Saturday, March 14, 2009

Inama: Rules of Origin in International Trade

Stefano Inama (UNCTAD) has published Rules of Origin in International Trade (Cambridge Univ. Press 2009). Here's the abstract:
This book discusses the different aspects of the rules of origin with a multidisciplinary perspective. It offers the first overview on the status of the negotiations of non-preferential rules of origin under the WTO agreement on rules of origin after more than ten years of negotiations and the possible implications for other WTO agreements. This book deals extensively with preferential rules of origin – both under unilateral trade instruments like GSP, EBA, and AGOA and in free trade areas. Inama analyzes the experience of the United States and the EU in developing the NAFTA and Pan-European rules of origin. He also compares and discusses the parallel experiences of the major southern regional trade agreements – such as Mercosur and ASEAN – and the ASEAN–China free trade area, as well as Comesa and SADC in their negotiations of the European partnership agreements (EPAs) with the EU. It discusses the evolution of the different sets of rules of origin, the technical options for drafting rules of origin, a methodology for drafting product specific rules origin, and the possible implications.

Friday, March 13, 2009

Call for Papers: International Law Weekend 2009

The American Branch of the International Law Association has issued a call for papers for its annual International Law Weekend, to take place October 22-24, 2009, at Fordham Law School in New York. Here's the call:

On October 22-24, 2009, the American Branch of the International Law Association ("ABILA") will hold its annual International Law Weekend in New York, bringing together hundreds of practitioners, members of the governmental and non-governmental sectors and students.

The conference will feature numerous panels, Ms. Lucy F. Reed, President of the American Society of International Law, as distinguished speaker, receptions, and the ABILA's annual meeting.

International Law Weekend 2009 will take place at the Association of the Bar of the City of New York on October 22, 2009, and at Fordham University School of Law on October 23rd and 24th. The Weekend's theme is "Challenges to Transnational Governance".

The economic, political, and social changes of the last decade have re-shaped international law and deeply affected its role and practice, along with the identity and attitude of its participants. This year's Weekend will address the challenges posed by these changes with an emphasis on the emergence of the notion of "transnational governance" and the issues related to it, including:

  • Re-ordering, organizing, and monitoring: Is this what trasnational governance is about?
  • Who is in charge of transnational governance?: A discussion of the (sometimes new) role of international organizations, states, NGOs, regions, companies, private individuals, and others.
  • Governing what?: The contents and scope of transnational governance
  • The impact of transnational governance on international trade, foreign investment, and dispute resolution mechanisms.
  • In the new context, what is the role of regulatory international law?

The ILW 2009 co-chairs are Pierre Bodeau-Livinec of the United Nations Office of Legal Affairs, Wil Burns, Editor in Chief, Journal of International Wildlife Law & Policy, and Aníbal M. Sabater, Partner, Fulbright & Jaworski International LLP.

Please submit panel proposals to the co-chairs by April 10, 2009.

ICJ: Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) (Conclusion of Public Hearings)

Yesterday, the International Court of Justice concluded its public hearings in the case concerning the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua). (Press release here; hearing transcripts here; written proceedings here.) The dispute concerns Nicaraguan regulation of Costa Rican use of the San Juan River, which constitutes a significant portion of the two countries' common border.

Here are the submissions of the parties:

For Costa Rica:

May it please the Court to adjudge and declare that the Republic of Nicaragua has:

(a) the obligation to allow all Costa Rican vessels and their passengers to navigate freely on the San Juan for purposes of commerce, including communication and the transportation of passengers and tourism;

(b) the obligation not to impose any charges or fees on Costa Rican vessels and their passengers for navigating on the river;

(c) the obligation not to require persons exercising the right of free navigation on the river to carry passports or obtain Nicaraguan visas;

(d) the obligation not to require Costa Rican vessels and their passengers to stop at any Nicaraguan post along the river;

(e) the obligation not to impose other impediments on the exercise of the right of free navigation, including timetables for navigation and conditions relating to flags;

(f) the obligation to allow Costa Rican vessels and their passengers while engaged in such navigation to land on any part of the bank where navigation is common without paying any charges, unless expressly agreed by both Governments;

(g) the obligation to allow Costa Rican official vessels the right to navigate the San Juan, including for the purposes of resupply and exchange of personnel of the border posts along the right bank of the river with their official equipment, including service arms and ammunition, and for the purposes of protection as established in the relevant instruments, and in particular the Second Article of the Cleveland Award;

(h) the obligation to facilitate and expedite traffic on the San Juan, within the terms of the Treaty of 15 April 1858 and its interpretation by the Cleveland Award of 1888, in accordance with Article 1 of the bilateral Agreement of 9 January 1956;

(i) the obligation to permit riparians of the Costa Rican bank to fish in the river for subsistence purposes.

Further, the Court is requested to adjudge and declare that by reason of the above violations, Nicaragua is obliged:

(a) immediately to cease all the breaches of obligations which have a continuing character;

(b) to make reparation to Costa Rica for all injuries caused to Costa Rica by the breaches of Nicaragua’s obligations referred to above, in the form of the restoration of the situation prior to the Nicaraguan breaches and compensation in an amount to be determined in a separate phase of these proceedings; and

(c) to give appropriate assurances and guarantees that it shall not repeat its unlawful conduct, in such form as the Court may order.

The Court is requested to reject Nicaragua’s request for a declaration.

For Nicaragua:

May it please the Court to adjudge and declare that:

The request of Costa Rica in her Memorial, Reply and oral pleadings are rejected in general, and in particular, on the following bases:

(a) either because there is no breach of the provisions of the Treaty of Limits of 15 April 1858 or any other international obligation of Nicaragua;

(b) or, as appropriate, because the obligation breach of which is alleged, is not an obligation under the provisions of the Treaty of Limits of 15 April 1858 or under general international law.

Moreover the Court is also requested to make a formal declaration on the issues raised by Nicaragua in Section II of the Chapter VII of her Counter-Memorial, in Section I, Chapter VI of her Rejoinder and as reiterated in these oral pleadings.

Krisch: Global Administrative Law and the Constitutional Ambition

Nico Krisch (Hertie School of Governance) has posted Global Administrative Law and the Constitutional Ambition. Here's the abstract:
The emergence of global governance has called into question many of the tools and concepts by which the traditionally dichotomous spaces of national and international politics and law were ordered, and various structuring proposals are competing to take their place. In this paper I examine two such proposals - global constitutionalism and global administrative law. Both represent distinct visions of how to approach the challenge, their key difference lying in their respective ambitions: constitutionalist visions set out to describe and develop a fully justified global order, while global administrative law is more limited in scope, focusing on particular elements of global governance and confining itself to the analysis and realisation of narrower political ideals, especially accountability. Such a limited approach raises serious problems, most prominently difficulties in separating 'administrative' from 'constitutional' issues and the risk of legitimising illegitimate institutions. But it also bears significant promise as it allows to focus on, and begin to answer, crucial questions of global governance without leaping to grand designs borrowed from dissimilar contexts and likely at odds with the fluid and diverse character of the postnational polity.

Nollkaemper: State Responsibility for International Crimes: A Review of Principles of Reparation

André Nollkaemper (Univ. of Amsterdam - Amsterdam Center for International Law) has posted State Responsibility for International Crimes: A Review of Principles of Reparation (in Essays in Honour of Professor Kalliopi Koufa, forthcoming). Here's the abstract:
Most international crimes are committed with the support or under the control of collective entities, notably states. Yet, international law tends to hold only individuals, rather than states responsible for such crimes. This is well illustrated in the case of Darfur. The prosecutor of the ICC stated that 'The information gathered points to an ongoing pattern of crimes committed with the mobilization of the whole state apparatus'. Yet, in this case legal responsibility was 'only' channeled towards the president of Sudan, somehow presuming that his arrest would remove the involvement of the state apparatus. This paper reviews the various principles of reparation that allow international law to address the state for its involvement in international crimes, rather than only individuals. It also examines the role of the Security Council in this respect.

Workshops: Fox, Saidov

Gregory H. Fox (Wayne State Univ. - Law) will give a talk today at the Lauterpacht Centre for International Law's Friday Lunchtime Lecture Series on "The Obama Administration and International Law."

Djakhongir Saidov (Univ. of Birmingham - Law) will give a talk today at the University of Nottingham Seminar Series on "Damages Under the Vienna Sales Convention: Specific Problems and Broader Lessons."

Thursday, March 12, 2009

Parry: A Primer on Treaties and Section 1983 after Medellin v. Texas

John T. Parry (Lewis & Clark - Law) has posted A Primer on Treaties and Section 1983 after Medellin v. Texas (Lewis & Clark Law Review, forthcoming). Here's the abstract:
This article -- part of a symposium on the Supreme Court's 2008 decision in Medellin v. Texas -- addresses the impact of that decision on the ability of plaintiffs to bring section 1983 claims against state actors for violations of treaties. Because to my knowledge there has been no comprehensive assessment of whether section 1983 applies to treaties at all, the article first considers the textual, precedential and policy-based arguments on that question. I conclude that although the question is close, section 1983 should include treaty-based claims. Turning to Medellin, the article highlights several statements in the majority opinion to the effect that treaties are not equal to federal statutes and that courts should presume that treaties do not create private rights. The article assesses the extent to which these statements will create problems for treaty claims. Notwithstanding those problems, I argue that treaties and statutes should receive similar treatment under section 1983.

Riddell & Plant: Evidence Before the International Court of Justice

Anna Riddell & Brendan Plant have published Evidence Before the International Court of Justice (British Institute of International and Comparative Law 2009). Here's the abstract:

Some recent contentious issues about the use of evidence in cases before the International Court of Justice have highlighted the importance of fact-finding and the use of evidence before this Court. This major study by the British Institute of International and Comparative Law on the issue of evidence before the International Court of Justice has examined all aspects of the Court's relationship with facts in detail, in both contentious and advisory proceedings, from the recently refined procedure for submitting late evidence, to the hearing of live witness testimony in the Peace Palace.

Considerations of flexibility and respect for the sovereignty of the State Parties before it have traditionally deterred the Court from constructing concrete rules on matters of evidence, but the increasing numbers of cases in which a thorough consideration of the facts has been essential has highlighted that some detailed procedural guidance is necessary in order to ensure a well-functioning system of adjudication. It is apparent that the Court has paid an incerasing amount of attention to its evidentiary proceedings as a result, often encountering difficulties in the inherent tensions between the common and civil law traditions and thus a divergence of opinions on the Bench.

This book examines the history and development of the treatment of evidence since the early days of the PCIJ up to the recent Nicaragua v Honduras judgment, critically analysing the Statute and Rules of the Court, dicta from judgments and separate and dissenting opinions, the newly developed Practice Directions and academic writings on the subject. It aims not only to provide an academic discussion of the subject, but also to act as a guide to practitioners appearing before the Court.

Ullrich: Das Dienstrecht der Internationalen Organisationen

Gerhard Ullrich has published Das Dienstrecht der Internationalen Organisationen: Institutionelles Völkerrecht, Recht und Praxis (Duncker & Humblot 2009). Here's the abstract:

Gerhard Ullrich liefert eine Gesamtdarstellung des Dienstrechts der Internationalen Organisationen und verdeutlicht den Prozess der Anerkennung gemeinsamer Werte sowie die Entwicklung einheitlicher Regelungsstandards.

Im ersten Teil erläutert er die Grundlagen des Dienstrechts und gibt statistische Hinweise. Ausführlich kommentiert der Autor die Privilegien und Immunitäten der Bediensteten. Das Kernstück des Buches bildet die Untersuchung der Rechtsquellen des Dienstrechts der Internationalen Organisationen. Dabei nimmt die Rechtsprechung der internationalen Verwaltungsgerichte zu den Allgemeinen Rechtsgrundsätzen einen besonders breiten Raum ein. Diese Grundsätze bilden für alle Internationalen Organisationen einen verbindlichen Wertekanon. Eine zweite Rechtsquelle stellen die Strukturen und Elemente des normierten Dienstrechts der Internationalen Organisationen dar, die praxisorientiert kommentiert werden. Eine systematisierende Zusammenfassung in Dienstrechtskreisen gliedert die Fülle des Stoffes. Abschließend behandelt der Autor das Rechtsschutzsystem für die internationalen Bediensteten und erläutert das Verfahren vor den internationalen Verwaltungsgerichten.

Es ist heute mehr denn je gerechtfertigt, von einer Einheit in der Vielfalt des Dienstrechts zu sprechen. Dieser Trend setzt sich verstärkt fort. Dabei vollzieht sich die Rechtsangleichung nicht nur horizontal durch die Rechtsprechung der internationalen Verwaltungsgerichte zu den Allgemeinen Rechtsgrundsätzen, sondern auch vertikal durch die vielfache Übernahme bereits normierten Dienstrechts durch andere Internationale Organisationen. Mit der vorliegenden Gesamtdarstellung des Dienstrechts der Internationalen Organisationen leistet Gerhard Ullrich einen rechtsdogmatischen und praxisorientierten Beitrag zu diesem Teilbereich des institutionellen Völkerrechts.

Joyner: International Law and the Proliferation of Weapons of Mass Destruction

Daniel H. Joyner (Univ. of Alabama - Law) has published International Law and the Proliferation of Weapons of Mass Destruction (Oxford Univ. Press 2009). Here's the abstract:

Proliferation of WMD technologies is by no means a new concern for the international community. Indeed, since the signing of the Nuclear Non-proliferation Treaty in 1968, tremendous energies have been expended upon diplomatic efforts to create a web of treaties and international organisations regulating the production and stockpiling of WMD sensitive materials within states, as well as their spread through the increasingly globalised channels of international trade to other states and non-state actors.

However, the intervention in 2003 by Western powers in Iraq has served as an illustration of the importance of greater understanding of and attention to this area of law, as disagreements over its content and application have once again lead to a potentially destabilising armed intervention by members of the United Nations into the sovereign territory of another member state. Other ongoing disputes between states regarding the character of obligations assumed under non-proliferation treaty instruments, and the effect of international organisations' decisions in this area, form some of the most contentious and potentially destabilising issues of foreign policy concern for many states.

This book provides a comprehensive analysis of international law and organisations in the area of WMD proliferation. It will serve both as a reference for understanding the law as it currently exists in its political and economic context, as well as an analysis of areas in which amendments to existing law and organisations are needed.

Law Enforcement Operations at Sea: Challenges and Responses

Today, the British Institute for International and Comparative Law will host a seminar on "Law Enforcement Operations at Sea: Challenges and Responses."

Workshop: Williams

Brett Williams (Univ. of Sydney - Law) will give a talk today at the Sydney Centre for International Law on "The Doha Round Negotiation on Antidumpting Rules: What's on the Table?"

Wednesday, March 11, 2009

Parrish: Duplicative Foreign Litigation

Austen Parrish (Southwestern Law School) has posted Duplicative Foreign Litigation. Here's the abstract:

What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings - and the waste inherent in such duplication - becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents.

The federal courts, however, do not yet have a coherent response to the problem. They apply at least three different approaches when deciding whether to stay or dismiss U.S. litigation in the face of a first-filed foreign proceeding. All three approaches, however, are undertheorized, fail to account for the costs of duplicative actions, and uncritically assume that domestic theory applies with equal force in the international context. Relying on domestic abstention principles, courts routinely refuse to stay duplicative actions believing that doing so would constitute an abdication of their "unflagging obligation" to exercise jurisdiction. The academic community in turn has yet to give the issue sustained attention, and a dearth of scholarship addresses the problem.

This article offers a different way of thinking about the problem of duplicative foreign litigation. After describing the shortcomings of current approaches, it argues that when courts consider stay requests they must account for the breadth of their increasingly extraterritorial jurisdictional assertions. The article concludes that courts should adopt a modified lis pendens principle, and reverse the current presumption. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the party seeking the stay can establish that the first-filed foreign action has jurisdiction over the case under U.S. jurisdictional principles. This approach - pragmatic in its orientation, yet also more theoretically coherent than current law - would help avoid the wastes inherent in duplicative litigation, and better serve long-term U.S. interests.

Kaye: The U.S. must reengage with the International Criminal Court

David Kaye (Director, UCLA Human Rights Program) has an op-ed in today's Los Angeles Times arguing that "The U.S. must reengage with the International Criminal Court." Here it is:

The arrest warrant issued last week for Sudan President Omar Hassan Ahmed Bashir has thrown into stark relief a question the Obama administration and Congress need to address:

What are we going to do about the International Criminal Court?

The desire for a permanent criminal court to try individuals accused of crimes against humanity, war crimes and genocide has been around since the Nuremberg trials. Its creation, stalled during the Cold War, picked up momentum again in the 1990s, when the United States led the creation of war crimes tribunals for Yugoslavia and Rwanda. By 1995, the United States under President Clinton had assumed a leadership role in planning for an International Criminal Court.

In 1998, most of the world's nations gathered in Rome for final negotiations on an ICC treaty. The Clinton administration -- knowing that it could only get Congress to ratify such an agreement with strict protections for national security interests -- pushed hard to immunize American officials from prosecution and to give the U.N. Security Council a significant role in determining situations the ICC should pursue.

In the end, although more than 90% of the court statute was acceptable, the U.S. was unable to secure the concessions it wanted, and it voted against the ICC's founding document, the Rome Statute. Although he was disappointed in the outcome, Clinton nonetheless authorized signing the document shortly before he left office, an act that allowed the U.S. to remain engaged with the court but did not require it to join.

The incoming Bush administration saw things differently. Soon after taking office, the new president ordered the Rome Statute "unsigned," and his administration embarked on an effort to undermine the ICC, encouraging other nations to promise not to hand over Americans to its jurisdiction under any circumstance.

Led by Jesse Helms, the late Republican senator from North Carolina, Congress imposed sanctions against governments that joined the court, even cutting off military assistance to some. Congress prohibited U.S. cooperation with the court and authorized the president to use any necessary means to rescue Americans who might be held by the court. Europeans, sensing the hostility, dubbed the law "The Hague Invasion Act."

The ICC started operation during the summer of 2002, after the 60th government joined. Today, 108 countries are members, including most of Western Europe, Latin America and Africa, as well as Canada, Mexico, Australia and Japan. But the U.S. hostility was slow to thaw. It wasn't until 2005, after Colin Powell defined the Darfur atrocities as genocide, that the first signs of a more pragmatic approach emerged. The United States went along with the U.N. Security Council's referral of Darfur to the ICC for investigation and possible prosecution. Under Condoleezza Rice, the United States quietly adopted a posture of wary realism, rhetorically supporting the Darfur investigation without engaging the ICC in a serious or official way.

The time has now come for the U.S. to become more engaged.

Consider the warrant for Bashir. The warrant may well have been the right move. But it could cause damage to the peace process in Sudan and retaliation against millions of displaced persons and refugees in Darfur, where the U.S. has deep moral and political stakes. The ICC undoubtedly would have benefited from U.S. input last year, when the prosecutor was considering the warrant, and from the kind of information and analysis the United States routinely has provided to other international tribunals.

Closer engagement also would allow the U.S. to help shape policy and legal developments in ways that meet its concerns. Today, we have little ability to influence the court's thinking. As a consequence, many basic principles of international law are being developed without U.S. input.

Not all the action is in the courtroom either. Parties to the ICC are considering whether and how to amend the Rome Statute to include the crime of aggression -- the unlawful use of military force. Our ability to shape the court's approach to this crime is limited unless we take prompt steps to play an active role.

Bringing Congress along on the idea of increased engagement could prove difficult, and joining probably remains unlikely. Despite polls showing public support for international justice, the court is still seen as a political liability in this country. Both Democrats and Republicans in Congress have expressed concern about the court's potential ability to interfere with American sovereignty on military and political issues.

Still, engagement with the court is possible, even without joining. The Obama administration's first job, working with Congress, is to reverse the hostility of the last eight years. Among other things, we should sign back on to the Rome Statute -- a step that merely indicates that the U.S. affirms the ICC's objectives. We should then initiate a process to provide the court with information to advance its investigations. Finally, we should consider measures domestically and at the Security Council to squeeze those who harbor alleged perpetrators of war crimes, crimes against humanity and genocide.

Getting back in the game will advance American interests while contributing to international justice. In addition to Darfur, the ICC is pursuing cases referred to it by Uganda, the Democratic Republic of Congo and the Central African Republic, places where U.S. engagement can make a difference. American support for other tribunals in the Balkans, Sierra Leone, Lebanon, Cambodia and elsewhere has likewise proved essential.

Rebooting ICC policy serves U.S. interests. It also is an important step toward resetting America's place in the world. It's time to reengage.

Coop & Ribeiro: Investment Protection and The Energy Charter Treaty

Graham Coop (Energy Charter Secretariat) & Clarisse Ribeiro (Energy Charter Secretariat) have published Investment Protection and the Energy Charter Treaty (Juris Publishing 2009). Here's the abstract:
Investment Protection and the Energy Charter Treaty contains in depth substantive analysis of the interpretation and application of provisions of the Energy Treaty Charter including access to dispute resolution mechanisms under Article 26 of the Treaty and the standards of treatment for investors under the Energy Charter Treaty, including the guarantee of most favored nation treatment, protection against unfair and inequitable treatment, unreasonable and discriminatory measures, direct and indirect expropriation, breaches of investment agreements, damages due to war and similar events, and unjustified restrictions on the transfer of funds, as well as protection against certain types of tax measures. The book examines issues such as the arbitrability of “pre-investment” disputes under the Treaty and whether public tender offers can qualify as “existing” investment rather than “pre-investment” activity and the applicability of the ECT between members of the European Community. The role of the ECT in the context of the European Union and Russia (examining the legal dimension of the oil and gas relationship between the EU and Russia) and provides a comparison of the Energy Charter Treaty and other investment Treaties (distinguishing the ECT approach to investment protection in the context of disputes submitted to arbitration under its dispute resolution provisions).

Yee & Morin: Multiculturalism and International Law

Sienho Yee (Wuhan Univ. - Institute of International Law) & Jacques-Yvan Morin (l'Université de Montréal - Law) have published Multiculturalism and International Law: Essays in Honour of Edward McWhinney (Martinus Nijhoff Publishers 2009). Contents include:
  • Jacques-Yvan Morin, L’ordre juridique international et l’éthique du bien commun dans l’ère de la mondialisation
  • Rein Müllerson, From E Unum Pluribus to E Pluribus Unum in the Journey from an African Village to a Global Village?
  • Duan Jielong, The Concept of the “Harmonious World”: An Important Contribution to International Relations
  • Hans Köchler, Civilization and World Order: The Relevance of the Civilizational Paradigm in Contemporary International Law
  • Abdul G. Koroma, International Law and Multiculturalism
  • Hugh Thirlway, Reflections on Multiculturalism and International Law
  • V.S. Vereshchetin, Cultural and Ideological Pluralism and International Law: Revisited 20 Years on
  • Manuel Rama-Montaldo, Universalism and Particularisms in the Creation Process of International Law
  • Johannes van Aggelen, The Shift in the Perception of Multiculturalism at the United Nations since 1945
  • Karl Doehring, Democracy and International Law
  • Sienho Yee, The Intrinsic and Instrumental Values of Diversity: Some Philosophical and Legal Considerations
  • Christian Dominicé, Fédéralisme et mise en oeuvre du droit international
  • Stefan Talmon, Participation of UN Member States in the Work of the Organization: A Multicultural Alternative to Present-Day Regionalism?
  • Budislav Vukas, Some Provisions of the Statute of the International Court of Justice which Deserve Amendments
  • Mariko Kawano, The Administration of Justice by the International Court of Justice and the Parties
  • Sompong Sucharitkul, Legal Multiculturalism and the International Law Commission
  • Phillippe Kirsch, The International Criminal Court: Building on the Principal Legal Systems of the World
  • Nisuke Ando, Multiculturalism and the Human Rights Committee
  • Bartram S. Brown, Multiculturalism and the Bretton Woods Institutions
  • William E. Holder, International Organizations and Governance of the International Monetary Fund
  • Daniel Vignes, L’Union européenne, acteur civil et militaire dans la gestion des crises internationales: la PESD, politique européenne de sécurité et de défense
  • Ludmila Galenskaya, The International Institutional System and International Non-Governmental Organizations
  • Shinya Murase, Unilateral Responses to International Terrorism: Self-defense or Law Enforcement?
  • Pieter H. Kooijmans, The Legality of the Use of Force in the Recent Case Law of the International Court of Justice
  • Rudolf Bernhardt, International Protection of Human Rights: Universalism and Regionalism
  • Antônio Augusto Cançado Trindade, The Right to Cultural Identity in the Evolving Jurisprudential Construction of the Inter-American Court of Human Rights
  • Curtis F.J. Doebbler, Danish Cartoons: Freedom of Speech versus Freedom of Religion?
  • Vladimir-Djuro Degan, Two Faces of Multiculturalism in Present International Law
  • Rüdiger Wolfrum, Kosovo: Some Thoughts on its Future Status
  • Bogdan Aurescu, Minorities in Europe: Recent Trends
  • Maivân Clech Lâm, We the [Indigenous] Peoples of the United Nations
  • Michael Bothe, Multiculturalism and the Development of International Humanitarian Law
  • Bing Bing Jia, Multiculturalism and the Development of the System of International Criminal Law
  • Claire Osborn Wright, Toward a New Cultural Exemption in the WTO
  • Maurizio Ragazzi, Multiculturalism and Church-State Concordats
  • Daniel Turp, Le consentement de l’État du Québec aux engagements internationaux et sa participation aux forums internationaux

Workshops: Corell, Orentlicher

Hans Corell (formerly, Legal Counsel, United Nations) will give a talk today the Hofstra University School of Law on "Legal Issues Facing the United Nations."

Diane Orentlicher (American Univ. - Law) will give a talk today at the Yale Law School Human Rights Workshop on "International Criminal Courts: What Impact Do They Have?"

Tuesday, March 10, 2009

New Issue: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

The latest issue of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Vol. 68, no. 3, 2008) is out. Contents include:
  • Nikolas Lavranos, Regulating Competing Jurisdictions Among International Courts and Tribunals
  • Oliver Diggelmann & Tilmann Altwicker, Is There Something Like a Constitution of International Law? A Critical Analysis of the Debate on World Constitutionalism
  • Alexander Proelss & Till Müller, The Legal Regime of the Arctic Ocean
  • Jörg Philipp Terhechte, Das Internationale Karetll- und Fusionkontrollverfahrensrecht zwischen Kooperation und Konvergenz
  • Christophe Eick, Die Anerkennung der obligatorischen Gerichtsbarkeit des Internationalen Gerichtshofs durch Deutschland
  • Peter Hilpold, Das Kosovo-Problem - ein Testfall für das Völkerrecht
  • Mattias Wendel, Renaissance der historischen Auslegungsmethode im europäischen Verfassungsrecht? Überlegungen zur Tragweite der historischen Auslegungsmethode infolge des jüngsten EU Reformsprozesses

Waldron: Civilians, Terrorism, and Deadly Serious Conventions

Jeremy Waldron (New York Univ. - Law) has posted Civilians, Terrorism, and Deadly Serious Conventions. Here's the abstract:
This paper asks how we should regard the laws and customs of armed conflict, and specifically the rule prohibiting the targeting of civilians. What view should we take of the moral character and significance of such rules? Some philosophers have suggested that they are best regarded as useful conventions. This view is sometimes motivated by a "deep moral critique" of the rule protecting civilians: Jeff McMahan believes for example that the existing rules protect some who ought to be liable to attack (on account of their having voluntarily contributed to the injustice or aggression being resisted). He thinks we would be better off with a different principle of discrimination in warfare. But McMahan acknowledges that for the time being we must stick with the rules that we have. The present paper does five things: (1) it explores and takes further some of McMahan's insights about the importance of existing positive law in this area; (2) it argues that some of the features that philosophers find problematic with the rule offering blanket protection to all civilians have to do with administrability; (3) it raises some questions about whether the rule protecting civilians can really be regarded as a convention (and it argues that certainly it cannot be regarded as a "Lewis-convention" in a strict sense); (4) to the extent that the rule can be regarded as conventional, the paper argues that it remains a deadly serious moral rule, partly because of the circumstances of death and destruction in which it operates and which it tries to ameliorate, and partly on account of its fragility. The fifth point is the most important. (5) The rule protecting civilians does not operate in circumstances in which, apart form positive law, civilians like everyone would be liable to attack. The rule operates against a moral background in which all deliberate killing is to be regarded as murder; some deliberate killings (of combatants) are privileged in warfare; but the rule about civilians reflects the fact that this is a strictly limited privilege and that those who target civilians do not get the benefit of it. Changing our view of the default position in this way enables us to better understand the distinctive work that this rule does.

New Issue: World Trade Review

The latest issue of the World Trade Review (Vol. 8, no. 1, January 2009) is out. Contents include:
  • Henrik Horn & Petros C. Mavroidis, Introduction
  • William J. Davey & André Sapir, The Soft Drinks Case: The WTO and Regional Agreements
  • Frieder Roessler, Comment: Mexico – Tax Measures on Soft Drinks and Other Beverages (DS308)
  • Bernard M. Hoekman & Petros C. Mavroidis, Nothing Dramatic (. . . regarding administration of customs laws)
  • Joost Pauwelyn, Comment: Nothing dramatic (. . . regarding administration of customs laws)
  • Robert L. Howse & Henrik Horn, European Communities – Measures Affecting the Approval and Marketing of Biotech Products
  • Chad P. Bown & Joel P. Trachtman, Brazil – Measures Affecting Imports of Retreaded Tyres: A Balancing Act
  • J.H.H. Weiler, Comment: Brazil – Measures Affecting Imports of Retreaded Tyres (DS322)
  • David A. Gantz & Simon A. B. Schropp, Rice Age: Comments on the Panel Report in Turkey – Measures Affecting the Importation of Rice
  • Niall Meagher, Comment: Turkey – Measures Affecting the Importation of Rice (DS334)
  • Thomas J. Prusa & Edwin Vermulst, A One-Two Punch on Zeroing: US–Zeroing (EC) and US–Zeroing (Japan)
  • Jasper Wauters, Comment: United States – Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing) (DS 294) and United States – Measures Relating to Zeroing and Sunset Reviews (DS322)
  • Hylke Vandenbussche, Comment: United States – Laws, Regulations and Methodology for Calculating Dumping Margins ( Zeroing) (DS294)
  • Meredith A. Crowley & David Palmeter, Japan – Countervailing Duties on Dynamic Random Access Memories from Korea (DS 336 and Corr.1, adopted 17 December 2007)
  • Paola Conconi, Comment: Japan – Countervailing Duties on Dynamic Random Access Memories from Korea (DS 336 and Corr.1, adopted 17 December 2007)

Call for Papers: Sovereign Wealth Funds – Governance & Regulation

The National University of Singapore Law School and the Asian Society of International Law have issued a call for papers for their conference on "Sovereign Wealth Funds: Governance and Regulation," to be held at the NUS Law School, September 9-11, 2009. Here's the call:

The National University of Singapore (NUS) and the Asian Society of International Law (AsianSIL) are pleased to invite applications to attend the NUS Law School-AsianSIL Conference on Sovereign Wealth Funds: Governance and Regulation. This will be held at the NUS Law School in Singapore from Wednesday to Friday, 9-11 September 2009. Paper-givers who are selected through a competitive process will have their reasonable expenses covered.

Sovereign wealth funds (SWFs) played an important role in the economic crisis of 2007-2009, incidentally acquiring large stakes in some financial giants. Yet that role has also raised questions about the influence of these state-owned investment vehicles. The United States and the European Union have expressed concerns that SWFs - coming largely from developing nations such as China, Russia and the Gulf states - have more than commercial aims. In particular, there are concerns that SWFs seek political and strategic leverage on top of financial gain. Such anxieties have been exacerbated by the relative opacity of these large investors.

Current discussion about these issues tends to concentrate on policy and economic matters rather than law. The aim of this conference - Sovereign Wealth Funds: Governance and Regulation - is to clarify the role that norms and law may play in future governance and regulation, including analysis of the governance potential of self-regulation and voluntary regimes.

A variety of processes have been initiated by both investor and investee countries, as well as the International Monetary Fund (IMF) and the World Bank, intended to bring a measure of clarity to the situation. In particular, the International Working Group of Sovereign Wealth Funds (IWG-SWF) has drafted a set of Generally Accepted Principles and Practices (GAPP) - the “Santiago Principles” - in the hope that this voluntary regime will help maintain the free flow of cross-border investment and open and stable financial systems.

The Santiago Principles define SWFs as “special purpose investment funds” owned and created by the general government for macroeconomic purposes. Generally established from the balance of payments surpluses, official foreign currency operations, proceeds of privatizations, fiscal surpluses, and/or receipts resulting from commodity exports, SWFs invest largely in foreign financial assets to achieve financial objectives.

Abstracts for new and unpublished papers are invited on these and related issues. All conference papers will be published as "working papers" on the AsianSIL website. A select number of accepted papers will subsequently be considered for formal publication in a special section of the Singapore Year Book of International Law.

The following subject areas are intended to be illustrative of possible topics that might be considered, but other approaches are welcome:

  • Regulation at home (for example, transparency and accountability requirements for SWFs; processes for determining appropriate allocation of assets)
  • Regulation abroad (for example, restriction on foreign SWF investment in “sensitive yet capital-intensive” industries)
  • Self-regulation and voluntary regimes (for example, the likely impact of the GAPP on SWF investment practices, corporate social responsibility)
  • SWFs and international trade (for example, the relationship between bilateral investment treaties and SWF capital investments, and the possibility of including regulatory clauses in future treaties)
  • Best practices in corporate governance (for example, emerging standards for risk management and rates of return on investment)
  • Avoiding conflicts of interest (for example, a government taking stakes in an entity that it is regulating)
  • Stakeholders and the lines of accountability (for example, who the stakeholders in such a fund are and to whom accountability for its activities should be directed)
  • The impact of the financial crisis on prospects for regulation of SWFs.
  • What is “sovereign wealth” anyway?

Proposals should be submitted on the attached Abstract Submission Form available here.

Please ensure that you include an abstract of not more than 250 words, indicating the relationship of the proposed paper to the conference theme and identifying one or more of the subject areas listed above to which the paper relates.

Completed forms must be emailed to by Friday, 24 April 2009. Those selected to participate in the conference will be notified by Friday, 1 May 2009. Further details about the conference will be made available at that time. Participation will be dependent on producing a draft of the paper (in the order of 8,000 words) by Friday, 31 July 2009.

For more details on the Conference, please refer to our conference website.

Important Deadlines

Submission of Abstract : 24 April 2009

Notification of Accepted Abstract : 1 May 2009

Submission of Paper : 31 July 2009

Submission of Registration Form : 31 July 2009

Conference : 9 – 11 September 2009

Workshops: Arbour, Simma

Louise Arbour (formerly, UN High Commissioner for Human Rights) will give a talk today at the Université de Genève on "L'état de droit dans un monde en désordre."

Bruno Simma (Judge, International Court of Justice) will give a talk today at the New York University School of Law Center for Human Rights and Global Justice on "Human Rights and the International Court of Justice."

Monday, March 9, 2009

Knox: Legislative Jurisdiction, Judicial Canons, and International Law

John H. Knox (Wake Forest Univ. - Law) has posted Legislative Jurisdiction, Judicial Canons, and International Law. Here's the abstract:
Congress often enacts statutes whose terms have no geographic limit. In deciding how far those statutes reach, the Supreme Court employs judicial canons, the best-known of which is the presumption against extraterritoriality, which states that "legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Despite the apparent simplicity of this language, the Court has failed to employ it consistently and predictably. This article proposes a new approach: to resolve questions of legislative jurisdiction, the Court should reinvigorate an older judicial canon, the presumption that U.S. laws do not extend beyond the limits on legislative jurisdiction imposed by international law. Under the proposal, courts would look to the bases of legislative jurisdiction under international law to determine whether to employ a presumption against the application of a statute.

New Issue: International Tax Journal

The latest issue of the International Tax Journal (Vol. 35, no. 1, January-February 2009) is out. Contents include:
  • Robert H. Dilworth, Tax Reform: International Tax Issues and Some Proposals

New Issue: International Arbitration Law Review

The latest issue of the International Arbitration Law Review (Vol. 12, no. 1, 2009) is out. Contents include:
  • Mark Beeley, Arbitration in the Dubai International Financial Centre: A Promising Law, but Will It Travel Well?

Bonafè: The Relationship Between State and Individual Responsibility for International Crimes

Beatrice I. Bonafè (Univ. of Macerata - Law) has published The Relationship Between State and Individual Responsibility for International Crimes (Martinus Nijhoff Publishers 2009). Here's the abstract:
This book offers a unique comparison between state and individual responsibility for international crimes and examines the theories that can explain the relationship between these two regimes. The study provides a comprehensive and systematic analysis of the relevant international practice from the standpoint of both international criminal law, and in particular the case law of international criminal tribunals, and state responsibility. The author shows the various connections and issues arising from the parallel establishment of state and individual responsibility for the commission of the same international crimes. These connections indicate a growing need to better co-ordinate these regimes of international responsibility. The author maintains that a general conception, according to which state and individual responsibility are two separate sets of secondary rules attached to the breach of the same primary norms, can help to solve the various issues relating to this dual responsibility. This conception of the complementarity between state and individual responsibility justifies co-ordination and consistent application of these two different regimes, each of which aims to foster compliance with the most important obligations owed to the international community as a whole.

New Issue: Journal of World Trade

The latest issue of the Journal of World Trade (Vol. 43, no. 1, February 2009) is out. Contents include:
  • Francis Snyder, China, Regional Trade Agreements and WTO Law
  • Peter Thomas Orebech, From Diplomatic – to Human Rights Protection: The Possessions under the 1950 European Human Rights Convention, First Additional Protocol Article 1
  • Huanan Liu, William A. Kerr & Jill E. Hobbs, Product Safety, Collateral Damage and Trade Policy Responses: Restoring Confidence in China's Exports
  • Jennifer Brown & Shawkat Alam, Australia's Extended Producer Responsibility for Portable Consumer Batteries: Conflicting or Reconciling Trade and Environment Obligations?
  • Jong Bum Kim & Joongi Kim, RTAs for Development: Utilizing Territoriality Principle Exemptions under Preferential Rules of Origin
  • Asif H. Qureshi, International Trade for Development: The WTO as a Development Institution?
  • Christina Stephenson, Reproductive Outsourcing to India: WTO Obligations in the Absence of US National Legislation

Call for Submissions: Inaugural Issue of Trade, Law and Development

Students at the National Law University, Jodhpur have launched a new academic journal entitled Trade, Law and Development. A description of its focus and scope can be found here. The journal has just issued a call for submissions for its inaugural issue. Here's the call:

The Editors invite submission of unpublished, original works for publication in the inaugural issue of Trade, Law and Development (spring, 2009). The Editors seek to publish works of the highest quality sharing the theme and ideals of the Journal.

Manuscripts received by 25th May, 2009 shall be considered for publication on a in the first issue. We accept and publish works for subsequent issues on a rolling basis.

We encourage authors to discuss their ideas, even at a nascent stage, for the sake of clarity, convenience and coordination. For an insight into the scope and purpose of the Journal please see the Editorial Policy. Specific information and guidelines for prospective authors are available in the Submissions Section.

Articles may either be submitted online or by way of e-mail (See further, Authors Guidelines).

Workshops: Combs, Danchin, Hurd

Nancy Combs (William and Mary - Law) will give a talk today at the George Washington University Law School Global Workshop Series on "Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions."

Peter Danchin (Univ. of Maryland - Law) will give a talk today at the George Washington University Law School International and Comparative Law Colloquium Series on "Against Cosmopolitanism? The Question of Human Rights in Rawls' Law of Peoples."

Ian Hurd (Northwestern Univ. - Political Science) will give a talk today at the Northwestern University School of Law International Law Colloquium.

Sunday, March 8, 2009

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 9, no. 1, 2009) is out. Contents include:
  • Anja Matwijkiw, The No Impunity Policy in International Criminal Law: Justice versus Revenge
  • Harmen van der Wilt & Sandra Lyngdorf, Procedural Obligations Under the European Convention on Human Rights: Useful Guidelines for the Assessment of 'Unwillingness' and 'Inability' in the Context of the Complementarity Principle
  • Nina Tavakoli, A Crime that Offends the Conscience of Humanity: A Proposal to Reclassify Trafficking in Women as an International Crime
  • Janine Natalya Clark, International War Crimes Tribunals and the Challenge of Outreach
  • Hiromi Sato, The Defense of Superior Orders in International Law: Some Implications for the Codification of International Criminal Law
  • Michael Kubiciel, Core Criminal Law Provisions in the United Nations Convention Against Corruption
  • Bernhard Kuschnik, International Criminal Due Process in the Making: New Tendencies in the Law of Non-Disclosure in the Proceedings before the ICC
  • Cedric Ryngaert, Territorial Jurisdiction Over Cross-frontier Offences: Revisiting a Classic Problem of International Criminal Law
  • Larissa van den Herik, The Difficulties of Exercising Extraterritorial Criminal Jurisdiction: The Acquittal of a Dutch Businessman for Crimes Committed in Liberia