Saturday, August 23, 2008
But is Bryza suggesting that the President has the legitimate authority to bind the United States to Georgia's defense? On its face, Bryza is not suggesting that the President has unilateral authority to allow Georgia to accede to NATO, nor is he positing that the President can unilaterally bind the United States to any agreement on Georgian accession to NATO. The meaning of Bryza's statement becomes clear with an understanding of the contemporary mechanisms of NATO accession. Accession is a complicated and quite political process, which (not surprisingly) takes years to accomplish. It involves several steps, including the creation of a Membership Action Plan (MAP), "a NATO programme of advice, assistance and practical support tailored to the individual needs of countries wishing to join the Alliance." At its April 2008 summit in Bucharest (declaration here), NATO Heads of State and Government "agreed . . . that [Ukraine and Georgia] will become members of NATO. . . . [and that the creation of a] MAP is the next step for Ukraine and Georgia on their direct way to membership. . . . We have asked Foreign Ministers to make a first assessment of progress at their December 2008 meeting." Bryza, it would appear, was quite explicitly referencing (and, of course, endorsing) the North Atlantic Council decision of earlier this year; he was not creating new policy. At most, Bryza was encouraging Georgia, despite recent events, to continue with its desire to join NATO in accordance with the process previously set out by the Alliance.
The limitedness of Bryza's statement is made even clearer with an understanding of the international and domestic processes for formal accession to NATO. Once a State has accepted the negotiated conditions of membership, the current NATO parties must formally invite that State to accede to the treaty. Article 10 of the North Atlantic Treaty requires "unanimous agreement" of the parties before any new State may so accede. Though the method of providing that agreement is not specified, the practice, since Greece and Turkey joined the original NATO States in 1952, has been for the NATO parties to agree to a protocol that must then be approved by each in accordance with their national laws. (Ratified protocols can be found here.) For the United States, the practice has been that accession protocols are considered treaties and, thus, require the Senate's advice and consent. (The Senate currently has pending before it Protocols on the accession of Albania and Croatia.) Indeed, the Senate has quite explicitly expressed its view that this procedure is required. (See, for example, Exec. Rpt. 108-6, page 8.) These formal processes - international and domestic - make clear that Georgian accession to NATO is hardly the unilateral decision of the U.S. president.
Now, the current administration's push for NATO accession by Georgia (and Ukraine) may be bad policy, and the lame-duck presidency may be dysfunctional. Indeed, there may be many examples to support both claims, and I take no position here, but it is far from obvious that Bryza's statement, properly understood, goes to either, at least in the way Levinson suggests.
Friday, August 22, 2008
- Elke Krahmann, Security: Collective Good or Commodity?
- Chris Boyle, The Mystery of Modern Wealth: Mercantilism, Value, and the Social Foundations of Liberal International Order
- Tomas Baum, A Quest for Inspiration in the Liberal Peace Paradigm: Back to Bentham?
- Beate Sissenich, Cross-National Policy Networks and the State: EU Social Policy Transfer to Poland and Hungary
- Kai He, Institutional Balancing and International Relations Theory: Economic Interdependence and Balance of Power Strategies in Southeast Asia
- Christopher S. Browning & Pertti Joenniemi, Geostrategies of the European Neighbourhood Policy
Why do we sometimes let evil happen to others and sometimes rally to stop it? Whose lives matter to us? These are the key questions posed in this important and perceptive study of the largely forgotten nineteenth-century “atrocitarians”—some of the world’s first human rights activists. Wildly romantic, eccentrically educated, and full of bizarre enthusiasms, they were also morally serious people on the vanguard of a new political consciousness. And their legacy has much to teach us about the human rights crises of today.
Gary Bass shatters the myth that the history of humanitarian intervention began with Bill Clinton, or even Woodrow Wilson, and shows, instead, that there is a tangled international tradition, reaching back more than two hundred years, of confronting the suffering of innocent foreigners. Bass describes the political and cultural landscapes out of which these activists arose, as an emergent free press exposed Europeans and Americans to atrocities taking place beyond their shores and galvanized them to act. He brings alive a century of passionate advocacy in Britain, France, Russia, and the United States: the fight the British waged against the oppression of the Greeks in the 1820s, the huge uproar against a notorious massacre in Bulgaria in the 1870s, and the American campaign to stop the Armenian genocide in 1915. He tells the gripping stories of the activists themselves: Byron, Bentham, Madison, Gladstone, Dostoevsky, and Theodore Roosevelt among them.
Military missions in the name of human rights have always been dangerous undertakings. There has invariably been the risk of radical destabilization and the threatening blurring of imperial and humanitarian intentions. Yet Bass demonstrates that even in the imperialistic heyday of the nineteenth century, humanitarian ideals could play a significant role in shaping world politics. He argues that the failure of today’s leading democracies to shoulder such responsibilities has led to catastrophes such as those in Rwanda and Darfur—catastrophes that he maintains are neither inevitable nor traditional.
Timely and illuminating, Freedom’s Battle challenges our assumptions about the history of morally motivated foreign policy and sets out a path for reclaiming that inheritance with greater modesty and wisdom.
Haan: Joint Criminal Enterprise: Die Entwicklung einer mittäterschaftlichen Zurechnungsfigur im Völkerstrafrecht
Verena Haan nimmt eine beschreibende und rechtsdogmatische Analyse der Beteiligungsform joint criminal enterprise (JCE) vor. Die Rechtsprechung des Jugoslawientribunals hat JCE eingeführt, um die kollektive Begehungsweise der verübten Verbrechen und die Verantwortlichkeit von Schreibtischtätern zu erfassen. Dabei hat das Tribunal aus wenig gefestigten Zurechnungsbegriffen eine völkerstrafrechtlich weitgehend anerkannte Rechtsfigur entwickelt. Ihre Auslegung ist jedoch bis heute umstritten, nicht zuletzt weil der Begriff auf unterschiedliche Haftungsbegriffe und Fallkonstellationen zurückgreift. Rechtsdogmatisch ist JCE in der am Jugoslawientribunal vorherrschenden Auslegung unter völkerstrafrechtlichen Gesichtpunkten problematisch. Daher wird eine modifizierte Auslegung des Begriffs vorgeschlagen, die sowohl die Einhaltung individualstrafrechtlicher Grundsätze garantieren als auch die Erfassung der Besonderheiten von Makrokriminalität ermöglichen soll.
What is the just measure of Western obligations to Africa? As Africans and their supporters mark the 200th anniversary of the abolition of the slave trade in the United States and Great Britain, the question becomes increasingly salient. Calls for reparations for the evils of slavery, as well as for past colonial and current economic and political abuses, can be heard across Africa and the African diaspora.
Human rights scholar Rhoda E. Howard-Hassmann examines these calls for redress in Reparations to Africa. Her study analyzes the reparations movement from the perspectives of law, philosophy, political science, and sociology. While acknowledging the brutal background of the slave trade and colonialism, and the mistreatment of the peoples of Africa, Howard-Hassmann finds that the complexity of this history, along with facts of the contemporary situation, weakens the case for financial compensation, although she does recommend acknowledgment of, and apologies for, some actions. The book not only provides a bold reckoning of the root causes, both internal and external, of African underdevelopment and unrest but also suggests alternative means for restorative justice and examines the role that institutions such as the International Criminal Court can play.
By including the voices of 74 African academics, diplomats, and activists interviewed by Howard-Hassmann and Anthony P. Lombardo, Reparations to Africa makes a valuable contribution to the reparations debate. In an emotionally and politically charged postcolonial environment, this book serves as a judicious guide to the search for economic justice for Africans today and into the future.
Thursday, August 21, 2008
The increasing importance of international investment has been accompanied by the rapid development of a new field of international law that defines the obligations of host states towards foreign investors and creates procedures for resolving disputes in connection with those obligations. Investor-State Arbitration examines the international treaties that give investors a right to arbitration of claims, the most-commonly employed arbitration rules, and the most important elements of investor-state arbitration procedure - including tribunal composition, jurisdiction, evidence, award, and challenge of annulment. Expert coverage includes procedural barriers to recovery, analysis of the substantive law of investment protection, and analysis of recent investor-state arbitral jurisprudence.Investor-State Arbitration traces the evolution and rapid development of this important field of international arbitration, resulting from the formation of the International Center for the Settlement of Investment Disputes (ICSID) and the more than 2,000 bilateral investment treaties, most of which have originated in the last twenty years. This development has led to far greater certainty for foreign investors in dealing with their host countries and has incentivized growth in international trade and commerce. Through arbitration, investors who have been negatively affected by the acts of a host country, such as, for example, the expropriation of property, now have a fair means of redress.
Investor-State Arbitration analyzes the rights of private parties under these treaties to arbitrate disputes with countries, the arbitration rules most commonly employed in investor-state disputes, the important elements of substantive law and procedure, the enforcement of awards (including annulment proceedings under ICSID), current developments, including conflict and convergence of interests in capital-importing and capital-exporting countries, restrictions on state sovereignty, analysis of recent investor-state arbitral jurisprudence, and, finally, the emergence of an international investment jurisprudence.
Ronen: Avoid or Compensate? Liability for Incidental Injury to Civilians Inflicted During Armed Conflict
Under international law, civilians suffering injuries that are incidental, that is unintentional and proportionate, to a lawful attack on a military objective, are left to bear the cost of their losses. In recent years there have been calls for a change in policy, which would entitle victims of military attacks to compensation, even if their losses sustained are incidental and non-fault based. Such a quasi-strict liability rule, while morally laudable, is likely to disrupt the existing balance of powers and interests under the laws of armed conflict and therefore requires close examination. This article begins with an exploration of the conceptual basis for such an obligation, which informs the scope of arguments in support of and opposition to the proposal. It then examines the effect of a strict liability rule on the conduct of parties to a conflict, taking into account that for individual victims, avoidance is always preferable to compensation. This examination is based on an economic analysis. A final question is how to ensure that the liability of the injuring party translates into an effective mechanism for securing compensation. The article concludes that if the moral commitment to victims justifies a strict liability rule, considerations of utility require and can be met with a fine-tuning of the obligation and its implementing mechanisms.
The principle of complementarity provides a framework as to when the Prosecutor of the ICC may and should interfere vis-à-vis national judicial systems. The principle acknowledges the primary right of states to prosecute while also recognising the need for international interference when states fail in this task. As formulated in the Rome Statute, however, it leaves complex questions unresolved. To mention a few: When is a national criminal proceeding really an attempt to shield the perpetrator? When can a national judicial system be characterised as unavailable? And when will an ICC prosecution serve the interests of justice? This book seeks to answer these and other related questions by interpreting the relevant provisions of the Rome Statute and discussing them in a broad context. The book also critically assesses policy considerations underlying the establishment of the ICC, including the implications of international criminal justice for achieving peace. It asks, inter alia, whether the ICC should set aside an amnesty which a national truth commission has granted in an attempt to achieve a peaceful transition from tyranny to democracy.
This Article argues that the scale of climate regulation must fit the scale of the problem. More specifically, the Article claims that because greenhouse gas emissions and impacts are multiscalar - individual, local, state, national, regional, and international - focusing predominantly on any one level of governance limits solutions. Although existing analyses and regulatory efforts often recognize the multiscalar nature of this problem, translating that recognition into meaningful policy solutions is extremely difficult, as exemplified in treaty negotiations, piecemeal policy initiatives, and pending litigation.
This challenge is made harder by efforts that treat climate change as a predominantly "international" legal problem in order to block smaller scale regulation. Variations on these "too big" arguments are proffered repeatedly in climate change litigation currently taking place in U.S. state and federal courts. Regulatory opponents argue that the spatial and temporal scope of climate change and its resulting scientific uncertainties make particular local, state, or national regulatory steps inappropriate. The Article explores two examples of these scalar contests - California's suit against San Bernardino County for its failure to regulate and the U.S. EPA's denial of California's Clean Air Act waiver request--and their implications for regulatory scale.
The Article then considers the lessons from these disputes for what more effective multiscalar governance of climate change might look like. It examines the dangers of "scaling up" climate regulation and the "diagonal" regulatory role that these lawsuits play. Bringing together the scholarly literature on transnational legal process and geographic network theory, it situates the two case examples within multiscalar networks that form the basis for informal and formal efforts to enhance or undermine regulatory efforts. The Article argues more broadly that the nature of the problem and of the public and private entities engaging it provides the basis for diagonal regulatory strategies that simultaneously incorporate vertical and horizontal networks. This litigation serves as one such mechanism, and more analysis of other appropriate contexts for diagonal approaches is needed.
- 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
Une introduction au droit international pénal, matière en pleine évolution, à la fois accessible et raisonnablement exhaustive, complétée par une série d’articles proposant un approfondissement de certaines questions particulièrement intéressantes.
Le précis présente le droit international pénal au travers des thèmes suivants: historique, sources, infractions (agression, génocide, crime contre l’humanité, crimes de guerre), multitude d’infractions, formes de responsabilité pénale (p.ex. la complicité, la responsabilité du supérieur, etc.), circonstances excluant la responsabilité, obstacles à la poursuite, principes de procédure; compétence pénale nationale (exemple de la Suisse); tribunaux ad hoc; la CPI et son fonctionnement. Sont étudiés dans des chapitres séparés des sujets tels que la fixation de la peine ou le statut des victimes.
Wednesday, August 20, 2008
In the wake of recent events in Georgia and in light of information related to the alleged commission of crimes under ICC jurisdiction, ICC Prosecutor Luis Moreno Ocampo today confirmed that the situation in Georgia is under analysis by his Office.
"Georgia is a State Party to the Rome Statute" he said. "My Office considers carefully all information relating to alleged crimes within its jurisdiction – war crimes, crimes against humanity and genocide - committed on the territory of States Parties or by nationals of States Parties, regardless of the individuals or groups alleged to have committed the crimes. The Office is inter alia analyzing information alleging attacks on the civilians."
The Office of the Prosecutor has been closely monitoring all information on the situation in Georgia since the outbreak of violence in South Ossetia in early August, including information from public sources.
An official from the Georgian government met with the Division of the Jurisdiction, Complementarity and Co-operation of the Office to offer information and co-operation. The Russian Federation has formally delivered information to the Office of the Prosecutor and is continuing to do so.
The Office will proceed to seek further information from all actors concerned.
- Gabriella Blum, The Laws of War and the "Lesser Evil"
- Janet Halley, Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law
- Gerald Neuman, The Extraterritorial Constitution after Boumediene v. Bush
- Jeremy Waldron (New York Univ. - Law), Cruel, Inhuman, and Degrading Treatment: The Words Themselves
When persons are out of their home country, consuls are their link with home and a source of assistance. The roles of consuls are many and varied. Consuls promote commerce between the home country and the host country and assist businesspeople in making contacts and in completing commercial transactions. Consuls also handle problems that arise for seafarers and merchant shipping vessels of the home country when they are in port in the host country. When a home country citizen dies while in the host country, consuls may facilitate burial or shipment of the remains home, or deal with the person's estate. Consuls assist individuals arrested on a criminal charge in the host state by visiting them in jail, advising them about the legal system of the host state, and helping to find them a lawyer. If the person is convicted, consuls visit them in prison and may help to secure a transfer to a prison in the home country.
This fully updated third edition explains consular privileges and immunities and how consular functions are handled in time of peace and war, when the receiving state experiences civil war, or when the sending and receiving states break off diplomatic or consular relations. It provides valuable background by describing how consular law developed historically and how it became solidified in 1963 in the Vienna Convention on Consular Relations. It explores the many bilateral consular treaties which supplement the Vienna Convention, examines the traditional and changing role of consuls, explains diplomatic privileges and immunities, and discusses the function of consuls as ambassadors in cultural and scientific exchange.
Tuesday, August 19, 2008
The International Human Rights Law Section will repeat its popular "New Voices" program at the 2009 Annual Meeting. This panel provides an important opportunity for faculty members and other scholars who have not previously had an opportunity to present a scholarly paper at an AALS annual meeting to share their work.
The program will be held on Wednesday January 7, 2009, from 2:00 p.m. to 5:00 p.m. at the AALS Annual Meeting in San Diego.
Paper Submission and Selection Procedure: Individuals who are interested in being considered for the "New Voices" panel should submit an abstract of no more than two pages describing their research or scholarship to the section chair-elect via e-mail at email@example.com by no later than September 15, 2008.
For further information please contact the Section Chair or Co-Chair:
Robert C. Blitt, Associate Professor of Law, University of Tennessee College of Law, 1505 W. Cumberland Avenue, Knoxville, TN 37996
Christiana Ochoa, Associate Professor of Law, Indiana University School of Law, 211 South Indiana Avenue, Bloomington, IN 47405-7001
The present international order is characterized by the rapid globalization of economic activity, by systematic attempts to coordinate state responses to the outbreaks of violence and by unilateral military interventions against sovereign states either by the USA or by one of its regional allies. This collection explores the changes that the current international order has brought to the theory and practice of recognition of secessionist claims and to the conditions for secessionist mobilization.
The volume examines how independence movements achieve legitimacy amongst both their target populations and outside states, and how the forces of increasing economic globalization and political interdependence impact on secessionist mobilization. It addresses how the outside states recognize the independence of new states and whether the claims to independent statehood can be justified within normative theories of secession and international law. These issues are explored both through comparative analysis within legal, international relations and political science frameworks and through an examination of several recent attempts at secession.
- Elisabeth Lambert Abdelgawad, L'exécution des arrêts de la Cour européenne des droits de l'homme (2007)
- Droit communautaire des droits fondamentaux - Chronique de la jurisprudence de la Cour de justice des Communautés européennes (2007)
- Jean-Francois Flauss, Les élections de juges à la Cour européenne des droits de l'homme
- Delphine Tharaud, Les discriminations positives ou la figure triangulaire de la proportionnalité
The book analyzes the political process that led to the establishment of the International Criminal Court (ICC). It argues that non-governmental organizations (NGOs) played an important role in shaping key provisions in the Court’s statute and in achieving early ratification of the ICC Statute. NGOs were able to achieve this result through their use of principled, communicatively rational argument. Thus in addition to accounting for the particular outcome of the ICC negotiations, the book also makes a contribution to our theoretical understandings of the ways that NGO discourse can transform the process of policy formation in world politics.
- Paolo Picone, La distinzione tra norme internazionali di "jus cogens" e norme che producono obblighi "erga omnes"
- Paolo Fois, Il consenso ad obbligarsi nel Trattato sulla non-proliferazione nucleare
- Tito Ballarino, L'art. 6 del regolamento Roma II e il diritto "antitrust" comunitario: conflitto di leggi e principio territorialistico
- Natalino Ronzitti, Note e commenti - Il seggio europeo alle Nazioni Unite
- Gianluca Serra, Note e commenti - Il Tribunale speciale per il Libano: fondamento e competenza
- Mara Valenti, Note e commenti - Lo stato di necessità nei procedimenti arbitrali ICSID contro l'Argentina: due soluzioni contrapposte
Monday, August 18, 2008
- Anna Dorevitch & Michelle Foster, Obstacles on the Road to Protection: Assessing the Treatment of Sex-Trafficking Victims under Australia’s Migration and Refugee Law
- Fergus Green, Fragmentation in Two Dimensions: The ICJ’s Flawed Approach to Non-State Actors and International Legal Personality
- Janet Halley, Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict
- Aleardo Zanghellini, To What Extent Does the ICCPR Support Procreation and Parenting by Lesbians and Gay Men
- Elizabeth A. Kirk, Noncompliance and the Development of Regimes Addressing Marine Pollution from Land-Based Activities
- Tim Stephens, Fisheries-Led Development in the South Pacific: Charting a “Pacific Way” to a Sustainable Future
- Angela Del Vecchio Capotosti, In Maiore Stat Minus: A Note on the EEZ and the Zones of Ecological Protection in the Mediterranean Sea
- Katharina Bork, Johannes Karstensen, Martin Visbeck, & Andreas Zimmermann, The Legal Regulation of Floats and Gliders—In Quest of a New Regime?
Cet ouvrage aborde toutes les questions centrales du droit des Nations Unies. A mentionner en particulier: la signification de l’organisation internationale mondiale, le passage de la Société des Nations à l’Organisation des Nations Unies, les buts et principes de la Charte, les organes et leurs fonctions, les membres, le non-recours à la force, la sécurité collective et le règlement des différends, ainsi que les amendements à la charte. Les relations de la Suisse avec les Nations Unies sont traitées dans un article séparé.
Jagdish Bhagwati, the internationally renowned economist who uniquely combines a reputation as the leading scholar of international trade with a substantial presence in public policy on the important issues of the day, shines here a critical light on Preferential Trade Agreements, revealing how the rapid spread of PTAs endangers the world trading system.
Numbering by now well over 300, and rapidly increasing, these preferential trade agreements, many taking the form of Free Trade Agreements, have re-created the unhappy situation of the 1930s, when world trade was undermined by discriminatory practices. Whereas this was the result of protectionism in those days, ironically it is a result of misdirected pursuit of free trade via PTAs today. The world trading system is at risk again, the author argues, and the danger is palpable.
Writing with his customary wit, panache and elegance, Bhagwati documents the growth of these PTAs, the reasons for their proliferation, and their deplorable consequences which include the near-destruction of the non-discrimination which was at the heart of the postwar trade architecture and its replacement by what he has called the spaghetti bowl of a maze of preferences. Bhagwati also documents how PTAs have undermined the prospects for multilateral freeing of trade, serving as stumbling blocks, instead of building blocks, for the objective of reaching multilateral free trade. In short, Bhagwati cogently demonstrates why PTAs are Termites in the Trading System.
Sunday, August 17, 2008
- Philippe Kirsch, Introductory remarks
- Ivo Maria Braguglia, Italy and the International Criminal Court
- Pierre-Marie Dupuy, Principe de complémentarité et droit international général
- William A. Schabas, Complementarity in practice: creative solutions or a trap for the Court?
- Giorgio Gaja, Issues of admissibility in case of self-referrals
- Phani Dascalopoulou-Livada, The principle of complementarity and Security Council referrals
- Edoardo Greppi, Inability to investigate and prosecute under Article 17
- Frederica Gioia, The complementary role of the International Criminal Court: are there any time-limits?
- Hans-Peter Kaul, The ICC and international criminal cooperation – key aspects and fundamental necessities
- Håkan Friman, Cooperation with the International Criminal Court: some thoughts on improvements under the current regime
- Annalisa Ciampi, State cooperation with the ICC and human rights
- Maria Chiara Malaguti, Can the Nuremberg legacy serve any purpose in understanding the modern concept of 'complementarity'
- Teresa Maria Moschetta, Cooperation between the European Union and the International Criminal Court: legal bases and opportunities for implementation
- Theodor Meron, Roberto Toscano, Fausto Pocar, Francesco Francioni, & Håkan Friman, The ICC Relationship with National Jurisdiction: What Future? - Roundtable
- Luigi Condorelli, Closing remarks
- Yaël Ronen, Human Rights and Territorial Claims: Transition from Unlawful Regimes in International Law
- Gro Nystuen & Kjetil Tronvoll, The Eritrean-Ethiopian Peace Agreement: Exploring the Limits of Law
- Peter Vedel Kessing, Overførsel af fanger under væbnet konflikt
- Thor Dahl Eriksen, Menneskelig sikkerhet og sentrale menneskerettighetsdebatter
- Jan Edward Garrett, The Doubtful Descent of Human Rights from Stoicism