Saturday, January 17, 2009

Treaty Transmittal: Tax Convention with Malta

On Thursday, the President transmitted to the Senate, for its advice and consent to ratification, the Convention Between the Government of the United States of America and the Government of Malta for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, signed on August 8, 2008, at Valletta. The transmittal package (Treaty Doc. 111-1) is not yet available online.

Friday, January 16, 2009

Workshop: Caicedo

José Caicedo (Dechert LLP, Paris) will give a talk today at the Lauterpacht Centre for International Law's Friday Lunchtime Lectures on "International Responsibility of International Organizations and Member States."

Thursday, January 15, 2009

OGEMID Best Blog of 2008

My sincere thanks to the members of the OGEMID listserv for voting the International Law Reporter as their Best Blog of 2008.

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 135, no. 4, Octobre-Novembre-Décembre 2008) is out. Contents include:
  • Doctrine
    • Mathias Audit, Les marchés de travaux, de fournitures et de services passés par les organisations internationales
    • Gilles Cuniberti, Le principe de territorialité des voies d'exécution
    • Walid Ben Hamida, La prise en compte de l'intérêt général et des impératifs de développement dans le droit des investissements
  • Variétés
    • Didier Lamèthe, L'accord de clôture: l'exemple des cessions internationales de participations

Conference: International Law Weekend - West

The American Branch of the International Law Association will host its biennial International Law Weekend - West, March 6-7, 2009, at Willamette University College of Law, in Salem, Oregon. A program is not yet available online.

Workshop: Jinks

Derek Jinks (Univ. of Texas - Law) will give a talk today at the New York University School of Law Institute for International Law and Justice International Legal Theory Colloquium on "Humanization and Individualization in the Enforcement of International Humanitarian Law."

Wednesday, January 14, 2009

Conference: Spring Meeting of the ABA Section of International Law

The 2009 Spring Meeting of the American Bar Association Section of International Law will take place April 14-18, in Washington, DC. The meeting's agenda is not yet available online.

Bellia & Clark: The Federal Common Law of Nations

Anthony J. Bellia Jr. (Univ. of Notre Dame - Law) & Bradford R. Clark (George Washington Univ. - Law) have published The Federal Common Law of Nations (Columbia Law Review, Vol. 109, no. 1, January 2009). Here's the abstract:
Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations’ “perfect rights” (or close analogues) under the law of nations as an incident of political branch recognition of foreign nations, and in order to restrain the judiciary and the states from giving other nations just cause for war against the United States. Rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, federal courts have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach best explains the most important federal cases involving the law of nations across American history. This Article does not attempt to settle all questions of how customary international law interacts with the federal system. It does aspire, however, to recover largely forgotten historical and structural context crucial to any proper resolution of such questions.

Villiger: Commentary on the 1969 Vienna Convention on the Law of Treaties

Mark E. Villiger (Judge, European Court of Human Rights) has published Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers 2009). Here's the abstract:
The 1969 Vienna Convention on the Law of Treaties, regulating treaties between States, lies at the heart of international law. This commentary interprets the Convention’s 85 articles clearly and precisely. It covers such major topics as reservations to treaties, their interpretation and the grounds for terminating a treaty, for instance breach. Emphasis is placed on the practice of States and tribunals and on academic writings. It contains further sections on customary international law and the Convention’s history while providing up-to-date information on ratifications and reservations. This commentary is a must for practitioners and academics wishing to establish the meaning and scope of the provisions of the Vienna Convention on the Law of Treaties.

Tuesday, January 13, 2009

Ministry of Defense v. Elahi (Transcript)

The transcript of yesterday's argument in Ministry of Defense v. Elahi is now available here.

Call for Papers: India and International Law

The Leiden Journal of International Law has issued a call for papers inviting contributions for a special issue on "India and International Law." Here's the call:

The Editorial Board of the Leiden Journal of International Law (LJIL) invites contributions to the third in the LJIL's Periphery Series: special issues of the LJIL dedicated to the work of leading international legal scholars from regions conventionally cast as 'peripheral' to the discipline's metropolitan 'centre'. The next in the series - Issue 1 of Volume 23 - will focus on the work of Indian international lawyers and the place of India in the disciplinary geography of international law.

The Periphery Series was launched in 2007, with a special issue on the Chilean jurist Alejandro Álvarez. The second special issue in the series concentrated on the work of Nigerian international lawyer Taslim Olawale Elias. In each case, the goal of these special issues has been to foster engagement with the discursive function of centre-periphery oppositions in public international law in their various iterations, and through this to confront questions of resource allocation, dependency, geography, and power. The series has also encouraged contemporary readers of international law to engage with contributions to the field from outside Europe, North America and the 'White Commonwealth'.

By focusing on India and Indian international lawyers, the third installment in the Periphery Series will adopt a slightly wider lens to re-examine centre-periphery dynamics in international law, dispensing with the focus on a single scholar. Nonetheless, this special issue will once again invite engagement with the difficult questions raised by adoption of a 'peripheral' analytic. Among these is the question of how stable or persistent might be the notion of India as peripheral in the international legal imaginary, notwithstanding its obvious power in contemporary geopolitical, economic, and cultural terms. Also pertinent are questions concerning whether and how an Indian approach to international law teaching, scholarship and practice might be articulated, and possible implications of doing so.

Contributors are invited to submit articles of up to 10,000 words (including footnotes) focusing on India and international law from any angle. Articles should be prepared in a manner consistent with the 'Instructions for Contributors' accessible by clicking here.

Contributors should be mindful of the LJIL's particular commitment to publishing international legal writing that engages with legal and political theory, conceived broadly. Contributors should also be aware that word limits will be strictly enforced.

The deadline for submissions to this special issue is 1 June 2009. All contributions will be subject to peer review in accordance with the usual procedures of the LJIL. Please respond to this call for papers by email to by 28 February 2009 to advise whether you intend to contribute an article to this Special Issue, attaching a 200-word abstract of the article you propose to contribute.

New Issue: ASA Bulletin

The latest issue of the ASA Bulletin (Vol. 26, no. 4, 2008) is out. Contents include:
  • Aren Goldsmith, Trans-Global Petroleum: ‘Rare Bird’ or Significant Step in the Development of Early Merits-Based Claim-Vetting?
  • Valerio Sangiovanni, Arbitrato irrituale e regole procedurali nel nuovo diritto italiano
  • Pierre Lalive, Aspects Philosophiques du Droit de l’Arbitrage International

New Issue: Michigan Journal of International Law

The latest issue of the Michigan Journal of International Law (Vol. 29, no. 3, Spring 2008) is out. Contents include:
  • Michael Bowman, "Normalizing" the International Convention for the Regulation of Whaling
  • James M. Cooper, Competing Legal Cultures and Legal Reform: The Battle of Chile

Monday, January 12, 2009

New Issue: International Organization

The latest issue of International Organization (Vol. 63, no. 1, Winter 2009) is out. Contents include:
  • Robert O. Keohane, Stephen Macedo, & Andrew Moravcsik, Democracy-Enhancing Multilateralism
  • Nicole Deitelhoff, The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case
  • Jason Lyall & Isaiah Wilson, Rage Against the Machines: Explaining Outcomes in Counterinsurgency Wars
  • Kevin M. Morrison, Oil, Nontax Revenue, and the Redistributional Foundations of Regime Stability
  • Bryan Coutain, The Unconditional Most-Favored-Nation Clause and the Maintenance of the Liberal Trade Regime in the Postwar 1870s

New Volume: Australian International Law Journal

The latest volume of the Australian International Law Journal (Vol. 14, 2007) is out. Contents include:
  • International Law Association (Australian Branch) General Meeting
    • Christopher Ward, President’s Report
    • Donald Rothwell, Guest Address
  • Australian Government Practice
    • Robert McClelland, Public Lecture by Shadow Foreign Minister at the Sydney Centre for International Law (2007)
    • Stephen Smith, Public Address by the Australian Foreign Minister at the Annual Diplomatic Corps Christmas Party (2007)
  • Symposium
    • Shirley Scott, Is the Crisis of Climate Change a Crisis for International Law?
    • Will McGoldrick, Financing Adaptation in Pacific Island Countries: Prospects for the Post-2012 Climate Change Regime
    • Ilona Millar, There's No Place Like Home: Human Displacement and Climate Change
    • Robin Verner, Preserving a Balanced Ocean: Regulating Climate Change Mitigation Activities in Marine Areas beyond National Jurisdiction
  • General Articles
    • Anna Huggins, International Obligations to Protect World Heritage Sites from the Adverse Impacts of Climate Change
    • Yvette Carr, International Legal Issues Relating to the Facilitation of Sub-Seabed CO2 Sequestration Projects in Australia
    • John Von Doussa, Allison Corkery & Renée Chartres, Human Rights and Climate Change
  • International Law Association (Australian Branch) Essay Prize
    • Belinda Roblliard, Jurisdiction and Choice of Law Rules for Defamation Actions in Australia following the Gutnik Case and the Uniform Defamation Legislation
    • Sonja Cenic, State Responsibility and Self-Defence in International Law Post 9/11

Ministry of Defense v. Elahi

Today, the Supreme Court of the United States will hear argument in Ministry of Defense v. Elahi (No. 07-615). The question presented is: "Is an attachment against foreign sovereign property permissible when that property is 'at issue in claims against the United States before an international tribunal,' and that property is not a 'blocked asset,' pursuant to the terms of the 2000 Victims of Trafficking and Violence Protection Act and the 2002 Terrorism Risk Insurance Act?" Briefs and a more detailed description of the case can be found here.

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 53, no. 1, February 2009) is out. Contents include:
  • Thomas Edward Flores & Irfan Nooruddin, Democracy under the Gun Understanding Postconflict Economic Recovery
  • Ravi Bhavnani & Dan Miodownik, Ethnic Polarization, Ethnic Salience, and Civil War
  • Paivi Lujala, Deadly Combat over Natural Resources: Gems, Petroleum, Drugs, and the Severity of Armed Civil Conflict
  • Ernesto Reuben & Arno Riedl, Public Goods Provision and Sanctioning in Privileged Groups
  • Daniel Bar-Tal, Amiram Raviv, Alona Raviv, & Adi Dgani-Hirsh, The Influence of the Ethos of Conflict on Israeli Jews' Interpretation of Jewish-Palestinian Encounters
  • William A. Donohue & Daniel Druckman, Message Framing Surrounding the Oslo I Accords

Workshop: Diehl

Paul Diehl (Univ. of Illinois - Political Science) will give a talk today at the Northwestern University School of Law International Law Colloquium on "The Dynamics of International Law" (co-authored with Charlotte Ku).

Sunday, January 11, 2009

Vázquez: Missouri v. Holland’s Second Holding

Carlos Manuel Vázquez (Georgetown Univ. - Law) has posted Missouri v. Holland’s Second Holding (Missouri Law Review, Vol. 73, p. 939, 2008). Here's the abstract:

The Supreme Court in Missouri v. Holland famously held that Congress has the power to pass a law to implement a treaty even if the law would not fall within Congress’ legislative power in the absence of the treaty. Essential to this holding were two distinct propositions. The first proposition is that the treaty-makers have the constitutional power to make treaties on matters falling outside Congress’ enumerated powers. The second is that, if the treaty-makers make such a treaty and the treaty is not self-executing, the Necessary and Proper Clause gives Congress the power to implement such a treaty through a statute even if, in the absence of the treaty, the statute would be beyond Congress’s legislative power. The Court in Missouri v. Holland focused on the first proposition. It devoted only one sentence to the second proposition: “If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.”

Controversy concerning the issue addressed in Missouri v. Holland has recurred throughout our history, but, each time, the controversy has revolved around the first proposition. That Congress has the power to implement any obligations undertaken under valid treaties has not been seriously questioned – until recently. In recent articles, critics of Missouri v. Holland have argued that it is the second holding that should be rejected. In their view, the Constitution permits the making of treaties falling outside Congress’ legislative power under Article I, but denies Congress the power to implement such treaties.

It is easy to see why no one has ever regarded such a regime as plausible: it would contradict one of the Founders’ key convictions – that the federal government must have the power to assure compliance with its international commitments. Although their particular proposals are untenable in light of the Founders’ design, these critics are on the right track insofar as they identify the second of Missouri v. Holland’s holdings as the potentially problematic one from a federalism perspective. The scope of the actual federalism problem attributable to the holding of Missouri v. Holland, however, is far more limited than they suggest, and does not warrant a complete rethinking of Treaty Power doctrine. It just requires some tinkering around Missouri v. Holland’s edges. The potential federalism problem concerns only aspirational treaty provisions, which might easily gain Senate consent because they do not appear to require anything in particular, but, under a broad interpretation of Missouri v, Holland, could then be the basis of a broad legislative power on matters falling outside Article I. The solution I propose is to exclude aspirational treaties from the scope of Missouri v. Holland’s second holding. The power to implement treaties under the Necessary and Proper clause is the power to require compliance with treaty obligations. Because aspirational treaty provisions do not impose obligations in any meaningful sense of the term, the clause does not give Congress the power to implement such provisions. If such provisions concern matters otherwise beyond Congress’ legislative powers, the Constitution leaves their implementation to the States.