Thursday, December 31, 2009

New Issue: New York University Journal of International Law and Politics

The latest issue of the New York University Journal of International Law and Politics (Vol. 41, no. 4, Summer 2009) is out. Contents include:
  • Symposium: The Normalizing of Adjudication in Complex International Governance Regimes: Patterns, Possibilities, and Problems
    • Cesare P.R. Romano, Deciphering the Grammar of the International Jurisprudential Dialogue
    • Andrea K. Schneider, Bargaining in the Shadow of (International) Law: What the Normalization of Adjudication in International Governance Regimes Means for Dispute Resolution
    • Anne-Charlotte Martineau, The Politics of Normalization
    • Stephen Vasciannie, The Decision of the Judicial Committee of the Privy Council in the Lambert Watson Case from Jamaica on the Mandatory Death Penalty and the Question of Fragmentation
    • Laurence R. Helfer & Karen J. Alter, The Andean Tribunal of Justice and Its Interlocutors: Understanding Preliminary Reference Patterns in the Andean Community
    • Eyal Benvenisti & George W. Downs, Court Cooperation, Executive Accountability, and Global Governance
    • Ruti Teitel & Robert Howse, Cross-Judging: Tribunalization in a Fragmented But Interconnected Global Order
    • José E. Alvarez, Three Responses to "Proliferating" Tribunals

Symposium: International Criminal Court

The current two issues of the New Criminal Law Review (Vol. 12, nos. 3 & 4, Summer & Fall 2009) contain a symposium on the International Criminal Court. Contents include:

  • Kevin Jon Heller, Introduction
  • Neil Boister, Treaty Crimes, International Criminal Court?
  • Roger S. Clark, Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare
  • Robert Cryer, Royalism and the King: Article 21 of the Rome Statute and the Politics of Sources
  • Jens David Ohlin, Joint Criminal Confusion
  • Elies van Sliedregt, Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense?
  • Mohamed Elewa Badar, Dolus Eventualis and the Rome Statute Without It?
  • Olympia Bekou, A Case for Review of Article 88, ICC Statute: Strengthening a Forgotten Provision
  • Ilias Bantekas, The Need to Amend Article 12 of the ICC Statute: Remedying the Effects of Multilateral Treaties upon Third Parties
  • Cedric Ryngaert, The International Criminal Court and Universal Jurisdiction: A Fraught Relationship
  • Héctor Olásolo, Systematic and Casuistic Approaches to the Role of Victims in Criminal Proceedings Before the International Criminal Court
  • Michael Bohlander, Pride and Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts
  • Kai Ambos, Confidential Investigations (Article 54(3)(E) ICC Statute) vs. Disclosure Obligations: The Lubanga Case and National Law
  • Alexander Zahar, International Court and Private Citizen
  • Göran Sluiter, “I Beg You, Please Come Testify”—The Problematic Absence of Subpoena Powers at the ICC

UPDATE (8:48AM): I just noticed that shortly before I posted the above last night Kevin Jon Heller posted on Opinio Juris an explanation of the genesis of this symposium, which he edited.

Wednesday, December 30, 2009

New Issue: Vanderbilt Journal of Transnational Law

The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 42, no. 5, November 2009) is out. Contents include:
  • N. Jansen Calamita, Sanctions, Countermeasures, and the Iranian Nuclear Issue
  • Kristen E. Eichenseher, Treason in the Age of Terrorism: An Explanation and Evaluation of Treason's Return in Democratic States
  • Simon Chesterman, UNaccountable? The United Nations, Emergency Powers, and the Rule of Law
  • Rafael Domingo, The Crisis of International Law

Curci: The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property

Jonathan Curci has published The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property (Cambridge Univ. Press 2010). Here's the abstract:
The relationships between international intellectual property treaties, the United Nations international environmental treaties (first and foremost the Convention on Biological Diversity), the relevant customary norms and soft law form a complex network of obligations that sometimes conflict with each other. The first set of treaties creates private rights while the latter affirms the sovereignty rights of States over genetic resources and related knowledge and creates international regimes of exploitation of the same. Jonathan Curci proposes solutions to the conflicts between treaties through the concept of ‘mutual supportiveness’, including the construction of a national-access and benefit-sharing regime, mandatory contractual provisions in relevant international contracts, a defensive protection when genetic resource-related traditional knowledge is unjustly patented through the analysis of the concepts of ‘ordre public and morality’, ‘certificate of origin’ in the patent application and ‘novelty-destroying prior art’ and positive protection through existing and sui generis intellectual property rights and misappropriation regimes.

Tuesday, December 29, 2009

Lavranos: On Misguided Judicial Deference by the ECJ and ECRTHR

Nikos Lavranos (The Hague Univ. - Law) has posted On Misguided Judicial Deference by the ECJ and ECRTHR (in Dispute Resolution, C. Baudenbacher ed., German Law Publishers, 2009). Here's the abstract:
This contribution analyzes several cases in which both the ECJ and ECrtHR showed a misguided deference by not actually deciding the case but rather rendering unconvincing judgments. It is argued that in highly sensitive case, courts should instead refuse to be abused by parties for resolving disputes that should rather be solved by political decisions.

Delassus: Du droit applicable à bord de la Station Spatiale Internationale

Sylvain Delassus has published Du droit applicable à bord de la Station Spatiale Internationale (Persée 2009). Here's the abstract:
Le droit de la Station Spatiale Internationale est inscrit dans " l'Accord entre le Gouvernement du Canada, les membres de l'Agence Spatiale Européenne, le Gouvernement du Japon, le Gouvernement de la Fédération de Russie et le Gouvernement des Etats-Unis d'Amérique sur la coopération relative à la Station Spatiale Internationale Civile ". Daté de 1988, cet Accord ne sera finalisé qu'en 1998 et concrétisé en 2004. Ce droit - d'essences intergouvernementale et conventionnelle - se place dans la lignée du droit onusien d'inspiration juridique maritime, ou sous l'édiction de droits nationaux variés.

Milanović: The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity

Marko Milanović (Belgrade Centre for Human Rights) has posted The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity (Goettingen Journal of International Law, Vol. 1, No. 3, p. 519, 2009). Here's the abstract:
The article provides a critical review of the Human Rights Committee's views in Sayadi v. Belgium, a case dealing with United Nations Security Council (UNSC) terrorist blacklists. The case raised many complex issues of international law, most notably the question whether UNSC resolutions can prevail over human rights treaties by virtue of Art. 103 of the UN Charter. This issue – one of truly fundamental importance – has cropped up in several important recent cases which either addressed it or avoided it, including Kadi before the courts of the European Union, Al-Jedda before the UK House of Lords, and Behrami before the European Court of Human Rights. Regrettably, the Committee's decision did not do justice to the complexity and the gravity of the matters raised before it, as it failed to tackle the norm conflict issue head on and ignored the Charter's supremacy clause altogether. Such an approach advances neither the cause of human rights, nor the coherence of international law as a legal system.

Monday, December 28, 2009

Martha: Tax Treatment of International Civil Servants

Rutsel Silvestre J. Martha (General Counsel, International Fund for Agricultural Development) has published Tax Treatment of International Civil Servants (Martinus Nijhoff Publishers 2010). Here's the abstract:
What sets the tax treatment of the international civil servants apart are the legal considerations derived from public international law. Often the matter is approached from the perspective of privileges and immunities. However, when regarded as a concern with the equal pay for equal work it boils down to employment conditions that need to be satisfied by international organisations due to the peculiar legal setting in which international civil servants discharge their duties. By adding a perspective from the jurisprudence of international (administrative) tribunals to the current scholarship, the present study – the first of its kind - purports to contribute to a better understanding of the matter of taxation of the salary, emoluments and pensions of employees of international organizations.

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 13, no. 5, 2009) is out. Contents include:
  • S. Eban Ebai, The right to self-determination and the anglophone Cameroon situation
  • Omer Yousif Elagab, Indicting the Sudanese President by the ICC: Resolution 1593 revisited
  • Sonja Grover, Child rape as a crime against humanity: challenging the United States Supreme Court reasoning in Kennedy v. Louisiana
  • Ron House, The death penalty and the Principle of Goodness
  • Mike A. Yanou, The local courts, decentralisation and good governance: the case of the English speaking provinces of Cameroon
  • Emilie Secker, Expanding the concept of participatory rights
  • Biswajit Ghosh, Trafficking in women and children in India: nature, dimensions and strategies for prevention

Sunday, December 27, 2009

Stewart & Sanchez Badin: The World Trade Organization and Global Administrative Law

Richard B. Stewart (New York Univ. - Law) & Michelle Ratton Sanchez Badin (FGV - São Paulo Law School) have posted The World Trade Organization and Global Administrative Law (in Constitutionalism, Multilevel Trade Governance and Social Regulation, Christian Joerges & Ernst-Ulrich Petersmann eds.). Here's the abstract:
In response to demands for greater accountability and responsiveness in global regulatory governance, global administrative law (GAL) decision-making mechanisms of transparency, participation, reason giving, and review have emerged in many global regimes, the WTO system. This paper shows how three aspects of the WTO regime can fruitfully be understood and evaluated in terms of administration and administrative law. With respect to the WTO’s internal governance, the paper argues that simultaneously strengthening the WTO administrative bodies and subjecting them to GAL procedural disciplines would establish better internal institutional balance and enhance the organization’s effectiveness and legitimacy. With respect to the vertical relation between the WTO and its members, it shows how the WTO has secured far reaching adoption of GAL disciplines by domestic regulatory administrations, to the benefit of foreign but also of domestic interests. With respect to the horizontal dimension of the WTO’s relation with other global standard-setting bodies, it argues that the WTO should make compliance with GAL procedures a condition for according WTO recognition to such bodies’ regulatory standards. The paper concludes that, overall, the application of GAL mechanisms to these different facets of trade regulatory decision making will promote accountability and responsiveness to a broader range of interests and a more cosmopolitan normative perspective. It further concludes, from the perspective of legal theory, that GAL is a more suitable and productive conceptual framework for addressing the legal dimensions of global regulatory governance than constitutionalism and other alternatives.

Friday, December 25, 2009

Job Opening: Sciences Po (Professor)

Sciences Po's School of Law is seeking to hire a full professor in international economic law. Here's the advertisement:

Sciences Po's School of Law is seeking to recruit a full professor in "international economic law" for a public‐sector teaching position.

The successful applicant will be required to teach in the School of Law and the Sciences Po undergraduate program. He/she will pursue his/her individual research activities as part of the School of Law's research team in the field of international economic law and the relations between globalization and law.

Applicants must provide proof of substantial research activity at an internationally recognized level of excellence in the field of international law and, more particularly, international economic law in a global environment and the theory of legal globalization phenomena. They must be open to multidisciplinary approaches to the law and will have demonstrated a capacity to coordinate research with academics in fields other than law. The originality and anticipated scope of the research project and the methods employed will be an important criterion of selection.

The successful candidate will be required to contribute to the development of the School of Law's international relations and to assume responsibilities in the teaching of economic law. He/she must have demonstrated a capacity to develop cooperation agreements with partners outside Sciences Po.

Applicants must have solid experience in teaching and will have demonstrated a capacity for innovative teaching methods. They must be able to teach in English.

This is a public‐sector position and civil‐service posting. The successful applicant will have the status of professor of public law (section 02 of the Conseil national des universités ‐ CNU).

The application must consist of:

  • a cover letter explaining reasons for applying;
  • a detailed CV with a complete list of the candidate's research work;
  • a short CV;
  • two examples of the candidate's main research work demonstrating his/her aptitude for fundamental and multidisciplinary research.

A selection committee will examine these documents in accordance with the provisions of French law no. 2007‐1199 of 10 August 2007 relating to public‐sector teaching positions.

For further information, please contact Edith Chabre : edith.chabre@sciences‐

Call for Papers: Ruptures in International Law

The Interest Group on Legal Theory of the European Society of International Law has issued a call for papers for a workshop, to be held in coordination with the Society's Fourth Biennial Conference, September 1-2, 2010, in Cambridge. The topic is "Ruptures in International Law." Here's the call:

Ruptures in International Law

A Workshop of the European Society of International Law Interest Group on Legal Theory

1 and 2 September 2010 - Cambridge

Call For Papers – Deadline Monday 15 February 2010

The Interest Group on International Law Theory would like to invite abstracts for papers and expressions of interest for a reading roundtable.

Workshop Topic

Ruptures in/of International Law

Rupture (n): 1. a. Breach of a covenant, intercourse, or the peace. b. A breach of harmony or friendly relations between two persons or parties. c. Breach of continuity; interruption. d. The act of breaking out into arms. … 3. a. A break in a surface or substance, such as the skin, flesh, etc. b. A break in the surface of the earth, etc.; a ravine, chasm, gorge, rift. 4. The act of breaking or bursting; the fact of being broken or burst. Rupture (v): 1. a. To break, burst … b. To cause a breach of; to sever….. 2. intr. To suffer a break or rupture. [From the Oxford English Dictionary]

Has international legal theory experienced rupture during the period 1989-2010? If so, how have these ruptures been expressed, understood and/or taken account of theoretically? How (if at all) have significant ruptures documented in intellectual, institutional and political history affected theoretical discourses in and about international law? In particular, what, if any, ruptures were effected in international legal theory by or in connection with events of 1989? When and how (if at all), and with what implications, has theoretical inquiry or critique ruptured established trajectories of international legal thought during the past two decades? What are the implications of approaching and/or appraising international legal scholarship by reference to supposed watersheds or instances of rupture?

Abstracts should be around 500 words in length. Papers will be selected by the organising committee of the IGILT by a blind process based on the abstracts.

Please provide a one page CV with your abstract listing affiliation/position/enrolled course, (selected) publications or conference presentations. (Please include the title of your abstract in your CV document for identification).

Presenters may be asked to provide papers in advance of the workshop to allow for the chair to provide a substantive commentary on the papers.

Reading Roundtable

Expressions of interest are sought for participants for a ‘reading roundtable’ to be held at the IGILT workshop. Roundtable participants should come having read the nominated book, and ready to discuss it, relating it to international law, to their own work and/or to the wider themes of the workshop. The chair will lead a discussion initially involving the participants, and then the wider audience.

Attendance at the roundtable will be open to everyone at the workshop. All those attending the workshop, and who would like to come to the roundtable are encouraged to read the book in advance.

Expressions of interest for the reading roundtable should include a short statement of research interests (around 500 words), current position/course and a list of publications. The committee particularly encourages EOI’s from graduate students and newer scholars.

The selected book is:

Claude Lefort, Complications: Communism and the Dilemmas of Democracy (Columbia University Press, 2007)

Abstracts and EOI’s should be sent to by Monday 15 February 2010.

You don’t need to be a member of the IGILT to participate in the workshop.

However you are welcome to join by emailing To join the IGILT, you need to be a member of ESIL-SEDI.

IGILT Organising Committee:

Aeyal Gross, Jörg Kammerhofer, Fleur Johns, Ignacio de la Rasilla, Sundhya Pahuja, Akbar Rasulov, Tim Sellers, Umut Özsu

Call for Papers: Fairness in International Environmental Law

The Interest Group on International Environmental Law of the European Society of International Law has issued a call for papers for its first workshop, to be held during the Society's Fourth Biennial Conference, September 2-4, 2010, in Cambridge. The topic is "Fairness in International Environmental Law." Here's the call:

The Interest Group on International Environmental Law is pleased to announce that its first workshop will take place during the Fourth Biennial Conference of the European Society of International Law in Cambridge (2-4 September 2010). The IGIEnvL convenors hereby invite the submission of abstracts on the theme of « Fairness in International Environmental Law ».

1. Theme Statement: Fairness in International Environmental Law

International Environmental Law (IEL) has always been a contested project. Ever since its emergence as an autonomous body of law, and perhaps more than any other branch of international law, IEL has had to face charges that it is a political move intended to ‘fix’ the mistakes of industrialized nations at the expense of developing countries. Today, the difficult road to the Copenhagen Climate Change Summit provides a very visible and vivid reminder of the conflicting attitudes of the North and the South towards international environmental regimes. Although interdependence creates the incentive to cooperate, IEL continues to be riddled by controversies over the fair distribution of costs, resources, risks and responsibilities.

However, whilst IEL has long acknowledged the reality of these competing claims, fairness tends to remain a somewhat secondary concern, overtaken by what often seems to be more pressing issues of effectiveness and enforcement. The accepted disciplinary wisdom seems to be that IEL has reached a certain degree of normative maturity, and that what is now required is more obedience and better compliance. In other words, whilst IEL continues to be criticized for its ‘softness’, there is little suggestion that the normative blueprint itself needs rethinking and reforming. The objective of this workshop is to explore the role of fairness – actual or potential – in the evolution and development of IEL, and to consider ways in which existing norms, processes and institutions can be revisited to address issues of fairness on the global stage.

2. Structure of the Workshop

The theme of fairness will be explored in the context of two complementary panels, followed by a keynote address by an invited speaker.

Panel 1: Theory, Practice and Discourse of Fairness in International Environmental Law

Fairness – like related notions of equity, legitimacy and justice – is ambivalent and can mean all things to all people. The first panel will seek to disentangle and explore the various theoretical dimensions of fairness, as well as some concrete manifestations of fairness in existing international regimes. Papers are invited to address these issues along the following lines of inquiry:

Defining the Fairness Imperative

Why does fairness matter? What does it mean as a philosophical concept? Is it any different from equity, legitimacy or justice? Is fairness better understood as a principle of retributive justice (fairness as redress for the wrongs of the past) or as a principle of distributive justice (fairness as a need-based or capacity-based burden sharing principle)? Are there non-distributional ways of thinking about fairness? How does fairness relate to notions of compliance and effectiveness? Are proto-concepts like ‘sustainable development’ or ‘common but differentiated responsibilities’ useful tools for understanding and addressing problems of fairness?

Faces and Spaces of Fairness

What are the different ways – substantive, procedural or otherwise – in which an environmental regime can be made to be fair? How can the fairness of environmental decision-making be improved? What does fairness mean in relation to the concrete implementation of environmental norms? The traditional focus is on the fairness of multilateral environmental regimes, but what can be done to achieve greater fairness in relation to unilateral environmental measures? Other than through differential treatment, how does/should international law recognize and accommodate the special needs and interests of developing countries? What are some of the proposals put forward by governments, civil society or other actors in this regard? How can they be implemented in practice?

Narratives of Fairness

How, historically, have problems of fairness been framed by developing countries? What strategies – narrative, normative, institutional or otherwise – has the Third World used to oppose and/or transform the (Western) environmental agenda? Is there such a thing as a ‘Third World Approach’ tofairness in IEL? Can IEL be an instrument of distributive justice when it continues to be built around legal categories (state, consent, sovereignty, territory etc.) which have historically been used to justify subordination of the Third World by the West? Rather that conceptualizing fairness in relation to States (developed v. developing), should we ask what international law can do to protect – or more importantly perhaps – to empower vulnerable communities? Is there a danger in antagonizing ‘the West v. the Rest’ when urgent measures are required to address environmental crises?

Panel 2: Making Fairness a Reality in the International Regime on Climate Change

The second Panel will serve to illustrate the theoretical issues raised in PANEL 1 and update the debate on the role of fairness in IEL in the specific context of the climate change regime. In particular, we invite papers to study the configuration and outcome of the United Nations Climate Change Conference to be held at Copenhagen (December 2009) around the following lines of thinking:

Competition of Objectives: Fairness vs. Effectiveness in the International Regime on Climate Change

Are the two notions of fairness and effectiveness mutually exclusive? Is it suitable to advocate in favour of a value such as the notion of fairness in an inherently heterogenic society as the international community? When put into practice, is there a danger that ‘soft’ considerations of fairness might lose out against the ‘hard’ reality of economics and efficiency? To what extend does the choice of making efficient market instruments at the heart of climate change negotiations support industrialised nations’ perspective? Can market-based international climate change policies integrate developing countries’ concerns?

Fairness in the Allocation of Climate Change Burdens (Mitigation Strategies)

Does the carbon market provide for a fair distribution of the burdens of climate change mitigation strategies? To what extend does the distribution of emissions rights reflect the perspective of nonAnnex I countries? Would the imposition of binding obligations on developing countries make the climate change regime fairer or will it lead to a more unbalanced regime? How might developing countries participate in it (e.g. reformed CDM, voluntary or regulatory REDD financial mechanism, nationally appropriate measures, etc.)?

Fairness in the Distribution of Climate Change Effects (Adaptation Mechanisms)

Taking into account that the impact of climate change across nations is independent of their emissions profile, are the existing mechanisms of adaptation, financing and transfer of technologies sufficient to handle the special vulnerability of developing countries? Do these tools help bring about intragenerational equity? What are the main challenges ahead? How should we strike the balance between the needs of the present generations and those of future generations in the context of adaptation? Does the principle of common but differentiated responsibilities adequately reflect developed countries’ historical responsibility for the problem (intergenerational equity)?

3. Application Process

Papers presented at the workshop will be selected through a competitive process. The selection process will be based exclusively on scholarly merit and priority will be given to unpublished papers and work in progress. We welcome proposals from professionals, academics and graduate students, and remain open to proposals which may challenge the importance given by this workshop to the notion of fairness as a central issue in the future development of IEL.
Each submission should include the following:

  • An abstract of no more than 700 words in English or French, specifying the panel for which it is intended.
  • A short CV in English or French.

Applications should be submitted to both and, in WORD (version 1999-2007) or PDF format. Please write “Proposals 2010 Cambridge Workshop” in the subject of the email.

4. Deadline

The deadline for submission of proposals is Monday, 8 February 2010. The outcome of the selection process will be notified to all applicants by Monday, 1 March 2010. After selection, each presenter will be expected to produce a draft paper by Monday, 12 July 2010 for circulation among the other workshop participants.

5. Publication

Publishers have already expressed an interest in publishing the proceedings of the workshop in an edited volume. The organisation reserves itself the right to publish the selected papers. Before publication, all papers will be submitted to peer-review.

6. Inquiries

For all inquiries, please contact Mario Prost at or Alejandra Torres Camprubi at

Thursday, December 24, 2009

Stewart: GMO Trade Regulation and Developing Countries

Richard B. Stewart (New York Univ. - Law) has posted GMO Trade Regulation and Developing Countries (in Acta Juridica and Global Administration Law, Innovation and Development, Hugh Corder ed., 2009). Here's the abstract:
International and domestic regulatory and trade law and policy governing GMO crops and foods produced through genetic engineering poses a variety of sharp challenges for developing countries. Many developing countries, including Argentina, Brazil, China, and South Africa, are making wide use of GMO plants for food and cotton. Highly restrictive environmental, health and safety regulation of GMO foods in Europe, Japan, Korea and other countries poses a serious threat to these countries’ agricultural exports and deters other developing countries from adopting GMO crops, notwithstanding their potential economic, environmental, and food security advantages. Yet other developing countries want to prohibit or restrict GM crops because of environmental, economic, and social concerns. This article examines the different policies adopted by different developing and developed countries regarding GMOs and the international trade conflicts that have resulted, including the “GM Cold War” between the pro-GMO US and the GM skeptic EU. It examines how international regulatory regimes, including the WTO, the Codex Alimentarius, and the Biosafety Protocol, have sought to manage these conflicts. It also considers the complex implications of international regulatory law for developing countries, including the implications of the WTO panel decision in EC Biotech, finding aspects of European GMO regulation contrary to WTO disciplines. The article argues that developing countries, including those that favor greater reliance on GM crops, should organize to exert a greater influence on global GM trade regulatory policies rather than being held hostage to US-EU conflicts.

Simmons: Civil Rights in International Law: Compliance with Aspects of the ‘International Bill of Rights’

Beth A. Simmons (Harvard Univ. - Government) has posted Civil Rights in International Law: Compliance with Aspects of the ‘International Bill of Rights’ (Indiana Journal of Global Legal Studies, Vol. 16, no. 2, pp. 437-481, July 2009). Here's the abstract:
International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-a-vis their own governments. This paper discusses the development of aspects of international law relating to civil rights, and argues that if this body of law is meaningful we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because not generally in the interest of potential "enforcers"), I argue that international civil rights treaties will have their greatest effect where stakeholders - local citizens - have the motive and the means to demand treaty compliance. This is most likely to be the case not in stable autocracies, where such demands are likely to be crushed, nor in stable democracies, where the motive to mobilize is attenuated due to rights saturation, but in transitional countries where the expected value of mobilization is maximized. Thus, I test the hypothesis that the International Covenant on Civil and Political Rights is likely to have its greatest positive effects in transitional countries - those that have had some fleeting experience with democratic governance. This proposition is tested quantitatively with indicators for freedom of religious practice and fair trials. The proposition is weakly supported by extremely stringent statistical models that control for the endogeneity of the treaty commitments, country and year fixed effects, and other obvious influences on civil rights practices. I conclude that the International Bill of Rights has the power to influence the direction of rights practices in fluid political situations, but cannot magically transform autocracies into liberal guarantors of civil liberties. Still, these effects are important, and the most we can expect from scraps of paper which the international community has been reluctant to enforce.

Wednesday, December 23, 2009

Glennon: The Blank-Prose Crime of Aggression

Michael J. Glennon (Tufts Univ. - Fletcher School) has posted The Blank-Prose Crime of Aggression (Yale Journal of International Law, forthcoming). Here's the abstract:
A review conference to be convened in May, 2010, will consider an amendment to the treaty establishing the International Criminal Court that would define the crime of aggression and make that crime prosecutable before the Court. The proposed definition would, this article argues, constitute a crime in blank prose, one that would, in its disregard of the international principle of legality and related constitutional prohibitions against vague and retroactive criminal punishment, run afoul of basic international human rights norms and U.S. domestic guarantees of due process. Repeated efforts to define aggression foundered throughout the 20th century for good reason: no consensus existed then or now as to what the term means, at least not at the level of specificity needed to impose individual criminal liability. Prosecution under the ambiguous definition that is proposed would turn upon factors that the law does not delineate, rendering criminal liability unpredictable and undermining the law’s integrity. The definition is, moreover, so broad in its potential reach that, had it been effect for the last several decades, every U.S. president since John F. Kennedy, hundreds of American legislators and military leaders, as well as innumerable foreign military and political leaders could have been subjected to prosecution. These difficulties would be magnified by including the roulette wheel that is the United Nations Security Council in the decision to prosecute, as some have urged. Excluding the Council, on the other hand, would create an irresolvable conflict with the Charter. That the United States is not a party to the treaty does not render all this academic: it is possible that U.S. military and political leaders could still be prosecuted for the crime of aggression even if the United States continues to refuse to join.

New Issue: Transnational Dispute Management

The latest issue of Transnational Dispute Management (Vol. 6, no. 4, December 2009) is out. This is a special issue on "Latin America." The table of contents is available here.

Cooke: Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence under the Laws of War

Peyton Cooke (Univ. of Alabama - Law) has posted Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence under the Laws of War (Univ. of San Francisco Law Review, forthcoming). Here's the abstract:
Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to work for even more reform. This paper addresses the roots and effects of such changes. It begins by defining its key term - legal cosmopolitanism - with reference to a wide variety of legal materials, from Eric Posner, the European Court of Human Rights, and others. The paper attempts to illuminate that term’s core parts: a belief in an expanded United States demos, and preference for judicial over political power. The paper then continues with a survey of intelligence law. It illuminates the assumptions of a limited demos and unfettered executive that have until recently underlay intelligence law domestically, and goes on to establish that, in the long history of intelligence, no international law standard has heretofore been successfully applied to these operations. Thus legal cosmopolitanism and intelligence seem opposed, one attempting to expand the demos, with the other depending to some extent on limiting the demos. Nevertheless, recent executive and judicial actions affecting intelligence law have displayed strong and recognizable cosmopolitan underpinnings. The aforementioned executive orders, district court decisions, and policy positions reinforce this point, as a thorough survey of them reveals. Moreover, the history of similar legal initiatives in the uniformed military and elsewhere indicates that United States intelligence agencies will likely instantiate changes beyond even what the executive and courts require. Finally, the paper will conclude by suggesting that we view these changes - and the legal revolution they promise - skeptically. Intelligence has always operated apart from the law. If we bring intelligence operations within the law, they may no longer be able to protect us from what lurks without.

Leal-Arcas: The Multilateralization of International Investment Law

Rafael Leal-Arcas (Queen Mary Univ. of London - Law) has posted The Multilateralization of International Investment Law (North Carolina Journal of International Law and Commercial Regulation, Vol. 35, no. 1, pp. 133-235, 2009). Here's the abstract:
This article explores whether a multilateral investment treaty is necessary and possible in the framework of foreign direct investment (FDI) law or whether the current multifaceted and multilayered system of bilateral and regional investment agreements should be retained. This article aims to study existing investment regimes with a view toward creating a multilateral investment framework. This goal, however, does not suggest that current bilateral and regional investment regimes should be replaced or that the existing regimes are inadequate. The article analyzes foreign direct investment from an economic, development, and political perspective. The article then reviews the chronological evolution of FDI regulation, followed by an overview of the current principles and rules of FDI. As a necessary next step, the article examines the support for a multilateral investment framework. The main reasons behind such a framework are twofold: the current fragmented international investment regime may encourage regulatory competition among the various models of international investment agreements; and investor-state arbitration is causing issues of inconsistency of arbitral awards as well as forum shopping in dispute resolution. Finally, the article identifies policy considerations for a future multilateral investment framework. The article concludes that the World Trade Organization (WTO) has the opportunity here to incorporate years of experience of bilateral and regional investment agreements and develop a multilateral agreement for investment. Such an agreement in the WTO context would not replace current investment regulatory regimes, but could clarify the relationship among the General Agreement on Trade in Services, the Agreement on Trade-Related Investment Measures, and bilateral investment treaties.

Tuesday, December 22, 2009

New Issue: Journal of International Trade Law and Policy

The latest issue of the Journal of International Trade Law and Policy (Vol. 8, no. 2, 2009) is out. Contents include:
  • Marcelo D. Varella, The effectiveness of the Dispute Settlement Body of the World Trade Organization
  • Mohammad Masudur Rahman & Laila Arjuman Ara, Trade in financial services in developing countries: a case of the Bangladesh financial sector
  • Muhammad Abu Sadah, Philosophical basis of the legal theory underlying international commercial arbitration in the Middle East region
  • Teshager Dagne, Building on the Canadian approach to resolve the stalemate on the trade and environment agenda in the World Trade Organization
  • Ayse Evrensel, Effectiveness of economic cooperation between the EU and the ACP countries

de Búrca: The EU in the Negotiation of the UN Disability Convention

Gráinne de Búrca (Fordham Univ. - Law) has posted The EU in the Negotiation of the UN Disability Convention (European Law Review, forthcoming). Here's the abstract:
The UN Convention on the Rights of Persons with Disabilities (CRPD) is a novel and ambitious human rights treaty which entered into force in 2008. Amongst its many interesting features are two of particular relevance to the European Union. The first is its strikingly ‘experimentalist’ architecture, to use the term coined by Charles Sabel and Jonathan Zeitlin in describing EU governance, and the second is the fact that this was the first occasion on which the European Community, as it then was, participated in the drafting and signing of an international human rights treaty. This article examines the role played by the EC in the process of negotiating the CRPD and considers whether or not the EU significantly influenced the experimentalist character of the Convention. It concludes that while the EU was, on the whole, an active and supportive participant in the drafting process, the Convention’s experimentalist character was driven by other factors, in particular by the central role of NGOs and other non-state actors in the negotiation process. The EU, on the other hand, strove mainly to promote the adoption of its own internal model of disability discrimination at the international level.

Monday, December 21, 2009

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 10, no. 5, October 2009) is out. Contents include:
  • Ursula Kriebaum, Human Rights of the Population of the Host State in International Investment Arbitration
  • M. Rafiqul Islam & Md. Rizwanul Islam, The Global Food Crisis and Lacklustre Agricultural Trade Liberalisation: Demystifying their Nexus Underpinning Reform
  • Jan Schokkaert & Yvon Heckscher, Protected Investors Nationality
  • Mary B. Ayad, International Commercial Arbitration Award Enforcement at the Crossroads of Sharia Law and Orden Public in the MENA: Paving the Golden Path towards Harmonisation
  • Paolo Vargiu, Beyond Hallmarks and Formal Requirements: a "Jurisprudence Constante" on the Notion of Investment in the ICSID Convention
  • The 14th Geneva Global Arbitration Forum
    • Jacques Werner, Foreword
    • Charles C. Adams, Will State Emergency Measures Trigger WTO Disputes
    • Stuart Harbinson, Gary Horlick, & Jayashree Watel, What Prospects Exist for Reforming the Dispute Settlement System of the WTO - Professional Panellists, Retroactive, Remedies, Monetary Compensation?

Ginsburg: Eastphalia as a Return to Westphalia

Tom Ginsburg (Univ. of Chicago - Law) has posted Eastphalia as a Return to Westphalia (Indiana Journal of Global Legal Studies, forthcoming). Here's the abstract:
Prognosticators of the international scene have focused on two claims on which there is broad agreement: First, globalization is producing deep integration among nations, moving in the direction of quasi-constitutional global governance; and, second, Asia will significantly influence the world in decades to come. These two claims are in tension with each other. Asian countries have hardly been leaders in deep integration of the constitutionalist variety, though they have been effective participants in globalized markets. Projecting forward, one expects an Asia-dominated international law to emphasize traditional concerns of sovereignty, non-interference, and mutual cooperation rather than the constitutionalist vision of supranational institutions reaching deep into the way states govern themselves and treat their own populations. Eastphalia may be Westphalia without the universalism—a kinder, gentler Westphalia.

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 23, no. 1, Spring 2008) is out. Contents include:
  • Stephen M. Schwebel, A BIT about ICSID
  • Ben Juratowitch, The Relationship between Diplomatic Protection and Investment Treaties
  • Ucheora Onwuamaegbu, Using Treaties to Define Rules of Procedure in Investor-State Arbitration: The CAFTA Example
  • Anthony C. Sinclair, ICSID's Nationality Requirements
  • Gaëtan Verhoosel, Annulment and Enforcement Review of Treaty Awards: To ICSID or Not to ICSID

Sunday, December 20, 2009

Symposium: Nuclear Weapons and International Law: A Nuclear Nonproliferation Regime for the 21st Century

The Fordham International Law Journal will host a symposium on "Nuclear Weapons and International Law: A Nuclear Nonproliferation Regime for the 21st Century," February 25, 2010, in New York City. Topics will include: The 2010 Nuclear Nonproliferation Treaty (NPT) Review Conference; International Law and the Nuclear Deterrent; Nuclear Weapons Policies and Practices of Today’s Nuclear Weapons States; Proliferation Threats in North Korea, Iran, and Syria; The Obama Administration’s Nuclear Posture Review; and Nuclear Deterrence in the Age of Al-Qaeda and “Rogue” States. A full program is not yet available online.

Saturday, December 19, 2009

Ginsburg & Shaffer: How Does International Law Work: What Empirical Research Shows

Tom Ginsburg (Univ. of Chicago - Law) & Gregory Shaffer (Univ. of Minnesota - Law) have posted How Does International Law Work: What Empirical Research Shows (in Oxford Handbook of Empirical Legal Studies, forthcoming). Here's the abstract:
This paper for the Oxford Handbook of Empirical Legal Studies (forthcoming 2010) assesses what empirical research shows in response to three questions concerning international law: (i) why international law is produced and invoked; (ii) how international law is produced; and (iii) how and under what conditions international law matters. For each of these questions, we contend that understanding state behavior requires “unpacking” the state and exploiting variation at the national and subnational level. For example, we find that most empirical work indicates that international law’s impact varies in light of such factors as the situation of the state in question (including its regime type and level of wealth); the congruity of the issue with domestic political contests; and the role of intermediaries such as government elites or civil society in conveying international law norms into domestic systems. We assess variation between different areas of international law, since different actors and institutions are present, and distinct processes and mechanisms are used in areas ranging from international human rights and criminal law to international trade, investment, and regulatory law.

Friday, December 18, 2009

New Issue: Göttingen Journal of International Law

The latest issue of the Göttingen Journal of International Law (Vol. 1, no. 3, 2009) is out. Contents include:
  • Marco Benatar, The Use of Cyber Force: Need for Legal Justification?
  • Marie-José Domestici-Met, Humanitarian Assistance Looking for a Legal Regime Allowing its Delivery to Those in Need Under any Circumstances
  • Jiaxiang Hu, Market Access or Market Restrictions - Analysis on the Regulations of PRC on Administration of Foreign-funded Banks
  • Nele Matz-Lück, Framework Conventions as a Regulatory Tool
  • Cornelia Janik & Thomas Kleinlein, When Soering Went to Iraq . . . : Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights’ Al-Saadoon Case
  • Marko Milanovic, The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity
  • Kenneth Anderson, Does Anyone Really Want a Parliament of Man?

New Issue: Journal of International Economic Law

The latest issue of the Journal of International Economic Law (Vol. 12, no. 4, December 2009) is out. Contents include:
  • Debra P. Steger, The Future of the WTO: The Case for Institutional Reform
  • Robert Wolfe, The WTO Single Undertaking as Negotiating Technique and Constitutive Metaphor
  • Anne van Aaken & Jürgen Kurtz, Prudence or Discrimination? Emergency Measures, the Global Financial Crisis and International Economic Law
  • Bradly J. Condon, Climate Change and Unresolved Issues in WTO Law
  • Ilona Cheyne, Proportionality, Proximity and Environmental Labelling in WTO Law
  • Erich Vranes, The WTO and Regulatory Freedom: WTO Disciplines on Market Access, Non-Discrimination and Domestic Regulation Relating to Trade in Goods and Services
  • Arie Reich, The New Text of the Agreement on Government Procurement: An Analysis and Assessment
  • Susy Frankel, Challenging Trips-Plus Agreements: The Potential Utility of Non-Violation Disputes

Bradley & Gulati: Withdrawing from International Custom

Curtis A. Bradley (Duke Univ. - Law) & G. Mitu Gulati (Duke Univ. - Law) have posted Withdrawing from International Custom. Here's the abstract:
Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to unilaterally withdraw from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (“CIL”), a proposition that we refer to as the “Mandatory View.” It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL. In this Article, we consider both the intellectual history and functional desirability of the Mandatory View. We find that many international law publicists of the eighteenth and nineteenth centuries thought that CIL rules were sometimes subject to unilateral withdrawal, at least if a nation gave notice about its intent. We also find that the Mandatory View did not come to dominate international law commentary until sometime in the twentieth century, and even then there were significant uncertainties about how the Mandatory View would work in practice. After reviewing this history, we draw on theories developed with respect to contract law, corporate law, voting rules, and constitutional design to consider whether it is functionally desirable to restrict opt out rights to the extent envisioned by the Mandatory View. We conclude that, although there are arguments for restricting opt out in select areas of CIL, it is difficult to justify the Mandatory View as a general account of how CIL should operate.

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 136, no. 4, Octobre-Novembre-Décembre 2009) is out. Contents include:
  • Doctrine
    • Sylvette Guillemard & Jacob Stone, La Cour suprême du Canada et la compétence internationale des tribunaux
    • Lotfi Chedly, L’exécution des sentences internationales annulées dans leur pays d’origine : cohérences en droit comparé et incohérence du droit tunisien
    • Nathalie Ferraud-Ciandet, La Commission du Codex Alimentarius
  • Variétés
    • Florian Aumond, La « convergence antarctique ». Radioscopie de l’actuel consensus concernant la gestion du continent blanc

Pati: Due Process and International Terrorism

Roza Pati (St. Thomas Univ. - Law) have published Due Process and International Terrorism: An International Legal Analysis (Martinus Nijhoff Publishers 2009). Here's the abstract:

Acts of terror on a global scale are straining to the breaking point the due process guarantees of the legal systems of modern democracies. In unequalled breadth and depth, this book analyzes the rights of persons suspected of a crime, in normal times and emergencies, from the pre-trial phase to the trial and the post-trial period under all the universal and regional human rights treaty regimes, pertinent customary international law, general principles of law, international humanitarian law as well as the hybrid procedures developed by international criminal tribunals.

The book then presents a detailed analysis of United States’ due process guarantees, in peacetime and in war, and the executive, legislative and judicial responses to the attacks of September 11, 2001. Professor Pati appraises the American actions in terms of international law’s due process guarantees and proposes courses of action which can better defend a public order of human dignity.

Posner & Sykes: Economic Foundations of the Law of the Sea

Eric A. Posner (Univ. of Chicago - Law) & Alan O. Sykes (Stanford Univ. - Law) have posted Economic Foundations of the Law of the Sea. Here's the abstract:
The United Nations Convention on the Law of the Sea has a plausible economic logic. Jurisdiction over portions of the ocean is assigned to states which can regulate them most cheaply and value them the most. These jurisdictional rights are subject to limits that reflect the interests of other states in navigation and other uses of the seas. For the vast areas of the ocean that no state can regulate, the Convention provides for an open access regime subject to simple rules, mostly self-enforcing, to limit conflict over resources.

Thursday, December 17, 2009

Volger: A Concise Encyclopedia of the United Nations (Second Edition)

Helmut Volger has published the second revised edition of A Concise Encyclopedia of the United Nations (Martinus Nijhoff Publishers 2009). Here's the abstract:

How can we approach the complex United Nations system, a ‘family’of principal organs, subsidiary organs and specialized agencies? Where do we get summarizing information on the large number of reform concepts developed and implemented since the late 1990s, in particular in connection with the UN World Summit 2005?

The present book provides orientation and information: It is the second updated English edition of the German 'Lexikon der Vereinten Nationen'. The book provides in addition to concise and comprehensive information on the UN system insight into recent UN developments and reform efforts in the face of global opportunities and challenges, such as the Millennium Summit 2000 and World Summit 2005, and the establishment of important new UN organs, the Human Rights Council and the Peacebuilding Commission, in 2006.

The contributing authors are academic scholars of international law, economics and political sciences; active and former diplomats and UN officials; journalists and members of non-governmental organizations (NGOs), and offer a variety of interesting perspectives.

The entries are provided with bibliographies and with Internet addresses for further information and are supplemented in the annex by an informative text on the UN document numbering system and by a list of information facilities concerning the UN.

New Issue: Revue de l'Arbitrage

The latest issue of the Revue de l'Arbitrage (2009, no. 3) is out. Contents include:
  • Sophie Lemaire, La mystérieuse « umbrella clause » (interrogations sur l'impact de la clause de respect des engagements sur l'arbitrage en matière d'investissements)
  • Stephan Adell, La nouvelle loi dominicaine sur l'arbitrage commercial du 19 décembre 2008

New Volume: Annuaire français de droit international

The latest volume of the Annuaire français de droit international (Vol. 54, 2008) is out. Contents include:
  • Joe Verhoeven, Sur les relations entre le juge communautaire et les « autorités » internationals
  • Wanda Mastor, La prison de Guantanamo : réflexions juridiques sur une zone de non-droit
  • Annalisa Ciampi, L’immunité de l’État responsable de crimes internationaux devant les juridictions italiennes
  • Brice Martin-Castex & Guillaume Loonis-Quélen, L’Organisation maritime internationale et la piraterie ou le vol à main armée en mer
  • Sévane Garibian, Vers l’émergence d’un droit individuel à la protection diplomatique ?
  • Isabelle Moulier, L’emploi de la force par la Turquie contre le Parti des travailleurs du Kurdistan dans le nord de l’Iraq
  • Sabrina Robert-Cuendet, Aspects historiques et juridiques de la crise géorgienne d’août 2008 : des conflits interethniques à la guerre ouverte avec la Russie
  • Miguel Acosta Sanchez, Coopération et sécurité aux frontières extérieures européennes : le cas du détroit de Gibraltar

Lavranos: The Ospar Convention, the Aarhus Convention and EC Law

Nikos Lavranos (The Hague Univ. - Law) has posted The Ospar Convention, the Aarhus Convention and EC Law: Normative and Institutional Fragmentation on the Right to Access to Environmental Information (in Multi-Sourced Equivalent Norms, Y. Shany et al. eds., forthcoming). Here's the abstract:

Since the early 1990s the access to information has quickly developed into an important tool for increasing transparency in the decision-making process of public authorities regarding projects that may have a negative impact on the environment. Indeed, the fast development of environmental law - at the international, European and national levels1 - as well as the increasing awareness of citizens and nongovernmental organizations (NGOs) of their potential to prevent or at least reduce environmental pollution has been one of the most important reasons for the wide recognition received by the right to access to information. In fact, the right of access to information has been enshrined in numerous international and European instruments, so that it can serve as a prime example for analysing this book's main topic of international multi-sourced equivalent norms (MSEN), which are defined ‘as two or more norms which are (1) binding upon the same international legal subjects; (2) similar or identical in their normative content (in the words of the ILC, ‘point in the same direction’); and (3) have been established through different international instruments or ‘legislative’ procedures or are applicable to different substantive areas of the law’.

This chapter will discuss the proceeding under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), which formed part of the wider MOX plant dispute, as a case-study for identifying the existence of MSENs concerning the right to access to environmental information. It will subsequently, analyse the extent to which MSENs create divergent rights and obligations for states that could lead to divergent or conflicting outcomes and ultimately to fragmentation.

Accordingly, Section II will identify the MSENs involved in this case-study and discuss the substantive aspects of the right to access to environmental information. Based on that, section III will examine how the OSPAR arbitral tribunal dealt with the MSEN issue. A few concluding remarks will wrap up this chapter.

Conference: BIICL Annual Conference 2010

The 2010 Annual Conference of the British Institute of International and Comparative Law will take place on June 11th. This year's theme is "Energy Security and Its Impacts on the International Legal System." Panel topics include: Protection of Energy Investment post-Copenhagen; Energy Security: Territorial Limits and Nuclear Power; Energy, Human Rights and Indigenous Peoples; Oil and Gas Production: Private International Law Issues; Competition Law and Access and Security of Energy; and National and Comparative Law Issues. A full program is not yet available.

Wednesday, December 16, 2009

Proukaki: The Problem of Enforcement in International Law

Elena Katselli Proukaki (Newcastle Univ. - Law) has published The Problem of Enforcement in International Law: Countermeasures, the Non-Injured State and the Idea of International Community (Routledge 2010). Here's the abstract:

This book explores the contentious topic of how collective and community issues should be protected and enforced in international law. Elena Katselli Proukaki takes a detailed look at the issue of third-State countermeasures, and considers the work the International Law Commission has done in this area. The volume addresses both the theory and practice of third-State countermeasures within international law. Critically reviewing the conclusions of the International Law Commission on the non-existence of a right to third-State countermeasures, it includes consideration of examples of State practice not previously covered in the literature of this topic.

In taking a thorough view of the issues involved the author identifies concerns about third-State countermeasures which remain unanswered, and considers the possible legal ramifications arising from a clash between a right to third-State countermeasures and obligations arising from other international norms. The Problem of Enforcement in International Law explores questions evolving around the nature, integrity and effectiveness of international law and the role it is called to play in a contemporary context.

New Issue: Arbitration: The International Journal of Arbitration Mediation and Dispute Management

The latest issue of Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (Vol. 75, no. 4, November 2009) is out. Contents include:
  • Ugo Draetta, The role of in-house counsel in international arbitration
  • Andrew Tweedale & Karen Tweedale, Commencement of arbitration and time-bar clauses
  • Nicola Nygh & Sam Luttrell, The domestication of the Model Law in Australia
  • Ragshav Sharma, Party autonomy v public policy: appellate arbitration in India
  • Philip Harris, Should adjudication have its own bespoke system on enforcement?
  • Michael Reynolds, Reflections on Quo Vadis Arbitrium
  • Cristina Lenz, Mediation law in Germany, Austria and Switzerland
  • Sam Luttrell & Gabriel Mosens, The Arbitration Rules of the Australian Centre for International Commercial Arbitration: Distinctive features
  • Shahid Jamil, Pakistani Arbitration: towards the Model Law
  • Jorham Scerri-Diacono & Rachel Mamo, The Constitutionality of mandatory arbitration in Malta

Ahdieh: The Fog of Certainty

Robert B. Ahdieh (Emory Univ. - Law) has posted The Fog of Certainty (Yale Law Journal Online). Here's the abstract:
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.” For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that true, little if anything would be law. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law. These errors, in the final analysis, are fairly basic. Before discussing them, consequently, this Yale Law Journal Online response considers how Professor Paulsen ends up going so completely astray. Here, his essay's invocation of Clausewitz’s “fog” of war—with its attendant distortions and misperceptions—is perhaps telling. A species of just this may be at work here, with Professor Paulsen misled not by the fog of war, but by an exaggerated sense of certainty in both the premises with which he begins, and the conclusions he seeks to advance.

Turner: Legal Ethics in International Criminal Defense

Jenia Iontcheva Turner (Southern Methodist Univ. - Law) has posted Legal Ethics in International Criminal Defense (Chicago Journal of International Law, forthcoming). Here's the abstract:

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less applicable internationally.

Professional regulation of defense advocacy at the international courts should take account of these special features and goals of the international criminal justice system. The paper addresses how such a purposive approach to legal ethics would apply to four key decisions that international criminal defense attorneys may face: 1) whether to impeach victim-witnesses whom they know to be telling the truth; 2) how to respond to clients who want to testify falsely; 3) whether to allow clients whom the lawyer believes to be innocent to plead guilty; and 4) how to respond to a client’s request to boycott or disrupt the proceedings. In some cases, the purposive interpretation may result in less aggressive advocacy than might be warranted in an ordinary domestic criminal case. In others, it may demand a more independent approach to making decisions about the client’s representation.

To implement the approach set out in this paper, I propose including a commentary to international courts’ Codes of Conduct (particularly the ICC Code), which would define more precisely the boundaries on aggressive practices, working within existing rules. The commentary would not create new categories of sanctionable conduct. Instead, it would identify situations in which attorneys are not required to engage in certain aggressive tactics or follow certain client instructions. In some cases, it would also recommend a particular course of action as most consistent with the attorneys’ ethical obligations, while leaving some flexibility to attorneys in how they interpret their duties before the ICC.

Tuesday, December 15, 2009

Lavranos: The Impact of the Kadi Judgment on the International Obligations of the EC Member States and the EC

Nikos Lavranos (The Hague Univ. - Law) has posted The Impact of the Kadi Judgment on the International Obligations of the EC Member States and the EC (Yearbook of European Law, forthcoming). Here's the abstract:
The main aim of this contribution is to explore the impact of the ECJ's Kadi judgment on the international obligations of EC Member States and the EC/EU. The focus will be on Article 307 EC. It will be argued that EC Member States can under no circumstances rely on Article 307 EC in order to abrogate basic fundamental rights as protected with the European legal order in order to implement UN Security Council Resolutions.

Sharma: The International Law of the Sea: India and the UN Convention of 1982

O.P. Sharma (formerly, Indian Navy; Member, Indian Delegation to the Third UN Conference on the Law of the Sea) has published The International Law of the Sea: India and the UN Convention of 1982 (Oxford Univ. Press 2009). Here's the abstract:

The law of the sea has undergone more change in the last sixty years than in the previous four hundred. The United Nations Convention on the Law of the Sea, 1982 has introduced revolutionary changes and its provisions govern almost all the diverse uses of the oceans. Today all naval operations, in times of peace as well as war, are to be carried out within the framework of the Convention. It also has far reaching significance for maritime trade, both domestic and international.

This lucid and comprehensive book examines all key aspects of the international law of the sea, bearing in mind India’s concerns in particular. The author contends that the Convention’s regime on navigation through the territorial sea, international straits, the exclusive economic zone, abatement and control of marine pollution, marine scientific research, and the international seabed area are fully in accord with the country’s national interests. He explains the jurisdictional boundaries or functional divisions of the oceans into various maritime zones along with their military implications.

He analyses concepts like ocean governance, the limitations on the freedom of the seas and the signal importance of maritime cooperation in various spheres of the law of the sea. He argues that the strategic challenge for the international community is to evolve a paradigm shift from competitive to cooperative security so that emerging threats like trans-national crimes and terrorism may be dealt with. This book also provides an overview of controversies and points of disagreement between various states. It discusses briefly some disputes that came before the International Court of Justice, the Law of the Sea Tribunal, and national courts, as well as their judgments. It clarifies what the legitimate use of ocean space in today’s world is and what is not.

Lavranos: The Entering Into Force of the Lisbon Treaty – A European Odyssey

Nikolaos Lavranos (The Hague Univ. - Law) has posted an ASIL Insight on The Entering Into Force of the Lisbon Treaty – A European Odyssey.

New Issue: Netherlands International Law Review

The latest issue of the Netherlands International Law Review (Vol. 56, no. 3, December 2009) is out. Contents include:
  • Th.M. de Boer, The Purpose of Uniform Choice-of-Law Rules: The Rome II Regulation
  • Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge
  • M.D. Fink & R.J. Galvin, Combating Pirates Off the Coast of Somalia: Current Legal Challenges
  • Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Romania/Ukraine Case Before the International Court of Justice
  • Gentian Zyberi, Self-Determination Through the Lens of the International Court of Justice
  • Gary Wilson, Self-Determination, Recognition and the Problem of Kosovo

Monday, December 14, 2009

Freeman & Guzman: Sea Walls are Not Enough: Climate Change and U.S. Interests

Jody Freeman (Harvard Univ. - Law) & Andrew T. Guzman (Univ. of California, Berkeley - Law) have posted Sea Walls are Not Enough: Climate Change and U.S. Interests (Columbia Law Review, forthcoming). Here's the abstract:

The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.

In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the “climate change winner” argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation – the construction of both literal and figurative sea walls to reduce the effects of global warming.

The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach.

We demonstrate that even if one accepts that the premises of the climate change winner argument – that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states – the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong.

We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs.

This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.

Davis: Does the Globalization of Anti-Corruption Law Help Developing Countries?

Kevin E. Davis (New York Univ. - Law) has posted Does the Globalization of Anti-Corruption Law Help Developing Countries? (in International Law, Economic Globalization and Development, Julio Faundez & Celine Tan, eds., forthcoming). Here's the abstract:
What role do foreign institutions play in combating political corruption in developing countries? This chapter begins by describing the recently developed transnational anti-corruption regime, which encompasses legal instruments ranging from the dedicated multilateral agreements sponsored by the OECD and the United Nations, to the anti-corruption policies of international financial institutions, to components of the international antimony laundering regime, international norms governing government procurement, and private law norms concerning enforcement of corruptly procured contracts. It also surveys the evidence concerning a variety of claims about the potential advantages and disadvantages of having foreign institutions play a role in preventing, sanctioning, or providing redress for corruption on the part of local public officials. One of the main conclusions is that more attention ought to be paid to whether foreign institutions displace and undermine, or alternatively complement and enhance, local anti-corruption institutions. The analysis not only sheds light on the transnational anti-corruption regime, but also has implications for other efforts to rely on foreign legal institutions to address the problems of developing countries.

New Issue: Ethics & International Affairs

The latest issue of Ethics & International Affairs (Vol. 23, no. 4, Winter 2009) is out. Contents include:
  • Symposium: Walzer and the Moral Standing of States
    • Yitzhak Benbaji, Introduction
    • Charles R. Beitz, The Moral Standing of States Revisited
    • Michael W. Doyle, A Few Words on Mill, Walzer, and Nonintervention
    • Will Kymlicka, Categorizing Groups, Categorizing States: Theorizing Minority Rights in a World of Deep Diversity
  • Daniel Philpott, An Ethic of Political Reconciliation