In a relatively short time the concept of “sustainable development” has become firmly established in the field of international law. The World Commission on Environment and Development concisely defined sustainable development as follows: “development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs”. This definition takes into account the needs of both the present and future generations as well as the capacity of the earth and its natural resources which by clear implication should not be depleted by a small group of people (in industrialized countries). The aim of this book is threefold: to review the genesis and to clarify the meaning of the concept of sustainable development, as well as to assess its status within public international law. Furthermore, it examines the legal principles that have emerged in the pursuit of sustainable development. Lastly, it assesses to what extent the actual evolution of law demonstrates the balance and integration with all pertinent fields of international law as urged by the Rio, Johannesburg, and World Summit documents.
Saturday, February 7, 2009
Schrijver: The Evolution of Sustainable Development in International Law: Inception, Meaning and Status
Ku: The Crucial Role of the States and Private International Law Treaties: A Model for Accommodating Globalization
This brief symposium contribution highlights the central and important role that state governments play in the development and integration of private international law treaties into the United States legal system. States play this central role even though, as some of the papers in this symposium have concluded, there are few, if any, constitutional constraints on the ability of the federal government to sign, ratify, and implement treaties that would displace state law. The primacy of states in the integration of private international law, this essay argues, points the way to a model of accommodation of other kinds of treaties affecting traditional areas of state control. The model of state government control over the integration of private international law offers a healthy, if modest, alternative to the sometimes reflexive nationalism pervading scholarship in this area.
Friday, February 6, 2009
Symposium: Territory Without Boundaries
Conference: War Crimes - Retrospectives and Prospects
Symposium: Transitional Justice: War Crimes Tribunals and Establishing the Rule of Law in Post-Conflict Countries
An event discussing the efficacy of international ad hoc and hybrid tribunals, domestic truth and reconciliation commissions, use of domestic courts in securing international criminal justice, and the role of the International Criminal Court in shaping transitional justice.
Wannek: Zur Verwertbarkeit außergerichtlicher Zeugenaussagen im Völkerstrafprozess
Die Frage nach der Verwertbarkeit außergerichtlicher Zeugenaussagen, die den Angeklagten belasten, ist ein zentrales, praktisch höchst bedeutsames Problem des Verfahrens vor internationalen Strafgerichtshöfen. Weder das Statut des Internationalen Strafgerichtshofes (IStGH) noch seine Verfahrens- und Beweisregeln enthalten auf diese Frage abschließende Antworten. Es ist mit Sicherheit zu erwarten, dass der IStGH schon in seinen ersten Verfahren mit dieser Frage konfrontiert wird. Sie ist deshalb so schwer zu lösen, weil sich verschiedene Interessen gegenüberstehen: das Recht des Angeklagten, Belastungszeugen zu befragen, das Interesse der Anklage an frühzeitiger Sicherung von Beweismitteln, der Zeugenschutz und das Bedürfnis zur Verfahrensbeschleunigung.
Vor diesem Hintergrund untersucht Felicitas Wannek die Rechtsprechung des UN ad-hoc-Tribunals für das ehemalige Jugoslawien sowie die Regelungen des deutschen, englischen und französischen Rechts zur Verwertbarkeit außergerichtlicher Zeugenaussagen. Unter Berücksichtigung der Vorgaben des Art.6 (3)(d) der Europäischen Menschenrechtskonvention macht sie Vorschläge für die Behandlung solcher Vernehmungssurrogate in Verfahren vor dem IStGH.
Workshops: Bell, Brown Weiss, Lee, Schiffman
Edith Brown Weiss (Georgetown Univ. - Law) will deliver a lecture today at the Centre for International Legal Studies at the Jawaharlal Nehru University's School of International Studies. The topic of the lecture is "Reflections on the Concept of Intergenerational Equity and Current Problems."
Thomas H. Lee (Fordham Univ. - Law) will give a talk today at the University of Georgia School of Law International Law Colloquium Series on "The International Laws of War and the American Civil War."
Howard Schiffman (New York Univ. - Center for Global Affairs) will give a talk today at the Lauterpacht Centre for International Law's Friday Lunchtime Lecture Series on "Reservations in Marine Conservation Treaties: a Classic Element of Treaty Law in an Evolving Environmental Landscape."
Thursday, February 5, 2009
New Issue: Leiden Journal of International Law
- Anne-Charlotte Martineau, The Rhetoric of Fragmentation: Fear and Faith in International Law
- Umut Özsu, De-territorializing and Re-territorializing Lotus: Sovereignty and Systematicity as Dialectical Nation-Building in Early Republican Turkey
- Emmanuel Voyiakis, International Law and the Objectivity of Value
- Hague International Tribunals: International Criminal Tribunal for the Former Yugoslavia
- Barbora Holá, Alette Smeulers, & Catrien Bijleveld, Is ICTY Sentencing Predictable? An Empirical Analysis of ICTY Sentencing Practice
- Hague International Tribunals: International Criminal Court
- Kenneth A. Rodman, Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court
- Current Legal Developments
- Brianne N. McGonigle, Two for the Price of One: Attempts by the Extraordinary Chambers in the Courts of Cambodia to Combine Retributive and Restorative Justice Principles
- John King Gamble & Christine M. Giuliano, US Supreme Court, Medellín v. Texas: More than an Assiduous Building Inspector?
Conference: The Pursuit of International Criminal Justice: The Case of Darfur
Policymakers, scholars, and civil society leaders will consider the role that international criminal prosecution should play in the strategy to end the violence in Darfur and in other massive conflicts. Dean Harold Hongju Koh will moderate discussions among attendees including the Legal Advisers to the U.S. State Department and the United Nations; the U.K. Special Representative for Sudan; the Ambassador of the League of Arab States to the U.S.; the former head of UN peacekeeping operations; and leading Darfur activists and experts. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, will deliver the keynote address.
Job Opening: Dundee (Chair)
The Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP) is the leading international institution for research and post-graduate teaching in its areas of expertise, and attracts some 160 post-graduate students per year from across the world to its Masters and Doctorate Programmes. CEPMLP provides extensive professional training and consultancy for international agencies, governments and multinational companies.
CEPMLP's research agenda is multi-disciplinary and inter-disciplinary in nature and international in scope. Its research reputation is based on the quality of research in the field of law. Current legal research relating to energy, minerals and natural resources includes international investment law and dispute resolution, international trade law, international environmental law, international energy and mining law, European energy and environmental law, and international human rights law. A current priority is to expand our capacity in the field of climate change law.
The unexpected death of Professor Thomas Wälde has created the opportunity to recruit a lawyer of international standing to play a leading role in CEPMLP's research and teaching activities. The successful applicant is likely to have both academic and practical experience in one or more fields of international law relevant to CEPMLP's activities and will be expected to play an active role in the winning and leadership of research grants.
The post holder would be expected to undertake the following duties:
- Playing a leading role in the research activities of CEPMLP, especially those relating to law, winning substantial research grants and publishing at the highest academic level.
- Teaching courses relating to international law on CEPMLP's Masters degree programmes and supervising Masters students.
- Supervising PhD students.
- Acting as an academic mentor to junior members of academic staff in the post holder's field of expertise.
- Enhancing CEPMLP's international reputation through participation in international activities of different types, including those which influence policy at national or international level.
- Taking a leading role in the development of professional training seminars in the post holder's field of expertise.
- Carrying out certain administrative duties related to their teaching and research activities.
The suitable candidate is likely to have a combination of the following characteristics:
- A first degree and a research degree (PhD or equivalent) in law.
- At least fifteen years professional experience, of which a substantial proportion should be as an academic or researcher.
- At least ten years experience in the field of international law, preferably in the fields of energy, environment or natural resources.
- An international reputation in their field of expertise which is commensurate with their age.
- A track record of influence in policy-making at national or international levels.
Please contact Professor Philip Andrews-Speed for further information.
Further details and an application pack are available from our website: http://www.jobs.dundee.ac.uk/vacancies/20090331_00001-x.html. Alternatively, contact Human Resources, University of Dundee, Dundee, DD1 4HN, tel: (01382) 384817 (answering machine). Please quote Reference number: ASS/2538/X.
As part of the recruitment process, the University requires that a Disclosure Scotland check is undertaken for this position.
Closing date: 31 March 2009
The University of Dundee is committed to equal opportunities and welcomes applications from all sections of the community.
Van Schaack: Finding the Tort of Terrorism in International Law
This Article - part of a symposium on civil litigation and terrorism - focuses on the potential of the Alien Tort Statute (ATS) to serve as a vehicle for asserting civil claims in U.S. courts for acts of terrorism. Although this paper primarily considers terrorism torts under the "law of nations" prong of the ATS (which requires a showing that the relevant prohibition is part of customary international law), terrorism torts may provide a vehicle for activating the ATS's dormant treaty prong as well, given the strong support for the terrorism treaties exhibited by the United States and the high degree of domestic incorporation of the crimes identified therein. One of the first modern cases to be filed under the Alien Tort Statute, Tel-Oran v. Libyan Arab Republic, immediately called into question the utility of the ATS as a counter-terrorism tool. Ever since, the statute has been relatively underutilized in this context, even while U.S. courts have gradually extended jurisdiction under the ATS over other international crimes. Meanwhile, the U.S. Congress has vastly expanded opportunities for U.S. nationals to pursue civil claims in domestic courts for acts of terrorism. For example, the Antiterrorism Act (ATA) enables U.S. nationals - as well as their estates, survivors, and heirs - to sue individuals responsible for personal, property, or business injuries incurred by reason of acts of international terrorism. U.S. victims and claimants may also sue states and state agents implicated in acts of terrorism under the Foreign Sovereign Immunity Act (FSIA), so long as the state itself has been specifically designated as a "sponsor of terrorism" by the Department of State or where the circumstances otherwise satisfy one of the codified exceptions to foreign sovereign immunity. As compared with these statutory causes of action for U.S. citizen victims and claimants, only the ATS has the potential to provide jurisdiction over civil claims arising out of acts of terrorism brought by non-nationals who have access to U.S. courts. This paper argues that the uncertainty surrounding the availability of the ATS to permit such terrorism claims reveals a lacuna in the United States' anti-terrorism statutory scheme.
Since the U.S. Supreme Court issued its landmark opinion in Sosa v. Alvarez-Machain and finally set forth a methodology for considering actionable claims under the ATS, a few cases involving terrorism allegations have begun to work their way through the federal court system. Although it is still difficult to draw broad conclusions, the existing cases do demonstrate that the various federal statutes - the ATA, FSIA, and ATS - can work in tandem to provide causes of action to alien and U.S. plaintiffs injured in terrorist incidents. Furthermore, litigants are creatively utilizing multiple causes of action drawn from statutes, the common law, and international law to press their claims. While the federal courts have yet to definitively recognize a standalone cause of action for terrorism stricto sensu, developments in the law of terrorism at the international level reveal the gradual crystallization of a consensus set of elements that comprise a definitive prohibition against terrorism applicable to all but a narrow set of circumstances. What lingering definitional impasse exists highlights an unsettled and highly contentious area of international law: the legal categorization and consequences of attacks by unprivileged combatants against privileged combatants or military targets. In all other situations, the international law governing acts of terrorism is sufficiently precise, robust, and uncontroversial to support the recognition by the federal courts of a cause of action for terrorism under the ATS, assuming the other jurisdictional requirements are satisfied. Recognizing such causes of action will bolster the United States' counter-terrorism regime by enabling a broader array of victims of acts of terror to pursue the assets of individuals and groups that finance or otherwise support acts of terrorism.
Higgins: Themes and Theories: Selected Essays, Speeches, and Writings in International Law
As President of the International Court of Justice, Dame Rosalyn Higgins is the world's most senior Judge. This two volume set collects together all of her most important writings as a scholar, a member of the UN Human Rights Committee, and as Judge and President of the International Court of Justice. During these years, she has written on a wide range of topics including legal theory, United Nations Law, humanitarian law, the use of force, state and diplomatic immunities, human rights, and natural resources law.
As President and Judge of the International Court of Justice Dame Rosalyn has played her part in the formulation of the Judgments and Opinions of the principal judicial organ of the UN. She has sought to ensure the ICJ - the senior international court - operates in a modern and efficient manner, and in cordial relationship with the many new courts and tribunals now existing. These aspirations are reflected in her speeches during the years 2006 to 2009, most of which have not hitherto been published. This volume contains a comprehensive collection of all her Separate Opinions, amongst other writings, divided into ten Parts by subject matter. This includes specially written introductory passages by Dame Rosalyn to present the catalogue of her writings and the correlative developments in international law by theme.
Conference: Mounting Tensions and Melting Ice: Exploring the Legal and Political Future of the Arctic
Workshops: Carozza, Kritsiotis, Rapp
Dino Kritsiotis (Univ. of Nottingham - Law) will give a talk today at the Oxford Public International Law Discussion Group on "Reading and Rereading the Caroline Correspondence, 1838-1842."
Stephen Rapp (Chief Prosecutor, Special Court for Sierra Leone) will deliver a lecture today organized by the Oxford Transitional Justice Research on "Prosecutor vs. Chief of State: The Test of International Justice."
Wednesday, February 4, 2009
Nollkaemper: Rethinking the Supremacy of International Law
In Kadi v Council of the European Union, the ECJ refrained from giving effect to Security Council Resolution 1333 (2000) on the ground that performance of the obligations contained in the Resolution would conflict with fundamental rights under EU law. While many international lawyers feel compelled by the Court's resolution of the conflict, the question is whether and how international law can accommodate such challenges. Non-performance of international obligations with reference to fundamental rules of national law, or internal rules of international organizations, sits uneasily with the supremacy of international law. The question is how we can differentiate between challenges based on fundamental human rights, as perceived and construed in Western-Europe, and challenges based on, say, the Sharia? If we can not properly distinguish between such case, would Kadi-like challenges not undermine the enterprise of international law? This paper will review whether, and on what basis, international law can accommodate challenges to the supremacy of international law based on the protection of fundamental rules of domestic law.
Newcombe & Paradell: Law and Practice of Investment Treaties: Standards of Treatment
Foreign investors enjoy the protection of a vast network of international investment agreements (IIAs) supplemented by the general rules of international law. Under IIAs, states must accord foreign investors substantive standards of promotion and protection. In addition, IIAs provide an investor-state arbitration mechanism that allows foreign investors to enforce these standards against host states. In response to disputes arising under the IIA regime, since the early 1990s a significant body of arbitral jurisprudence has developed.
This book provides a comprehensive and systematic explanation of these standards of treatment, taking into account developments in treaty practice and arbitral jurisprudence. Where possible, the authors critically examine the applicable principles emerging from treaty practice and jurisprudence.
Among the many specific issues and topics that arise in the course of the analysis are the following: the origins and evolution of the international investment treaty framework; the interaction between international and national law in the resolution of IIA disputes and the interpretation of IIAs; the role IIAs play in investment liberalization and their interaction with other areas of international economic law; the relationship between treaty and customary international law standards; the development of norms of non-discrimination and minimum standards of treatment, including fair and equitable treatment; the meaning of expropriation and conditions for lawful expropriations; the rules relating to transfer of funds, performance requirements and transparency; and exceptions and defences to investment treaty obligations.
WTO Appellate Body Report: United States - Continued Existence and Application of Zeroing Methodology
HIlpold: Minderheitenschutz in Italien
Italien besitzt eine komplexe ethnisch-sprachliche Struktur, gleichzeitig aber eine ziemlich junge Tradition im Bereich Minderheitenschutz. Die italienische Verfassung enthält in Artikel 6 ein klares Bekenntnis zum Minderheitenschutz, dessen Umsetzung nur sehr zögerlich erfolgte. Mittlerweile sind vorbildhafte Regelungen in Kraft getreten. Verstärkte Verpflichtungen auch auf völkerrechtlicher und europarechtlicher Ebene bringen Minderheiten und ihre Angehörigen in Italien direkt und indirekt in den Genuss vielfältiger Schutzverbürgungen.
Der Herausgeber Peter Hilpold analysiert ihre rechtliche und faktische Situation: Spezielles Augenmerk legen er und seine AutorInnen Barbara Czernilofsky, Oskar Peterlini, Sarah Siller und Valeria Piergigli auf das Spannungsfeld Individualrechtsschutz und Schutz kollektiver Rechte – eine detaillierte Ausleuchtung der italienischen wie auch gesamteuropäischer Perspektiven.
New Issue: International Journal of Human Rights
- Millenium Development Goals and Human Rights
- Cathal Doyle, Introduction: Millennium Development Goals and human rights: in common cause or uneasy partners?
- Joshua Castellino, The MDGs and international human rights law: a view from the perspective of minorities and vulnerable groups
- Elvira Domnguez Redondo, The Millennium Development Goals and the human rights based approach: reflecting on structural chasms with the United Nations system
- Cathal Doyle, Indigenous peoples and the Millennium Development Goals - 'sacrificial lambs' or equal beneficiaries?
- Guido Schmidt-Traub, The Millennium Development Goals and human rights-based approaches: moving towards a shared approach
- Magdalena Seplveda Carmona, The obligations of 'international assistance and cooperation' under the International Covenant on Economic, Social and Cultural Rights. A possible entry point to a human rights based approach to Millennium Development Goal 8
Conference: Unity or Fragmentation of International Law: The Role of International and National Tribunals
Lecture: Meron on "International Criminal Justice: Does It Work?"
Tuesday, February 3, 2009
New Issue: Stanford Journal of International Law
- Ian J. Silverbrand, The History and Potential Future of the Israeli-Palestinian Water Conflict
- Reza Dibadj, Panglossian Transnationalism
- Paul R. Dubinsky, Is Transnational Litigation a Distinct Field? The Persistence of Exceptionalism in American Procedural Law
- James D. Fry, Arbitrating Arms Control Disputes
Prunier: Africa's World War: Congo, the Rwandan Genocide, and the Making of a Continental Catastrophe
The Rwandan genocide sparked a horrific bloodbath that swept across sub-Saharan Africa, ultimately leading to the deaths of some four million people. In this extraordinary history of the recent wars in Central Africa, Gerard Prunier offers a gripping account of how one grisly episode laid the groundwork for a sweeping and disastrous upheaval.
Prunier vividly describes the grisly aftermath of the Rwandan genocide, when some two million refugees--a third of Rwanda's population--fled to exile in Zaire in 1996. The new Rwandan regime then crossed into Zaire and attacked the refugees, slaughtering upwards of 400,000 people. The Rwandan forces then turned on Zaire's despotic President Mobutu and, with the help of a number of allied African countries, overthrew him. But as Prunier shows, the collapse of the Mobutu regime and the ascension of the corrupt and erratic Laurent-Desire Kabila created a power vacuum that drew Rwanda, Uganda, Angola, Zimbabwe, Sudan, and other African nations into an extended and chaotic war. The heart of the book documents how the whole core of the African continent became engulfed in an intractible and bloody conflict after 1998, a devastating war that only wound down following the assassination of Kabila in 2001. Prunier not only captures all this in his riveting narrative, but he also indicts the international community for its utter lack of interest in what was then the largest conflict in the world.
Here then is a gripping eyewitness account of the most bloody upheaval of recent times, a book of passionate and unblinking intensity that is our best record to date of one of the great tragedies of the post-Cold War era.
ICJ: Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Judgment)
Here's the dispositif:
Decides that starting from Point 1, as agreed by the Parties in Article 1 of the 2003 State Border Régime Treaty, the line of the single maritime boundary delimiting the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea shall follow the 12-nautical-mile arc of the territorial sea of Ukraine around Serpents’ Island until Point 2 (with co-ordinates 45° 03' 18.5" N and 30° 09' 24.6" E) where the arc intersects with the line equidistant from Romania’s and Ukraine’s adjacent coasts. From Point 2 the boundary line shall follow the equidistance line through Points 3 (with co-ordinates 44° 46' 38.7" N and 30° 58' 37.3" E) and 4 (with co-ordinates 44° 44' 13.4" N and 31° 10' 27.7" E) until it reaches Point 5 (with co-ordinates 44° 02' 53.0" N and 31° 24' 35.0" E). From Point 5 the maritime boundary line shall continue along the line equidistant from the opposite coasts of Romania and Ukraine in a southerly direction starting at a geodetic azimuth of 185° 23' 54.5" until it reaches the area where the rights of third States may be affected.
Mitchell: Legal Principles in WTO Disputes
Principles play a crucial role in any dispute settlement system, and the World Trade Organization (WTO) is no exception. However, WTO Panels and the Appellate Body have been too timid in using principles, sometimes avoiding their use when appropriate and at other times using them without fully acknowledging that they are doing so. Perhaps more worryingly, these bodies often fail to delve deeply enough into principles. They tend to overlook key questions such as the legal basis for using a given principle, whether the principle is being used in an interpretative manner or as applicable law, and the meaning of the principle in public international law. This book establishes a framework for addressing these questions. The use of such a framework should allay fears and misconceptions about the use of principles and ensure that they are used in a justifiable manner, improving the quality of dispute settlement in the WTO.
New Issue: Archiv des Völkerrechts
- Otto Luchterhandt, Völkerrechtliche Aspekte des Georgien-Krieges
- Jerzy Kranz, Der Kampf um den Frieden und sein besonderer Facilitator. Anmerkungen zur Georgienkrise
- Niels Petersen, Der Wandel des ungeschriebenen Völkerrechts im Zuge der Konstitutionalisierung
- Christian Tomuschat, Grundgesetz und Überstaatlichkeit. Konflikt und Harmonie in den auswärtigen Beziehungen Deutschlands
- Anne Peters, Privatisierung im Völkerrecht. Zur Verantwortlichkeit der Staaten bei der Privatisierung von Staatsaufgaben
- Carmen Thiele, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht
- Klaus Ferdinand Gärditz, Nachhaltigkeit durch Verfahren im Welthandelsrecht. Umwelt- und Nachhaltigkeitsprüfungen und die WTO
New Issue: Journal of International Criminal Justice
- Editorial Comments
- Andrew T. Cayley, The Prosecutor's Strategy in Seeking the Arrest of Sudanese President Al Bashir on Charges of Genocide
- Christopher Gosnell, The Request for an Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan?
- Florian Jessberger & Julia Geneuss, On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at The Hague?
- Goran Sluiter, Obtaining Cooperation from Sudan - Where is the Law?
- Annalisa Ciampi, The Proceedings against President Al Bashir and the Prospects of their Suspension under Article 16 ICC Statute
- Andrew Clapham, Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups
- Peter Robinson & Golriz Ghahraman, Can Rwandan President Kagame be held Responsible at the ICTR for the Killing of President Habyarimana?
- Vanessa Thalmann, French Justice's Endeavours to Substitute for the ICTR
- Commentator, The Spanish Indictment of High-ranking Rwandan Officials
- Neha Jain, Forced Marriage as a Crime against Humanity: Problems of Definition and Prosecution
- Micaela Frulli, Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a 'New' Crime against Humanity
- Giulia Pinzauti, The European Court of Human Rights' Incidental Application of International Criminal Law and Humanitarian Law: A Critical Discussion of Kononov v. Latvia
- Gabriel ChavezTafur, Using International Law to By-pass Domestic Legal Hurdles: On the Applicability of the Statute of Limitations in the Menendez et al. Case
- Antonio Cassese, The Italian Court of Cassation Misapprehends the Notion of War Crimes: The Lozano Case
Workshops: Abi-Saab, Baylis, Welsh
Elena Baylis (Univ. of Pittsburgh - Law) will give a talk today at the Temple University School of Law International Law Colloquium on "Bellwether Trials: From Mass Torts to Mass Atrocities."
Jennifer Welsh (Univ. of Oxford - International Relations) will give a talk today at the University of Oxford Human Rights Discussion Group on "The Responsibility to Protect: Securing the individual in international society?"
Monday, February 2, 2009
Conference: International Law in the Contemporary World
ASIL Task Force Issues Recommendations on U.S. Policy Toward ICC
In August 2008, the American Society of International Law established a Task Force to evaluate and reconsider U.S. policy toward the International Criminal Court. The eight-member Task Force has met five times and received written and oral briefings from more than a dozen experts who presented varied perspectives. These experts have served with the U.S. Government (including the military), the International Criminal Court, U.S. allies, and civil society. The Task Force has reviewed U.S. policy, from the negotiating history of the Rome Statute through to the present, as well as the performance of the Court. It has also studied the complex legal issues presented in this area. The Task Force is preparing a report containing detailed findings and recommendations for release at the ASIL Annual Meeting in late March. Pending completion of that report, the Task Force has agreed upon the following recommendations.
The ASIL Task Force on U.S. Policy Toward the International Criminal Court takes note of the desirable evolution in the de facto policy of the United States toward the Court in the last few years. In light of the Court’s record over the past seven years and its involvement in compelling situations—such as Darfur, Uganda, and the Democratic Republic of Congo—that are of great concern to the United States, there is an auspicious opportunity to put U.S. relations with the Court on an articulated course of positive engagement. The Task Force recommends that the President take prompt steps to announce a policy of positive engagement with the Court, including:
- a stated policy of the U.S. Government’s intention, notwithstanding its prior letter of May 6, 2002 to the U.N. Secretary General, to support the object and purpose of the Rome Statute of the Court;
- examination of methods by which the United States can support important criminal investigations of the Court, including cooperation on the arrest of fugitive defendants, the provision of diplomatic support, and the sharing of information, as well as ways in which it can cooperate with the Court in the prevention and deterrence of genocide, war crimes, and crimes against humanity;
- examination of U.S. policy concerning the scope, applicability, and implementation of "Article 98 Agreements" concerning the protections afforded to U.S. personnel and others in the territory of States that have joined the Court;
- U.S. participation as an observer in the Assembly of States Parties to the Rome Statute, including the Special Working Group on the Crime of Aggression and the 2010 Review Conference of the Rome Statute;
- the issuance of any presidential waivers in the interests of the United States that address restrictions on assistance to and cooperation with the Court contained in the American Service-members’ Protection Act of 2002 (ASPA) and advice to the Congress on the need for further amendments of ASPA;
- identification of a high-ranking official to serve as the focal point within the executive branch to coordinate U.S. cooperation with the Court and monitor ICC performance in order to inform the further development of U.S. policy in this area;
- U.S. development assistance focused on rule-of-law capacity building, including that which enables countries to exercise their complementary jurisdiction to the Court effectively;
- support for the continued development of contacts between the various branches of the U.S. Government and the Court;
- support for the legislative agenda detailed below; and
- an inter-agency policy review to re-examine, in light of the Court’s further performance and the outcome of the 2010 Review Conference, whether the United States should become a party to the Rome Statute with any appropriate understandings and declarations as other States Parties have done.
The Task Force further recommends that Congress pursue a legislative agenda on the Court that includes:
- amendment of the American Service-members’ Protection Act and other applicable laws to the extent necessary to enhance flexibility in the U.S. Government’s engagement with the Court and allies that are State Parties to the Rome Statute;
- consideration of amendment to U.S. law to permit full domestic U.S. prosecution of crimes within the jurisdiction of the Court so as to ensure the primacy of U.S. jurisdiction over the Court’s jurisdiction under the complementarity regime; and
- hearings to review and monitor Court performance in order to identify means by which the United States can support the Court consistent with the interests of the United States and the international community and to re-examine whether the U.S. should become a party to the Rome Statute with any appropriate understandings and declarations as other States Parties have done.
Collins: Reflections on Holocaust Claims in International Law
More than 60 years after the end of the war, this is still a contemporary issue. Hardly a day goes by without some aspects of Holocaust related claims being reported in the newspapers. In what follows I provide an overview of the claims which have been made and settled; outline some of the legal issues of international law and foreign relations law which have arisen, especially the role of international law in the claims, the effect of state immunity on the claims, and the question of justiciability; and conclude by raising, although perhaps not answering, some of the ethical issues which have arisen.
Helfer & Alter: Building Judicial Supranationalism in the Andes: Understanding the Preliminary Reference Patterns in the Andean Community
In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system.
We find that the relationship between the ATJ and national judges differs significantly from than the relationship between the ECJ and its domestic judicial colleagues. As in Europe, references from national judges account for the vast majority of cases on the ATJ's docket. But unlike in Europe, national courts are mostly passive intermediaries. Our coding reveals that national judges do not pose provocative questions to the ATJ, and that there is significant cross-national variation in referral patterns. Interviews corroborate what the data suggests: national judges have a circumscribed understanding of what Andean law requires of them. More than 90% of references involve technical issues of Andean intellectual property (IP) law and the registration decisions of domestic IP administrative agencies. National judges have embraced the ATJ's active role in IP disputes because of the support of these agencies, which seek the Tribunal's guidance to interpret vague areas of Andean law. Outside the area of IP, national judges are far more reluctant, contributing to the limited penetration of Andean law into national legal orders. We conclude by comparing the role of national judges in Europe to their role in the Andean context, extracting broader insights about the role of national judges in building international rules of law.
Sunday, February 1, 2009
Brant: Comentário à Carta das Nações Unidas
A Carta da Organização das Nações Unidas é, certamente, peça essencial para a compreensão da atual dinâmica das relações internacionais.
A construção de uma interpretação regional desse instrumento se torna, dessa forma, uma tarefa obrigatória e ao mesmo tempo desafiadora para diplomatas, professores, e estudantes.
A partir de uma abordagem multidisciplinar, baseada no referencial teórico tanto do Direito quanto das Relações Internacionais, essa obra conta com a contribuição de renomados profissionais de todo o País. Por meio de uma análise artigo por artigo da Carta das Nações Unidas busca-se redimensionar o debate acerca do papel da ONU e da inserção brasileira no quadro das relações internacionais.