Saturday, October 4, 2008

Symposium: The Law and Politics of International Delegation

The latest issue of Law and Contemporary Problems (Vol. 71, no. 1, Winter 2008) contains a symposium on "The Law and Politics of International Delegation," edited by Curtis A. Bradley and Judith G. Kelley. Contents include:
  • Curtis A. Bradley & Judith G. Kelley, Foreword
  • Curtish A. Bradley & Judith G. Kelley, The concept of international delegation
  • Karen J. Alter, Delegating to international courts: self-binding vs. other-binding delegation
  • David Epstein & Sharyn O’Halloran, Sovereignty and delegation in international organizations
  • Neil S. Siegel, International delegations and the values of federalism
  • Oona Hathaway, International delegation and state sovereignty
  • Barbara Koremenos, When, what, and why do states choose to delegate?
  • Laurence R. Helfer, Monitoring compliance with unratified treaties: the ILO experience
  • Tim Büthe, The globalization of health and safety standards: delegation of regulatory authority in the SPS Agreement of the 1994 agreement establishing the World Trade Organization
  • Judith L. Goldstein & Richard H. Steinberg, Negotiate or litigate? Effects of WTO judicial delegation on U.S. trade politics
  • Michael J. Tierney, Delegation success and policy failure: collective delegation and the search for Iraqi weapons of mass destruction

Friday, October 3, 2008

Stephan: Open Doors

Paul B. Stephan III (Univ. of Virginia - Law) has posted Open Doors (Lewis & Clark Law Review, forthcoming). Here's the abstract:
The Supreme Court's decision in Medellin v. Texas has attracted great attention and much criticism from international law specialists. It is unclear, however, how much the opinion constrains future judicial decisions. This article addresses two issues that the Court did not resolve. It argues that, as a general manner, the claim that U.S. courts should accord comity to the decisions of international tribunals rests on a false premise, namely that international tribunals have the capacity to engage in reciprocal relations with domestic judiciaries. Second, the Court has not fully considered in what manner a treaty might delegate authority to the Executive to engage in lawmaking, and what factors a court might depend on to determine that such a delegation has occurred.

Withana: Power, Politics, Law: International Law and State Behaviour During International Crises

Radhika Withana (Baker & McKenzie) has published Power, Politics, Law: International Law and State Behaviour During International Crises (Martinus Nijhoff Publishers 2008). Here's the abstract:
This volume addresses the question as to where international law fits into the making and implementation of foreign policy during an international crisis in which a State is considering and/or may actually use force. Empirical literature on the law-State behaviour relationship during international crises has not been able to answer this question adequately. The limitations of existing empirical literature are identified as stemming from the limitations of existing positivist, realist and functionalist theoretical explanations of the law-State behaviour relationship. These theoretical approaches, which underpin existing empirical literature on international crises, assume that international law matches what is referred to in this book as its ‘rule-book’ image. This is the notion of international law as a finite set of objective, politically neutral, rules that can be applied so as to distinguish objectively between legal and illegal action. The rule-book image of international law does not match reality, but the assumption that it is true underpins both theoretical literature and references to international law in political rhetoric. The rule-book image and the reality of international law have been reconciled within the theory of International law as Ideology (ILI) as developed by Shirley Scott. This book hypothesises that an ILI perspective offers a better explanation of the law-State behaviour relationship during international crises than rival explanations grounded in positivism, realism or functionalism. Four case studies of State behaviour—of the US, the Soviet Union and the PRC during the Korean War (1950-1953), of the US and UK during the Suez crisis (1956), of the US and the Soviet Union during the Cuban Missile Crisis (1962) and of the US and an alliance of Latin American States during the Dominican Republic crisis (1965)—are used to test the hypothesis. The findings confirm the greater explanatory efficacy of ILI and demonstrate that the significance of international law to foreign policy decision-making during international crises is more than that of deterring the use of force as is assumed by rival theoretical approaches grounded in a rule-book image of international law. International law is shown to serve as a vehicle for inter-State competition during international crises.

Workshop: Walker

Neil Walker (Univ. of Edinburgh - Law) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on "Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders."

Thursday, October 2, 2008

Stephan: What Story Got Wrong - Federalism, Localist Opportunism and International Law

Paul B. Stephan III (Univ. of Virginia - Law) has posted What Story Got Wrong - Federalism, Localist Opportunism and International Law. Here's the abstract:
In Swift v. Tyson, Justice Story argued that federalization of the law of negotiable instruments was necessary to thwart local courts from adopting rules that favored local interests at the expense of national welfare. Variations of this argument have been embraced by modern proponents of federalizing many aspects of international law, including customary international law. The argument proves too much, and fails to take account conditions where local decisionmakers have an incentive to reach globally optimal outcomes. The law of negotiable instruments illustrates this point: State law now occupies this field but, contrary to Story's concern, the law in the United States is uniform and stable. Two international conventions currently under negotiation, the Hague Child Support Convention and the UNCITRAL Electronic Commerce Convention, provide further examples of cooperation without mandatory federal oversight.

Symposium: Politics and Scale in Boundary-Making

The current issue of the Journal of Historical Geography (Vol. 34, no. 3, July 2008) includes a symposium on "Politics and Scale in Boundary-Making." Contents include:
  • John W. Donaldson, Politics and scale in boundary-making: the work of boundary commissions
  • Richard N. Schofield, Laying it down in stone: delimiting and demarcating Iraq's boundaries by mixed international commission
  • K.J. Rankin, The role of the Irish boundary commission in the entrenchment of the Irish border: from tactical panacea to political liability
  • Nicola C. Guy, Linguistic boundaries and geopolitical interests: the Albanian boundary commissions, 1878–1926
  • John W. Donaldson, Pillars and perspective: demarcation of the Belgian Congo–Northern Rhodesia boundary
  • Lucy Chester, Boundary commissions as tools to safeguard British interests at the end of empire

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 23, no. 9, September 2008) is out.

Engdahl & Wrange: Law at War: The Law as it Was and the Law as it Should Be - Liber Amicorum Ove Bring

Ola Engdahl (Swedish National Defence College) & Pål Wrange (Ministry of Foreign Affairs, Sweden) have published Law at War: The Law as it Was and the Law as it Should Be - Liber Amicorum Ove Bring (Martinus Nijhoff Publishers 2008). Here's the abstract:

The authors of this volume have been inspired by the scholar to which this Liber Amicorum is dedicated - Professor Ove Bring - to look into both the past and the future of international law. Like Ove Bring, they have dealt with many aspects of the law governing the use of force, from arms control to human rights, international criminal law, the UN Charter, and, of course, international humanitarian law. Like Professor Bring, they have allowed themselves to draw trajectories from history and into the future, and have shunned away from neither the controversial nor the speculative, be it on the Middle East, the invasion of Iraq or the independence of Kosovo.

This collection brings together insights from a former UN Legal Counsel, a former Executive Chairman of UNMOVIC, present and former judges of the European Court of Justice, the International Criminal Tribunal for the former Yugoslavia and the International Tribunal for the Law of the Sea, one present and one former member of the International Law Commission, as well as law professors and practitioners, from all Nordic countries, Germany and Australia. Together they form a highly challenging mosaic of perspectives on topical issues like cluster munitions, targeting, human rights in peace operations and the purposes of sentencing in international tribunals.

Wednesday, October 1, 2008

Call for Papers: International Law in the Contemporary World

The Indian Society of International Law will culminate its fiftieth anniversary celebrations with its sixth annual international conference, February 1-4, 2009, in New Delhi. The topic is "International Law in the Contemporary World." The Society is accepting paper proposals on the following themes: (1) The present state and relevance of Public International Law; (2) Issues in Private International Law; (3) The significance and impact of the World Trade Organisation (WTO); (4) the expanding regime of Intellectual Property Rights; and (5) International Arbitration. Details are available here.

WTO Panel Report: United States - Continued existence and application of zeroing methodology

Today, a Panel established by the WTO's Dispute Settlement Body issued its Report on the case United States - Continued existence and application of zeroing methodology (DS350). The European Communities brought the complaint. The full Report can be found here. An excerpt containing just the Panel's conclusions and recommendations can be found here. A summary of the case can be found here.

Workshop: Krisch, McDonald, & Shamir-Borer

Nico Krisch (London School of Economics - Law) & Euan MacDonald and Eran Shamir-Borer (both New York Univ. - Law) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on "Postnational Constitutionalism?" (Krisch) and "Meeting the Challenges of Global Governance: Administrative and Constitutional Approaches" (MacDonald & Shamir-Borer).

Lecture: Crawford on "Continuity and Change in International Dispute Settlement"

James Crawford (Univ. of Cambridge - Law) will deliver the inaugural lecture today to celebrate the launch of the Geneva Master in International Dispute Settlement. His topic is "Continuity and Change in International Dispute Settlement."

Tuesday, September 30, 2008

UN: Security Council Extends Terms of ICTY Judges

Yesterday, the Security Council unanimously adopted Resolution 1837, which extends the terms of office of fourteen permanent and twenty-seven ad litem judges of the International Criminal Tribunal for the Former Yugoslavia. The terms the Tribunal's four permanent judges who sit in the Appeals Chamber were extended through 2010. The terms of the remaining permanent and ad litem judges, all of whom sit in (or may be assigned to) the Trial Chamber, were extended through 2009, or until the completion of the cases to which they are (or may be) assigned if sooner. (UN press release, with the text of the Resolution, here.) The Council's action, which responds to multiple requests by ICTY President Fausto Pocar (here and here), recognizes that the ICTY will not complete all its trials by the end of 2008, as had been envisioned by the Council's completion strategy (see Resolutions 1503 (2003) and 1534 (2004)). Pocar had sought an extension during the summer, but that attempt failed after the representative of the Russian Federation questioned the need to take action at that time, more than a year before the terms expired. The terms of the ICTR's judges were extended in July.

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 77, no. 3, 2008) is out. Contents include:
  • Freya Baetens, Muddling the Waters of Treaty Interpretation? Relevant Rules of International Law in the MOX Plant OSPAR Arbitration and EC Biotech Case
  • Despina Chatzimanoli, Sector-Specific and Public Law Approaches to (International) Regulatory Law: A Rationale for the Combined Use of Global Administrative Law and New Governance as Tools for the New "International" Law
  • Beryl ter Haar, Open Method of Coordination: A New Stepping Stone in the Legal Order of International and European Relations
  • Anja Lindroos & Michael Mehling, From Autonomy to Integration? International Law, Free Trade and the Environment
  • Marion Panizzon, Fairness, Promptness and Effectiveness: How the Openness of Good Faith Limits the Flexibility of the DSU
  • Timothy Webster, East Asia Institutionalises: China, Japan and the Vogue for Free Trade

Mégret: The International Criminal Court and the Failure to Mention Symbolic Reparations

Frédéric Mégret (McGill Univ. - Law) has posted The International Criminal Court and the Failure to Mention Symbolic Reparations. Here's the abstract:
The International Criminal Court (ICC)'s reparations regime seems very geared towards material reparations such as restitution, compensation and rehabilitation. However, a growing number of international instruments, particularly in the human rights field, anticipate that more symbolic forms of reparation such as satisfaction and non-repetition are mandatory. The Article explores what reasons may have led the ICC drafters to not even at least mention symbolic reparations and finds that, apart from a possible trend towards commodification of reparations in general, the perception was probably that only states can grant symbolic reparations, and that ordering individuals to do so might raise human rights problems. None of these arguments are conclusive. Individuals can provide symbolic reparations, and these could be encouraged rather than ordered to avoid the human rights issue. More importantly, the role of the ICC and the Victims Trust Fund will be to use monies as reparation, and nothing will prevent them from using awards so made for symbolic purposes. In fact, strong principle and policy arguments militate in favor of granting a larger role to symbolic reparations in the ICC context, thus helping to make the Court into more of an institution of transitional justice.

Bown: The WTO Secretariat and the Role of Economics in DSU Panels and Arbitrations

Chad P. Bown (Brandeis Univ. - Economics) has posted The WTO Secretariat and the Role of Economics in DSU Panels and Arbitrations. Here's the abstract:
The WTO faces an increasing burden of arbitrating trade disputes between WTO member states. The disputes are economically complex and often lead to rulings that require changes in Members' economic policies. This paper provides a positive and normative analysis of a previously unaddressed question: What roles do economic analysis and economists play in WTO adjudication under the Dispute Settlement Understanding (DSU)? We identify a number of problems with the current Secretariat provision of technical economic support to panellists and arbitrators as well as the sources of these problems - including the small number of professional economists in the Secretariat, the lack of diversity to their fields of specialization, and the ad hoc manner in which they have been integrated into the DSU adjudication process thus far. We also point the Secretariat to useful lessons on transparency and political independence learned from other institutions - e.g., central banks, competition authorities, and national trade remedy investigating agencies - that affect economic policy in similar politically sensitive environments. Finally, given a new mandate from WTO Members that DSU adjudicators have access to more sophisticated technical economic support and expertise, we make a number of proposals for reform.

Monday, September 29, 2008

Reinisch: Standards of Investment Protection

August Reinisch (Univ. of Vienna - Law) has published Standards of Investment Protection (Oxford Univ. Press 2008). Here's the abstract:

Based on a conference held at the University of Vienna by the International Law Association Committee on the Law of Foreign Investment on Standards of Investment Protection, this book examines the growing interest in substantive treatment standards as a result of the increase in investment arbitration proceedings, and focuses on the identification of a possible consensus of interpretation of these substantive treatment standards.

With contributors who are members of the ILA Committee, as well as renowned experts in the field of investment law from academia and practice, this collection examines the increased attention paid in recent years to substantive treatment standards as a result of the growing number of investment arbitration proceedings which have reached the merits stage. ICSID, NAFTA, UNCITRAL and other awards have helped to provide more specific meaning to the general standards of investment protection found in the majority of international investment instruments, in particular in bilateral investment treaties (BITs). It is thus crucial for a deeper understanding of the present law on the treatment of foreign investment to analyze this developing jurisprudence. This book will provide a first-hand road-map of current investment law and bring readers up to date concerning the most recent developments in the field.

Hollis & Newcomer: "Political" Commitments and the Constitution

Duncan B. Hollis (Temple Univ. - Law) & Joshua J. Newcomer (Law Clerk, U.S. Court of Appeals for the Fifth Circuit) have posted "Political" Commitments and the Constitution (Virginia Journal of International Law, forthcoming). Here's the abstract:

This article explores how the Constitution regulates political commitments in light of recent controversies over the formation of a new U.S. security relationship with Iraq. The United States has long used political - or, non-legally binding - commitments as alternatives to its treaties, but the Executive's authority to do so is un-theorized. And, although international law and international relations literature have studied political commitments extensively, conventional wisdom simply assumes that because they are not international law, they are irrelevant to domestic law as well.

This paper challenges such views. We contend that the Constitution regulates the President's ability to form political commitments and provide a comprehensive constitutional analysis to support this position. We offer a functional explanation for why the Constitution should control political commitments, given how their international and domestic functions parallel those of U.S. treaties. In doing so, we offer the first typology of political commitments, differentiating them according to variables of form, substance, organization and autonomy. Assuming the federal government has a political commitment power, we explain why it does not fit neatly under either the treaty-making power or the foreign affairs power more generally. Instead, we look to constitutional text, original meaning, custom, structure, and prudence to construct a discrete Executive power to make political commitments, subject to legislative checks. Ultimately, we provide a framework for evaluating political commitments that can legitimize the Executive's use of political commitments while guiding decisions on when Congress must require information about-or even approval of-them. We conclude by applying our framework to the Iraqi security agreements.

Significant implications flow from recognizing a political commitment power. Recognition legitimizes the vast majority of Executive political commitments that have gone unsubstantiated to date. It prescribes to Congress grounds for acquiring information about U.S. political commitments, and, more infrequently, approving them. Finally, a political commitment power reconciles existing practice with the Constitution's basic rule of law principle, establishing that the Constitution governs all U.S. international agreements, not just some of them.

New Issue: African Journal of International and Comparative Law

The latest issue of the African Journal of International and Comparative Law (Vol. 16, no. 2, September 2008) is out. Contents include:
  • Aldo Chircop, David Dzidzornu, Jose Guerreiro, & Catarina Grilo, The Maritime Zones of East African States in the Law of the Sea: Benefits Gained, Opportunities Missed
  • Cheluchi Onyemelukwe, Research Involving Humans in African Countries: A Case for Domestic Legal Frameworks
  • Erika Conti, The Referendum for Self-Determination: Is It Still A Solution? The Never Ending Dispute Over Western Sahara
  • Ebenezer Durojaye & Annie Muchiri, Addressing the Link Between Gender Inequality and Access to Microbicides in HIV/AIDS Response in Africa
  • Noëlle Quénivet, Girl Soldiers and Participation in Hostilities
  • Rowland J.V. Cole, Determining the Constitutionality of Reverse Onus Clauses in Botswana
  • Edwin C. Mujih, ‘Co-Deregulation’ of Multinational Companies Operating in Developing Countries: Partnering Against Corporate Social Responsibility?

Workshop: Sellers

Tim Sellers (Univ. of Baltimore - Law) will give a talk today at the Georgetown University Law Center International Legal Theory Colloquium on "The Republican Foundations of International Law."

Sunday, September 28, 2008

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 11, no. 3, May 2008) is out. Contents include:
  • Eng Teong See, Revisiting Anticommons and Blockings in the Biotechnology Industry: A View from Competition Law Analysis
  • Carolina Roa-Rodríguez & Thom van Dooren, Shifting Common Spaces of Plant Genetic Resources in the International Regulation of Property
  • Morten Walløe Tvedt & Magnus Finckenhagen, Scope of Process Patents in Farm Animal Breeding

Resolutions of Ratification: Anti-Fouling Convention and Explosive Remnants of War CCW Protocol

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

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

Treaty Transmittal: Agreement on Conservation of Albatrosses and Petrels

On Friday, the President transmitted to the Senate, for its advice and consent to ratification, the Agreement on the Conservation of Albatrosses and Petrels, done at Canberra on June 19, 2001. The transmittal package (Treaty Doc. 110-22) is here. The Agreement, which entered into force on February 1, 2004, was adopted pursuant to the Convention on the Conservation of Migratory Species of Wild Animals. There are currently eleven parties to the Agreement. Additional information is available here.