centre for International Studies) & Daniel Feakes (University of Sussex - SPRU Science and Technology Policy Research) have published The Creation of the Organisation for the Prohibition of Chemical Weapons: A Case Study in the Birth of an Intergovernmental Organisation (T.M.C. Asser Press 2007). Contributors include: Ian R. Kenyon, Daniel Feakes, Johan Rautenbach, Lisa Tabassi, P. A. Ryan, Ron G. Manley, Ralf Trapp, Hassan Mashhadi, and Sergei Kisselev. Here's the abstract:
This book summarises the history of the development and use of chemical weapons; describes the negotiation of the Chemical Weapons Convention and the work of the Preparatory Commission for the Organisation for the Prohibition of Chemical weapons; reviews the first ten years of operation of the treaty and the organisation; and draws lessons for the creation of other treaty based organisations. It describes how the abstract concepts contained in the treaty were translated into an operational international organisation able to send inspectors to military and civil chemical facilities around the world. This book is the first comprehensive study of the creation and work of OPCW. Its publication coincides with the tenth anniversary of the treaty entering into force, and it will interest Government officials involved in the creation of new international organisations, practitioners and academics.

Martin: The Constitution as Treaty

Francisco Forrest Martin (Rights International, The Center for International Human Rights Law, Inc.) has published The Constitution as Treaty: The International Legal Constructionalist Approach to the U.S. Constitution (Cambridge Univ. Press 2007). Here's the abstract:
The Constitution as Treaty addresses U.S. constitutional interpretation from a novel, yet originalist perspective: the U.S. Constitution is a treaty. As a treaty, the Constitution must be construed in conformity with the United States' international legal obligations. This book specifically examines how federal courts are international courts and as international courts, how they can directly apply international law and construe federal law in conformity with international law. Most importantly, The Constitution as Treaty demonstrates that the federal courts' authority to review the constitutionality of federal and state law is based on international law.