Wednesday, December 31, 2008

Kamardi: Die Ausformung einer Prozessordnung sui generis durch das ICTY unter Berücksichtigung des Fair-Trial-Prinzips

Christiane Kamardi has published Die Ausformung einer Prozessordnung sui generis durch das ICTY unter Berücksichtigung des Fair-Trial-Prinzips (Springer 2009). Here's the abstract:
Der Sicherheitsrat der Vereinten Nationen beschloss im Februar 1993 die Errichtung des Internationalen Strafgerichtshofs für das ehemalige Jugoslawien. Art. 15 des Statuts übertrug den Richtern die Ausformung der Prozeßordnung. Art. 20 Abs. 1 verpflichtet die Richter zur Gewährleistung eines fairen Verfahrens. Vor diesem Hintergrund ist Gegenstand der vorliegenden Arbeit eine Untersuchung der Umsetzung dieser Vorgaben bei der Konstituierung und Zusammensetzung der Richterschaft des Tribunals, seiner Vorgehensweise bei der Ausformung des Prozessrechts sowie der geschaffenen Prozessordnung.

Tuesday, December 30, 2008

New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 19, no. 5, November 2008) is out. Contents include:
  • Marking the Universal Declaration's 60th Anniversary: A Human Rights Symposium (cont'd)
    • Jochen von Bernstorff, The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law
    • Mary Ann Glendon, Justice and Human Rights: Reflections on the Address of Pope Benedict to the UN
  • EJIL: Debate!
    • Paolo G. Carozza, Human Dignity and Judicial Interpretation of Human Rights: A Reply
    • Robert Howse, Human Rights, International Economic Law and Constitutional Justice: A Reply
    • Ernst-Ulrich Petersmann, Human Rights, International Economic Law and Constitutional Justice: A Rejoinder
  • Symposium: Private Military Contractors and International Law
    • Francesco Francioni, Private Military Contractors and International Law: An Introduction
    • Nigel D. White & Sorcha MacLeod, EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility
    • Carsten Hoppe, Passing the Buck: State Responsibility for Private Military Companies
    • Chia Lehnardt, Individual Liability of Private Military Personnel under International Criminal Law
    • Cedric Ryngaert, Litigating Abuses Committed by Private Military Companies
    • Simon Chesterman, 'We Can't Spy . . . If We Can't Buy!': The Privatization of Intelligence and the Limits of Outsourcing 'Inherently Governmental Functions'
  • Article
    • Jean d'Aspremont, Softness in International Law: A Self-Serving Quest for New Legal Materials

New Issue: Review of European Community & International Environmental Law

The latest issue of the Review of European Community & International Environmental Law (Vol. 17, no. 2, August 2008) is out. Contents include:
  • Articles on Climate Change
    • Chris Spence, Kati Kulovesi, María Gutiérrez, & Miquel Muñoz, Great Expectations: Understanding Bali and the Climate Change Negotiations Process
    • Joanna Depledge, Crafting the Copenhagen Consensus: Some Reflections
    • Ian Fry, Reducing Emissions from Deforestation and Forest Degradation: Opportunities and Pitfalls in Developing a New Legal Regime
    • M.J. Mace, The Bali Road Map: Can it Deliver an Equitable Post-2012 Climate Agreement for Small Island States?
    • Malte Petersen, The Legality of the EU's Stand-Alone Approach to the Climate Impact of Aviation: The Express Role Given to the ICAO by the Kyoto Protocol
  • General Articles
    • Gerd Winter, Nature Protection and the Introduction into the Environment of Genetically Modified Organisms: Risk Analysis in EC Multilevel Governance
    • Alexander Gillespie, Environmental Impact Assessments in International Law
    • Guihuan Liu, Jun Wan, Huiyuan Zhang, & Lijie Cai, Eco-Compensation Policies and Mechanisms in China

New Issue: Revue de droit international de sciences diplomatiques et politiques

The latest issue of the Revue de droit international, de sciences diplomatiques et politiques (Vol. 85, no. 3, Septembre-Decembre 2007) is out. Contents include:
  • Mirko Zambelli, Some remarks on the nature of the functioningof the WTO Dispute Settlement System
  • Jean-Baptiste Kossi Galley, Le principe de la contradiction dans la pratiquedu contentieux international
  • Cristiano D'Orsi, L'intégration du droit international dans l'ordrejuridique interne des pays d'AfriqueSub-saharienne
  • Cristiano D'Orsi, Les clauses d'exclusion du statut de réfugié tellesqu'elles sont incorporées dans la législationinterne des pays d'Afrique Sub-saharienne
  • Cristiano D'Orsi, Les spécificités de la Convention de l'OUA par rapport à la protection des réfugiés
  • Cristiano D'Orsi, Les spécificités du droit international en AfriqueSub-Saharienne

Monday, December 29, 2008

de Búrca: The EU, the European Court of Justice and the International Legal Order after Kadi

Gráinne de Búrca (Fordham Univ. - Law) has posted The EU, the European Court of Justice and the International Legal Order after Kadi. Here's the abstract:
This article examines the response of Europe's courts to the dramatic challenges recently brought before them against the UN Security Council's anti-terrorist sanctions regime. These challenges raise central questions concerning the authority of international law in general, and of binding decisions of the Security Council in particular. The article focuses specifically on the response of the European Union's Court of Justice (ECJ) in the Kadi case, in which the ECJ annulled the EC's implementation of the Security Council's asset-freezing resolutions on the ground that they violated EU norms of fair procedure and property-protection. Kadi is a remarkable case in many ways and it has been warmly greeted by most observers. The article argues however that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union. It is an approach which carries certain costs for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the authority of Security Council resolutions. More importantly, the ECJ's approach carries the risk of undermining the image the EU has sought to create for itself as a virtuous international actor which maintains a distinctive commitment to international law and institutions.

Lantis: The Life and Death of International Treaties

Jeffrey S. Lantis (College of Wooster - Political Science) has published The Life and Death of International Treaties: Double-Edged Diplomacy and the Politics of Ratification in Comparative Perspective (Oxford Univ. Press 2009). Here's the abstract:
This book represents one of the first comparative studies of international treaty ratification processes in multiple issue areas. The study sets out to fill a gap in political science scholarship by investigating the role that international and domestic political actors and conditions play in the critical, post-commitment phase of cooperation. The book employs the comparative case study method, drawing on original research, elite interviews, and discursive analyses of government documents in Europe, Australia, and North America. Cases examine a select number of treaties on trade cooperation, the environment, European integration, and the nuclear non-proliferation regime. The book concludes that norms and executive strategies play an especially significant role in shaping ratification outcomes, and it has implications for theories of international negotiation and foreign policy analysis as well as the practice of diplomacy.

New Issue: Revue trimestrielle des droits de l'homme

The latest issue of the Revue trimestrielle des droits de l'homme (Vol. 19, no. 76, 2008) is out. Contents include:
  • Frédéric Sudre, L’effectivité des arrêts de la Cour européenne des droits de l’homme

  • Syméon Karagiannis, Qu’est-il, en droit international, le droit à la résistance devenu?

Sunday, December 28, 2008

Bosnia War Crimes Chamber Year in Review provides a review and analysis of the 2008 work of the War Crimes Chamber of the State Court of Bosnia and Herzegovina here.

Saturday, December 27, 2008

Shaffer: Developing Country Use of the WTO Dispute Settlement System: Why It Matters, the Barriers Posed

Gregory Shaffer (Univ. of Minnesota - Law) has posted Developing Country Use of the WTO Dispute Settlement System: Why It Matters, the Barriers Posed (in Trade Disputes and the Dispute Settlement Understanding of the WTO: An Interdisciplinary Assessment, forthcoming). Here's the abstract:
This chapter examines the barriers posed for smaller and poorer World Trade Organization (WTO) members to challenge trade barriers under the WTO's dispute settlement understanding. It first addresses the implications of the judicialization of the WTO's dispute settlement system. It next examines reasons why participation in the WTO's dispute settlement system matters. It then summarizes the results of studies of the system's use and, in light of these findings, posits explanations for smaller developing countries' lack of engagement.

Friday, December 26, 2008

Bjorklund: Investment Treaty Arbitral Decisions as Jurisprudence Constante

Andrea K. Bjorklund (Univ. of California, Davis - Law) has posted Investment Treaty Arbitral Decisions as Jurisprudence Constante. Here's the abstract:
Decisions by arbitral tribunals in investment treaty cases do not have formal precedential status. Yet certain issues recur, and prior decisions at the least provide guidance to later tribunals. The content of the most frequently invoked substantive treaty provisions - the obligations to accord national treatment and fair and equitable treatment to foreign investors, and to expropriate the property of foreign investors only in accordance with international law and on payment of due compensation - is far from clear. Furthermore, procedural matters, such as decisions regarding the place of arbitration or the allocation of costs, play an increasingly important role in investment arbitrations but are also not addressed thoroughly in the treaties themselves. Given those limitations, it seems inevitable that arbitral decisions, as they accumulate, will help to flesh out the extent of state parties' obligations and investors' legitimate expectations when their relationship is governed by an investment treaty. Thus, the decisions of investment treaty arbitral tribunals are proving to be essential in establishing the modern international law of investment. The actual compilation of a generally accepted set of standards will be an accretive process developed little by little as tribunals make decisions in individual cases, and as those decisions are tested by other tribunals, by publicists and international organizations, and by the states themselves. Gradually one may expect the institution of a jurisprudence constante, and the emergence of key decisions that are judged to be the influential starting points from which further analysis should flow.

ICTR: Trial Chamber Judgment in the Case Against Zigiranyirazo

On Thursday, December 18, the ICTR Trial Chamber rendered its judgment in the case (No. ICTR-01-73) against Protais Zigiranyirazo, brother-in-law of President Habyarimana. Zigiranyirazo was charged (amended indictment here) with conspiracy to commit genocide, genocide, complicity in genocide, and crimes against humanity (extermination and murder).

In its judgment (judgment here; press release here), the Trial Chamber convicted Zigiranyirazo of genocide and extermination as a crime against humanity. He was acquitted of conspiracy to commit genocide, complicity in genocide, and murder as a crime against humanity. Zigiranyirazo was sentenced to twenty years imprisonment.

Thursday, December 25, 2008

New Issue: Global Governance

The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol 15, no. 1, January-March 2009) is out. Contents include:
  • Special Forum: Crisis and the Future of Global Financial Governance
    • Eric Helleiner, Introduction
    • Tony Porter, Why International Institutions Matter in the Global Credit Crisis
    • Layna Mosley, An End to Global Standards and Codes
    • Eric Helleiner, Reregulation and Fragmentation in International Financial Governance
    • David Andrew Singer, The Subprime Accountability Deficit and the Obstacles to International Standards Setting
  • Global Insights
    • Veva Leye, Information and Communication Technologies for Devleopment: A Critical Perspective
    • Khaled Fourati, Half Full of Half Empty? The Contribution of Information and Communication Technologies to Development
  • Articles
    • Élise Auvachez, Supranational Citizenship Building and the United Nations: Is the UN Engaged in a "Citizenization" Process?
    • Mark Beeson & Stephen Bell, The G-20 and International Economic Governance: Hegemony, Collectivism, or Both?
    • Eric A. Heinze, Nonstate Actors in the International Legal Order: The Israeli-Hezbollah Conflict and the Law of Self-Defense
    • David Long & Frances Woolley, Global Public Goods: Critique of a UN Discourse
    • Thomas G. Weiss, Tatiana Carayannis, & Richard Jolly, The "Third" United Nations

New Issue: Netherlands International Law Review

The latest issue of the Netherlands International Law Review (Vol. 55, no. 3, December 2008) is out. Contents include:
  • Werner Scholtz, Custodial Sovereignty: Reconciling Sovereignty and Global Environmental Challenges Amongst the Vestiges of Colonialism
  • Ulf Linderfalk, Who Are ‘The Parties’? Article 31, Paragraph 3(c) of the 1969 Vienna Convention and the ‘Principle of Systemic Integration’ Revisited
  • Pádraig Mcauliffe, Transitional Justice in Transit: Why Transferring a Special Court for Sierra Leone Trial to The Hague Defeats the Purposes of Hybrid Tribunals

Wednesday, December 24, 2008

ICJ: Germany Institutes Proceedings Against Italy

Yesterday, Germany instituted proceedings against Italy before the International Court of Justice. (Press release here.) In its application, Germany claimed that Italian judicial authorities had "repeatedly disregarded the jurisdictional immunities of Germany as a sovereign State" in cases brought against Germany that sought compensation for acts that occurred during Germany's occupation of Italy toward the end of World War II. (The case also pertains to an attempt to enforce in Italian courts a Greek judgment against Germany that awarded compensation for a massacre by German forces during the War.) In addition to seeking a declaration that the acts of the Italian courts were unlawful, Germany asked the Court to declare that Italy must "by means of its own choosing" ensure that the relevant decisions of its courts "become unenforceable" and that in the future Italian courts do not entertain similar actions.

A few interesting things here: First, Germany and Italy appear to have submitted the dispute amicably. Second, Germany made clear in its application that the dispute does not pertain to EC law. If it did, then recent decisions of the European Court of Justice, interpreting Article 227 EC, would have precluded Germany from bringing this case. Third, Germany carefully characterized its remedial request so that it would not suggest that the ICJ had the authority to overturn the Italian judicial decisions directly. That would have stretched the remedial powers of the Court beyond those that the Court and its litigants have recognized. Instead, Germany adopted the same language - "by means of its own choosing" - that the Court used in LaGrand and Avena when it confronted domestic judicial decisions (in those cases) that it found were not in accord with the United States's international obligations. In other words, Germany recognized that the Court should indicate only the necessary remedial outcome not how that outcome must be achieved.

Tuesday, December 23, 2008

Cummins: Digest of United States Practice in International Law, 2007

Sally J. Cummins (Office of the Legal Adviser, U.S. Dep't of State) has published Digest of United States Practice in International Law, 2007 (Oxford Univ. Press 2008). Here's the abstract:

The Digest of United States Practice in International Law presents an annual compilation of documents and commentary highlighting significant developments in public and private international law, and is an invaluable resource for practitioners and scholars in the field.

Each annual volume compiles excerpts from documents such as treaties, diplomatic notes and correspondence, legal opinion letters, judicial decisions, executive orders, Senate committee reports, press releases and federal legislation and regulations. All the documents which are excerpted in the Digest are selected by members of the Legal Adviser's Office of the U.S. Department of State, based on their judgments about the significance of the issues, their potential relevance to future situations, and their likely interest to practitioners and scholars. In almost every case, the commentary to each excerpt is accompanied by a citation to the full text.

Monday, December 22, 2008

New Issue: New Zealand Journal of Public and International Law

The latest issue of the New Zealand Journal of Public and International Law (Vol. 6, no. 1, June 2008) is out. Contents include:
  • Special Conference Issue: From Professing to Advising to Judging: Conference in Honour of Sir Kenneth Keith
    • Claudia Geiringer & Dean R. Knight, Foreword
    • David Feldman, The Role of Constitutional Principles in Protecting International Peace and Security Through International, Supranational and National Legal Institutions
    • Janet McLean, "Crown Him with Many Crowns": The Crown and the Treaty of Waitangi
    • Claudia Geiringer, The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen
    • Ben Keith, Seeing the World Whole: Understanding the Citation of External Sources in Judicial Reasoning
    • Dean R. Knight, A Murky Methodology: Standards of Review in Administrative Law
    • Gary Hawke, Lawyers in the Policy Process
    • Peter Blanchard, The Early Experience of the New Zealand Supreme Court

Sunday, December 21, 2008

R (Al-Saadoon & Mufdhi) v. Secretary of State for Defence

On Friday, a two-judge panel of the High Court of Justice decided R (Saadoon & Mufdhi) v. Secretary of State for Defence. (Judgment here; Guardian story here.) The question was the lawfulness of the proposed transfer of two Iraqi nationals, who are accused of the murder of two British soldiers, from British custody in Iraq to Iraqi custody for trial by the Iraqi High Tribunal. The claimants argued (para. 2) that "(i) they are within the jurisdiction of the United Kingdom for the purposes of article 1 of the European Convention on Human Rights ("the Convention") and the Human Rights Act 1998 ("the HRA 1998"), so that they enjoy the full range of Convention rights; (ii) transfer to the IHT would violate their Convention rights, and therefore be in breach of s.6 of the HRA 1998, because there are substantial grounds for believing that they would be at real risk of a flagrantly unfair trial, of the death penalty, and of torture or inhuman or degrading treatment while in custody pending trial and while serving any custodial sentence, contrary to articles 2, 3 and 6 of the Convention and article 1 of protocol no. 13; (iii) the transfer would be in breach of rules of customary international law, in particular the prohibition on torture; and (iv) the transfer would also be in breach of a legitimate expectation created by what is said to be the settled policy of Her Majesty’s Government not to expose individuals to a real risk of the death penalty." The court concluded (para. 95): "(1) the claimants are within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention and therefore of the HRA 1998; (2) in accordance with the approach in R (B) v Secretary of State for Foreign and Commonwealth Affairs, the Convention is qualified in its application by the United Kingdom’s obligation under public international law to comply with the request of the Iraqi court to transfer the claimants into the custody of the court; (3) if, however, the claimants would be exposed to such ill-treatment on transfer as to provide a justification in international law for declining to transfer them, the United Kingdom cannot then rely on its international law obligation as qualifying the application of the Convention, and the claimants can invoke the Convention and in particular the Soering principle in the normal way to resist their transfer." With regard to the third point, the court went on to find that a transfer would not violated any British obligations under international law, and so the proposed transfer would be lawful. Having reached this conclusion, though, the court noted that the outcome would have been different if the European Convention had applied (given the risk of the death penalty being imposed and carried out), and in this regard, the court indicated (para. 204) that it would look favorably at a request for permission to appeal (presumably so that the Court of Appeal would have the opportunity to reconsider R (B) v. Secretary of State for Foreign and Commonwealth Affairs in the context of this case).

Rodin & Shue: Just and Unjust Warriors: The Moral and Legal Status of Soldiers

David Rodin (Oxford Leverhulme Programme on the Changing Character of War) & Henry Shue (Univ. of Oxford - International Relations) have published Just and Unjust Warriors: The Moral and Legal Status of Soldiers (Oxford Univ. Press 2008). Here's the abstract:

Can a soldier be held responsible for fighting in a war that is illegal or unjust? This is the question at the heart of a new debate that has the potential to profoundly change our understanding of the moral and legal status of warriors, wars, and indeed of moral agency itself. The debate pits a widely shared and legally entrenched assumption about war--that combatants have equal rights and equal responsibilities irrespective of whether they are fighting in a war that just or unjust--against a set of striking new arguments. These arguments challenge the idea that there is a separation between the rules governing the justice of going to war (the jus ad bellum) and the rules governing what combatants can do in war (the jus in bello). If ad bellum and in bello rules are connected in the way these new arguments suggest, then many aspects of just war theory and laws of war will have to be rethought and perhaps reformed.

This book contains eleven original and closely argued essays by leading figures in the ethics and laws of war and provides an authoritative treatment of this important new debate. The essays both challenge and defend many deeply held assumptions: about the liability of soldiers for crimes of aggression, about the nature and justifiability of terrorism, about the relationship between law and morality, the relationship between soldiers and states, and the relationship between the ethics of war and the ethics of ordinary life.

Contents include:
  • David Rodin & Henry Shue, Introduction
  • Jeff McMahan, The Morality of War and the Law of War
  • David Roden, The Moral Inequality of Soldiers: Why Jus in Bello Asymmetry is Half Right
  • Christopher Kutz, Fearful Symmetry
  • Henry Shue, Do We Need a "Morality of War"?
  • Judith Lichtenberg, How to Judge Soldiers Whose Cause in Unjust
  • Ryan Cheyney, Moral equality, victimhood and the sovereignty symmetry problem
  • Tony Coady, The Status of Combatants
  • Anthony Coates, Is the Independent Application of Jus in Bello the way to Limit War?
  • Gregory Reichberg, Just War and Regular War: Competing Paradigms
  • Dan Zupan, A Presumption of the Moral Equality of Combatants: a Citizen Soldier' Perspective
  • Adam Roberts, The Principle of Equal Application of the Laws of War

Saturday, December 20, 2008

Spiro: Resurrecting Missouri v. Holland

Peter J. Spiro (Temple Univ. - Law) has posted Resurrecting Missouri v. Holland (Missouri Law Review, Vol. 73, No. 4, 2008). Here's the abstract:

This essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably the decision is no longer good law if it ever was.

But Holland may yet live. The key moving part here is the transformed global context. Globalization disaggregates nation-states, facilitating the global interactivity of constituent subnational jurisdictions. This creates new spaces for the states as international actors, including as parties to international agreements. These new international capacities may lessen the need for Holland-like powers in the national government, as the states become more amenable to international discipline. To the extent that international law implicates areas of exclusive subnational authority, the architecture of global society now includes suitable channels of interaction. On the other hand, the transaction costs of managing treaty relationships with multiple subnational entities argues for the maintenance of intermediary power in national governments. The discipline of subnational authorities may remain insufficient to address global imperatives. Some global issues can't wait for the perfection of the legal personality of subnational actors.

In other words, the world may need Missouri v. Holland. If Holland is to be resurrected, it probably won't be out of indigenous American concern. More likely, other actors will press the use of Holland's powers on the United States, in the way of demands lodged with the national government to bring the states into line with international undertakings. Although the national government has finessed recent situations in which a broad interpretation of the Treaty Power might have been required, it has yet to be put to the test. But it is not hard to conjure up scenarios in which the balance would tip in favor of using a treaty to trump state authority.

Friday, December 19, 2008

Alston & MacDonald: Human Rights, Intervention, and the Use of Force

Philip Alston (New York Univ. - Law) & Euan MacDonald (New York Univ. - Law) have published Human Rights, Intervention, and the Use of Force (Oxford Univ. Press 2008). Here's the abstract:
The imperatives of sovereignty, human rights and national security very often pull in different directions, yet the relations between these three different notions are considerably more subtle than those of simple opposition. Rather, their interaction may at times be contradictory, at others tense, and at others even complementary. This collection presents an analysis of the irreducible dilemmas posed by the foundational challenges of sovereignty, human rights and security, not merely in terms of the formal doctrine of their disciplines, but also of the manner in which they can be configured in order to achieve persuasive legitimacy as to both methods and results. The chapters in this volume represent an attempt to face up to these dilemmas in all of their complexity, and to suggest ways in which they can be confronted productively both in the abstract and in the concrete circumstances of particular cases.

Pogge: What is Global Justice?

Thomas Pogge (Yale Univ. - Philosophy) has posted, in Spanish, What is Global Justice? (Revista de Economía Institucional, Vol. 10, No. 19, Second Semester 2008 ). Here's the abstract:
The increasingly widespread expression "global justice" marks an important shift in the structure of moral discourse. Traditionally, international relations were seen as sharply distinct from domestic justice. First, it focused on interactions among states, and later, evaluated the design of a national institutional order in light of its effects on citizens. Such institutional moral analysis is becoming applied to supranational institutional arrangements, nowadays more pervasive and important for the life prospects of individuals. The traditional lens suggested fair agreements among states. The new lens shows that the global institutional order is unfair because it enriches elites in both rich and poor countries and perpetuates the oppression and impoverishment of the majority.

Thursday, December 18, 2008

ICTY: Trial Chamber Decision on Karadzic's Request for Disclosure of Evidence of Immunity Deal

Yesterday, the ICTY Trial Chamber ordered the Prosecution to disclose to Radovan Karadzic any written agreement or any notes taken or recordings made at an alleged meeting in Belgrade on July 18-19, 1996. Karadzic alleged that in that meeting Richard Holbrooke offered him immunity from ICTY prosecution if he (Karadzic) withdrew from public life. Karadzic further claimed that the alleged agreement was attributable to the ICTY. In its decision, the Trial Chamber noted that any immunity agreement would be invalid under international law. It noted further that, in any event, an agreement between Holbrooke and Karadzic could not effect the mandate of the ICTY. That said, the evidence (noted above) might go to mitigation of any sentence, and so the Chamber ordered its disclosure. In this regard, it is of interest that the Prosecution has already provided the defendant with a document, dated July 18, 1996, that includes an undertaking by the defendant that he would step down from politics.

ICTR: Trial Chamber Judgment in the Case Against Bagosora, Kabiligi, Ntabakuze, and Nsengiyumva

Today, the ICTR Trial Chamber rendered its judgment in the case (No. ICTR-98-41, a.k.a. the Military I trial) against Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, and Anatole Nsengiyumva, all former senior Rwandan Army officers. Bagosora was the highest ranking official in the Ministry of Defense following the death of President Habyarimana, and has been called the mastermind of the genocide. The four were charged (here, here, and here) with multiple counts of genocide, conspiracy to commit genocide, complicity in genocide, crimes against humanity, and war crimes for acts that took place during the Rwandan genocide in 1994, including numerous massacres and the murder of a number of high ranking officials.

In its judgment (judgment not yet available online; summary here; press release here; New York Times story here; Crimes of War Project article here), the Trial Chamber convicted Bagosora, Ntabakuze and Nsengiyumva of genocide, crimes against humanity, and war crimes. In particular, Bagosora was convicted for, among other things, "the killings of Prime Minister Agathe Uwilingiyimana, [President of the Constitutional Court] Joseph Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza, Augustin Maharangari, [and] the 10 Belgian peacekeepers." The three were acquitted of conspiracy to commit genocide before April 7, 1994. Kabiligi was acquitted of all charges, and the Trial Chamber ordered him released. The three convicted were each sentenced to life imprisonment.

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 23, no. 12, December 2008) is out.

WTO Compliance Panel Report: United States - Zeroing (EC Recourse to DSU Article 21.5)

Yesterday, a Compliance Panel released its report on the case United States - Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") - Recourse to Article 21.5 of the DSU by the European Communities (DS294). The full Report can be found here. An excerpt containing just the Panel's conclusions and recommendation can be found here. A summary of the case can be found here.

Ferrari: The CISG and its Impact on National Legal Systems

Franco Ferrari has published The CISG and its Impact on National Legal Systems (Sellier 2008). Here's the abstract:

In force in 70 countries around the world and covering more than two thirds of world trade, the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) is considered to be the most successful convention promoting international trade.

According to many commentators, this success is due, among others, to the fact that the Convention does not directly impact on the domestic law of the various legal systems, as it applies only to international - as opposed to purely domestic - contracts. The Convention, in other words, does not impose changes in the domestic law, which makes it easier for States to adopt the Convention. This does not mean, however, that the Convention does not have any impact on the domestic law at all. This book analyzes - through 24 country reports as well as a general report submitted to the 1st Intermediate Congress of the International Academy of Comparative Law held in November 2008 in Mexico City - to what extent the Convention de facto influences domestic legal systems. In particular, the book examines the Convention's impact on the practice of law, the style of court decisions as well as the domestic legislation in the area of contract law.

Call for Papers: Changing Futures? Science and International Law

The American Society of International Law and the European Society of International Law have issued a call for papers for a joint conference on "Changing Futures? Science and International Law." Here's the call:

International law does not exist in a vacuum, and one of its more complicated relationships to the outside world is its relationship to science. First, as Hans Kelsen has proposed, international law itself can be studied scientifically, and thus international legal scholarship may be qualified as ‘science’. This applies not only to international law as such but also to some of its more detailed applications: even such activities as treaty interpretation are regularly subject to scientific analysis. Second, international law contains rules governing the acceptability of scientific and technological data in areas such as food safety or health. Third, international law forms part of the raw data used in other sciences. Thus, political scientists, economists, historians, and ethicists (to name just a few) all make use of insights from international law to a greater or lesser extent. Fourth, international law is sometimes based on the insights gained from other sciences: political scientists may contribute to treaty design, while environmental scientists may help determine the substance of and indeed provide the justification for environmental protection agreements. Fifth, sometimes international law is used itself to protect scientific insights and understandings. Intellectual property rights law is a prominent example. Sixth, international law may also be used to protect the objects of scientific research. Here, a prominent example is the protection of archaeological sites.

While the above list is by no means exhaustive, it does illustrate just how wide-ranging the connections between science and international law can be. The Third Research Forum, co-organized by ESIL and ASIL and taking place in Helsinki on 2-3 October 2009, aims to chart the terrain and explore the complexities of this multifaceted relationship. To this end, international lawyers (and others, of course, provided they are members of either ESIL or ASIL, or both) are invited to submit abstracts in order to participate in panel discussions on the following, fairly broad, topics:

  • Data Protection and International Law
  • Climate Change and Global Environmental Protection
  • Hermeneutics and Interpretation
  • Global Health Issues
  • Food Safety and the Protection of Animals, Plants and Humans
  • Arms Control and Disarmament
  • Scientific Evidence in International Adjudication
  • Genetically Modified Organisms and the Law of World Trade
  • Intellectual Property Rights
  • The Metaphysics of Economics in International Law and Global Governance
  • The Science of International Law/International Law as Science
  • Developments in the Law of the Sea, including Maritime Delimitation
  • Developments in the Law of Outer Space

Abstracts should consist of no more than 150 words, be clear, concise and to the point, and be accompanied by a brief curriculum vitae. They may be written in English or French. Please indicate for which panel the abstract is intended. There will be, eventually, 8-10 panels with three or four panellists each. Abstracts should be sent both to and by 15 February, 2009. Selected presenters will be informed before the end of March 2009 and provisional papers should be submitted before the end of July. Speakers will be exempted from the conference fee and a limited number of scholarships will be available to help cover travel and accommodation costs.

ICTY: Trial Chamber Judgment in the Case Against Haraqija and Morina

Yesterday, the ICTY Trial Chamber rendered its judgment in the case (No. IT-04-84-R77.4) against Astrit Haraqija and Bajrush Morina. Haraqija was Minister for Culture, Youth, Sport of Kosovo; Morina was Deputy Minister. Both were charged (indictment here) with contempt of the Tribunal; Haraqija was charged, in the alternative, with incitement to contempt of the Tribunal. The allegation was that Morina, at Haraqija's instruction, met with a witness in an attempt to pressure that witness not to testify in the trial against Ramush Haradinaj, the former prime minster of Kosovo.

In its decision (summary here; press release here; judgment not yet available online), the Trial Chamber found both Haraqija and Morina guilty of contempt. It sentenced Haraqija to five months imprisonment and Morina to three months.

Wednesday, December 17, 2008

Sarei v. Rio Tinto PLC (U.S. Court of Appeals for the Ninth Circuit, en banc)

Yesterday, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, decided Sarei v. Rio Tinto PLC (judgment here; background here). In a splintered decision, the majority held that there was an exhaustion requirement for Alien Tort Statute cases. Writing for the plurality, Judge McKeown, joined by Judges Schroeder and Silverman, wrote that the case should be remanded for an inquiry into exhaustion. In her view, exhaustion is applied as a prudential (not statutory) matter and that the exhaustion inquiry should precede the application of other doctrines, such as political question or act of state. Judge Bea, joined by Judge Callahan, agreed that the case should be remanded on exhaustion grounds, but found that requirement in the ATS itself, not judicial prudence. Judge Ikuta, joined by Judge Kleinfeld, dissented. She would have affirmed the dismissal of the case on subject matter jurisdiction grounds. Judge Kleinfeld also concurred in the result (remand for an exhaustion inquiry), in order to provide clear direction to the lower court. Judge Reinhardt, joined by Judges Pregerson, Berzon, and Rawlinson, dissented, finding no exhaustion analysis was required.

New Issue: International Journal of Transitional Justice

The latest issue of the International Journal of Transitional Justice (Vol. 2, no. 3, December 2008) is out. Contents include:
  • Expanding TJ Theory and Practice
    • Zinaida Miller, Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice
    • Roger Duthie, Toward a Development-sensitive Approach to Transitional Justice
    • Ruben Carranza, Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?
    • Lisa J. Laplante, Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework
  • Case Study: Nepal
    • Daniel Aguirre & Irene Pietropaoli Gender Equality, Development and Transitional Justice: The Case of Nepal
    • Tafadzwa Pasipanodya, A Deeper Justice: Economic and Social Justice as Transitional Justice in Nepal
  • Notes from the Field
    • Patrick Vinck & Phuong Pham, Ownership and Participation in Transitional Justice Mechanisms: A Sustainable Human Development Perspective from Eastern DRC
    • Christopher J. Colvin, Purity and Planning: Shared Logics of Transitional Justice and Development

Call for Papers: Whose Justice? Global and Local Approaches to Transitional Justice

The International Journal of Transitional Justice has issued a call for papers for a special issue on "Whose Justice? Global and Local Approaches to Transitional Justice." Here's the call:

The International Journal of Transitional Justice invites submissions for its 2009 special issue titled ‘Whose Justice? Global and Local Approaches to Transitional Justice’ to be guest edited by Professor Kimberly Theidon, Associate Professor of Anthropology, Harvard University and Executive Director of Praxis Institute for Social Justice.

A genealogy of transitional justice indicates that from the post-WWII tribunals at Nuremberg and Tokyo to the proliferation of tribunals and truth commissions in the present, the field of transitional justice has both expanded and normalized. The burgeoning of transitional justice is often associated with the post-Cold War political climate in which a significant number of authoritarian, oppressive and frequently violent nation-states began to transition towards peace and procedural democracy. Importantly, in the post-Cold War context the ‘new wars’ increasingly involve multiple and armed non-state actors and, at times, massive civilian participation in the violence. Thus transitional justice practitioners are increasingly called upon to intervene in contexts in which the state is one perpetrator among many, and in which the issues of justice, redress and social reconstruction involve ‘intimate enemies.’

To address these challenges, there has been an increased interest in local or community-based justice measures. For example, in his August 2004 report on transitional justice and the rule of law, the UN Secretary General wrote that ‘due regard must be given to indigenous and informal traditions for administering justice or settling disputes, to help them to continue their often vital role and to do so in conformity with both international standards and local tradition.’ Similarly, the UN Security Council in October of the same year underlined the ‘importance of assessing the particular justice and rule of law needs in each host country, taking into consideration the nature of the country’s legal system, traditions and institutions, and of avoiding a "one size fits all" approach.’

In this special issue of the IJTJ, we invite theoretical, practical and policy oriented papers that examine both the complementary and contradictory logics introduced when considering a politics of scale. Just as we advocate moving beyond the disciplinary fiefdoms that hamper our collective thinking on these issues, we also encourage thinking that explores the points of articulations between international, national and local transitional justice measures.

Papers in this issue may address topics such as:

• the definition of transitional justice and its goals — who defines the field and whether there are universal concepts which can be applied

• the relationship between international justice mechanisms and local processes and priorities – including complementarity, sequencing and differing definitions of victimhood.

• the role of actors/ stakeholders involved when introducing a politics of scale into our analyses

• how do local priorities, histories and international standards converge and diverge and with what consequences

• how do transitional justice mechanisms contribute, if they do, to the goal of reconciliation/ social reconstruction

• how might local justice mechanisms be incorporated into state and international interventions

• what is the role of ritual in accessing guilt and administering various forms of justice

• traditional justice – its use and misuse in its application to transitional justice

The deadline for submissions is April 15, 2009.

Papers should be submitted online from the IJTJ webpage at

For questions or further information, please contact the Managing Editor at

New Issue: Internationales Handelsrecht

The latest issue of Internationales Handelsrecht (2008, no. 6) is out. Contents include:
  • Stefano Troiano, The CISG's Impact on EU Legislation
  • Nicole Van Crombrugghe, Pre-Contractual Disclosure in Belgium

Sadat: Transnational Judicial Dialogue and the Rwandan Genocide: Aspects of Antagonism and Complementarity

Leila N. Sadat (Washington Univ. - Law) has posted Transnational Judicial Dialogue and the Rwandan Genocide: Aspects of Antagonism and Complementarity (Leiden Journal of International Law, forthcoming). Here's the abstract:
The Rwandan genocide remains one of the most horrific atrocities of the Twentieth Century, resulting in the death of an estimated 500-800,000 human beings, massacred over a one hundred day period. In the fourteen years since the genocide, attempts at justice and reconciliation in Rwanda have involved a delicate interplay between national legal systems and the international legal order. This article examines three fora in which Rwandans have been tried for involvement in the genocide: the International Criminal Tribunal for Rwanda, Rwandan courts including Gacaca Tribunals, and French attempts to exercise universal jurisdiction. Using Rwanda as a case study, the article illustrates the issues, concerns, and difficulties that arise when multiple jurisdictions assert a right to exercise criminal jurisdiction over the perpetrators of serious atrocity crimes. Beginning with a discussion of the political context, this article considers what the competing narratives and litigation in various fora have meant for the project of international and transnational criminal justice. Cases involving the commission of atrocities pose unique challenges for the international legal order. As the normative structure of international criminal law has arguably been strengthened, political constraints increasingly come to the fore. As illustrated in Rwanda, universal jurisdiction or other bases of jurisdiction may remain necessary vehicles for justice and reconciliation, or, at the very least, they may serve as catalyst for change in Rwanda itself.

Tuesday, December 16, 2008

Weiler: Investment Treaty Arbitration and International Law

T.J. Grierson Weiler has published Investment Treaty Arbitration and International Law (Juris Publishing 2008). Contents include:
  • T.J. Grierson Weiler, Introduction
  • Craig S. Miles, Where’s My Umbrella? An “Ordinary Meaning” Approach to Answering Three Key Questions that Have Emerged from the “Umbrella Clause” Debate
  • Laura Halonen, Containing the Scope of the Umbrella Clause
  • Craig Miles, Laura Halonen, Andrea J. Menaker, Kaj Hober, Thomas Walde, Graham Coop, & Uche Onwuamaegbu, Panel Discussion: Where's My Umbrella? A Look Inside The Umbrella Clause
  • Devashish Krishan, A Notion of ICSID Investment
  • Anthony C. Sinclair, ICSID’s Nationality Requirements
  • Devashish Krishan, Anthony C. Sinclair, Charles H. Brower, II, David D. Caron, William W. Park, Christoph Schreuer, & Pieter H.F. Bekker, Panel Discussion: Are the ICSID Rules Governing Nationality & Investment Working?
  • Gabriel Bottini, Protection of essential interests in the BIT era
  • Roberto Aguirre Luzi, BITs & Economic crises: Do States have carte blanche?
  • Gabriel Bottini, Robert AguirreLuzi, David R. Haigh, Margrete Stevens, Andrea K. Bjorklund, Marinn Carlson, & Alex De Gramont, Panel Discussion: Is There a Need for the Necessity Defense For Investment Law?
  • Noah Rubins, MFN Clauses, Procedural Rights, and a Return to the Treaty Text
  • Walid Ben Hamida, MFN and Procedural Rights: Solutions from WTO Experience?
  • Noah Rubins, Todd J. Grierson Weiler, Carolyn B. Lamm, Charles N. Brower, Don Wallace, & Michael Woods, Panel Discussion: MFN Treatment - What Are Its Limits In The Investment Context?
  • Borzu Sabahi, National Treatment – Is Discriminatory Intent Relevant?
  • Sylvie Tabet, Beyond the Smoking Gun – Is a Discriminatory Objective Necessary to Find a Breach of National Treatment?
  • Borzu Sabahi, Sylvie Tabet, Ian A. Laird, Stephen Jagusch, Todd J. Grierson Weiler, Gonzalo Flores, & Jack J. Coe, Jr, Panel Discussion: National Treatment – Is Discriminatory Intent Relevant?

Rothwell: The Arctic in International Law: Time for a New Regime?

Donald R. Rothwell (Australian National Univ. - Law) has posted The Arctic in International Law: Time for a New Regime? Here's the abstract:
Long neglected in terms of international governance and management, the Arctic is slowly attracting greater attention as a region in need of an effective regime. Whilst the Arctic is not plagued by unresolved territorial disputes, there is the spectre of rising tension over yet to be asserted maritime claims over the vast Arctic Ocean. When this issue is added to the growing alarm over the impact of climate change upon the Arctic, which brings with it not only associated significant environmental change but also increased access within the region, it becomes clear that a region which for all of the Twentieth Century was pushed to the side when it came to the regulation of international affairs has the potential to take centre stage as state interests are awoken and global concerns advance. This paper reviews some of these recent developments with a particular focus upon outer continental shelf claims to the Arctic Ocean, navigational rights and freedoms within the Northeast and Northwest Passage, and the development of the Arctic Council. It argues that the circumstances are ripe for the development of an Arctic Treaty, borrowing from some of the concepts and principles which have been adopted in Antarctica.

Monday, December 15, 2008

ITLOS: President Jesus's Statement to the General Assembly

On Friday, December 5th, International Tribunal for the Law of the Sea President José Luis Jesus addressed the General Assembly on its agenda item "oceans and the law of the sea." Statement here; ITLOS press release here; UN meeting report here.

WTO Appellate Body Reports: China - Measures Affecting Imports of Automobile Parts

Today, the Appellate Body issued its Reports on the cases China - Measures Affecting Imports of Automobile Parts (DS339, DS340, and DS342). The European Communities brought the complaint in DS 339; the United States brought the complaint in DS340; and Canada brought the complaint in DS342. The full Reports can be found here. An excerpt containing just the AB's findings and conclusions can be found here. Summaries of the cases can be found here (DS339), here (DS340), and here (DS342). The Panel Reports were issued on July 18, 2008.

New Issue: American Political Science Review

The current issue of the American Political Science Review (Vol. 102, no. 4, November 2008) contains a few articles of interest to internationalists. They include:
  • James D. Ingram, What Is a “Right to Have Rights”? Three Images of the Politics of Human Rights
  • Erik Voeten, The Impartiality of International Judges: Evidence from the European Court of Human Rights
  • Clifford J. Carrubba, Matthew Gabel, & Charles Hankla, Judicial Behavior under Political Constraints: Evidence from the European Court of Justice

Narula: The Story of Narmada Bachao Andolan: Human Rights in the Global Economy and the Struggle Against the World Bank

Smita Narula (New York Univ. - Law) has posted The Story of Narmada Bachao Andolan: Human Rights in the Global Economy and the Struggle Against the World Bank (in Human Rights Advocacy Stories, forthcoming). Here's the abstract:
This Chapter describes the struggle of India's Narmada Bachao Andolan (NBA), a social movement that arose in response to the building of a World Bank-funded dam project along the Narmada River. The project - which has displaced hundreds of thousands and has imposed stunning environmental costs without reaping the promised benefits of modernization - has been the source of constant controversy. In response, the government has maintained that large dams are essential for achieving the common good, reflecting the dominance of a "balancing" or "cost-benefit" approach to development over an approach that puts human rights at the center of the debate. Controversy surrounding the dam led to the World Bank's withdrawal from the project and to the creation of the World Bank Inspection Panel in 1993 - a milestone for the human rights movement, and the first mechanism established to enable local groups to challenge World Bank projects. The Chapter analyzes how a local, grassroots social movement was able to influence human rights discourse at the international level and create a forum for those most affected by development-led displacement. Prior to the Panel's creation, local groups had no formal way of challenging development schemes conceived and financed in faraway capitals. Fifteen years after its creation, the Panel remains increasingly important to human rights advocacy worldwide and despite its mixed record, represents a major milestone in integrating international human rights norms into the practice of development aid. The Chapter also reviews the efficacy of various litigation and non-litigation strategies deployed by the NBA in an attempt to halt construction of the dam and ensure appropriate resettlement and rehabilitation of those displaced by the project.

Northern California International Law Scholars Roundtable

Today, Northern California International Law Scholars, American Society of International Law West, and Santa Clara University School of Law will host the Northern California International Law Scholars Roundtable. The event will take place at Santa Clara University School of Law. Here's the program:

  • Beth Van Schaack (Santa Clara Univ. - Law), "Finding the Tort of Terrorism in International Criminal Law"
    • Comment: Allen Weiner (Stanford Univ. - Law)
  • Chimène Keitner (Univ. of California - Hastings College of Law), "Constitutions Beyond Borders: Recourse for Extraterritorial Rights Violations in Comparative Perspective"
    • Diane Marie Amann (Univ. of California, Davis - Law)
  • Marjorie Florestal (Univ. of the Pacific - McGeorge School of Law), "John F. Kennedy, Globalization and Development: A Legacy"
    • Comment: Joel Paul (Univ. of California - Hastings College of Law)
  • Oona Hathaway (Univ. of California, Berkeley - Law), "Imbalance of Power: The Growth of Presidential Power Over U.S. International Lawmaking"
    • Comment: John Cary Sims (Univ of the Pacific - McGeorge School of Law)
  • John Barton (Stanford Univ. - Law), "The Future of Freedom"
    • Comment: David Caron (Univ. of California, Berkeley - Law)

Sunday, December 14, 2008

Call for Papers: National Security Law Junior Faculty Workshop

The Robert S. Strauss Center for International Security and Law at the University of Texas will host the second annual National Security Law Junior Faculty Workshop in March. Here's the call for papers:
The 2nd annual National Security Law Junior Faculty Workshop will take place in Austin on March 12 and 13, 2009. This event is unique in that it combines discussion of works-in-progress with training in the law of war provided by instructors from the International Committee of the Red Cross and the US Army JAG School. The deadline for submitting a paper or abstract for consideration is January 15th. The full details, including a link to the event announcement, are posted here. Note that you do not have to submit a paper, let alone have your paper selected, in order to attend the event. Questions should be submitted to Bobby Chesney at

Symposium: Public and Private Law in the Global Adjudication System

The latest issue of the Duke Journal of Comparative & International Law (Vol. 18, no. 2, Spring 2008) contains the proceedings of a symposium held at the Duke University School of Law earlier this on "Public and Private Law in the Global Adjudication System." Contents include:
  • Ralf Michaels, Public and Private Law in the Global Adjudication System: Three Questions to the Panelists
  • Charles H. Brower, II, The Functions and Limits of Arbitration and Judicial Settlement Under Private and Public International Law
  • Thomas H. Carbonneau, Commercial Peace and Political Competition in the Crosshairs of International Arbitration
  • J.H. Dalhuisen, Custom and Its Revival in Transnational Private Law
  • William S. Dodge, The Public-Private Distinction in the Conflict of Laws
  • J. Patrick Kelly, Naturalism in International Adjudication
  • Mark L. Movsesian, International Commercial Arbitration and International Courts
  • Christopher A. Whytock, Litigation, Arbitration, and the Transnational Shadow of Law
  • Ernest A. Young, Supranational Rulings as Judgments and Precedents

Hurwitz: Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium

Deena R. Hurwitz (Univ. of Virginia - Law) has posted Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium (in Human Rights Advocacy Stories, forthcoming). Here's the abstract:

The duty of states to prosecute serious international crimes, that is, genocide, war crimes and crimes against humanity, is generally considered a matter of customary international law and jus cogens. In recent years, two trends have developed in tandem that aim to fulfill this duty: the cooperative creation of international courts and tribunals to directly hold individuals to account for international crimes, and the implementation and enforcement by states of statutes criminalizing serious crimes of international law through domestic criminal processes. Many of these domestic statutes are based on the principle of universal jurisdiction, which holds that any state may try an individual for a small set of particularly heinous international crimes. This principle has been broadly championed by human rights advocates and scholars but resisted by some states. The Spanish indictment of General Pinochet, and the Pinochet litigation in the U.K. House of Lords highlighted the debates over this principle and its crucial importance to the human rights movement. Today, domestic criminal statutes in many countries provide a jurisdictional basis for the prosecution of serious international crimes in their courts.

Conscious of its own history in Africa, Belgium became one of the first states to enact a universal jurisdiction statute for grave crimes against international law in 1993. The law was used to prosecute abuses in Rwanda and the Democratic Republic of the Congo before it was applied in 2001 against a more politically controversial incident: Israel's role in the 1982 massacres of Palestinians in the Beirut refugee camps of Sabra and Shatila. The 2001 complaint alleged war crimes, crimes against humanity, and command responsibility by Ariel Sharon and others. Two years of intense legal and political maneuvers ensued, including a series of Belgian legal and legislative "clarifications" concerning the scope of the law. In addition, the case was impacted by the assassination of Elias Hobeika, a Phalangist leader involved in the massacres as he prepared to meet with Belgian parliamentarians about the Israeli role. Ultimately, U.S. Defense Secretary Donald Rumsfeld threatened that Belgium could lose its status as host to NATO's headquarters if it did not rescind the law. Although the Belgian Supreme Court upheld the jurisdictional basis of the statute in February 2003, the Belgian parliament responded shortly thereafter by passing a new law, effectively eliminating the universal jurisdiction provision by requiring that victims or alleged perpetrators have some nexus with Belgium. The politics of the Sharon case notwithstanding, the fate of the statute was surely impacted by several even more contentious complaints filed against former President Bush and Colin Powell for crimes arising from the first Gulf War, and against U.S. General Tommy Franks for war crimes allegedly committed in Iraq in March/April 2003.

The dilemma of universal jurisdiction lies in the tension between law and politics in the pursuit of international criminal justice. Insofar as international criminal law depends on the political will of nation-states, for example in bringing prosecutions, extradition and other matters of trans-border cooperation, politics are inevitable. Given the nature of the litigants, the case of Ariel Sharon et al in Belgium provides an interesting opportunity to examine how law and politics may become inextricably intertwined in human rights cases.

Saturday, December 13, 2008

ICTY/ICTR: Joint Completion Strategy Briefing of the Security Council

Yesterday, the Presidents and Prosecutors of the ICTY and the ICTR briefed the Security Council on their respective completion strategies, pursuant to resolution 1534 (2004). ICTY President Patrick Robinson's statement is here; ICTY Prosecutor Brammertz's statement is here; ICTR President Dennis Byron's statement and ICTR Prosecutor Hassan Jallow's statement are not yet available online. The UN's read-out of the Council meeting is here; the ICTY's press releases are here and here. The latest completion strategy reports have been issued as UN documents S/2008/726 (ICTR) and S/2008/729 (ICTY). The previous tribunal briefing took place in June.

In connection with yesterday's briefing, the Security Council unanimously adopted Resolution 1849, which temporarily expands the number of ad litem judges at the ICTY to a maximum of sixteen at any one time.

Friday, December 12, 2008

Conference: Changes in the Arctic Environment and the Law of the Sea

The 33rd Annual Conference of the Center for Oceans Law and Policy will be held May 20-23, 2009, in Seward, Alaska. The conference theme is "Changes in the Arctic Environment and the Law of the Sea." The draft program is here.

Mégret: International Prosecutors: Ethics and Accountability

Frédéric Mégret (McGill Univ. - Law) has posted International Prosecutors: Ethics and Accountability. Here's the abstract:
A number of incidents have of late brought attention on the problem of the standards to be followed by the prosecutors of international criminal tribunals. Ethical standards of the profession and ways to make prosecutors accountable seem essential to safeguard the legitimacy of international criminal justice. Domestically, prosecutors' work is often quite strictly bound within certain limits, but internationally it has taken longer for appropriate standards to emerge, and arguably even longer for them to be implemented. This working paper looks at how deontological norms apply to international prosecutors and what it means to describe them as "accountable". Accountability can be defined by reference to narrow professional standards, or broad political objectives, the two being potentially it tension. The paper charts the emergence of the issue as a significant one in the evolution of international criminal tribunals. The need for accountability of prosecutors is then justified from a normative point of view. It distinguishes between different "regulatory models" of accountability, and highlights the sources of ethical standards, to whom exactly they apply and how. Attention is drawn to a number of principles that are presented as particularly relevant such as independence and impartiality; fairness, integrity, propriety, and good faith; professionalism and competence; diligence and expeditiousness; and transparency. The challenge is to make prosecutors accountable in a way that is commensurate with the degree of their fault, and not risk unduly encroaching on their independence. This is achieved by making sure that the responsibilities for enforcing accountability are properly allocated, and by developing mechanisms that are adequate to the task. These can include requiring prosecutors to report on their work, or submitting it to a degree of judicial supervision leading, for example, to the award of remedies to those (typically the accused) who have suffered from prosecutorial wrongdoing. In exceptional circumstances, disciplinary proceedings up to removal may be the only option to guarantee the integrity of international criminal justice, possibly leading to reparations to victims of prosecutorial abuses.

New Issue: Revue de Droit International et de Droit Comparé

The latest issue of the Revue de Droit International et de Droit Comparé (Vol. 85, no. 4, 2008) is out. Contents include:
  • A. Diehl & K. Herzmann, Possibilités de couvre-feux en Allemagne
  • A. Foko, Le droit OHADA et les droits nationaux des États parties: une complémentarité vieille de plus d’une décennie
  • J. Fometeu, Le clair-obscur de la répartition des compétences entre la Cour commune de justice et d’arbitrage de l’OHADA et les juridictions nationales de cassation
  • F.M. Palombino, L’efficacité des arrêts de la Cour européenne des droits de l’homme dans le cadre des procédures nationales

New Issue: Internationales Handelsrecht

The latest issue of Internationales Handelsrecht (2008, no. 5) is out. Contents include:
  • Martin Schmidt-Kessel & Linus Meyer, Allgemeine Geschäftsbedingungen und UN-Kaufrecht

Report of the Committee Against Torture

Recently, the Committee Against Torture issued its report on its 39th and 40th sessions.

Thursday, December 11, 2008

Satterthwaite: The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the 'War on Terror'

Margaret L. Satterthwaite (New York Univ. - Law) has posted The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the 'War on Terror' (in Human Rights Advocacy Stories, forthcoming). Here's the abstract:
Among the most notorious anti-terror techniques used by the U.S. government in the "War on Terror" are two shrouded in secrecy: extraordinary rendition and enforced disappearances. Extraordinary rendition entails the transfer of an individual for interrogation in a country known for the use of torture. Enforced disappearances occur when individuals are deprived of their liberty by state agents, who then fail to provide information about their fate or whereabouts, placing them outside the protection of the law. In the aftermath of 9/11, reports began to surface that terrorism suspects were being sent for interrogation by the United States to countries such as Egypt, Syria, and Morocco, where torture is systematic. Slowly, information also emerged concerning the American use of secret "black sites" to hold suspected al-Qaeda leaders and their allies. While never denying that these practices were being used, U.S. government officials repeatedly offered a single justification for departing from both human rights protections and prisoner of war rules when apprehending such individuals: the United States was involved in a new, unprecedented type of war. The case of Khaled El-Masri brings these issues before a U.S court. In an apparent case of mistaken identity, a German man of Lebanese descent was abducted while on vacation in Macedonia, transferred to a secret U.S.-controlled prison in Afghanistan, and subjected to cruel, inhuman and degrading treatment over the course of five months. Released when then-National Security Advisor Condoleezza Rice discovered that he was being held by mistake, a stunned El-Masri made his way back to Germany. In December 2005, the ACLU filed suit on his behalf, alleging violations of due process under the Fifth Amendment of the U.S. Constitution, and human rights claims based on numerous human rights and humanitarian law treaties which are cognizable under the Alien Tort Statute. This Chapter, which appears in Human Rights Advocacy Stories, tells the story of the El Masri case from its inception to dismissal, and from U.S. court to the Inter-American Commission on Human Rights.

New Issue: Internationales Handelsrecht

The latest issue of Internationales Handelsrecht (2008, no. 4) is out. Contents include:
  • Peter Mankowski, Die Rom I-Verordnung – Änderungen im europäischen IPR für Schuldverträge
  • Ben Steinbrück, Die Vollstreckbarkeit ausländischer Schiedssprüchenach ihrer Aufhebung im Ursprungsstaat - Anmerkung zum Beschluss des OLG Dresden v. 31.1.2007 - 11 Sch 18/05
  • Johannes Trappe, Überseekaufvertrag und "maritime terms" - rechtsvergleichende Bemerkungen

Barcelo: Burden of Proof, Prima Facie Case and Presumption into WTO Dispute Settlement

John James Barcelo III (Cornell Univ. - Law) has posted Burden of Proof, Prima Facie Case and Presumption into WTO Dispute Settlement (Cornell International Law Journal, forthcoming). Here's the abstract:
The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof-the concepts of prima facie case, presumption, and burden shifting-are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, and then shift the full burden of proof to the respondent. Neither of these results would be justified. An important task of future AB decisions should be to clarify the existing ambiguity and to develop a more conceptually sound use of burden of proof terminology. The essay argues that the AB should abandon its current terminology (prima facie case, presumption, and burden shifting) and should simply state that the complaining Member bears the burden of proof on its basic claim and that this burden-meaning essentially the burden of persuasion-does not shift during the course of the proceeding. The reverse would hold for the responding Member's defenses.

Wednesday, December 10, 2008

Pettit: A Republican Law of Peoples

Philip N. Pettit (Princeton Univ. - Politics) has posted A Republican Law of Peoples (European Journal of Political Theory, forthcoming). Here's the abstract:
Taking states as they are (at their best), what shape ought the international order to have? In particular what shape ought it to have if the guiding value is not as austere as non-intervention among states and not as rich as cosmopolitan justice: if it is the value of freedom as non-domination? The paper seeks to outline the requirements that this value would have in the international context.

Blog: EJIL: Talk!

The European Journal of International Law has launched its own blog - EJIL: Talk! Here's the idea:

[The decision to create the blog] is the result of serious reflection of the Editorial Board, with our Scientific Advisory Board, on the evolving relationship between traditional and digital forms of scholarship and publishing. In its first twenty years, EJIL from time to time made huge efforts to provide ‘services’ e.g. the now defunct service on decisions of the ECJ on matters of International Law or our running commentary on decisions of the WTO Appellate Body of importance to public international lawyers. That, for the most part, has become a redundant and futile exercise rendered such by the power of ‘search engines’ and the ubiquity of primary sources on the internet. EJIL also tried to be ‘topical’ by, e.g., trying to hold symposia on recent decisions of the ICJ, or an ILC Report, or certain ‘incidents’ as soon as possible after the event. In the old days a time lag of six to nine months was considered very topical. That has become laughable – our production process, even at its best, is a tortoise to the internet hare.

And yet, there is, we think, an EJIL sensibility - with, say, its panache for the theoretical article, for bringing in aggressively younger scholars, for its intellectually diverse modes of analysis, realism mixed with doctrine, a strong appeal to and interest in history, to mention but a few. (To some Europeans, too Americanized; to some Americans, too European - we take comfort in that debate . . .) If our new blog EJIL:Talk! is successful, it will enable us to effect a further change in the identity of EJIL itself: We will give increasing preference to articles which deal with the fundamentals, with First Things, which look at an ‘Incident' or ‘decision of a Tribunal' with a view to exploring wide systemic meaning; in short, to articles which we predict will have lasting value - that will be interesting four or five or more years after publication. EJIL:Talk! and EJIL may thus complement each other. Note - we hope it does not provoke just short off the cuff academic gossipmentary, but short, incisive, even well-researched pieces which should simply be thought of as a different genre of writing, not unlike the difference between an article and a book.