Saturday, August 16, 2008

New Issue: Revue Générale de Droit International Public

The latest issue of the Revue Générale de Droit International Public (Vol. 112, no. 2, 2008) is out. Contents include:
  • Slim Laghmani, Droit international et diversité culturelle
  • Habib Gherari, Règles de l'Organisation Mondiale du commerce et Accords commerciaux régionaux. Le bilatéralisme conquérant ou le nouveau visage du commerce international
  • Vassilis P. Tzevelekos, Vers la reconnaissance d'un droit étatique à l'autoprotection? Entre le droit et la politique
  • Catherine Le Bris, Le dégel en Arctique: briser la glace entre Etats dans l'intérêt de l'humanité
  • Christine A. E. Bakker, Le principe de cmplémentarité et les "auto-saisines": un regard critique sur la pratique de la Cour Pénale Internationale

Friday, August 15, 2008

New Issue: Schweizerische Zeitschrift für internationales und europäisches Recht

The latest issue of the Schweizerische Zeitschrift für internationales und europäisches Recht (Vol. 17, no. 5, 2007) is out. Contents include:
  • Christa Tobler & Jacques Beglinger, "Auf Säulen ruht ihr Dach . . ." (Rechtsvisualisierung)
  • Stephan Buhofer, Die Strukturierung eines Rechts: Das Common Law und das römische Institutionensystem

ECHR: Court Indicates Interim Measures in Case Brought by Georgia

On Tuesday, the European Court of Human Rights, in accordance with Rule 39 of its Rules of Court, indicated interim measures at the request of the Republic of Georgia. Georgia had filed an application directed against Russia alleging "violations of Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights and Article 1 of Protocol No. 1 (protection of property) to the Convention." Here's the Court's decision:

On 12 August 2008 the President of the Court, acting as President of Chamber, decided to apply Rule 39 of the Rules of Court (interim measures) considering that the current situation gives rise to a real and continuing risk of serious violations of the Convention. With a view to preventing such violations and pursuant to Rule 39, the President calls upon both the High Contracting Parties concerned to comply with their engagements under the Convention particularly in respect of Articles 2 and 3 of the Convention.

In accordance with Rule 39 § 3, the President further requests both Governments concerned to inform the Court of the measures taken to ensure that the Convention is fully complied with.

ICJ: Request by Georgia for the Indication of Provisional Measures (Update)

Yesterday, the Republic of Georgia submitted a request to the International Court of Justice for the indication of provisional measures in connection with its application, filed on Tuesday, against the Russian Federation. Today, the Court announced that it will hold hearings on Georgia's request on September 8-10. Press release here.

Also today, Judge Rosalyn Higgins, President of the Court, sent the following communication to the parties to the proceedings, in accordance with Article 74, paragraph 4, of the Court's Rules:

On 12 August 2008 the Republic of Georgia submitted an Application to the Court instituting proceedings against the Russian Federation. On 14 August 2008, the Republic of Georgia submitted a request for indication of provisional measures referring to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court.

The convening of the Court for purposes of proceeding to a decision on a Request for the indication of provisional measures should be dealt with as a matter of urgency (Article 74, paragraph 2, of the Rules of Court). At the same time, the date for the hearings should be fixed so as to afford Parties an opportunity of being represented at it (Article 74, paragraph 3, of the Rules of Court).

In the light of these considerations the hearings on the request made by the Republic of Georgia for the indication of provisional measures have now been fixed for 8-10 September 2008.

The Court will at this juncture have to decide whether or not it has prima facie jurisdiction in respect of the case brought by the Republic of Georgia and whether the conditions for the indication of provisional measures are met.

Having considered the gravity of the situation, the President, acting under Article 74, paragraph 4, of the Rules of Court, urgently calls upon the Parties to act in such a way as will enable any order the Court may take on the request for provisional measures to have its appropriate effects.

In re Terrorist Attacks on September 11, 2001

Yesterday, the U.S. Court of Appeals for the Second Circuit decided In re Terrorist Attacks on September 11, 2001 (opinion here; New York Law Journal story here). The panel affirmed the district court's decision dismissing claims against seven Saudi Arabian defendants. The plaintiffs alleged that the defendants provided support to al Qaeda for the September 11th attacks. Judge Jacobs, writing for the panel (which included Judge Cabranes and District Court Judge Vitaliano, sitting by designation), summarized the holding, as follows:

We conclude that the [Foreign Sovereign Immunities Act] protects the appellees - most obviously, the Kingdom itself. First, we hold that the FSIA applies to individual officials of foreign governments in their official capacities, and therefore to the Four Princes. Second, we affirm the district court’s conclusion that the [Saudi High Commission for Relief to Bosnia and Herzegovina] is an “agency or instrumentality” of the Kingdom, to which the FSIA likewise applies. Further, we conclude that none of the FSIA’s exceptions applies. The plaintiffs’ claims do not come within the statutory exception for state-sponsored terrorist acts, 28 U.S.C. § 1605A (“Terrorism Exception”), because the Kingdom has not been designated a state sponsor of terrorism by the United States. As to the exception for personal injury or death caused by a foreign sovereign’s tortious act, id. § 1605 (a)(5) (“Torts Exception”), we decline to characterize plaintiffs’ claims - expressly predicated on a state-sponsored terrorist act - as sounding in tort. Nor do the plaintiffs’ claims come within the statutory exception for a foreign sovereign’s commercial activity, id. § 1605(a)(2) (“Commercial Activities Exception”), because the defendants’ specific alleged conduct - supporting Muslim charities that promote and underwrite terrorism - is not conduct in trade, traffic or commerce. Accordingly, we agree with the district court that it lacked subject matter jurisdiction over the claims against the Kingdom, the Four Princes in their official capacities, and the SHC. We likewise affirm the district court’s dismissal of the claims against the Four Princes (in their personal capacities) and Mohamed for want of personal jurisdiction, and the denial of the plaintiffs’ motions for jurisdictional discovery.

Arnold & Quénivet: International Humanitarian Law and Human Rights Law

Roberta Arnold & Noëlle Quénivet have published International Humanitarian Law and Human Rights Law Towards a New Merger in International Law (Martinus Nijhoff Publishers 2008). Contents include:
  • Noëlle Quénivet, The History of the Relationship Between International Humanitarian Law and Human Rights Law
  • Marco Odello, Fundamental Standards of Humanity: A Common Language of International Humanitarian Law and Human Rights Law
  • Agnieszka Jachec-Neale, End Justifies the Means? – Post 9/11 Contempt for Humane Treatment
  • Conor McCarthy, Legal Conclusion or Interpretative Process? Lex Specialis and the Applicability of International Human Rights Standards
  • Conor McCarthy, Legal Reasoning and the Applicability of International Human Rights Standards During Military Occupation
  • Ralph Wilde, Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties
  • Tom Ruys & Sten Verhoeven, DRC v. Uganda: The Applicability of International Humanitarian Law and Human Rights Law in Occupied Territories
  • Cátia Lopes & Noëlle Quénivet, Individuals as Subjects of International Humanitarian Law and Human Rights Law
  • Jean-Marie Henckaerts, Concurrent Application of International Humanitarian Law and Human Rights Law: A Victim Perspective
  • Emiliano J. Buis, The Implementation of International Humanitarian Law by Human Rights Courts: The Example of the Inter-American Human Rights System
  • Giovanni Carlo Bruno, “Collateral Damages” of Military Operations: Is Implementation of International Humanitarian Law Possible Using International Human Rights Law Tools?
  • Gregor Schotten & Anke Biehler, The Role of the UN Security Council in Implementing International Humanitarian Law and Human Rights Law
  • Noëlle Quénivet, The Right to Life in International Humanitarian Law and Human Rights Law
  • Anke Biehler, Protection of Women in International Humanitarian Law and Human Rights Law
  • Vesselin Popovski, Protection of Children in International Humanitarian Law and Human Rights Law
  • Kyriaki Topidi, Unaccompanied Minors and the Right to Family Reunification in International Humanitarian Law and Human Rights Law: The Iraqi Experience
  • Alice Edwards, Crossing Legal Borders: The Interface Between Refugee Law, Human Rights Law and Humanitarian Law in the “International Protection” of Refugees
  • Yutaka Arai-Takahashi, Fair Trial Guarantees in Occupied Territory – The Interplay between International Humanitarian Law and Human Rights Law
  • Roberta Arnold, Terrorism in International Humanitarian Law and Human Rights Law
  • Christian M. De Vos, Judging Justice: Laws of War, Human Rights, and the Military Commissions Act of 2006
  • Michael N. Schmitt, Targeted Killings and International Law: Law Enforcement, Self-defense, and Armed Conflict
  • Katarina Månsson, Implementing the Concept of Protection of Civilians in the Light of International Humanitarian Law and Human Rights Law: The Case of MONUC
  • Roberta Arnold, Conclusions

Thursday, August 14, 2008

U.S.-Libya Claims Settlement Agreement

Today, the United States and Libya signed a comprehensive claims settlement agreement. According to the State Department press release:
The agreement is designed to provide rapid recovery of fair compensation for American nationals with terrorism-related claims against Libya. It will also address Libyan claims arising from previous U.S. military actions. The agreement is being pursued on a purely humanitarian basis and does not constitute an admission of fault by either party. Rather, pursuant to the agreement an international Humanitarian Settlement Fund will be established in Libya to collect the necessary resources for the claims on both sides. No U.S. appropriated funds will be contributed, and any contributions by private parties will be voluntary. Each side will be responsible for distributing the resources it receives to its own nationals and to ensure the dismissal of any related court actions.
On August 4th, the President signed the Libyan Claims Resolution Act, which established the U.S. domestic legal mechanisms that would be necessary for the successful implementation of the claims agreement signed today.

Ziadé: Problems of International Administrative Law

Nassib G. Ziadé (Deputy Secretary-General, International Centre for Settlement of Investment Disputes ) has published Problems of International Administrative Law: On the Occasion of the Twentieth Anniversary of the World Bank Administrative Tribunal (Martinus Nijhoff Publishers 2008). Here's the abstract:
With the proliferation of administrative tribunals, there is an increasing need for a common system of rules for the governance of international civil services. In this book, the various contributors deal with specific issues in the area of international administrative law, such as the judicial review of administrative action and managerial discretion; the powers exercised by international administrative tribunals, including in disciplinary cases; and the proper functioning and operating procedures of such tribunals. These issues are considered from the points of view of members of administrative tribunals, of respondent institutions, and of counsel for applicants.

ICJ: Request by Georgia for the Indication of Provisional Measures

Today, the Republic of Georgia submitted a request to the International Court of Justice for the indication of provisional measures in connection with its application, filed on Tuesday, against the Russian Federation. (Press release here; request for the indication of provisional measures here.) The request was made by Georgia to preserve its "rights . . . under the International Convention on the Elimination of All Forms of Racial Discrimination [CERD] to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries." Specifically, Georgia requests that the Court order the following:

(a) the Russian Federation shall give full effect to its obligations under [the] CERD;

(b) the Russian Federation shall immediately cease and desist from any and all conduct that could result, directly or indirectly, in any form of ethnic discrimination by its armed forces, or other organs, agents, and persons and entities exercising elements of governmental authority, or through separatist forces in South Ossetia and Abkhazia under its direction and control, or in territories under the occupation or effective control of Russian forces;

(c) the Russian Federation shall in particular immediately cease and desist from discriminatory violations of the human rights of ethnic Georgians, including attacks against civilians and civilian objects, murder, forced displacement, denial of humanitarian assistance, extensive pillage and destruction of towns and villages, and any measures that would render permanent the denial of the rights to return of IDPs, in South Ossetia and adjoining regions of Georgia, and in Abkhazia and adjoining regions of Georgia, and any other territories under Russian occupation or effective control.

New Issue: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

The latest issue of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Vol. 68, no. 1, 2008) is out. Contents include:
  • August Reinisch, Sachverständigengutachten zur Frage des Bestehens und der Wirkung des völkerrechtlichen Rechtfertigungsgrundes “Staatsnotstand”
  • Stephan Schill, Der völkerrechtliche Staatsnotstand in der Entscheidung des BVerfG zu Argentinischen Staatsanleihen – Anachronismus oder Avantgarde?
  • Alexander Orakhelashvili, Natural Law and Customary Law
  • Thilo Rensmann, Die Humanisierung des Völkerrechts durch das ius in bello – Von der Martens’schen Klausel zur “Responsibility to Protect
  • Antoine Buyse, Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law
  • Stellungnahmen und Berichte
    • Patricia Egli, Another Step in the Reform of the European Court of Human Rights: The Report of the Group of Wise Persons
    • Frank Hoffmeister, Grundlagen und Vorgaben für den Schutz der Minderheiten im EU-Primärrecht
    • Falminia Tacconi, Freedom of Health and Medical Care Services within the European Union. Recent Jurisprudence of the European Court of Justice, with Particular Reference to Case C-372/04 Yvonne Watts, 16 May 2006
    • Mia Swart, The Wouter Basson Prosecution: The Closest South Africa Came to Nuremberg?
    • Martin Kment, Ausländisches Steuerrecht vor US-amerikanischen Gerichten – Hintergründe und Neues zur Anwendung der “revenue rule
    • Felix Arndt, Ausrechnen statt aushandeln: Rationalitätsgewinne durch ein formalisiertes Modell für die Bestimmung der Zusammensetzung des Europäischen Parlaments

Ross: Women's Human Rights: The International and Comparative Law Casebook

Susan Deller Ross (Georgetown Univ. - Law) has published Women's Human Rights: The International and Comparative Law Casebook (Univ. of Pennsylvania Press 2008). This is another volume in the series Pennsylvania Studies in Human Rights. Here's the abstract:

According to Susan Deller Ross, many human rights advocates still do not see women's rights as human rights. Yet women in many countries suffer from laws, practices, customs, and cultural and religious norms that consign them to a deeply inferior status. Advocates might conceive of human rights as involving torture, extrajudicial killings, or cruel and degrading treatment—all clearly in violation of international human rights—and think those issues irrelevant to women. Yet is female genital mutilation, practiced on millions of young girls and even infants, not a gross violation of human rights? When a family decides to murder a daughter in the name of "honor," is that not an extrajudicial killing? When a husband rapes or savagely beats his wife, knowing the legal authorities will take no action on her behalf, is that not cruel and degrading treatment?

Women's Human Rights is the first human rights casebook to focus specifically on women's human rights. Rich with interdisciplinary material, the book advances the study of the deprivation and violence women suffer due to discriminatory laws, religions, and customs that deny them their most fundamental freedoms. It also provides present and future lawyers the legal tools for change, demonstrating how human rights treaties can be used to obtain new laws and court decisions that protect women against discrimination with respect to employment, land ownership, inheritance, subordination in marriage, domestic violence, female genital mutilation, polygamy, child marriage, and the denial of reproductive rights.

Ross examines international and regional human rights treaties in depth, including treaty language and the jurisprudence and general interpretive guidelines developed by human rights bodies. By studying how international human rights law has been and can be implemented at the domestic level through local courts and legislatures, readers will understand how to call upon these newly articulated human rights to help bring about legislation, court decisions, and executive action that protect women from human rights violations.

Sadat & Scharf: The Theory and Practice of International Criminal Law

Leila Nadya Sadat (Washington Univ., St. Louis - Law) & Michael P. Scharf (Case Western Reserve Univ. - Law) have published The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Martinus Nijhoff Publishers 2008). Contents include:
  • Leila Nadya Sadat & Michael P. Scharf, Foreword: Taking Aim at the Sky
  • Louise Arbour, El Hassan bin Talal, Glen Weissenberger, & Ved P. Nanda, Dedications
  • Mark A. Drumbl, A Hard Look at the Soft Theory of International Criminal Law
  • Anja Matwijkiw & Bronik Matwijkiw, A Modern Perspective on International Criminal Law: Accountability as a Meta-Right
  • Bartram S. Brown, Depoliticizing Individual Criminal Responsibility
  • Diane F. Orentlicher, Universal Jurisdiction: A Pragmatic Strategy in Pursuit of a Moralist’s Vision
  • Christopher L. Blakesley, Acting Out Against Terrorism, Torture, and Other Atrocious Crimes: Contemplating Morality, Law, and History
  • Christopher C. Joyner, Terrorizing the Terrorists: An Essay on the Permissibility of Torture
  • Jordan J. Paust, Secret Detentions, Secret Renditions, and Forced Disappearances During the Bush Administration’s “War” on Terror
  • Michael P. Scharf, Cherif Bassiouni and the 780 Commission: The Gateway to the Era of Accountability
  • Brigitte Stern & Isabell Fouchard, Sexual Violence as Genocide: The Important Role Played by the Bassiouni Commission in the Recent Development of International Criminal Law
  • Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law
  • Mahnoush H. Arsanjani & W. Michael Reisman, The International Criminal Court and the Congo: From Theory to Reality
  • William A. Schabas, Crimes against Humanity: The State Plan or Policy Element
  • Diane Marie Amann, “The Only Thing Left Is Justice”: Cherif Bassiouni, Saddam Hussein, and the Quest for Impartiality in International Criminal Law
  • Anne Gallagher, Using International Human Rights Law to Better Protect Victims of Trafficking: The Prohibitions on Slavery, Servitude, Forced Labor, and Debt Bondage
  • Yves Sandoz, Cherif Bassiouni, the ICRC, and International Humanitarian Law

Wednesday, August 13, 2008

New Issue: Review of International Organizations

The latest issue of the Review of International Organizations (Vol. 3, no. 3, September 2008) is out. Contents include:
  • Joseph P. Joyce & Todd Sandler, IMF retrospective and prospective: A public goods viewpoint
  • Richard Feinberg, Voluntary multilateralism and institutional modification: The first two decades of Asia Pacific Economic Cooperation (APEC)
  • Eric C.Y. Ng & John Whalley, Visas and work permits: Possible global negotiating initiatives
  • Domenico Lombardi, The governance of the World Bank: Lessons from the corporate sector

New Issue: Human Rights Law Review

The latest issue of the Human Rights Law Review (Vol. 8, no. 3, 2008) is out. Contents include:
  • Marko Milanovic, From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties
  • Carolyn Evans, Religious Education in Public Schools: An International Human Rights Perspective
  • Ralph Sandland, Developing a Jurisprudence of Difference: The Protection of the Human Rights of Travelling Peoples by the European Court of Human Rights
  • Recent Developments
    • Andrew Byrnes & Eleanor Bath, Violence against Women, the Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women - Recent Developments
    • Daniel Moeckli, Saadi v Italy: The Rules of the Game Have Not Changed
    • Alastair Mowbray, The Consideration of Gender in the Process of Appointing Judges to the European Court of Human Rights
    • Julian Killingley, Killing Me Softly: Baze v Rees

UN: Secretary-General's Bulletin Concerning the Organization of the Office of Legal Affairs

Earlier this month, the UN Secretary-General issued a bulletin delineating the organization of the Office of Legal Affairs. Among other things, the bulletin sets out, in greater detail than its predecessor, the responsibilities of the Under-Secretary-General for Legal Affairs. The bulletin was issued just as a new Legal Counsel was appointed.

Tuesday, August 12, 2008

ICJ: Georgia Files Application Alleging Russian Breach of the Convention on the Elimination of All Forms of Racial Discrimination

Today, the Republic of Georgia filed an application with the International Court of Justice against the Russian Federation for "its actions on and around the territory of Georgia," in breach of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Georgia alleges that the "Russian Federation, through its State organs, State agents, and other persons and entities exercising governmental authority, and through the South Ossetian and Abkhaz separatist forces and other agents acting on the instructions of, and under the direction and control of the Russian Federation, is responsible for serious violations of its fundamental obligations under [the] CERD, including Articles 2, 3, 4, 5 and 6." The ICJ press release is here; the application is here.

O'Connell: The Power and Purpose of International Law

Mary Ellen O'Connell (Univ. of Notre Dame - Law) has published The Power and Purpose of International Law (Oxford Univ. Press 2008). Here's the abstract:

The world is going through another important transition. International institutions have unquestionably been weakened as the United States works to sort through complicated issues such as the Afghan and Iraq wars, the use of torture and secret detention, Guantanamo, climate change, and nuclear proliferation. In recent memory, top Bush Administration advisers have spoken and written about the powerlessness of international law and its irrelevance-or worse-for the United States. The worldwide public needs and deserves a more accurate account. In The Power and Purpose of International Law, Mary Ellen O'Connell provides such an account by explaining the purpose of international law and the powers of enforcement it has available to achieve its mission.

International law supports order in the world and the attainment of humanity's fundamental goals of peace, prosperity, respect for human rights, and protection of the natural environment. The author argues that these goals can best be realized through international law, which uniquely has the capacity to bind even a superpower. It is also through international law that competing powers and divergent cultures can reach consensus. By exploring the roots of international law, and by looking at specific events in its history, this book demonstrates the why and the how of international law and its enforcement. It directly confronts the claim that international law is "powerless" and that working within the framework of international law is useless or counter-productive. As the world moves forward and reexamines international norms and institutions, it is crucial that both leaders and their citizens understand the true power and purpose of international law, and why humanity has persistently accepted it as true law.

New Issue: Journal of Private International Law

The latest issue of the Journal of Private International Law (Vol. 4, no. 2, August 2008) is out. Contents include:
  • Andreas Bucher, The New Swiss Federal Act on International Child Abduction
  • Jan L Neels, Falconbridge in Africa
  • Alex Mills, The Dimensions of Public Policy in Private International Law
  • Tim W Dornis, Contribution and Indemnification among Joint Torteasors in Multi-State Conflict Cases: A Study of Doctrine and the Current Law in the US and under the Rome II Regulation
  • Anthony Gray, Loss Distribution Issues in Multinational Tort Claims: Giving Substance to Substance
  • Richard Frimpong Oppong, Roman-Dutch Law Meets the Common Law on Jurisdiction in International Matters
  • Omphemetse Sibanda, Jurisdictional Arrest of a Foreign Peregrinus now Unconstitutional in South Africa: Bid Industrial Holdings v Strang

New Issue: International & Comparative Law Quarterly

The latest issue of the International & Comparative Law Quarterly (Vol. 57, no. 3, July 2008) is out. Contents include:
  • Brigitte Clark & Claudina Richards, The Prevention and Prohibition of Forced Marriages - A Comparative Approach
  • Adam Cygan, Public Healthcare in the European Union: Still a Service of General Interest?
  • Paula Giliker, Codifying Tort Law: Lessons from the Proposals for Reform of the French Civil Code
  • Rain Liivoja, The Scope of the Supremacy Clause of the United Nations Charter
  • Mamiko Yokoi-Arai, GATS' Prudential Carve Out in Financial Services and Its Relation with Prudential Regulation
  • Frank Bates, Stay Proceedings and Forum Non Conveniens in Recent Australian Family Law
  • Helen Xanthaki, Legal Transplants in Legislation: Defusing the Trap

Monday, August 11, 2008

Protocol on the Statute of the African Court of Justice and Human Rights

In 2005, the Assembly of the African Union decided to merge the African Court of Human and Peoples' Rights and the Court of Justice of the African Union. In June, at the Eleventh Summit of the African Union, the Assembly adopted the Protocol on the Statute of the African Court of Justice and Human Rights, an instrument designed to effectuate the Assembly's 2005 decision. The Protocol will enter into force upon the deposit of the fifteenth instrument of ratification by an AU Member State.

Mégret: Globalization and International Law

Frédéric Mégret (McGill Univ. - Law) has posted Globalization and International Law. Here's the abstract:
This short paper is an attempt to synthesize the debate on "globalization and international law". This is an issue that has been taken increasingly seriously by international lawyers, as globalization threatens to challenge the very meaning, status and nature of the international legal order. The paper argues that globalization has had a significant impact on international law but that, in turn, international law could have a significant impact on globalization.

Meyer: Soft Law as Delegation

Timothy Meyer (Univ. of California, Berkeley - Law) has posted Soft Law as Delegation. Here's the abstract:

This article examines one of the most important trends in international legal governance since the end of the Cold War: the rise of "soft law," or legally non-binding instruments that are given legal effect through domestic law or internationally binding agreements such as treaties. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that states routinely enter into agreements establishing international rules and regulatory standards in a wide range of subject areas, from banking to arms control to the environmental protection, that are not legally binding.

I begin by proposing a new definition of soft. Although previous definitions have often distinguished soft law from hard law on the basis that only the latter is legally binding, no one has explained what distinguishes soft law from purely political arrangements. By contrast, this article defines soft law as those obligations that, while not legally binding, are given some legal effect through separate legal instruments. The Nuclear Suppliers Group Guidelines, for example, are not legally binding on states, but arguably give content to legally binding obligations in the Nuclear Nonproliferation Treaty, and are also given domestic legal effect by statute and regulation. This new definition helps us understand what is "legal" about soft law, while at the same time allowing us to analyze differences between hard and soft law. I then argue that states use soft law as a way to delegate authority over the content of legal rules and regulations to states that possess a particularly strong interest in those rules. Making an agreement non-binding lowers the penalty associated with deviating from the existing legal rules, and thus encourages states with a significant interest in the content of legal rules to unilaterally innovate. This oligopolistic approach to the evolution of legal rules can, under certain circumstances, lead to more efficient legal rules by avoiding the hold-up problem involved in renegotiating contracts in which every state effectively exercises a veto over potentially efficient amendments. As such, the choice between soft law and hard law implicates a tradeoff between the procedural equity inherent in the doctrine of sovereign equality, and the efficiency of legal rules. Soft law privileges the latter over the former.

Gaillard & Younan: State Entities in International Arbitration

Emmanuel Gaillard (Shearman & Sterling, Paris & University of Paris XII - Law) & Jennifer Younan (Shearman & Sterling, Paris) have published State Entities in International Arbitration (Juris Publishing 2008). Contents include:
  • Emmanuel Gaillard, Introduction
  • Peter Tomka, Part I - Are States Liable for the Conduct of Their Instrumentalities? Introductory Remarks
  • Ibrahim Fadlallah, ICSID Case Law
  • Eduardo Silva Romero, ICC Case Law
  • Barton Legum, Case Law of Tribunals Other Than ICC and ICSID
  • Pierre-Marie Dupuy, Concluding Remarks
  • Charles Poncet, Part II - Can a Party Benefiting from an Award Rendered Against a State Enforce the Award Against an Instrumentality of Such State? Introductory Remarks
  • Eric Teynier, French Law
  • Judith Gill, English Law
  • Eugene Gulland, U.S. Law
  • Sigvard Jarvin, Concluding Remarks
  • Emmanuel Gaillard, Effectiveness of Arbitral Awards, State Immunity from Execution and Autonomy of State Entities - Three Incompatible Principles
  • Sébastien Manciaux, The Relationships between States and their Instrumentalities in Investment Arbitration

Moeckli: Human Rights and Non-discrimination in the 'War on Terror'

Daniel Moeckli (Univ. of Nottingham - Law) has published Human Rights and Non-discrimination in the 'War on Terror' (Oxford Univ. Press 2008). Here's the abstract:

In the post-September 11th era, liberal democracies face the question of whether, and if so to what extent, they should change the relationship between liberty and security. This book explores how three major liberal democratic states - the United States, the United Kingdom and Germany - have approached this challenge by analysing the human rights impacts of their anti-terrorism laws and practices. The analysis reveals that the most far-reaching restrictions of liberty have been imposed on minorities: foreign nationals and certain 'racial', ethnic and religious groups.

This disparate treatment raises complex issues concerning the human right to non-discrimination. Differential treatment on the basis of nationality, national origin, 'race' or religion is only compatible with the right to non-discrimination if there are objective and reasonable grounds for it. The author evaluates contemporary anti-terrorism efforts for their compliance with this requirement. Is there, in the context of the current 'war on terror', sufficient justification for applying powers of preventive detention or trial by special tribunal only to foreign nationals? Are law enforcement methods or immigration policies that single out people for special scrutiny based on their national origin, or their ethnic or religious appearance, a suitable and proportionate means of countering terrorism? The concluding part of the book argues that, in the long term, discriminatory anti-terrorism measures will have impacts beyond their original scope and fundamentally reshape ordinary legal regimes and law enforcement methods.

Sunday, August 10, 2008

New Issue: International Tax Journal

The latest issue of the International Tax Journal (Vol. 34, no. 4, July-August 2008) is out. Contents include:
  • Hale E. Sheppard, When Bygones Aren't Bygones: Exploring Tax Solutions for U.S. Persons with Undeclared Canadian Retirement Plans and Accounts
  • Jurjan Wouda Kuipers & Vanesa Hernández Guerrero, Fiscal State Aid—The European Commission on a Mission
  • Daniel Hoi Ki Ho, Multinational Transfer Pricing: Evidence in the United Kingdom

Judah: Serbia, Karadzic and the Politics of Justice

Tim Judah at the Crimes of War Project has posted Serbia, Karadzic and the Politics of Justice. Here it is:

The arrest of Radovan Karadzic and his transfer to UN’s Yugoslav war crimes tribunal in The Hague on July 29th is without doubt one of the most extraordinary stories to have emerged from the former Yugoslavia in many years. If it was not for the gravity of the charges – 11 counts of genocide, war crimes and crimes against humanity - one might be tempted to compare the whole saga to a theatrical farce.

As is now already well known Mr Karadzic, who led the Bosnian Serbs during the Bosnian war of 1992 to 1995, far from taking refuge in a remote corner of Hercegovina or hiding in Orthodox monasteries in Serbia or Montenegro, as was widely believed, was actually living in Belgrade. As he told the International Criminal Tribunal for the Former Yugoslavia (ICTY) his precise address was 267 Jurij Gagarin Street. He had, for the last few years, been working as an alternative health guru and selling cures for impotence and other disorders.

All this has provided the Balkans, and indeed much of the rest of the world, with much mirth. Likewise the transformation of the bouffant-hairdoed wartime leader into a bushy-bearded, top-knot wearing Santa lookalike - and back again. And now there is the question of whether the Radovan Karadzic who appeared in court on July 31st, is actually the same Karadzic of old, or whether today’s Karadzic, who again looks like the Mark One version, is still really the Mark Two, spiritual version.

It was only in May after all, that Karadzic was lecturing at Belgrade’s Healthy Life Festival on the topic of “How to Enhance One’s Own Energies.” And, of course, when he appeared in court he announced, in a line that is likely to go down in Balkan and international legal history, that he would be defending himself apart from help from “an invisible advisor”. One can only infer that Mr Karadzic is referring to the Almighty, whom he would thus have us believe is acting, in his case, not as his ultimate judge, but in the rather more humble position of legal consultant.
Mr Karadzic has until August 29th to enter a plea in answer to his indictments. So for now, we can expect the media circus to move on. As it does, this is a good time to examine in a little more detail, not just the circumstances of Mr Karadzic’s arrest but the all-important political context too.

Europe's Offer to Serbia

The former Bosnian Serb leader was arrested, according to the Serbian authorities, on July 21st. He denies this though saying that he was detained on the 18th and held unlawfully in an unknown location. This is a significant detail and we shall return to it. However, in truth, this story really begins in the last weeks of April.

In the wake of Kosovo’s declaration of independence on February 17th the Serbian government collapsed. Kosovo, whose population is some 90% ethnic Albanian was, and for Serbia still is, its southern province. An election was called for May 11th. Opinion polls showed that the most likely outcome was a victory for the hardline nationalist Serbian Radical Party (SRS), which would then rule in coalition with the party of outgoing prime minister Vojislav Kostunica and the now small Socialist Party of Serbia (SPS) led by Ivica Dacic. The SRS was founded by Vojislav Seselj who is now on trial at the ICTY. The SPS is the party of the former Serbian leader Slobodan Milosevic who led his people to war in the 1990s and died during his trial in The Hague on 11 March 2003.

Extremely worried by the possibility of this anti-European and pro-Russian coalition coming to power, European Union foreign ministers decided to try and boost the chances of the pro-European Democratic Party (DS) of president Boris Tadic. So, after much argument, and then with much fanfare, Serbia was given, on April 29th, a Stabilisation and Association Agreement (SAA) which is the first step towards eventual membership of the EU. At the same time negotiations also began on the difficult issue of visas, which should eventually lead to their abolition for most EU countries for Serbian citizens.

These “bribes” as they have been described by Ljiljana Smajlovic, the editor of the leading Serbian daily Politika, were enough to swing the election for the DS. However it still took some two months of negotiations with Mr Dacic to persuade him to betray the Radicals and Mr Kostunica, not to mention his own voters, and to give his crucial votes in parliament to Mr Tadic and join a DS-led government. Among other rewards for the SPS for joining a cabinet made up of people who had overthrown Mr Milosevic, arrested him and transferred him to the ICTY, was the post of minister of interior for Mr Dacic himself.

A Fundamental Change

With the new government ensconced in power, Vuk Jeremic, the Serbian foreign minister said, to anyone who would listen, that it intended to go after the remaining Hague indictees. Not many took this too seriously, though, since ministers have said it before. However, in a detail that was little emphasized during the Serbian election campaign, the SAA had been frozen by the EU until Serbia was deemed by the ICTY to be cooperating with it.

Although it was not immediately apparent, the EU’s condition for moving forward on European integration and the election results in Serbia combined to produce a fundamental change. Not only was the government now led by people who wanted to finish with the war crimes issue which has dogged Serbia for so many years, but now they were actually about to be able to do something about it. Mr Tadic, who has been president since June 2004, was about to get his hands on the levers of real power in this area: the Serbian intelligence services, known by their initials as BIA. Until July 18th BIA was run by Rade Bulatovic, a man always seen as loyal to Vojislav Kostunica who loathed the tribunal, regarding it like many Serbs, as an anti-Serb kangaroo court.

If Mr Karadzic was indeed arrested on July 21st this would imply that Mr Tadic’s new man at BIA, Sasa Vukadinovic, had just given the green light for the arrest to go ahead, since it is inconceivable that BIA could have found their man in a mere 72 hours. But, if as Mr Karadzic insists, he was actually arrested on the 18th then this suggests that Mr Bulatovic gave Mr Karadzic to Mr Tadic as a leaving present, which is indeed what Mr Dacic has implied. Mr Bulatovic is also believed to have kept valuable intelligence to himself about the extent of talks on a coalition between Mr Tadic and Mr Dacic – and not informed Mr Kostunica. Now, far from retiring into obscurity, Mr Bulatovic has been rewarded with the politically important post of ambassador to Greece.

So it seems more than likely that at least some people in BIA always knew where Mr Karadzic was, or at least have known for sometime, and that as a consequence of the change of government and shifting political loyalties his time was up. Whether this will now lead to the arrest of General Ratko Mladic, the Bosnian Serb military commander during the war is another question. If it was up to Mr Tadic the answer would almost certainly be “yes” but to what extent Mladic still has some protection – or is also living a bizarre and unexpected existence remains unclear.

Coming to Terms with the Tribunal

Certainly the government will be encouraged by the muted reactions from the general public, especially in the light of the recent high profile acquittals by the Hague tribunal of Ramush Haradinaj and Nasir Oric. The first, who led Kosovo Albanian guerrillas in 1998 and 1999, was accused of murdering Serbs and others while the latter was accused of killing Serbian civilians while he commanded Bosniak (Bosnian Muslim) forces in Srebrenica. Whatever the merits of these controversial cases few in Serbia view them as anything else but confirmation of what they have always believed, which is that the tribunal is irredeemably anti-Serb. Whether or not that charge has any justification, it is clear that the tribunal has failed catastrophically in convincing Serbs of the impartiality of its justice.

Nevertheless opinion polls have shown consistently over the last few years, that while most Serbs do not regard Mr Karadzic or General Mladic as guilty, or at least any more guilty than any leading wartime figure amongst Croats, Bosniaks and Kosovo Albanians, they also do not have a passionate objection to their transfer to The Hague. There is a clear understanding that Serbia’s European future and hence their own, is directly related to the fates of these men. Serbs only have to look over the border, or go on holiday in Croatia, to see and understand that once it had in 2005 delivered its last indictee, General Ante Gotovina, a huge hurdle on the road to EU integration was removed. As a consequence Croatia is years ahead of Serbia now on the road to Brussels and, in part as a consequence of that, its people are also several times more prosperous than those of Serbia.

As for the trial itself one can only hope that it will proceed somewhat faster than those that have preceded it. Most interesting will be whether Mr Karadzic expands on what he has already claimed was an American promise that he would never appear before the ICTY. This is an old story but it was given fresh legs in court on July 31st when Mr Karadzic said that the reason he had been hiding for the last 12 years was that he feared for his life. He claimed that in exchange for an agreement to retire from public life Richard Holbrooke promised him he would not be sent to The Hague. “This is a matter of life and death,” he told the court. “If Holbrooke wants me dead and if he has such a long arm, I want to know whether his long arm can reach me here."

A Political Defence?

If there ever was such a deal, which would of course have no judicial significance, it seems unlikely that Mr Holbrooke, who is a shrewd diplomat, would ever have committed anything to paper and indeed he has denied the story. Whether however, Mr Karadzic inferred something from Mr Holbrooke, who in turn was happy for that inference to be taken, is another story. Still Bosnian Serb officials insist there was indeed a written agreement. Following Mr Karadzic’s arrest Aleksa Buha, the wartime foreign minister of the Republika Srpska, the Bosnian Serb entity, said: “I was present when the deal was made in June 1996. Holbrooke personally confirmed this to me, waving a paper with the signed text of Radovan’s decision."

In contrast to these claims of treachery, the court will also hear from survivors of the Srebrenica massacre in which up to 8,000 Bosnian Muslims were murdered by Bosnian Serb forces when the notional “safe area” fell to them in July 1995. Mr Karadzic is charged with genocide by the ICTY for Srebrenica. According to Slobodan Mijatovic, a former member of the Bosnian Serb military police who accompanied General Mladic to one location where prisoners were being held, the military leader told them: “not to worry, adding that their families were taken to safe locations and that they would be able to join them as soon as the transportation means were available…The prisoners then started applauding and shouting ‘cheerio’” They were then shot, in total about 1,000 Bosniaks who had been assembled in the now infamous hangar at Kravica.

So far, while welcoming the arrest of Mr Karadzic the EU has not yet taken a decision to unfreeze the SAA, however it is possible that it will soon permit an interim agreement with Serbia to begin, albeit not ratifying the SAA until General Mladic and the only other outstanding indictee, Croatian Serb Goran Hadzic, are in The Hague. Holland, which has lived through a national trauma over the failure of its troops who were deployed at Srebrenica, albeit in small numbers, to prevent the massacre there, has been amongst the countries taking the toughest of stances on this matter.

Kosovo and International Law

In the meantime, even if Messrs Mladic and Hadzic are arrested and sent to the ICTY now, Serbia is not about to disappear off the radar of international justice and international law. However this time it promises to be a case of poacher turned gamekeeper and the subject at issue is Kosovo. So far some 43 countries have recognised Kosovo’s declaration of independence including the US and 20 out of 27 EU countries. Russia has not recognised Kosovo, neither have many Muslim countries nor any of the big developing countries including China, India, Brazil and Egypt. Many of them regard Kosovo’s secession as illegal, as it was technically a province of Serbia and not a Yugoslav republic.

The new Serbian government has taken a two pronged approach to Kosovo and the international political manoeuvring about its status. Serbia wants to strike a bargain with the EU over the deployment of the latter’s police and justice mission in Kosovo because it does not want the issue to again become a problem just as the ICTY one might be taken off the agenda. However it also aims to ask the General Assembly of the UN, which will convene on September 16th, to vote to request the International Court of Justice (ICJ) to rule on the legality of Kosovo’s secession. The Serbian government could then tell its people that the question was in the hands of the lawyers and should no longer be an issue for debate within Serbia. However for EU countries which have recognised Kosovo this could be problematic. Indeed one diplomat from a country which regards Kosovo’s secession as illegal says colleagues from countries which have recognised it “are beginning to sweat.”

In the run up to General Assembly Serbian diplomats are lobbying hard for votes on the ICJ issue and, among other things, playing the old “non-alignment” card, recalling the strong bonds of friendship which tied Tito’s Yugoslavia with India, Indonesia and so many other countries in that period. On July 31st Ajay Swarup, India’s ambassador to Serbia told Serbian television that his country intended to support Serbia on the ICJ question.

Although Serbia is of course convinced that it would win at the ICJ, there is no guarantee of this and it may be prevailed upon to withdraw this line of attack anyway if, as Bernard Kouchner, the French foreign minister and most recently the British ambassador to Belgrade have said, that the issue would become a major bone of contention with the EU. What is already clear is that while the arrest of Mr Karadzic is a huge, albeit belated step for Serbia, the tragedy and legacy of the destruction of Yugoslavia will continue to haunt the Serbs and their neighbours for many years to come, both in terms of real lives and international law and justice.

Gaillard & Banifatemi: Precedent in International Arbitration

Emmanuel Gaillard (Shearman & Sterling, Paris & University of Paris XII - Law) & Yas Banifatemi (Shearman & Sterling, Paris) have published Precedent in International Arbitration (Juris Publishing 2008). Contents include:
  • Emmanuel Gaillard, Foreword
  • Barton Legum, Definition of “precedent”
  • Karl-Heinz Böckstiegel, Part I - International Commercial Arbitration: Introductory Note
  • François Perret, Is there a Need for Consistency in International Commercial Arbitration?
  • Alexis Mourre, The Impact of the Confidentiality of Awards
  • Christopher Seppala, The Development of a Case Law in Construction Disputes Relating to FIDIC Contracts
  • Prosper Weil, Part II - International Investment Arbitration: Introductory Note
  • James Crawford, Similarity of Issues in Disputes Arising under the Same or Similarly Drafted Investment Treaties
  • Gilbert Guillaume, Can Arbitral Awards Constitute a Source of International Law under Article 38 of the ICJ Statute?
  • Thomas Wälde, The Impact of the Publication of Awards
  • Gabrielle Kaufmann-Kohler, Is the Search of Consistency a Myth?