Saturday, December 1, 2007

ICTR: Appeals Chamber Judgment in the Case Against Nahimana, Barayagwiza, and Ngeze

On Wednesday, the ICTR Appeals Chamber rendered its judgment in the case (No. ICTR-99-52) against Ferdinand Nahimana (founding member and senior official of Radio Télévision Libre des Mille Collines), Jean-Bosco Barayagwiza (board member of RTLM and a founding member of the Coalition for the Defense of the Republic), and Hassan Ngeze (editor-in-chief of the Kangura newspaper and a founding member of the CDR). Dubbed the "media case," the three were indicted (Nahimana indictment here; Barayagwiza indictment here; Ngeze indictment here) on charges (among others) of conspiracy to commit genocide, genocide, incitement to genocide, complicity in genocide, and crimes against humanity (persecution and extermination), primarily on the basis of radio broadcasts and newspaper articles. On December 3, 2003, the Trial Chamber found them guilty of most of the charges. Nahimana was sentenced to life imprisonment; Barayagwiza was sentenced to 35 years' imprisonment; and Ngeze was sentenced to life imprisonment.

In its judgment, the Appeals Chamber (judgment here; summary here; press release here) found that the Trial Chamber had made a number of errors. Among other things, the Appeals Chamber found that the Tribunal, by virtue of its limited temporal jurisdiction, could not determine culpability based upon acts that occurred before 1994; the Appeals Chamber also found that there was insufficient evidence to prove that the co-defendants conspired to commit genocide. As a result, the Appeals Chamber vacated Nahimana's conviction, except for the findings of guilt, on the basis of superior responsibility, for incitement to genocide and crimes against humanity (persecution); vacated Barayagwiza's conviction, except for the findings of guilt, on the basis of individual responsibility, for genocide and crimes against humanity (both persecution and extermination); and vacated Ngeze's conviction, except for the findings of guilt, on the basis of individual responsibility, for genocide, incitement to genocide, and crimes against humanity (extermination). Consequently, the Appeals Chamber reduced the sentences of all three defendants: Nahimana will serve thirty years; Barayagwiza will serve thirty-two years; and Ngeze will serve thirty-five years.

Judges Pocar, Shahabuddeen, Güney, and Meron each dissented in part and appended opinions to the judgment. Judge Pocar disagreed with the Appeals Chamber's interpretation of Article 7 of the Statute, which restricted any finding of culpability to acts that took place after January 1, 1994, even when the acts began prior to that date. Judge Shahabuddeen disagreed with a majority of the Chamber on a number of issues, including the legal requirements for the establishment of a conspiracy and, like Judge Pocar, on the jurisdiction of the court to take into account pre-1994 acts that had 1994 consequences. Consistent with his views in previous cases (see, for example, here), Judge Güney disagreed with the majority's view that a defendant could be convicted of both persecution and extermination on basis of the same criminal conduct. He, therefore, dissented from the confirmation of Barayagwiza's conviction on the extermination count. Judge Meron would have vacated Nahimana's conviction for persecution, as it was based (improperly, in his view) on (protected) "mere hate speech."

New Volumes: Recueil des Cours

Volumes 318, 326, and 327 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law (Martinus Nijhoff Publishers 2007) are out. Contents include:
  • Volume 318
    • P. Kinsch (avocat au barreau de Luxembourg), Droits de l'homme, droits fondamentaux et droit international privé
    • M. Bothe (Johann Wolfgang Goethe University, Frankfurt-am-Main), Environment, Development, Resources
  • Volume 326
    • L. Collins (Judge, High Court of England and Wales), Revolution and Restitution: Foreign States in National Courts (Opening Lecture)
    • J.Y. Gotanda (Villanova Univ. - Law), Damages in Private International Law
  • Volume 327
    • P. Mayer (l'Université de Paris I (Panthéon-Sorbonne)), Le phénomène de la coordination des ordres juridiques étatiques en droit privé. Cours général de droit international privé (2003)

New Volume: Italian Yearbook of International Law

The latest volume of the Italian Yearbook of International Law (Vol. 16, 2006) is out. Contents include:
  • Natalino Ronzitti, The 2006 Conflict in Lebanon and International Law
  • Carsten Hoppe, Who Was Calling Whose Shots? - Hezbollah and Lebanon in the 2006 Armed Conflict with Israel
  • Carlo Focarelli, Customary Foundations of Jus Gentium in Francisco Suárez’s Thought and the Concept of International Community in Contemporary International Law
  • Veit Koester, The Nature of the Convention on Biological Diversity and Its Application of Components of the Concept of Sustainable Development
  • Cesare Pitea, The Non-Compliance Procedure of the Aarhus Convention: Between Environmental and Human Rights Control Mechanisms
  • Silvia D’Ascoli & Kathrin Maria Scherr, The Rule of Prior Exhaustion of Local Remedies in the Context of Human Rights Protection
  • Annamaria Viterbo, Monetary Regionalism: A Challenge to the IMF
  • Sergio Bartole, The Right to Linguistic Identity and the Census in the Province of Bolzano: A Reply to Hilpold
  • Beatrice I. Bonafè, State Immunity and the Protection of Private Investors: The Argentine Bonds Case before Italian Courts
  • Paola Puoti, Yugoslavia Dissolution before the ICJ: The Need for a New Approach to State Succession

Friday, November 30, 2007

Chesterman, Franck, & Malone: Law and Practice of the United Nations

Simon Chesterman (New York Univ. - Law), Thomas M. Franck (New York Univ. - Law), & David M. Malone (Canada's High Commissioner for India & Ambassador to Bhutan and Nepal) have published Law and Practice of the United Nations: Documents and Commentary (Oxford Univ. Press 2007). Here's the abstract:

Law and Practice of the United Nations: Documents and Commentary combines primary materials with expert commentary, demonstrating the interaction between law and practice in the UN organization, as well as the possibilities and limitations of multilateral institutions in general. Each chapter begins with a short introductory essay by the authors that describes how the documents that follow illustrate a set of legal, institutional, and political issues relevant to the practice of diplomacy and the development of public international law through the United Nations.

The authors help students form a realistic idea of the work of international diplomacy, as the negotiation and interpretation of such texts is an important part of what actually takes place at the United Nations and other international organizations. A wide variety of documents are presented, each of which must be read differently: treaties and resolutions based on political compromises, judicial opinions that are based on legal reasoning, policy documents intended to justify specific actions, and advocacy intended to pursue a national or other interest. Students will develop the ability to read these documents critically, parsing not only the meaning but the political and bureaucratic interests behind them.

Francioni: Access to Justice as a Human Right

Francesco Francioni (European University Institute - Law) has published Access to Justice as a Human Right (Oxford Univ. Press 2007). Here's the abstract:

In international law, as in any other legal system, respect and protection of human rights can be guaranteed only by the availability of effective judicial remedies. When a right is violated or damage is caused, access to justice is of fundamental importance for the injured individual and it is an essential component of the rule of law. Yet, access to justice as a human right remains problematic in international law. First, because individual access to international justice remains exceptional and based on specific treaty arrangements, rather than on general principles of international law; second, because even when such right is guaranteed as a matter of treaty obligation, other norms or doctrines of international law may effectively impede its exercise, as in the case of sovereign immunity or non reviewability of UN Security Council measures directly affecting individuals. Further, even access to domestic legal remedies is suffering because of the constraints put by security threats, such as terrorism, on the full protection of freedom and human rights.

This collection of essays offers seven distinct perspectives on the present status of access to justice: its development in customary international law, the stress put on it in times of emergency, its problematic exercise in the case of violations of the law of war, its application to torture victims, its development in the case law of the UN Human Rights Committee and of the European Court of Human Rights, its application to the emerging field of environmental justice, and finally access to justice as part of fundamental rights in European law.

Levit: Bottom-Up International Lawmaking: Reflections on the New Haven School of International Law

Janet Koven Levit (Univ. of Tulsa - Law) has posted Bottom-Up International Lawmaking: Reflections on the New Haven School of International Law (Yale Journal of International Law, Vol. 32, no. 2, p. 393, Summer 2007). Here's the abstract:

Many contemporary international legal scholars find themselves besieged by intellectual and geopolitical currents highly reminiscent of those that influenced the New Haven School of International Law. Just as the New Haven School answered Cold-War, power-based realism, a new generation of scholars is called upon to answer a neo-conservative, nationalist ideology that likewise challenges the normative value of international law. The response - a response indelibly marked by New Haven School jurisprudence - is to question the naysayers' foundational assumptions by turning from the detached, game-theoretic heights of power-based realism to the on-the-ground nuance and gradation of socio-legal realism.

This essay first isolates three artificial assumptions about the nature of international law which are at the core of the “nationalist” critique: 1) “states” as lawmakers; 2) the treaty as the pre-eminent form of international law; and 3) international law as a choice, as a deliberate process that state elites can orchestrate and control.

The essay then offers three “bottom-up lawmaking” vignettes - export subsidies, climate change regulation, and corporate social responsibility initiatives - to cast light on the self-serving simplicity of the nationalists' assumptions. In each instance, a bottom-up lawmaking process unfolds, featuring private parties, NGOs, sub-state actors, and/or mid-level technocrats, who coalesce around shared, on-the ground experiences and perceived self-interests and solidify norms, often intended as a form of self-regulation. Over time, these informal rules embed, often unintentionally, in a more formal legal system and harden as law. Whereas top-down lawmaking, the type of lawmaking at the heart of the nationalist critique of international law, is a process of law internalized as practice, bottom-up lawmaking is a subterranean, unchoreographed process of practice externalized as law.

Thus, bottom-up lawmaking empirically exposes the mythical quality of many international law stories, particularly those flowing from the archaically nostalgic descendants of Cold War realism. States, and within states the “political leadership,” are no longer the universe of international lawmakers - a diverse cast of transnational actors also join the ranks. These transnational actors parade multiple normative forms in addition to the treaty, including understandings, informal “gentlemen's” agreements, pacts, codes, and court decisions. And finally, international law is not always a matter of deliberate, reflective choice; international law happens, whether the President or political elites will it or not. Thus, international lawmaking emerges as a complex, decentralized, and diverse process, a loosely stitched patchwork of multiple norm-generating communities rather than a predictably centralized process with the President as the steward. Of course, all of these insights grow from New Haven School seeds, which seem to have taken root and blossomed.

Kearney: The Prohibition of Propaganda for War in International Law

Michael G. Kearney (Univ. of York - Politics) has published The Prohibition of Propaganda for War in International Law (Oxford Univ. Press 2007). Here's the abstract:

Bereft of any comprehensive analysis and subject to little if any sustained debate, the tangential location of the prohibition of propaganda for war in the discourse of international law has resulted in a situation where state conduct in this area too often appears to be acting in a legal vacuum. In proposing a more robust role for international law in responding to what is a matter of widespread public concern, the book analyses the context in which international law first came to be concerned with propaganda for war in the years following the First World War. With the establishment of the United Nations and the corresponding development of international human rights law, the issue of the prohibition of propaganda for war in both human rights law and international criminal law became a highly significant, yet frequently divisive matter during the Cold War.

Drawing on primary materials from the League of Nations to the Rome Statute of the International Criminal Court, this book makes the case for the revitalisation of a provision of international law which can be fundamental to the prevention of war. The book examines international human rights law, the travaux préparatoires to the International Covenant on Civil and Political Rights, communications between the Human Rights Committee and states parties to the Covenant, state practice, and international criminal law. Drawing on the manner by which international tribunals from Nuremberg to The Hague have approached the matter of individual criminal responsibility for 'incitement to crimes of an international dimension', the book proposes that 'direct and public incitement to aggression' be included as a crime in the Rome Statute of the International Criminal Court.

Talmon: Participation of UN Member States in the Work of the Organization: A Multicultural Alternative to Present-Day Regionalism?

Stefan Talmon (Univ. of Oxford - Law) has posted Participation of UN Member States in the Work of the Organization: A Multicultural Alternative to Present-Day Regionalism? (in Multiculturalism and Contemporary International Law: Essays in Honour of Edward McWhiney, forthcoming). Here's the abstract:

Every Member State of the United Nations has the right to participate in the work of the organization - a right automatically conferred by membership of the UN. Participation in this context means the Member States' access to, and right to take part in, the organization's decision-making process. The composition of UN organs thus becomes a central issue, as access and the material ability to influence the decision-making process are, as a rule, gained through membership of these organs. The question of composition does not pose a problem in the case of plenary organs, such as the General Assembly, where all UN Member States are equally represented. However, for reasons of functionality, efficiency and cost-effectiveness, most work within the UN framework takes place within non-plenary organs, i.e. organs of limited membership. It is with regard to these organs that the question of composition arises, and the more important the non-plenary organ, the more acute the issue becomes. Since the 1960s, the composition of almost all non-plenary UN organs has been governed by a system best described as regionalism - a system whereby seats are allocated to regional groups whose members nominate or endorse candidates for the various regional seats. This paper examines the question of regionalism as a means to regulate the composition of the United Nations' non-plenary political organs. This paper asks whether the UN Charter or general principles offer any guidance on the question of how non-plenary political UN organs should be constituted, before examining the regional group system and offering a critique of present-day regionalism. In conclusion, the paper briefly identifies criteria for a more multicultural alternative to the present system.

Nijman & Nollkaemper: New Perspectives on the Divide Between National and International Law

Janne E. Nijman (Univ. of Amsterdam - Law) & André Nollkaemper (Univ. of Amsterdam - Law) have published New Perspectives on the Divide Between National and International Law (Oxford Univ. Press 2007). Contents include:
  • G. Arangio-Ruiz, International Law and Inter-individual Law
  • G. Gaja, Dualism - A Review
  • P. Allott, The Emerging Universal Legal System
  • C. Brölmann, Deterritorialization in International Law: Moving Away from the Divide Between National and International Law
  • A-M. Slaughter & B. Burke-White, The Future of International Law is Domestic (or, The European Way of Law)
  • C. Chinkin, Monism and Dualism: the Impact of Private Authority on the Dichotomy Between National and International Law
  • M. Moran, Shifting Boundaries: The Authority of International Law
  • C. Walter, International Law in a Process of Constitutionalization
  • A. Paulus, The Emergence of the International Community and the Divide Between International and Domestic Law
  • A. Peters, The Globalization of State Constitutions
  • L. du Plessis, International Law and the Evolution of (Domestic) Human-Rights Law In Post-1994 South Africa
  • J. Nijman & A. Nollkaemper, Beyond the Divide

New Issue: Transnational Dispute Management Journal

The latest issue of Transnational Dispute Management Journal (Vol. 4, no. 6, November 2007) is out. The theme is "Compensation and Damages in International Investment Arbitration."

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 22, no. 11, November 2007) is out.

Rose: From H20 to C02: Lessons of Water Rights for Carbon Trading

Carol M. Rose (Univ. of Arizona - Law; Yale Univ. - Law) has posted From H20 to C02: Lessons of Water Rights for Carbon Trading (Arizona Law Review, forthcoming). Here's the abstract:
Interest in climate change has generated many proposals for cap-and-trade programs to control greenhouse gases. Longstanding American water rights regimes may have some lessons for these new proposals. Nineteenth century eastern water law focused on the cap - keeping water instream - and particularly illustrates the importance of mobilized constituencies in any program that entails capping resource use. Western water law focused on individualized and supposedly tradable rights, and its experience shows especially the significance of rights-definition both for the content and for the tradability of rights. As with water rights, both content and tradability in the new rights regimes are likely to match only imperfectly the goals that we want a cap-and-trade program to serve. For that reason, the historical experience of both water regimes also suggests the important role that surrounding and supporting institutions will play to facilitate trade under imperfect circumstances, and to reassure participants of the standards, accountability, and acceptability of the cap-and-trade regime.

Bodansky: Targets and Timetables: Good Policy But Bad Politics?

Daniel Bodansky (Univ. of Georgia - Law) has posted Targets and Timetables: Good Policy But Bad Politics? (in Architectures for Agreement: Addressing Global Climate Change in the Post-Kyoto World, Cambridge Univ. Press, 2007). Here's the abstract:
From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics - at least in the near-term, for the upcoming "post-2012" negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments - not only absolute targets, but also indexed targets, taxes, efficiency standards, and so forth. Such an approach would not provide a long-term solution to the climate change problem; the more costly climate change mitigation is, the more states will want greater assurance that their efforts are being reciprocated by other states. But a bottom-up approach might help break the current impasse and get the ball rolling. It reflects, not ideal policy, but rather less than ideal politics.

Bodansky: The Concept of Legitimacy in International Law

Daniel Bodansky (Univ. of Georgia - Law) has posted The Concept of Legitimacy in International Law (in Legitimacy in International Law, forthcoming). Here's the abstract:
Remarks at a workshop on "Legitimacy in International Law" held in June 2006 at the Max Planck Institute for Comparative Public Law and International Law. The paper analyzes the relationship of legitimacy to legality and to self-interest; argues that much of the writing on legitimacy fails to distinguish adequately between normative and sociological legitimacy; observes that legitimacy is among the class of concepts that we can define with more confidence negatively than positively; and recommends analyzing the problem of legitimacy in a more differentiated, contextual way, focusing on how much authority an institution exercises, the nature of the issues it exercises authority over, and the type of authority it exercises.

Lecture: Keohane on "Thinking Inside the Box and Out: Multilateral Institutions and Climate Change"

On Monday, December 3rd, Robert Keohane (Princeton Univ. - Woodrow Wilson School) will give a lecture at the University of Oxford Social Science Division's Governing the Globe? Lecture Series on "Thinking Inside the Box and Out: Multilateral Institutions and Climate Change."

Workshop: Bradley on Ex parte Milligan

Curtis A. Bradley (Duke Univ. - Law) will give a talk today at the University of Virginia Faculty Workshop on "The Story of Ex parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization."

Thursday, November 29, 2007

ICTR: Appeals Chamber Judgment in Case Against Simba

On Tuesday, the ICTR Appeals Chamber rendered its judgment in the case (No. ICTR-01-76) against Aloys Simba. Simba was indicted for his alleged participation in five massacres committed against the Tutsi population in the Gikongoro Prefecture and in the Butare Prefecture between April 14 and April 29, 1994. On December 13, 2005, the Trial Chamber convicted him of genocide (count 1) and crimes against humanity (extermination) (count 3). The Prosecution had withdrawn charges 2 (complicity in genocide) and 4 (crimes against humanity (murder)) of the indictment prior to the verdict. The Trial Chamber sentenced Simba to 25 years’ imprisonment. The Appeals Chamber (judgment here; summary here; press release here) dismissed the appeals of both the defendant and the Prosecution. The defendant presented fourteen grounds of appeal, going both to the conviction and sentence. The Prosecution appealed the Trial Chamber's findings that the defendant was not responsible for his participation in one massacre. The Prosecution also appealed the sentence. Both of the Prosecution's grounds of appeal were dismissed.

Wednesday, November 28, 2007

WTO Appellate Body Report: Japan - Countervailing duty investigation on dynamic random access memories from Korea

Today, the Appellate Body released its Report on the case Japan - Countervailing duty investigation on dynamic random access memories from Korea (DS336). Korea brought the complaint. The full Report can be found here. An excerpt containing just the AB's findings and conclusions can be found here. A summary of the case can be found here.

ICTY: Brammertz Appointed to Succeed Del Ponte

The Security Council today completed the processes of choosing Carla Del Ponte's successor as ICTY Prosecutor by adopting a resolution appointing Serge Brammertz to that position for a four-year term effective January 1, 2008. Secretary-General Ban nominated Brammertz on November 12 (S/2007/678) despite the strong preference of some ICTY staff and NGOs for the appointment of Deputy Prosecutor David Tolbert. Interestingly, quickly following the Security Council's action, Del Ponte and ICTY President Fausto Pocar issued a joint statement "warmly welcom[ing]" Brammertz's appointment.

UPDATE: The text of the resolution (1786) is now available. It notes that Brammertz's four-year term is "subject to an earlier termination by the Security Council upon completion of the work of the International Tribunal." The Council's completion strategy (resolution 1503 (2003)) envisions an end to the Tribunal's work during the year 2010.

Droege: The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict

Cordula Droege (International Committee of the Red Cross, Legal Division) has posted The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict (Israel Law Review, forthcoming). Here's the abstract:

International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.

This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.

Tuesday, November 27, 2007

Wilde: Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties

Ralph Wilde (University College London - Law) has posted Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties (Israel Law Review, forthcoming). Here's the abstract:
The spatial test for triggering the extraterritorial application of the main treaties on civil and political rights law has been the subject of significant judicial comment in recent years. This piece offers a critical evaluation of an important common theme in these judicial determinations: the suggestion that the spatial test is to be understood in a manner that covers a sub-set of extraterritorial activity involving territorial control occurring as a matter of fact. It provides a sustained explanation and critical evaluation of four different ways such a suggestion can be identified in some of the key judicial determinations on the issue of the extraterritorial application of treaties on civil and political rights generally. Since one of the other main areas of law potentially relevant to extraterritorial activity - the law of occupation - also uses a test of territorial control as a trigger for application, the interplay between the approaches taken in each area of law on the question of what type of control is required mediates the extent
to which the fields of activity covered by the two areas of law overlap. Understanding the merit of the determinations concerning human rights law discussed in this piece is significant, then, not only on its own terms, but also because of its significance to the broader question of the overlap between human rights law and the law of occupation.

Fox: Humanitarian Occupation

Gregory H. Fox (Wayne State Univ. - Law) has posted Humanitarian Occupation (Legal Theory, forthcoming). Here's the abstract:

State autonomy is said to be a fundamental principle of international law. At the heart of the autonomy principle lies a guarantee that nations will enjoy self-government - the capacity to make political, social, economic and other policy decisions without external interference. Of course, autonomy is by no means absolute: numerous rules in the international community, from human rights to environmental standards to principles of democratic governance, now circumscribe the range of policy choices open to state. But despite the decreasing number of issues subject to exclusive domestic jurisdiction, international law has generally not been understood to reach a state's capacity for self-government.

That assumption is now under challenge. In Kosovo, Bosnia, East Timor and Eastern Slavonia, with important variations in each case, international actors have effectively become national governments. Moving beyond condemnation of particular policies or practices, and well beyond mediation between parties to civil wars, beginning in the mid-1990s, the United Nations and other international bodies entirely replaced the legal authority of national governments in these territories. The veil of state sovereignty was fully pierced in each case. No national governing authorities stood between the legal power of international administrators and the individual citizens over whom they ruled.

This paper is the Introduction to a book-length examination of these episodes. It is entitled "Humanitarian Occupation." The book seeks to answer two fundamental questions about international territorial administration. First, why has the international community taken the extraordinary step of governing national territory? I argue that a series of legal assumptions about the nature of the state - and in particular the nature of its population and borders - have ruled out violent changes to existing populations and territories. International administration can be seen as a reification of these norms; an effort to hold existing states together against various forms of dysfunction that international law now seeks to prevent and, where possible, reverse.

Second, the book explores the legal justification for the administrations. There are three standard explanations: the consent of the target state; a resolution of the UN Security Council under Chapter VII of the UN Charter; and the international law of occupation. I argue that important limitations and incoherencies mark each of these theories. These stem, I argue, from the disconnect that occurs when norms designed to regulate states acting in mutual competition are applied to international organizations, whose acts represent instead consensus among their member states.

WTO: Appellate Body Members Appointed

The WTO Dispute Settlement Body appointed today four new members to the seven-member Appellate Body: Lilia R. Bautista (Philippines) and Jennifer Hillman (United States) for four years commencing on December 11, 2007; and Shotaro Oshima (Japan) and Yuejiao Zhang (China) for four years commencing on June 1, 2008. (WTO press release here.) Taiwan had previously blocked the appointments because a Chinese national was among the persons provisionally selected. Over the past several days, though, under intense pressure, Taiwan wavered. It's unclear whether, in exchange for withdrawing its opposition, Taiwan has received some assurances from other WTO members regarding, for example, future appointments of Taiwanese nationals to WTO committees.

Call for Papers: International Law in a Heterogeneous World

The European Society of International Law has issued a call for papers for its Third Biennial Conference, the theme of which is "International Law in a Heterogeneous World." The conference, which is being organized in association with the Max Planck Institute for Comparative Public Law and International Law, will take place September 4-6, 2008, in Heidelberg. A preliminary program is here. Here's the call:


The 3rd Biennial Conference of the European Society of International Law will take place in Heidelberg, in association with the Max Planck Institute for Comparative Public Law and International Law. Its main topic will be: International Law in a Heterogeneous World. The conference begins on the afternoon of Thursday 4th September 2008 and ends on the evening of Saturday 6th September 2008.

The present Call for Papers concerns two different types of events. Firstly, 8 panels that directly address different aspects of the main topic of the conference. These panels, called Fora, will each consist of a Chair and four papers, selected on the basis of this Call for Papers. Secondly, 8 panels that do not directly address the topic of the conference but should stimulate the exchange of views on specific thematic areas of international law. These panels, called Agorae, will consist of a Chair and four panelists, also selected through this Call for Papers. In other words, the main difference between Fora and Agorae is the nature of the addressed topic.

The working languages of the conference will be English and French (no translation will be provided for either fora or agorae). To this end, and in order to enable discussion in the Fora and Agorae, participants are expected to have a good knowledge of both languages or, as a minimum, passive knowledge of the second language.


As indicated above, the purpose of the 8 Fora of the conference is to invite contributions on different specific aspects of the main topic of the conference. Submissions should therefore approach the topic of each Forum through the lens of the overall topic of the conference. The topics of the Fora are as follows:

Forum 1: International Law and Religions

Forum 2: Immigration/Migration: How states cope with increasing pluralism within their societies - the role of international law

Forum 3: The Multiplicity of Law-Making Processes/International Law-Making facing Heterogeneity

Forum 4: International Law and the Media/Interaction between international law and the media in a heterogeneous world

Forum 5: Heterogeneity reflected in International Legal Traditions

Forum 6: The Role of the WTO in balancing Heterogeneity of Interests in the shaping of International Law

Forum 7: International Law and the Millennium Development goals

Forum 8: Refocusing the Rules on Warfare


Agorae, unlike Fora, are panels addressing wider themes of public international law which are not necessarily related to the main topic of the conference. Participants are particularly encouraged to present work in progress whether it be a book, an article, or other research project. Nevertheless, it is important that presentations are in line with the specific workshop theme. ‘Work in progress’ refers to previously unpublished work which, however, needs to be in an advanced stage of completion.

The following topics have been chosen for the Agorae:

Agora 1: History

Agora 2: International Organizations, Institutions and Administration

Agora 3: Legitimacy of International Law

Agora 4: Social Justice

Agora 5: Sexuality and Gender

Agora 6: International Crime

Agora 7: Science

Agora 8: Environmental Law

The Application Process

The papers to be presented in the Fora and Agorae will be selected through a competitive process involving the submission of abstracts. ESIL invites all international law scholars to participate in the Call for Papers, without prejudice to seniority, gender, language, or geographical location. Individuals may submit abstracts which should not exceed 600 words. An individual may submit one abstract only. Each submission should include and indicate the following: the author’s name, institutional affiliation, contact information and email address, the intended Forum or Agora topic (both name and number), the applicant’s CV, including a list of publications, the abstract, the context in which the research is being conducted (book, thesis, article for publication, etc.), and the intended language.

Applications should be sent to Deadline for submission of proposals is Monday 21st January 2008.

The selection process results will be notified to all applicants by mid-March 2008. A provisional presentation paper must then be submitted by 1st July 2008 so that the chairs, panelists and organizing committee are adequately informed. If selected, and in order to participate in the Conference, speakers will require to become ESIL members. Every selected participant will be entitled to: free registration at the Conference and free participation in all of the Conference and meals and receptions. Accommodation costs will be covered by the organizers. Transportation costs remain the responsibility of the participant.

For clarifications or queries, please contact Mr. Falilou Saw -

Monday, November 26, 2007

Rosenne: Essays on International Law and Practice

Shabtai Rosenne has published Essays on International Law and Practice (Martinus Nijhoff Publishers 2007). Here's the abstract:
This volume collects papers written by Shabtai Rosenne in the course of his distinguished career on various topics, primarily in the areas in which he is best known for his expertise: international litigation and courts, the law of treaties, the law of the sea and state responsibility. His writing on fact-finding before the International Court of Justice, treaty succession, codification and the framework agreement as the basis for the jurisdiction of the ICJ in particular remain as interesting, timely and essential today as when they were first written.

Hague Convention on the International Recovery of Child Support

On Friday, delegates from sixty-eight States and the European Community finalized the Convention on the International Recovery of Child Support and other Forms of Family Maintenance at the 21st Diplomatic Session of the Hague Conference on Private International Law. The United States immediately signed the Convention, the first (and, thus far, only) State to do so. Upon signing, the U.S. delegate stated:
The United States is delighted to sign the new Hague Convention on the International Recovery of Child Support, which we believe represents a major step forward in the development of a global system for enforcement of child support obligations in transnational cases. Every child deserves the support of both the child’s parents. And yet recovering child support when the child and one parent are in one country and the other parent is in another is difficult and often impossible. The legal and practical obstacles often mean that little or no support ever reaches the parent and child. Given the importance of this topic to U.S. families, and because the number of transnational cases will continue to increase, the United States has been an active participant in this negotiation. This new convention is necessary to modernize and improve the existing international system, which is outdated and does not meet the needs of an increasingly global world.
The Convention, which will enter into force three months after the second ratification, complements three other Hague Conventions: the Convention on the Civil Aspects of Child Abduction (1980); the Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (1993); and the Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996).

Sunday, November 25, 2007

Fijalkowski: International Institutional Reform

Agata Fijalkowski (Lancaster Univ. - Law) has published International Institutional Reform: 2005 Hague Joint Conference on Contemporary Issues of International Law (T.M.C. Asser Press 2007). Here's the abstract:

"International Institutional Reform" was the theme of the 2005 Hague Joint Conference on Contemporary Issues of International Law, which formed the basis of this book. This international conference was attended by an interesting mix of established authorities and promising newcomers, practitioners and academics, international institution "insiders" and "users", which resulted in a lively debate. The contributions of the forty-five speakers and the debate are included in the book.

The topics cover a wide range of international institutions and address questions such as: Are international institutions that were for the most part created in the 20th century, suited to dealing with the challenges of the 21st century? What is the self-reforming or self-cleansing power of international organizations? How much can be managed by relying on the implied powers doctrine? Which international institutions have been particularly successful in achieving their objectives and why? Which institutions have proved to be failures and ought to be scrapped forthwith?

Zahar & Sluiter: International Criminal Law: A Critical Introduction

Alexander Zahar (International Criminal Tribunal for the Former Yugoslavia) & Goran Sluiter (Univ. of Amsterdam - Law) have published International Criminal Law: A Critical Introduction (Oxford Univ. Press 2007). Here's the abstract:
International Criminal Law is an essential introduction to the relatively recent, but rapidly growing field of international criminal justice. Written by leading practitioner-academics directly involved with the International Criminal Tribunals, this book provides students with an invaluable insight into the key features of international criminal law and practice. Zahar and Sluiter offer an analysis of the tribunals' place in the international legal order and the most important aspects of their substantive law and procedure from an entirely new and critical perspective. Legal doctrines are discussed throughout in relation to their application in real-life situations, encouraging students to engage critically with the subject and relate theory to practice. An ideal companion for students of international criminal law and justice who are seeking an insider's perspective on the subject, this book also offers practitioners, academics and policy-makers a clear and challenging account of the new legal landscape.

Rubio: Le droit d'ingérence est-il légitime?

François Rubio has published Le droit d'ingérence est-il légitime? (Les Editions de l'Hèbe 2007). Here's the abstract:
Droit d'ingérence, devoir d'ingérence, devoir d'assistance humanitaire, droit à l'assistance humanitaire, ingérence humanitaire, ingérence médiatique, ingérence écologique, ingérence judiciaire . . . Depuis bientôt 30 ans ces mots sont présents quotidiennement dans les médias et font l'objet de débats politiques, juridiques et philosophiques sans fin et confus. Sont-ils vraiment nouveaux? L'époque moderne se caractérise-t-elle par l'idée que l'humanité est fondée sur des valeurs partagées par tous, dont la violation entraînerait une réaction de la communauté internationale s'arrogeant, au nom d'une morale supérieure, le droit de sanctionner l'Etat coupable? A contrario, la "défense" de ces valeurs n'est-elle qu'un prétexte à une politique de force où certains Etats s'attribuent le privilège d'intervenir dans les affaires d'un autre pays pour imposer leur vision des choses? Pourquoi intervient-on au Timor et pas en Tchétchénie? L'ingérence est-elle une révolution dans la façon de concevoir le droit international et les relations entre les Etats, ou une nouvelle démonstration que la loi du plus fort est toujours la meilleure?

Allen: Maritime Counterproliferation Operations and the Rule of Law

Craig H. Allen (Univ. of Washington - Law) has published Maritime Counterproliferation Operations and the Rule of Law (Praeger Security International 2007). Here's the abstract:

The threat of WMD use by terrorist groups and rogue regimes has added new urgency to global security discussions. Responses to the dangers posed by WMD include the nonproliferation regime, safeguards for WMD materials while in transit, export controls, treaties on terrorism, Security Council resolutions, and the new Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. The existing nonproliferation regime will never, by itself, provide an adequate level of security. As a result, risk management strategies must include layered counterproliferation activities and consequence management. Counterproliferation measures may include maritime interdictions. The Proliferation Security Initiative, a cooperative undertaking launched in 2003, provides a framework for those interdictions. The framework was formalized in the Statement of Interdiction Principles.

After providing an overview of the threats posed by WMD proliferation, this book surveys the nonproliferation regime and counterproliferation measures states have adopted to supplement it. It next provides an overview of maritime interception operations and the intelligence issues surrounding them, before turning to the laws governing such operations. It then examines each of the actions described in the PSI Statement of Interdiction Principles to assess their compliance with applicable laws. Finally, it looks at the laws that establish the responsibility of states for taking unwarranted counterproliferation actions against vessels.