Resolutions of Ratification: Nuclear Terrorism and Additional Treaties

On Thursday, the Senate, by the requisite two-thirds vote, agreed to the resolutions of advice and consent to ratification of the following treaties:

• the Land-Based Sources Protocol to Cartagena Convention (Treaty Doc. 110-1) (Ex. Rept. 110-20);
• the International Convention for Suppression of Acts of Nuclear Terrorism (Treaty Doc. 110-4) (Ex. Rept. 110-23);
• the Amendment to the Convention on the Physical Protection of Nuclear Material (Treaty Doc. 110-6) (Ex. Rept. 110-24);
• the Protocols of 2005 to the Convention Concerning the Safety of Maritime Navigation and to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (Treaty Doc. 110-8) (Ex. Rept. 110-25);
• the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Treaty Doc. 106-1(A)) (Ex. Rept. 110-26);
• the Protocols to the North Atlantic Treaty of 1949 on Accession of Albania and Croatia (Treaty Doc. 110-20) (Ex. Rept. 110-27); and
• the Amendments to the Constitution and Convention of International Telecommunication Union (Treaty Doc. 108-5; Treaty Doc. 109-11; Treaty Doc. 110-16) (Ex. Rept. 110-28).

The resolutions of ratification, with any reservations, understandings, declarations, and conditions, can be found here, here, here, and here.

Proposed Resolution on Request for ICJ Advisory Opinion on Kosovo Independence

Serbia has submitted the following draft General Assembly resolution requesting an advisory opinion on the legality of Kosovo's independence:

The General Assembly,

Mindful of the purposes and principles of the United Nations,

Bearing in mind its functions and powers under the Charter of the United Nations,

Recalling that on 17 February 2008 the Provisional Institutions of Self-Government of Kosovo declared independence from Serbia,

Aware that this act has been received with varied reactions by the Members of the United Nations as to its compatibility with the existing international legal order,

Decides, in accordance with Article 96 of the Charter of the United Nations to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court to render an advisory opinion on the following question:

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”.

Conference: Treaty Self-Execution

The Duke-Harvard Foreign Relations Law Workshop will take place tomorrow at the Duke University School of Law. The topic is "Treaty Self-Execution." Here's the program:

• What Does Medellín Stand For?
• Sarah Cleveland (Columbia Univ. - Law), Self-Execution by Subject Matter after Medellín v. Texas
• Martin Flaherty (Fordham Univ. - Law), Surrendering the Rule of Law in Foreign Relations
• Edward Swaine (George Washington Univ. - Law), Non-Self-Execution and the Non-Separation of Powers
• Ingrid Wuerth (Vanderbilt Univ. - Law), The New, New Formalism?
• Discussant: Paul Stephan (Univ. of Virginia - Law)
• Considerations Relevant to the Self-Execution Analysis
• Anthony Bellia (Univ. of Notre Dame - Law) & Bradford Clark (George Washington Univ. - Law), Asking the Wrong Question: Treaties and the Self-Execution Debate
• Duncan Hollis (Temple Univ. - Law), A Functional Theory of Self-Execution
• Ralf Michaels (Duke Univ. - Law), Self-Execution as a Conflict of Laws Problem
• Carloz Vázquez (Georgetown Univ. - Law), Declarations Regarding Self-Execution
• Discussant: John Harrison (Univ. of Virginia - Law)
• Treaties as Domestic Law
• Curtis Bradley (Duke Univ. - Law), Treaties and Statutes are Different
• Oona Hathaway (Univ. of California, Berkeley - Law), The Self-Execution Doctrine in Comparative Perspective
• Ernest Young (Duke Univ. - Law), Treaties as “Part of Our Law”
• Discussant: Edward Swaine (George Washington Univ. - Law)
• Domestic Status of Non-Self-Executing Treaties
• John Harrison (Univ. of Virginia - Law), Two Fallacies Concerning the Domestic Effect of Treaties
• Nicholas Rosenkranz (Georgetown Univ. - Law), Non-Self-Execution and the Supreme Law of the Land
• Neil Siegel (Duke Univ. - Law), Non-Self-Executing Treaties as Domestic Law: Juricentrism versus Policentrism
• Discussant: Carlos Vázquez (Georgetown Univ. - Law)
• Treaties, Youngstown, and Executive Power
• Jack Goldsmith (Harvard Univ. - Law), Taking Care to Faithfully Execute Non-Self-Executing Treaties
• Andrew Kent (Fordham Univ. - Law), Effects of Medellín’s Use of Youngstown on Congress’s Power to Implement Treaties
• Paul Stephan (Univ. of Virginia - Law), Open Doors
• Discussant: Ingrid Wuerth (Vanderbilt Univ. - Law)

Wouters, Nollkaemper, & de Wet: The Europeanisation of International Law

Jan Wouters (Leuven Univ. - Law), André Nollkaemper (Univ. of Amsterdam - Law), & Erika de Wet (Univ. of Amsterdam - Law) have published The Europeanisation of International Law: The Status of International Law in the EU and its Member States (T.M.C. Asser Press 2008). Contents include:

• Jan Wouters, André Nollkaemper, & Erika de Wet, Introduction: The ‘Europeanisation’ of International Law
• Rainer Wahl, Europeanisation beyond Supremacy
• Bruno de Witte, The Emergence of a European System of Public International Law: The EU and its Member States as Strange Subjects
• Christian Tietje, The Status of International Law in the European Legal Order: The Case of International Treaties and Non-binding International Instruments
• Allan Rosas, The European Court of Justice and Public International Law
• Pieter Jan Kuijper, Customary International Law, Decisions of International Organisations and Other Techniques for Ensuring Respect for International Legal Rules in European Community Law
• Johan Callewaert, ‘Unionisation’ and ‘Conventionisation’ of Fundamental Rights in Europe: The Interplay between Union and Convention Law and its Impact on the Domestic Legal Systems of the Member States
• Astrid Epiney & Bernhard Hofstötter, The Status of ‘Europeanised’ International Law in Austria, Switzerland and Liechtenstein
• Nóra Chronowski & Tímea Drinóczi, A Triangular Relationship between Public International Law, EC Law and National Law? The Case of Hungary
• Nikolaos Lavranos, UN Sanctions and Judicial Review
• Joost Pauwelyn, Europe, America and the ‘Unity’ of International Law

Workshop: Becker Lorca

Arnulf Becker Lorca (King's College London - Law) will give a talk today at the Center for Transnational Legal Studies Faculty Transnational Law Colloquium on "Universal International Law: Nineteenth Century Histories of Imposition, Appropriation and Circulation."

International Commission of Jurists on Corporate Complicity in International Crimes

The Expert Legal Panel on Corporate Complicity in International Crimes of the International Commission of Jurists has issued its Final Report. The Report "addresses corporate complicity from the angles of criminal law, the law of civil responsibility and public policy." All three volumes are available here; a press release is here.

ICTR: Trial Chamber Judgment in the Case Against Nchamihigo

On Wednesday, September 24, the ICTR Trial Chamber rendered its judgment in the case (No. ICTR-01-63) against Simeon Nchamihigo, a former deputy prosecutor of Cyangugu Prefecture in southwestern Rwanda. Nchamihigo was charged (amended indictment here) with one count of genocide and three counts of crimes against humanity (murder, extermination, other inhumane acts) on allegations that he "planned, instigated, ordered, or aided and abetted others to kill Tutsi, accomplices of the RPF and Hutu political opponents of the authorities and that his actions resulted in mass killings at roadblocks he had established, the killing of several individuals, the massacre of two groups who were removed from the Kamarampaka Stadium, and the massacre of Tutsi at places where they had taken refuge." Nchamihogo pleaded innocent, claiming that he did not participate in the events named in the indictment.

In its judgment (summary here; press release here; judgment not yet available online; Hirondelle News story here), the Trial Chamber found Nchamihogo guilty on all four counts and sentenced him to life imprisonment.

Feldman: When Judges Make Foreign Policy

Noah Feldman (Harvard Univ. - Law) has an article in this Sunday's New York Times Magazine on "When Judges Make Foreign Policy." Here's a taste:

In the coming presidential election, every voter understands that there is a choice to be made between the foreign-policy visions of John McCain and Barack Obama. What is less obvious, but no less important, is that Supreme Court appointments have become a de facto part of American foreign policy. The court, like the State Department and the Pentagon, now makes decisions in cases that directly change and shape our relationship with the world. And as the justices decide these cases, they are doing as much as anyone to shape America’s fortunes in an age of global terror and economic turmoil.

New Issue: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

The latest issue of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Vol. 68, no. 2, 2008) is out. Contents include:

• Deutsch-Italienisches Verfassungskolloquium
• Peter M. Huber, Die gleiche Freiheit der Unionsbürger - Zu den unterschiedlichen Perspektiven von unionalem und nationalem Recht
• Christian Tomuschat, Gleichheit in der Europäischen Union
• Peter Badura, Gleiche Freiheit im Verhältnis zwischen Privaten - Die verfassungsrechtliche Problematik der Umsetzung der EG-Diskriminierungsrichtlinien in Deutschland
• Robert Uerpmann-Wittzack, Gleiche Freiheit im Verhältnis zwischen Privaten: Artikel 3 Abs. 3 GG als unterschätzte Verfassungsnorm
• Jörg Luther, Die "gleiche Freiheit" der europäischen Bürger in Italien und Deutschland
• Christoph G. Paulus, The Evolution of the "Concept of Odious Debts"
• Bernhard Knoll, Rights Without Remedies: The European Court's Failure to Close the Human Rights Gap in Kosovo
• Matthias Knauff, Konstitutionalisierung im inner- und überstaatlichen Recht - Konvergenz oder Divergenz?
• Jesús M. Casal H., Migration und internationaler Menschenrechtsschutz - Beträge des Interamerikanischen Systems zum Schutz der Menschenrechte
• Ramin Moschtaghi, Aktuelle Probleme beim Rechtsstaatsaufbau in Afghanistan - Das Gutachten des Obersten Gerichtshofes zum Misstrauensantrag des Unterhauses gegen den Außenminister

New Volume: Netherlands Yearbook of International Law

The latest volume of the Netherlands Yearbook of International Law (Vol. 38, 2007) is out. Contents include:

• Cedric Ryngaert, Universal tort jurisdiction over gross human rights violations
• Mary E. Footer, Some theoretical and legal perspectives on WTO compliance
• Andreas Paulus & Mindia Vashakmadze, Parliamentary control over the use of armed forces against terrorism – in defence of the separation of powers
• Patricia Jimenez Kwast, Maritime interdiction of weapons of mass destruction in an international legal perspective

Ahdieh: Foreign Affairs, International Law, and the New Federalism: Lessons from Coordination

Robert B. Ahdieh (Emory Univ. - Law) has posted Foreign Affairs, International Law, and the New Federalism: Lessons from Coordination. Here's the abstract:

Even with the departure of two of its most vocal advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent Court decisions and Congressional legislation are any indication, its latest beachhead may be the realm of foreign affairs and international law. The emerging federalism of foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

In this article, I draw on the prism of "coordination" - as well as related understandings of standard-setting processes - to question two conventional assumptions about the relationship of the sub-national, national, and international: First, the widespread notion that a coherent foreign affairs regime requires a single, national voice. Second, the almost visceral notion of conflict in the interaction of international norms with sub-national interests - a conception of international law as silencing (or at least ignoring) sub-national voices.

Familiar as they are, both these claims are wrong. Coordination can be achieved in foreign affairs even without an exclusive national voice. International law, meanwhile, may increasingly offer opportunities for states and localities to be heard. Once we appreciate as much, we can begin to develop a richer account of the interaction of sub-national, national, and international institutions and interests as "our federalism" reaches abroad.

SFRC: Treaties Favorably Reported

On Tuesday, the Senate Foreign Relations Committee ordered favorably reported the following treaties. The same day the Committee submitted its reports on the treaties.

• Protocols to the North Atlantic Treaty of 1949 on Accession of Albania and Croatia (Treaty Doc. 110-20) (Ex. Rept. 110-27)
• Amendments to the Constitution and Convention of International Telecommunication Union (Treaty Doc. 108-5; Treaty Doc. 109-11; Treaty Doc. 110-16) (Ex. Rept. 110-28).

New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 23, no. 3, 2008) is out. Contents include:

• David Freestone, Principles Applicable to Modern Oceans Governance
• David L. VanderZwaag & Nilufer Oral, International Ocean Governance in the 21st Century
• Rosemary Rayfuse & Robin Warner, Securing a Sustainable Future for the Oceans Beyond National Jurisdiction: The Legal Basis for an Integrated Cross-Sectoral Regime for High Seas Governance for the 21st Century
• David L. VanderZwaag & Ann Powers, The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance
• Nilufer Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea
• Maria Gavouneli, Mediterranean Challenges: Between Old Problems and New Solutions
• Barbara Lausche, Wider Caribbean Region - A Pivotal Time to Strengthen Regional Instruments For Biodiversity Conservation
• Louise Angélique de La Fayette, Oceans Governance in the Arctic
• Adriana Fabra & Virgina Gascón, The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Ecosystem Approach

Symposium: The Rise of Transnational Networks

The Southern Methodist University School of Law will host a symposium on "The Rise of Transnational Networks," November 7, 2008, in Dallas. The program is here. Why attend?

In the last few decades, judges, legislators, prosecutors, and agency officials have increasingly been coordinating policy and decision-making across borders through informal networks. Such coordination has often occurred without formal legal sanction and is especially prominent in areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law. But it also occurs in more politically charged areas, such as constitutional law, national security, law enforcement, and human rights.

This conference will review the record of transnational networks and the promise they hold for deeper and more effective international cooperation. Under what conditions are transnational networks likely to arise and how do they function? What are their advantages over traditional diplomacy and international organizations, and in what circumstances are networks most likely to be successful? What are some of the main obstacles to their legitimacy and effectiveness, and how can these obstacles be overcome?

Resolutions of Ratification: Law Enforcement, Tax, and Additional Treaties

Yesterday, the Senate, by the requisite two-thirds vote, agreed to the resolutions of advice and consent to ratification of the following treaties:

• Extradition Agreement with the European Union (Treaty Doc. 109-14) with 22 related bilateral agreements;
• Extradition Treaty with Latvia (Treaty Doc. 109-15);
• Extradition Treaty with Malta (Treaty Doc. 109-17);
• Extradition Treaty with Estonia (Treaty Doc. 109-16);
• Extradition Treaty with Bulgaria and an Agreement on Certain Aspects of Mutual Legal Assistance in Criminal Matters with Bulgaria (Treaty Doc. 110-12);
• Extradition Treaty with Romania and Protocol to the Treaty on Mutual Legal Assistance in Criminal Matters with Romania (Treaty Doc. 110-11);
• Treaty with Malaysia on Mutual Legal Assistance (Treaty Doc. 109-22);
• Protocol Amending 1980 Tax Convention with Canada (Treaty Doc. 110-15);
• Tax Convention with Bulgaria with Proposed Protocol of Amendment (Treaty Doc. 110-18);
• Tax Convention with Iceland (Treaty Doc. 110-17);
• 1992 Partial Revision of the Radio Regulations (Geneva 1979) (Treaty Doc. 107-17);
• 1995 Revision of the Radio Regulations (Treaty Doc. 108-28);
• CCW Protocol on Incendiary Weapons (Protocol III) (Treaty Doc. 105-1(B));
• CCW Protocol on Blinding Laser Weapons (Protocol IV) (Treaty Doc. 105-1(C));
• Amendment to Article 1 of the Convention on Prohibitions or Restrictions on Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects (Treaty Doc. 109-10(B));
• Treaty with Sweden on Mutual Legal Assistance in Criminal Matters (Treaty Doc. 107-12); and
• Mutual Legal Assistance Agreement with the European Union (Treaty Doc. 109-13) with 25 related bilateral agreements.

The resolutions of ratification, with any reservations, understandings, declarations, and conditions, can be found here, here, here, here, here, here, here, and here.

Workshops: Benvenisti & Downs, Burnett, Dunoff

Eyal Benvenisti (Tel Aviv Univ. - Law) & George Downs (New York Univ. - Politics) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Global Governance and Legal Theory on "Toward Global Checks and Balances."

Christina Burnett (Columbia Univ. - Law) will give a talk today at the New York University School of Law Legal History Colloquium on "A Clash of Constitutionalisms: The Conflict over the Platt Amendment, 1900-1901."

Jeffrey Dunoff (Temple Univ. - Law) will give a talk today at the Harvard Law School International Law Workshop on "Ruling the World? Constitutionalism, International Law and Global Governance."

ICC: Withdrawal of French Declaration to Rome Statute

When France ratified the Rome Statute in 2000, it entered a declaration that it did "not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory." Article 124 of the Statute permitted such declarations but sunsetted their effect at seven years after the Statute's entry into force. France's declaration, therefore, was due to expire on July 1, 2009. Instead of letting it run its course, though, France withdrew the declaration this summer, with a year still to go. France's action leaves Colombia as the only State Party with an active Article 124 declaration. Why did France bother to withdraw its declaration with only months remaining? Clearly it thought there was advantage in doing so. Perhaps it was an easy way to pay some heed to pro-ICC advocates in France and elsewhere. Perhaps it is a signal to the Court itself that France continues to support the institution. Perhaps it was done to indicate that France would not seek to extend Article 124's force at the Rome Statute review conference next year. Those who know what France's intent was are encouraged to contact the editor.

Update: Sixth Committee of the UN General Assembly

A new session of the UN General Assembly - its sixty-third - has begun. The GA's Sixth Committee (Legal) will convene on Monday, October 6th. The Committee's provisional programme of work (A/62/456) is here; the Bureau's proposed revised overall work programme is here. In addition to the annual reports of the International Law Commission and UNCITRAL, there are a number of topics of interest on the agenda, including (among others) criminal accountability of United Nations officials and experts on mission; consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives; the status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts; measures to eliminate international terrorism; administration of justice at the United Nations; and the final form of the ILC's draft articles on nationality of natural persons in relation to the succession of States. The Bureau's proposed programme of work on the debate on the ILC Report is here. Other relevant documents are available here. Customarily, the President of the International Court of Justice visits the Committee; thus far, though, a date for that visit has yet to be announced. The meeting of Legal Advisers will take place on Monday, October 27th, and Tuesday, October 28th. It is also worth noting two non-Sixth Committee matters: Consideration of the Annual Report of the International Court of Justice will be taken up by the General Assembly directly on Thursday, October 30th. The election of five judges to the International Court of Justice will take place on Thursday, November 6th.

Hamant: Démembrement de l'URSS et problèmes de succession d'Etats

Hélène Hamant has published Démembrement de l'URSS et problèmes de succession d'Etats (Brylant 2008). Here's the abstract:

Avec la « chute du Mur » a resurgi la question de la succession d'Etats. Consacré en décembre 1991 par les accords de Minsk et d'Alma-Ata créant le CEI, le démembrement de l'URSS, sur le territoire de laquelle existent désormais quinze Etats, en est la manifestation la plus spectaculaire. Cet ouvrage se veut une synthèse d'ensemble des problèmes ainsi soulevés. L'auteur s'interroge tout d'abord sur la nature du démembrement de l'URSS : consiste-t-il en une dissolution ou est-il assimilable à une série de successions ? Autrement dit, l'URSS a-t-elle disparu ou est-elle continuée par la Russie ? Au-delà de son intérêt théorique, touchant au phénomène de la disparition de l'Etat, la réponse à cette question a une incidence directe sur le règlement de la succession. L'auteur analyse ensuite les modalités de la succession notamment à la lumière de l'alternative entre le principe de la « table rase », qui vaait marqué le droit de la succession d'Etats au moment de la décolonisation, et celui de la continuité des droits et obligations de l'Etat prédécesseur. Ce faisant, cet ouvrage permet de confronter les solutions adoptées aux règles inscrites dans les deux conventions de Vienne sur la succession d'Etat, de 1978 et 1983. Les Etats baltes font l'objet d'un traitement à part dans la mesure où ils se sont présentés comme la restauration des Etats indépendants de l'entre-deux-guerres et qu'en conséquence, ils ne relèveraient pas de la succession d'Etats de l'URSS. Après avoir envisagé le règlement de la succession en matière de traités, biens et dettes en général, l'auteur se penche plus particulièrement sur la succession en matière militaire : non seulement l'URSS était une superpuissance disposant d'un potentiel militaire nucléaire et conventionnel considérable, mais la succession en ce domaine a donné lieu à des mécanismes particuliers faisant apparaître ce dernier comme une catégorie à part. Sont ainsi étudiés le sort de l'armée soviétique et celui des traités de désarmement et de maîtrise des armements qui avaient constitué une pièce essentielle de l'équilibre géostratégique entre l'EST et l'Ouest (TNP et traités FCE, ABM, INF et START).

Heller: Situational Gravity Under the Rome Statute

Kevin Jon Heller (Univ. of Auckland - Law) has posted Situational Gravity Under the Rome Statute (in Future Perspectives on International Criminal Justice, Carsten Stahn & Larissa van den Herik eds., forthcoming). Here's the abstract:

The ICC is often derided as the "African Criminal Court." That criticism cannot easily be dismissed: all of the Office of the Prosecutor's (OTP) current investigations focus on African states - Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan - and it is analyzing the situations in three other African states, Cote D'Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq - the latter despite its conclusion that there was a "reasonable basis to believe" that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment.

The OTP has not denied - nor could it - that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims.

This essay critiques the OTP's quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that offend the fundamental values of the international community - those that cause "social alarm"; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

Guzman: Determining the Appropriate Standard of Review in WTO Disputes

Andrew T. Guzman (Univ. of California, Berkeley - Law) has posted Determining the Appropriate Standard of Review in WTO Disputes. Here's the abstract:

The WTO's dispute settlement system - and, more particularly, WTO panels and the Appellate Body (AB) - are charged with ruling on the consistency of the actions of WTO Members with the obligations imposed by the WTO Agreements. To do so, panelists and AB judges must first determine the standard of review they are to adopt. A more deferential standard will increase the range of activities that the panel or AB will find permissible, while a more stringent standard will narrow that range. With the exception of the Anti-Dumping Agreement, however, neither the Dispute Settlement Understanding nor the specific WTO Agreements themselves provide much guidance regarding the standard of review that should be applied. Article 11, the key provision in the DSU, leaves a great deal to be worked out in litigation.

Identifying the appropriate standard of review requires a determination as to whether the authority to approve certain decisions lies with the Member State or the judicial organs of the WTO. A deferential standard leaves that authority substantially with the state, while a de novo standard gives the panel that authority.

This paper provides an analysis of the costs and benefits associated with more or less stringent standards of review. It argues that WTO-review is desirable primarily because panels and the AB are able to approach disputed issues without bias. The states involved in a dispute, in contrast, have an incentive to view both facts and law in a way that suits their own objectives. Panels and the AB, however, are poorly positioned, relative to states, to assess the legal, cultural, economic, and political context within states. This inevitability means that, in some cases, it is wise to leave greater discretion to the states. The different abilities of Member States and the judicial organs of the WTO allow us to develop a sense of when the standard of review should be more or less deferential. Where a lack of bias is particularly important and where the issues involved are ones in which a panel can be expected to have great expertise, a more stringent standard of review would be appropriate. Where, on the other hand, a case demands detailed knowledge of events or priorities in a state, the case for a more deferential standard of review is stronger.

After elaborating the above perspective on the appropriate standard of review, the paper then provides several examples of the standards that the panels and the AB should adopt, as well as examples of standards they have actually adopted. Among the disputes considered will be those implicating the SPS Agreement; the Anti-Dumping Agreement; the Safeguards Agreement; the national treatment and most-favored nation obligations; and the general exceptions contained in Article XX of the GATT.

Workshop: Vázquez

Carlos Manuel Vázquez (Georgetown Univ. - Law) will give a talk today at the Georgetown University Law Center Faculty Research Workshop on "Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties."

El Zeidy: The Principle of Complementarity in International Criminal Law

Mohamed M. El Zeidy (Legal Officer, International Criminal Court) has published The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Martinus Nijhoff Publishers 2008). Here's the abstract:

The principle of complementarity is the corner stone for the operation of the International Criminal Court (ICC). It organizes the functional relationship between domestic courts and the ICC. This is the first careful study of the historical antecedents of the principle of complementarity, which has become so central to the operation of contemporary international criminal law. The study draws upon the first efforts at international prosecution, after the First World War, and then traces the evolution of the concept through the drafting of the 1937 treaty on terrorism, and the post-Second World War tribunals. It examines in an exhaustive manner the work of the International Law Commission that led to the drafting of the Rome Statute of the International Criminal Court, up to the deposit of the draft statute with the UN General Assembly in 1994. It considers the travaux préparatoires of the Rome Statute itself, in a most thorough manner. It also examines the post-Rome developments, particularly the original interpretations of the relevant provisions of the Statute by both the Office of the Prosecutor and the Pre-Trial Chambers. This is a study that is of intrinsic historical interest, but also one that may help to guide interpreters of the Statute in the years to come.

Workshop: Cogan

Jacob Katz Cogan (Univ. of Cincinnati - Law) will give a talk today at the Georgetown University Law Center International Legal Theory Colloquium on "Representation and Power in International Organization: The Operational Constitution and Its Critics."

Annual Report of the International Criminal Court

The Annual Report of the International Criminal Court to the United Nations for 2007-2008 is now available. Previous reports can be found here.

New Issue: Revue québécoise de droit international

The latest issue of the Revue québécoise de droit international (Vol. 19, no. 2, 2006) is out. Contents include:

• Rémi Bachand, La critique en droit international: Réflexions autour des livres de Koskenniemi, Anghie et Miéville
• Frédérique Sabourin, Le contrat sans loi en droit international privé
• Yann Joly & Deborah Schorno, Le brevet: Valet ou roi du droit à la santé?
• Kirk Shannon, Passing the Poisoned Chalice: Judicial Notice of Genocide by the ICTR