Saturday, November 14, 2009

Staiger & Sykes: International Trade and Domestic Regulation

Robert W. Staiger (Stanford Univ. - Economics) & Alan O. Sykes (Stanford Univ. - Law) have posted International Trade and Domestic Regulation. Here's the abstract:
Existing formal models of the relationship between trade policy and regulatory policy suggest the potential for a regulatory race to the bottom. WTO rules and disputes, however, center on complaints about excessively stringent regulations. This paper bridges the gap between the existing formal literature and the actual pattern of rules and disputes. Employing the terms-of-trade framework for the modeling of trade agreements, we show how large "nations" may have an incentive to impose discriminatory product standards against imported goods once border instruments are constrained, and how inefficiently stringent standards may emerge under certain circumstances even if regulatory discrimination is prohibited. We then assess the WTO legal framework in light of our results, arguing that it does a reasonably thorough job of policing regulatory discrimination, but that it does relatively little to address excessive nondiscriminatory regulations.

Friday, November 13, 2009

New Issue: Ocean Development & International Law

The latest issue of Ocean Development & International Law (Vol. 40, no. 4, 2009) is out. Contents include:
  • Rachel G. Tiller, New Resources and Old Regimes: Will the Harvest of Zooplankton Bring Critical Changes to the Svalbard Fisheries Protection Zone?
  • Torbjørn Pedersen, Denmark's Policies Toward the Svalbard Area
  • Nguyen Hong Thao & Ramses Amer, A New Legal Arrangement for the South China Sea?
  • Dennis M. King, Read D. Porter, & Elizabeth W. Price, Reassessing the Value of U.S. Coast Guard At-Sea Fishery Enforcement
  • D.H. Anderson, The Status Under International Law of the Maritime Areas Around Svalbard

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 53, no. 6, December 2009) is out. Contents include:
  • Khusrav Gaibulloev, Todd Sandler, & Hirofumi Shimizu, Demands for UN and Non-UN Peacekeeping: Nonvoluntary versus Voluntary Contributions to a Public Good
  • Alastair Smith, Political Groups, Leader Change, and the Pattern of International Cooperation
  • Burcu Savun & Brian J. Phillips, Democracy, Foreign Policy, and Terrorism
  • Gerald T. Fox, Partisan Divide on War and the Economy: Presidential Approval of G. W. Bush
  • Michael Spagat, Andrew Mack, Tara Cooper, & Joakim Kreutz, Estimating War Deaths: An Arena of Contestation
  • Corinna Carmen Gayer, Shiri Landman, Eran Halperin, & Daniel Bar-Tal, Overcoming Psychological Barriers to Peaceful Conflict Resolution: The Role of Arguments about Losses

Call for Papers: India-United States Nuclear Cooperation Agreement

A call for papers has been issued for an international conference on the India-United States Nuclear Cooperation Agreement, to take place in Chennai on March 23 and 24, 2010. This is the second of three workshops sponsored through a collaborative research project between the University of Reading and the Tamil Nadu Dr. Ambedkar Law University. (Information on the first workshop is here.) Here's the call:

The 123 Agreement was signed by the United States and India in 2007 to operationalise the Joint Statement by United States President George W. Bush and Indian Prime Minister Manmohan Singh in 2005 whereby India agreed to separate its civilian and military nuclear facilities and place the former under International Atomic Energy Agency (IAEA) safeguards. The purpose of the 123 Agreement is to facilitate the exchange of civil nuclear technology between India and the United States. The Agreement is exceptional in that it goes against the grain of several decades of United States non-proliferation practice and implicitly recognises India’s status as a nuclear weapons state. Despite claims that the Agreement benefits India by ending its nuclear isolation and contributing to its burgeoning energy needs, there has been stinted opposition to the Agreement; the Singh government narrowly survived a no-confidence motion brought by opposition parties in 2008 over the issue.

The University of Reading, UK, and the Tamil Nadu Dr. Ambedkar Law University, Chennai, have undertaken a collaborative research project funded by the British Academy’s UK-South Asia Partnership scheme to examine various issues arising from the 123 Agreement. The first of the project’s three workshops was held in Reading on 14 September 2009 and was an overview workshop. The Tamil Nadu Dr. Ambedkar Law University will be hosting the second workshop on 23 and 24 March 2010 in Chennai.

We are interested in papers for the Chennai workshop that touch upon the 123 Agreement and issues related to, among others, the environment and trade. Please submit an abstract (max. 1,000 words), together with a curriculum vitae, to the project coordinators, Dr. Robert P. Barnidge, Jr. ( and Prof. N. Manohar (, by 4 December 2009. Applicants will be informed by mid-December, and successful applicants will have their accommodation, food, and transportation expenses covered by the project. A first draft of the final papers will be required by 8 March. Please contact Dr. Barnidge and Prof. Manohar with any queries.

The workshop will be held at the Tamil Nadu Dr. Ambedkar Law University, a state University that offers postgraduate courses in law that lead to Master of Laws (ML) and PhD degrees. The University is situated along the coastal rim of Chennai city, the capital of the present State of Tamil Nadu and formerly known as Madras, a quiet city with a large number of educational institutions. The climate in Chennai ranges from 30-32 Celsius during March.

McGovern: Dispute System Design: The United Nations Compensation Commission

Francis E. McGovern (Duke Univ. - Law) has posted Dispute System Design: The United Nations Compensation Commission (Harvard Negotiation Law Review, Vol. 14, p. 171, Winter 2009). Here's the abstract:
The Security Council of the United Nations established the United nations Compensation Commission ("UNCC") with its Resolution 687 on April 3, 1991. It was the first compensation system established under the authority of Chapter VII of the U.N. Charter and was designed to process and pay claims arising from the Iraqi invasion of Kuwait in 1990. Resolution 687 confirmed that Iraq was liable "for any direct loss, damage, including environmental damages and the depletion of natural resources, or injury to foreign Governments, nationals and corporations..." Resolution 687 also created a fund to pay those claims and a commission to administer that fund. The details of the compensation fund and the commission were established by Security Council Resolution 693 on May 20, 1991.

Mazower: No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations

Mark Mazower (Columbia Univ. - History) has published No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton Univ. Press 2009). Here's the abstract:

No Enchanted Palace traces the origins and early development of the United Nations, one of the most influential yet perhaps least understood organizations active in the world today. Acclaimed historian Mark Mazower forces us to set aside the popular myth that the UN miraculously rose from the ashes of World War II as the guardian of a new and peaceful global order, offering instead a strikingly original interpretation of the UN's ideological roots, early history, and changing role in world affairs.

Mazower brings the founding of the UN brilliantly to life. He shows how the UN's creators envisioned a world organization that would protect the interests of empire, yet how this imperial vision was decisively reshaped by the postwar reaffirmation of national sovereignty and the unanticipated rise of India and other former colonial powers. This is a story told through the clash of personalities, such as South African statesman Jan Smuts, who saw in the UN a means to protect the old imperial and racial order; Raphael Lemkin and Joseph Schechtman, Jewish intellectuals at odds over how the UN should combat genocide and other atrocities; and Jawaharlal Nehru, India's first prime minister, who helped transform the UN from an instrument of empire into a forum for ending it.

A much-needed historical reappraisal of the early development of this vital world institution, No Enchanted Palace reveals how the UN outgrew its origins and has exhibited an extraordinary flexibility that has enabled it to endure to the present day.

Workshops: Daudet, Morrow

Yves Daudet (Secretary-General, Hague Academy of International Law) will give a talk today at the Lauterpacht Centre for International Law Friday Lunchtime Lecture Series on "The Special Tribunal for Lebanon."

Jim Morrow (Univ. of Michigan - Law) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Interdisciplinary Approaches to International Law on "The Laws of War as an International Institution." Matthew Evangelista (Cornell Univ.), Nina Tannenwald (Brown Univ.), and Ryan Goodman (New York Univ. - Law) will be the discussants.

Thursday, November 12, 2009

New Issue: European Journal of International Relations

The latest issue of the European Journal of International Relations (Vol. 15, no. 4, December 2009) is out. Contents include:
  • Azar Gat, So Why Do People Fight? Evolutionary Theory and the Causes of War
  • Riikka Kuusisto, Comic Plots as Conflict Resolution Strategy
  • Matti Jutila, Taming Eastern Nationalism: Tracing the Ideational Background of Double Standards of Post-Cold War Minority Protection
  • Maria Mälksoo, The Memory Politics of Becoming European: The East European Subalterns and the Collective Memory of Europe
  • Ann Towns, The Status of Women as a Standard of ‘Civilization’
  • Klaus Dingwerth & Philipp Pattberg, World Politics and Organizational Fields: The Case of Transnational Sustainability Governance

Seeger: Die unilaterale humanitäre Intervention im System des Völkerrechts

Chris Seeger has published Die unilaterale humanitäre Intervention im System des Völkerrechts (Nomos 2009). Here's the abstract:

Ist die unilaterale humanitäre Intervention zulässig? Wo steht das Völkerrecht? Das Werk versucht Antworten zu finden und wirft Fragen auf. Die Lösung wird im Spannungsfeld zwischen völkerrechtlichem Dogma und den Herausforderungen der internationalen Politik gesucht. Es werden grundlegende Fragen des Völkerrechts behandelt und neu überdacht: Souveränität, Gewaltverbot und Menschenrechte. Gleichmaßen behandelt werden Ius cogens, Vertragsrecht und Gewohnheitsrecht. Die Arbeit verbindet die dogmatische mit empirischer Analyse.

Nach einem historischen Überblick zeigt der Autor von der Souveräntität über das Gewaltverbot und einen durchsetzbaren universellen Menschenrechtsstandard das Spannungsfeld auf, um dann zunächst die Möglichkeiten der UN-Charta als Grundlage der humanitären Intervention zu untersuchen. Sodann wird sie in das Umfeld vergleichbarer Herausforderungen, wie humanitäre Rettungsaktionen, Bekämpfung des Terrorismus und präventive militärische Gewalt eingeordnet. Im Kern erfolgt eine grundlegende Auseinandersetzung mit Struktur und Erkenntnis von Völkergewohnheitsrecht, um die unilaterale humanitäre Intervention hier in einer dynamischen Rechtswirklichkeit zu verankern.

Farrall & Rubenstein: Sanctions, Accountability and Governance in a Globalised World

Jeremy Farrall (Australian National Univ. - Centre for International Governance & Justice) & Kim Rubenstein (Australian National Univ. - Law) have published Sanctions, Accountability and Governance in a Globalised World (Cambridge Univ. Press 2009). Contents include:
  • Jeremy Farrall & Kim Rubenstein, Introduction: Filling or falling between the cracks? Law's potential
  • Peter G. Danchin, Whose public? Which law? Mapping the internal/external distinction in international law
  • Charles Sampford, The potential for a post-Westphalian convergence of 'Public Law' and 'Public International Law'
  • Simon Chesterman, Globalisation and public law: a global administrative law?
  • Devika Hovell, The deliberative deficit: transparency, access to information and UN sanctions
  • Hitoshi Nasu, Who guards the guardian? Towards regulation of the UN security council's chapter VII powers through dialogue
  • Erika de Wet, Holding the United Nations security council accountable for human rights violations through domestic and regional courts: a case of 'Be Careful What You Wish For'?
  • Kevin Boreham, 'A Delicate Business': did AWB's kickbacks to Iraq under the United Nations Oil-For-Food Programme constitute a violation of Australia's international obligations?
  • Jeremy Farrall, Should the United Nations security council leave it to the experts? The governance and accountability of UN sanctions monitoring
  • Justine Nolan, The nexus between human rights and business: defining the sphere of corporate responsibility
  • Linda Botterill & Anne McNaughton, At the intersection of international and municipal law: the case of Commissioner Cole and the Wheat Export Authority
  • Stephen Tully, International legal advisers and transnational corporations: untangling roles and responsibilities for sanctions compliance
  • Vivien Holmes, What is the right thing to do? Reflections on the AWB scandal and legal ethics
  • Daniel Stewart, Who's responsible? Justiciability of private and political decisions
  • Richard Mulgan, AWB and oil for food: some issues of accountability
  • Simon Rice, Discriminating for world peace
  • Angus Francis, Removing barriers to protection at the exported border: visas, carrier sanctions, and international obligation
  • Thomas Pogge, Concluding remarks

Affolder: The Private Life of Environmental Treaties

Natasha Affolder (Univ. of British Columbia - Law) has posted The Private Life of Environmental Treaties (American Journal of International Law, Vol. 103, no. 3, p. 510, 2009). Here's the abstract:
The gravitational pull of environmental treaties is felt not only by states. Yet international lawyers almost exclusively focus on states to explain treaty compliance, measure treaty implementation, and assess treaty effectiveness. This essay draws attention to a phenomenon that falls outside traditional boundaries of treaty analysis: the efforts of private corporations that aim at complying with environmental treaties. Existing models of treaty implementation are inadequate to explain these direct interactions between corporations and treaties. The dominant grammar of treaty “compliance” equally fails to fit. Using a little-studied example - the UNESCO World Heritage Convention - this essay highlights the phenomenon of corporations’ aspiring to conform their behavior to environmental treaty requirements.

Bodansky: Prologue to a Theory of Non-Treaty Norms

Daniel Bodansky (Univ. of Georgia - Law) has posted Prologue to a Theory of Non-Treaty Norms (in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, ed. Mahnoush H. Arsanjani, Jacob Katz Cogan, Robert D. Sloane & Siegfried Wiessner, forthcoming). Here's the abstract:
This short contribution to a festschrift for Professor Michael Reisman addresses the problem of non-treaty norms. In lieu of the traditional categories of custom, general principles, and soft law, the essay proposes an alternative categorization of non-treaty norms, focusing on three variables: first, whether a non-treaty norm is accepted directly or because it satisfies a secondary rule of recognition; second, whether a non-treaty norm is the result of a conscious, purposive process, with identifiable authors, or arises in a more organic, non-purposive way; and third, whether a non-treaty norm reflects a behavioral or discursive regularity. The essay suggests that this categorization provides a more useful starting point to explore the normative and explanatory questions about the origin and influence of non-treaty norms.

Lecture: Koskenniemi on "Ius Gentium and Forms of Modern Power: The Legacy of 16th Century Spanish Scholasticism"

Martti Koskenniemi (Univ. of Helsinki - Law) will deliver the Julius Stone Address today at the Sydney Law School. His topic will be "Ius Gentium and Forms of Modern Power: The Legacy of 16th Century Spanish Scholasticism."

Workshop: Daudet

Yves Daudet (Secretary-General, Hague Academy of International Law) will give a talk today at the Oxford Public International Law Discussion Group on "The Special Tribunal for Lebanon."

Wednesday, November 11, 2009

Meyer: Legitimacy, Justice and Public International Law

Lukas H. Meyer (Karl-Franzens-Universität Graz - Philosophy) has published Legitimacy, Justice and Public International Law (Cambridge Univ. Press 2009). Contents include:
  • Lukas H. Meyer & Pranay Sanklecha, Legitimacy, justice and public international law: three perspectives on the debate
  • Allen Buchanan & Robert O. Keohane, The legitimacy of global governance institutions
  • Samantha Besson, Institutionalising global demoi-cracy
  • Simon Caney, The responsibilities and legitimacy of economic international institutions
  • Steven R. Ratner, Do international organisations play favourites? An impartialist account
  • Daniel Butt, 'Victors' justice?' Historic injustice and the legitimacy of international law
  • Peter Koller, International law and global justice
  • Herlinde Pauer-Studer, Global justice: some problems of a cosmopolitan account
  • David Miller, The responsibility to protect human rights
  • Matthias Lutz-Bachmann, The threat of violence and of new military force as a challenge to international public law
  • Arthur Isak Applbaum, Forcing a people to be free

Dinwoodie: Developing a Private International Intellectual Property Law: The Demise of Territoriality?

Graeme B. Dinwoodie (Univ. of Oxford - Law) has posted Developing a Private International Intellectual Property Law: The Demise of Territoriality? (William & Mary Law Review, forthcoming). Here's the abstract:
Although intellectual property law is a relatively recent legal innovation, it has from an early stage in its development possessed an international dimension. As far back as the late nineteenth century, this resulted in the adoption of a group of multinational treaties that remain the foundation of what can be called the public international law of intellectual property. Efforts to develop a private international law of intellectual property are much more recent, and are ongoing in a number of different institutional settings. Yet, the need for attention to this field remains acute. This Article explores the content of a private international law of intellectual property. It does not seek to articulate a comprehensive scheme. Rather, this exploration is intended to facilitate consideration of the core principle of territoriality that informs so much of the existing regime. The Article sketches the basic principles of private international law that apply in transborder intellectual property disputes, examining treaty provisions and developments at the national and regional level. Some of the leading questions are highlighted by discussion of six recent transborder intellectual property disputes. These disputes help to illustrate aspects of cross-border exploitation of intellectual property that need to be taken into account both in critiquing current approaches and in formulating alternatives. The Article then turns to focus on the concept of territoriality. Territoriality is a principle that has always received excessive doctrinal purchase in intellectual property law. Moreover, the normative force of the principle has declined as units of social and commercial organization have come to correspond less neatly with national borders, and as private ordering has weakened the capacity (and perhaps the claim) of the nation-state exclusively to determine the behavior of its citizenry. Finally, many of the same values (for example, diversity of legal regimes, tailoring of intellectual property to local needs, and protecting rights on an international basis) that the public international intellectual property system sought to further through its promulgation of the principle of territoriality can now best (and perhaps only) be achieved by reconfiguring the principle. This Article approaches the task of reconfiguration in two ways. First, it explores some of the different ways in which the principle of territoriality might conceptually inform a private international law of intellectual property. Contemporary multi-territorial intellectual property disputes are characterized by an excess of shared but weaker prescriptive and adjudicatory authority. The Article suggests a restrained concept of territoriality that reflects that reality, drawing in particular from the treatment of extra-territoriality in trademark law. The Article also approaches the question less conceptually and proposes liberalization of a specific principle of private international intellectual property law: limits on consolidated adjudication of infringement claims under domestic and foreign intellectual property laws.

Sarkin: The Role of the United Nations, the African Union and Africa's Sub-Regional Organizations in Dealing with Africa's Human Rights Problems

Jeremy Sarkin has published The Role of the United Nations, the African Union and Africa’s Sub-Regional Organizations in Dealing with Africa’s Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect (Journal of African Law, Vol. 53, no. 1, p. 1, April 2009). Here's the abstract:
This article examines the basis for humanitarian intervention (HI) in the United Nations Charter, the African Union (AU) Charter and in a number of African subregional institutions. It traces the historical development of HI and argues that, while the right to HI emerged more than 100 years ago, that right also emerges from the Genocide Convention. The article argues that this treaty connects HI to the developing norm of the responsibility to protect (R2P) and examines the extent to which R2P is garnering wider support around the world. It focuses on the UN, and the various AU and sub-regional institutions and instruments that sanction HI. It assesses whether intervention can be authorized even in the absence of a UN Security Council mandate and examines the principles, application and interrelationship of R2P and HI in the African context. It traces the use of these norms in Africa, including in the various sub-regional structures, and evaluates the AU’s political will and capability to deal with conflict and human rights abuse.

O'Connell: Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009

Mary Ellen O'Connell (Univ. of Notre Dame - Law) has posted Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 (in Shooting to Kill: The Law Governing Lethal Force in Context, forthcoming). Here's the abstract:
Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750-1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.

Workshops: Hurrell, Sari, Tridimas

Andrew Hurrell (Univ. of Oxford - Politics & International Relations) will give a talk today at the Harvard Law School International Law Workshop on "Emerging Powers and Global Order: Brazil and India in International Institutions."

Aurel Sari (Univ. of Exeter - Law) will give a talk today at the UCL Faculty of Laws and International Law Association (British Branch) International Law Seminar on "Jurisdiction over Foreign Forces: The Calipari Case and the Law of the Flag."

Takis Tridimas (Queen Mary, Univ. of London - Law) will give a talk today at the University of Oxford EU Law Discussion Group on "International Law and the Community Legal Order: Uneasy Bed Fellows?"

Tuesday, November 10, 2009

Dinwoodie & Dreyfuss: Designing a Global Intellectual Property System Responsive to Change: The WTO, WIPO and Beyond

Graeme B. Dinwoodie (Univ. of Oxford - Law) & Rochelle Dreyfuss (New York Univ. - Law) have posted Designing a Global Intellectual Property System Responsive to Change: The WTO, WIPO and Beyond (Houston Law Review, forthcoming). Here's the abstract:
In recent years, it has become clear that the TRIPS regime is in trouble. Although lawmaking in the World Trade Organization (WTO) has essentially stalled, there is a continuing need to recalibrate the rules applicable to knowledge production. In theory, the problems facing WTO members could be resolved through new lawmaking within that institution. For a variety of reasons, however, this has not materialized. The WTO’s adjudicatory system has compensated somewhat for the lack of activity in the Ministerial Conference and the General Council. But for a number of reasons, it is not a substitute for a well-functioning “legislative body.” Indeed, some of the activity in this field has shifted back from the WTO to the World Intellectual Property Organisation (WIPO). Although this regulatory competition might currently be leading to a suboptimal global regime, the move to WIPO is intriguing. It suggests an institutional design that could make the international intellectual property system more responsive to changing needs. Indeed, the TRIPS Agreement contemplates a formal tie between the WTO and WIPO. Unfortunately, however, the nature of the lawmaking relationship between these two organizations has yet to be fully elucidated. TRIPS incorporates provisions of two WIPO instruments (the Paris and Berne Conventions), and references others. Still, it is not evident whether (or how) the WTO should be taking account of WIPO’s view of these commitments. Nor is it clear how (or when) new developments within these conventions should affect WTO obligations. This essay takes up the institutional design question of how to create an intellectual property system responsive to changing circumstances by examining how the WTO can best make use of WIPO’s experience and expertise in intellectual property matters. After considering the intellectual property cases decided to date by the WTO dispute settlement body and determining the ways in which they have relied on the text and negotiating histories of, and other materials relevant to, WIPO conventions to elucidate TRIPS obligations, we suggest some revisions to interpretive approaches pursued thus far by dispute settlement panels. We point out methodologies that would leaven and cabin the trade perspective, and thus allow the WTO to capitalize on WIPO’s experience and on WIPO developments that cope with the dynamic nature of intellectual property and the changing landscape of knowledge production. Our analysis is also meant for broader application, for developing a design that permits productive input from all the international institutions that have interests touching on intellectual property norm development.

Keber: Der Begriff des Terrorismus im Völkerrecht

Tobias O. Keber has published Der Begriff des Terrorismus im Völkerrecht: Entwicklungslinien im Vertrags- und Gewohnheitsrecht unter besonderer Berücksichtigung der Arbeiten zu einem «Umfassenden Übereinkommen zur Bekämpfung des Terrorismus» (Peter Lang 2009). Here's the abstract:
Der Begriff des Terrorismus ist im Völkerrecht bis dato nicht abschließend definiert. Die Anschläge islamistischer Terroristen am 11. September 2001 auf ausgesuchte Ziele in den Vereinigten Staaten von Amerika haben das Phänomen nicht nur allgemein für das Völkerrecht bedeutsamer, sondern vor allem auch das Definitionsproblem brisanter werden lassen. Erste Versuche der Staatengemeinschaft, ein rechtlich fassbares Konzept auszuarbeiten, datieren in das Jahr 1937 zurück. Seitdem hat es in verschiedenen Bereichen des Völkerrechts viele weitere Definitionsansätze gegeben. Der Autor untersucht die unterschiedlichen Entwicklungslinien im Kriegsrecht, Völkerstrafrecht, Internationalen Strafrecht, in der Resolutionspraxis des Sicherheitsrats sowie der Generalversammlung der Vereinten Nationen und in regionalen Abkommen zur Terrorismusbekämpfung und klopft ausgewählte Definitionen innerstaatlicher Rechtsordnungen ab. Beleuchtet wird dann, ob sich diese verschiedenen Ansätze zu einem einheitlichen Begriff verdichten lassen.

Halpin & Roeben: Theorising the Global Legal Order

Andrew Halpin (Swansea Univ. - Law) & Volker Roeben (Swansea Univ. - Law) have published Theorising the Global Legal Order (Hart Publishing 2009). Contents include:
  • Andrew Halpin & Volker Roeben, Introduction
  • H Patrick Glenn, Cosmopolitan Legal Orders
  • William Twining, Implications of 'Globalisation' for Law as a Discipline
  • Stefan Oeter, Theorising the Global Legal Order - An Institutionalist Perspective
  • Ko Hasegawa, Incorporating Foreign Legal Ideas through Translation
  • Catherine Dupré, Globalisation and Judicial Reasoning: Building Blocks for a Method of Interpretation
  • Ari Afilalo & Dennis Patterson, Statecraft, Trade and Strategy: Toward a New Global Order
  • Oxana Golynker, European Union as a Single Working-Living Space: EU Law and New Forms of Intra-Community Migration
  • Déirdre Dwyer, The Domestic Enforcement of Supranational Rules: The Role of Evidence in EC Competition Law
  • Stephen Allen, The UN Declaration on the Rights of Indigenous Peoples: Towards a Global Legal Order on Indigenous Rights?
  • John Gillespie, Developing a Framework for Understanding the Localisation of Global Scripts in East Asia
  • Nicholas Dorn, Governance Through Corruption: Cosmopolitan Complicity
  • Christian Walter, Decentralised Constitutionalisation in National and International Courts: Reflections on Comparative Law as an Approach to Public Law
  • Andrew Halpin & Volker Roeben, Concluding Reflections

Dinwoodie, Dreyfuss, & Kur: The Law Applicable to Secondary Liability in Intellectual Property Cases

Graeme B. Dinwoodie (Univ. of Oxford - Law), Rochelle Dreyfuss (New York Univ. - Law) & Annette Kur (Max Planck Institute for Intellectual Property, Competition & Tax Law) have posted The Law Applicable to Secondary Liability in Intellectual Property Cases (New York University Journal of International Law and Politics, forthcoming). Here's the abstract:
In recent years, intellectual property law has paid increasing attention to issues of private international law. The American Law Institute promulgated Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Dispute in 2008. In Europe, the Max Planck Institutes’ Conflict of Laws in Intellectual Property Conflicts of Law effort is expected in 2010. However, neither of these projects has dealt explicitly with choice of law on contributory liability (or any other form of secondary liability that makes one party liable for the harm caused by another). Yet, actions premised on secondary liability are rapidly becoming the favored route for efficient enforcement on a worldwide basis. Examples include cases that attempt to impose liability on manufacturers of copying technologies for infringements caused by those who use their equipment; on purveyors of peer-to-peer file sharing software for the activities of those who download material without rightholders’ permissions; on internet service providers for subscribers’s infringing postings; and on other intermediaries, such as auction sites. In principle, secondary liability actions can occur in all areas of intellectual property law. However, for purposes of this paper, we concentrate on trademark cases, such as the litigation involving the responsibility of the online auction house, e-Bay, for the sale of counterfeit goods on its website. The problems posed in that area are particularly complex. After offering a stylized fact pattern to illustrate the problems, we consider the different ways in which courts might deal with questions arising in cases where secondary liability claims are asserted. We suggest that the traditional approach to choice of law in trademark cases generates unacceptable uncertainties for intermediaries and that a genuine engagement with conflicts scholarship would help mediate among the diverse interests and policy concerns. In the end, however, we conclude that private international law solutions may not resolve all the complications of multinational secondary liability cases. Thus, we are moved to propose, as an alternative solution, an autonomous (substantive) principle applicable in these cases. We conclude with some thoughts about how the different approaches engage with existing models for the resolution of trans-border intellectual property disputes and with the international intellectual property regime more generally.

New Issue: International Organizations Law Review

The latest issue of the International Organizations Law Review (Vol. 6, no. 1, 2009) is out. Contents include:
  • Edward Kwakwa, Mainstreaming "Development" in International Organizations
  • Anthony J. Miller, The Privileges and Immunities of the United Nations
  • Rutsel Silvestre J. Martha, International Organizations and the Global Financial Crisis: The Status of Their Assets in Insolvency and Forced Liquidation Proceedings
  • Florent Mazurelle, Jan Wouters, & Walter Thiebaut, The Evolution of European Space Governance: Policy, Legal and Institutional Implications
  • Ellen Hay, Multi-Dimensional Public Governance Arrangements for the Protection of the Transboundary Aquatic Environment in the European Union: The Changing Interplay between European and Public International Law
  • Ilias Bantekas, United Nations Employment Law and the Causes for its Failed senior Female Appointments Record
  • August Reinisch, Should Judges Second-Guess the UN Security Council?
  • Anthony Aust, Kadi: Ignoring International Legal Obligations

Launch of YJIL Online

The Yale Journal of International Law has launched a new website. In addition to providing information on current and past issues, submissions, and subscriptions, the new site introduces YJIL Online, YJIL's new online companion journal. YJIL Online provides authors with a forum for short analytical essays relevant to scholarship and practice. The first issue includes essays by Harold Hongju Koh and Aaron Zelinsky, W. Michael Reisman and Brad Tennis, and Eddan Katz and Gwen Hinze. The new website also lists upcoming events, including the 35th Anniversary YJIL Conference on "Government Lawyering and International Law," to take place February 26, 2010.

Workshop: Noam

Gilad Noam (Hebrew Univ.) will give a talk today at the Hebrew University Faculty of Law International Law Forum on "The Suppression of the Financing of Terrorism in International Law, and Its Application in Israeli Law." Background readings can be found here.

Monday, November 9, 2009

Choi: 'Like Products' in International Trade Law: Towards a Consistent GATT/WTO Jurisprudence

Won-Mog Choi (Ewha Womans Univ. - Law) has published 'Like Products' in International Trade Law: Towards a Consistent GATT/WTO Jurisprudence (Oxford Univ. Press 2009). Here's the abstract:

The obligations of international trade law hinge upon the question of what constitute "like products". Trade disputes will often involve an examination of whether the products in question are in competition with one another. The most common term used for this test is to ask whether they are "like products" - that is to ask whether products are sufficiently similar for consumers to see them as substitutable - and thus whether they are subject to the rules of the WTO and GATT.

The central thesis of this book is that despite the centrality of the principle of 'like products' to the WTO, it has not been consistently interpreted, and therefore the risk of discriminatory practice remains. The author, through analyzing legal and economic arguments, sets about defining the concept of 'like products' in such a way as to consistently give effect to WTO aims.

Kühn: Unilaterale präventive Gewaltanwendung

Michael Kühn has published Unilaterale präventive Gewaltanwendung: Eine Untersuchung zur 'präventiven Selbstverteidigung' im Völkerrecht (Peter Lang 2009). Here's the abstract:
Die 'präventive Selbstverteidigung' zählt zu den umstrittensten Rechtsfiguren des modernen Völkerrechts. Epochale Veränderungen der globalen Sicherheitsarchitektur und der internationalen Konfliktrealität seit Beginn des 20. Jahrhunderts haben der Debatte inzwischen eine enorme Komplexität verliehen. In Anbetracht der politischen Brisanz - Stichwort: Präemption - leidet die fundierte dogmatische Analyse des völkerrechtlichen Status quo indes zunehmend Not. Unter eingehender Berücksichtigung der relevanten Staatenpraxis beantwortet die Untersuchung in induktiver Methode die Frage, gegen welche Akteure und in welchem Umfang das von der Charta der Vereinten Nationen geprägte Gewaltregelungsregime eine Rechtsgrundlage für 'unilaterale präventive Gewaltanwendung' bereit hält.

McBeth: International Economic Actors and Human Rights

Adam McBeth (Monash Univ. - Law) has published International Economic Actors and Human Rights (Routledge 2009). Here's the abstract:

In noting that the actions of entities other than states in the economic arena can and often do have a profound effect on human rights, this book poses the question as to how international human rights law can and should address that situation. This book takes three very different categories of international actor – the World Trade Organization, the international financial institutions (World Bank and IMF) and multinational enterprises – and analyses the interaction of each category with human rights, in each case analysing the interaction of the different fields of law and seeking to identify a role for international human rights law.

Adam McBeth concludes that each of the selected international economic actors can and should be considered to operate within a holistic system of international law, including human rights obligations, but that changes in the operations and the accountability mechanisms for each actor are necessary for the practical implementation of that approach.

While written from a human rights perspective, the underlying theme of the book is one of engagement and harmonisation rather than condemnation. It provides valuable insight for those who approach this topic from a background of international trade law, commercial law or general international law, just as much as those who have a human rights background. International Economic Actors and Human Rights will be of great interest to those studying or working in any field of international economic law, as well as human rights scholars and practitioners.

Cyr: Canadian Federalism and Treaty Powers

Hugo Cyr (Université du Québec à Montréal - Law) has published Canadian Federalism and Treaty Powers: Organic Constitutionalism at Work (Peter Lang 2009). Here's the abstract:

With the increased mobility and interdependence brought on by globalisation, governments can no longer deal effectively with what were traditionally regarded as "domestic issues" unless they cooperate among themselves. International law may once have been a sort of inter-state law concerned mostly with relations between states, but it now looks increasingly inside state borders and has become, to a large degree, a trans-governmental law. While this creates significant challenges even for highly-unified "nation-states", the challenges are even greater for federations in which powers have been divided up between the central government and federated states. What roles should central governments and federated states play in creating and implementing this new form of governance?

Using the Canadian federation as its starting point, this case study illustrates a range of factors to be considered in the appropriate distribution of treaty powers within a federation. Professor Cyr also shows how - because it has no specific provisions dealing with the distribution of treaty powers - the Canadian constitution has "organically" developed a tight-knit set of rules and principles responding to these distributional factors. This book is therefore both about the role of federated states in the current world order and an illustration of how organic constitutionalism works.

Workshop: Glazier

David Glazier (Loyola Law School Los Angeles) give a talk today at the Georgetown University Law Center Foreign Relations Law Colloquium on "Playing by the Rules: Combating Al Qaeda within the Law of War."

Sunday, November 8, 2009

Greenawalt: Book Review: Defending Humanity

Alexander K.A. Greenawalt (Pace Univ. - Law) has posted Book Review: Defending Humanity (New Criminal Law Review, forthcoming). Here's the abstract:

Few issues are both more central to and more elusive for the project of international law than identifying the conditions under which the use of armed force is justified. In Defending Humanity (Oxford, 2008), Fletcher & Ohlin join the debate on this issue with the provocative claim that international law has been impoverished by its neglect of the more developed doctrines of self-defense existing in domestic criminal law. The authors argue for and elaborate upon six-part model of “legitimate defense” that justifies the defensive use of force against attacks that are (1) overt, (2) unlawful, and (3) imminent; provided the defense is (4) necessary, (5) proportional, and (6) knowing or intentional.

The authors’ approach is especially effective when it reveals how international law scholarship has either ignored the lessons of criminal law principles or misread them to defend an overly narrow doctrine of self-defense. Too often, however, the authors’ argument is weakened by confusion surrounding how best to analogize the “self” of domestic self-defense for the international context. The authors’ approach to the problem of humanitarian intervention is especially troublesome: they argue that the international community may intervene when a state attacks its own population, but only if attacked people are a “nation.” The authors are too quick to reject a more inclusive theory of humanitarian intervention rooted in respect for human rights. This path too, is fraught with difficulty, but it better aspires to the promise of the book’s title: that of defending humanity, and not contested social constructs.