Although the terms transnational law and state transformations are increasingly used, we need clearer conceptual work and more empirical study. This essay sets forth and applies a socio-legal approach to the study of transnational legal processes and their effects within countries. First, the essay clarifies the concepts of transnational law, transnational legal process, transnational legal order, state change and transformation, and recursivity. Second, it provides a typology of five dimensions of state change that we can assess empirically - changes in substantive law and practice; broader shifts in the boundary between the state and the market; changes in the architecture and allocations of authority among state institutions; the shaping of markets for expertise and expertise’s role in governance; and shifts in accountability mechanisms and their normative frameworks. Third, it explains the factors that determine the variable effects of transnational legal processes and organizes these factors into three clusters, which are: the legitimacy, clarity and coherence of the transnational legal norm; the relation of the transnational legal order to the receiving state in terms of power and the place of intermediaries; and the affinity with demands of domestic elites and other constituencies in light of domestic political struggles and the extent of change at stake. Fourth, it introduces five empirical studies of transnational legal processes’ differential effects in six regulatory areas in Asia, Africa and South America that illustrate these points. Together they provide a guide of how to study the interaction of transnational and national legal processes, and the extent and limits of transnational legal processes’ effects.
Saturday, May 22, 2010
Friday, May 21, 2010
- Yuval Shany, In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen
- Lutz Oette, Peace and Justice, or Neither?: The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond
- Göran Sluiter, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case
- James A. Goldston, More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court
- Johan David Michels, Compensating Acquitted Defendants for Detention before International Criminal Courts
- Neil Boister, The Application of Collective and Comprehensive Criminal Responsibility for Aggression at the Tokyo International Military Tribunal: The Measure of the Crime of Aggression?
- Symposium: The Role of Defence Counsel in International Criminal Trials
- Howard Morrison, Foreword
- Rupert Skilbeck, Frankenstein’s Monster: Creating a New International Procedure
- Jarinde Temminck Tuinstra, Defending the Defenders: The Role of Defence Counsel in International Criminal Trials
- Wayne Jordash & Tim Parker, Trials in Absentia at the Special Tribunal for Lebanon: Incompatibility with International Human Rights Law
- Eugene O’Sullivan & Deirdre Montgomery, The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY
- Peter Murphy, No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials
- Andrew T. Cayley & Alexis Orenstein, Motion for Judgement of Acquittal in the Ad Hoc and Hybrid Tribunals: What Purpose If Any Does It Serve?
- Cases Before International Courts and Tribunals
- Wayne Jordash & Penelope Van Tuyl, Failure to Carry the Burden of Proof: How Joint Criminal Enterprise Lost its Way at the Special Court for Sierra Leone
- David McKeever, Evidence Obtained Through Torture Before the Khmer Rouge Tribunal: Unlawful Pragmatism?
- National Prosecution of International Crimes: Cases and Legislation
- James Yap, Corporate Civil Liability for War Crimes in Canadian Courts: Lessons from Bil'in (Village Council) v. Green Park International Ltd.
- Katharina Margetts & Patrick Hayden, Current Developments at the Ad Hoc International Criminal Tribunals
The colloquium takes the form of a roundtable discussion in which participants present and discuss their papers, which will be pre-circulated. Participants will be invited to submit their papers for publication to the Journal of Private International Law, subject to the Journal’s normal refereeing process.
If you are interested in presenting a paper at the colloquium, please contact Professor Mary Keyes, firstname.lastname@example.org before 1 June 2010.
A series of recent ICSID decisions have dealt with claims against Argentina arising out of that country’s economic crisis in 2001-2002. Several of these cases have involved U.S. investors’ claims under the US-Argentina bilateral investment treaty (BIT). Divergent interpretations of the relationship between “essential security” exceptions contained in Art. XI of that treaty and the customary international law defense of necessity have attracted considerable scholarly attention and have raised broader concerns about the legitimacy of the international investment regime. A recent ICSID decision, Continental Casualty v. Argentina, interpreted Art. XI of the treaty in a manner notably different from preceding decisions on point. That tribunal, led by an arbitrator who had previously served on the WTO Appellate Body, was guided by the WTO’s approach under GATT Art. XX. This paper considers the justification for this approach advanced by the tribunal and the legal and systemic issues it raises. It critiques this aspect of the Continental Casualty decision, finding its approach deeply flawed. Focusing on the textual discrepancies between the BIT and WTO rules, as well as the different object and purpose of the two regimes, the paper argues that it was an interpretative error to extrapolate from the GATT on this question. More generally, this paper finds that while the inclination towards undertaking “systemic integration” of the trade and investment regimes is understandable, there are limits on the extent that WTO jurisprudence can be legitimately brought into investment treaty arbitration, at least if both trade and investment arbitrators are seeking to adhere to the fundamental rules that truly unite these disparate legal regimes, namely the traditional interpretative rules of treaty interpretation that both sets of adjudicators are supposed to apply. While our criticisms of Continental Casualty do not necessarily mean that the arbitrators reached an erroneous result in that case, we believe that how investment arbitrators reach their conclusions is as (or even more) important to the legitimacy of their decisions (and the regime). The paper concludes with suggestions about alternative legal methodologies that the arbitrators should have considered that would have done considerable less harm to the principles of treaty interpretation.
'Human Rights and Intellectual Property: Mapping the Global Interface' explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the expansion of legal protections.
The book explores the legal, institutional, and political implications of these competing claims in three ways: (1) by offering a framework for exploring the connections and divergences between these subjects; (2) by identifying the pathways along which jurisprudence, policy, and political discourse are likely to evolve; and (3) by serving as a teaching and learning resource for scholars, activists, and students. This pre-publication excerpt contains the table of contents, the Preface, and the Conclusion.
- Inter-American Juridical Committee (OAS): Resolution on the Essential Elements of Representative Democracy, with introductory note by Lelia Mooney
- Recent OAS Documents on Cuba and Honduras: Democracy and the Inter-American Democratic Charter, with introductory note by Christina M. Cerna
- Government of Sudan and the Sudan People's Liberation Movement/Army Abyei Arbitration Award, with introductory note by John R. Crook
- International Criminal Tribunal for the former Yugoslavia Special Chamber: In the Case Against Florence Hartmann, with introductory note by Alison Plenge
- ICSID Ad Hoc Committee: Decision to Terminate State of Enforcement of Arbitral Award in Sempra
- Energy Int'l v. Argentine Republic, with introductory note by Andrew Newcombe
- European Court of Human Rights: Dubus S.A v. France, with introductory note by Genevra Forwood
This paper attempts to trace, analyze, and justify, the reactions of domestic courts when these are faced with a challenge to domestic measures implementing Security Council sanctions regimes, in particular the regime under SCRs 1267 (1999) seq. It discusses the method in which domestic courts engage with the measures before them, as well as the standard of review they apply, and the usual outcomes of the challenge, ie abstention, low-intensity review, interpretation or annulment of the domestic measure. Interpretation and annulment of the domestic measure in particular may force the State in breach of its international obligations under the relevant SCRs and Article 25 of the UN Charter. The final section attempts to legal qualify and justify this potential breach.
Thursday, May 20, 2010
- Arne Vandenbogaerde & Wouter Vandenhole, The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment of its Effectiveness in Light of the Drafting Process
- Jure Vidmar, The Right of Self-determination and Multiparty Democracy: Two Sides of the Same Coin?
- Annemarieke Vermeer-Künzli, Unfinished Business: Concurrence of Claims Presented before a Human Rights Court or Treaty Body and through Diplomatic Protection
- Alastair Mowbra, A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights
- Recent Developments
- Michael O’Flaherty, Reform of the UN Human Rights Treaty Body System: Locating the Dublin Statement
- Matthew E. Cross & Sarah Williams, Recent Developments at the ICC: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui—A Boost for ‘Co-operative Complementarity’?
- Philip Leach, Helen Hardman, & Svetlana Stephenson, Can the European Court’s Pilot Judgment Procedure Help Resolve Systemic Human Rights Violations? Burdov and the Failure to Implement Domestic Court Decisions in Russia
- Brian Ray, Residents of Joe Slovo Community v Thubelisha Homes and Others: The Two Faces of Engagement
- Jamil Ddamulira Mujuzi, Michelot Yogogombaye v The Republic of Senegal: The African Court’s First Decision
Ahn & Moon: Alternative Approach to Causation Analysis in Trade Remedy Investigations: ‘Cost of Production’ Test
Causation requirement in trade remedy investigations has produced significant controversy in terms of legal interpretation and economic analysis. Deficient treaty texts and confusing legal ruling have exacerbated practical difficulty for investigating authorities to ensure the WTO consistency. Various analytical models that were proposed on the basis of more articulated economics often turn out to be too complicated to apply in broader cases or critically contingent on data availability. We suggest an alternative approach that utilizes firm production costs to complement the previous models.
- Robert Kolb, Völkerrecht und Völkerpolitik — Gedanken zur Minarettinitiative
- Andreas Kälin, Die Frage des Rechts auf Sezession und die Anerkennung von aus (einseitigen) Sezessionen hervorgegangenen neuen Staaten
- Robert E. Goodin, Global democracy: in the beginning
- Martin Hall & John M. Hobson, Liberal International theory: Eurocentric but not always Imperialist?
- William E. Scheuerman, The (classical) Realist vision of global reform
- Symposium on War and the State
- R. Harrison Wagner, War and the State: a synopsis
- Randall L. Schweller, The logic and illogic of the security dilemma and contemporary realism: a response to Wagner’s critique
- Michael C. Williams, The legacies of raison d’etat: a brief commentary on R. Harrison Wagner’s War and the State
- Tarak Barkawi, On the limits of new foundations: a commentary on R. Harrison Wagner, War and the State
- James D. Fearon, Comments on R. Harrison Wagner’s War and the State: The Theory of International Politics
- R. Harrison Wagner, War and the State: reply to comments
Wednesday, May 19, 2010
- Nico Krisch, Pluralism in Postnational Risk Regulation: The Dispute over GMOs and Trade
- Joseph Raz, Human Rights in the Emerging World Order
- Dan Danielsen, Local Rules and a Global Economy: An Economic Policy Perspective
- Douglas W. Arner, Paul Lejot, & Wei Wang, Assessing East Asian Financial Cooperation and Integration
- Mahdev Mohan, Recοnstituting The "Un-Person": The Khmer Krom & The Khmer Rouge Tribunal
- Gao Sheng, International Protection of Cultural Property: Some Preliminary Issues and the Role of International Conventions
- Neha Jain, Conceptualising Internationalisation in Hybrid Criminal Courts
- James Irving, Self-Determination & Colonial Enclaves: The Success of Singapore and the Failure of Theory
- Jason R. Bonin, Regionalism in International Civil Aviation: A Reevaluation of the Economic Regulation of International Air Transport in the Context of Economic Integration
- Md. Rizwanul Islam, Hark! Are PTAs Swallowing Up the WTO and Global Economic Welfare? A Legal and Political Economy Critique of PTAs
- ASEAN Feature
- Simon S.C. Tay, The ASEAN Charter: Between National Sovereignty and the Region's Constitutional Moment
- Eugene K.B. Tan, The ASEAN Charter As "Legs To Go Places": Ideational Norms and Pragmatic Legalism in Community Building in Southeast Asia
- Simon Chesterman, Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person
- Paul J. Davidson, The Role of International Law in the Governance of International Economic Relations in ASEAN
- Michael Ewing-Chow, Culture Club or Chameleon: Should ASEAN Adopt Legalization for Economic Integration?
- Tan Hsien-Li, Τhe ASEAN Human Rights Body: Incorporating Forgotten Promises for Policy Coherence and Efficacy
- Wenhua Shan, Umbrella Clauses and Investment Contracts under Chinese Bits: Are the Latter Covered by the Former?
- Matthew Parish, On Neccessity
- David Caruso, Prosperity in Co-Operation: The Asean-Australia-New Zealand Free Trade Agreement (Aanzfta)
- Wei Shen, Is Safe Safe Now?—Foreign Exchange Regulatory Control over Chinese Outbound and Inbound Investments and a Political Economy Analysis of Policies
- Rafael Leal-Arcas, China’s Attitude to Multilateralism in International Economic Law and Governance: Challenges for the World Trading System
- Manuchehr Irandoust, A Survey of Recent Developments in the Literature of Fdi-led Growth Hypothesis
- Md. Rizwanul Islam, A Diagnosis of the Crawling Trade Liberalisation under the Auspices of the South Asian Association for Regional Cooperation
- Koen Lenaerts, The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice
- Carsten Gerner-Beuerle & Michael Schillig, The Mysteries of Freedom of Establishment After Cartesio
- Jürgen Kurtz, Adjudging the Exceptional at International Investment Law: Security, Public Order and Financial Crisis
- Tomoko Ishikawa, Third Party Participation in Investment Treaty Arbitration
- Onder Bakircioglu, A Socio-Legal Analysis of the Concept of Jihad
- Michael M. Du, Standard of Review Under the SPS Agreement After EC- Hormones II
- Martin A. Hogg, Promise: The Neglected Obligation in European Private Law
Tuesday, May 18, 2010
- James D. Fry, Gas Smells Awful: U.N. Forces, Riot-Control Agents, and the Chemical Weapons Convention
- Andrew D. Mitchell & David Heaton, The Inherent Jurisdiction of WTO Tribunals: The Select Application of Public International Law Required by the Judicial Function
- Vassilis P. Tzevelekos, The Use of Article 31(3)(C) of the VCLT in the Case Law of the ECTHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration
- Attila Tanzi, Remarks on Sovereignty in the Evolving Constitutional Features of the International Community
- Enrico Milano, The Security Council and Territorial Sovereignty: The Case of Kosovo
- Timo Koivurova, Sovereign States and Self-Determining Peoples: Carving Out a Place for Transnational Indigenous Peoples in a World of Sovereign States
- Tanja Joona, International Norms and Domestic Practices in Regard to ILO Convention No. 169 with Special Reference to Articles 1 and 1319
Kelly: Court of Appeals for the Federal Circuit Announces Equal Protection Exception for Customs Cases: Totes-Isotoner v. United States
Jerome A. Cohen Prize Essay in International Law and East Asia
New York University Journal of International Law and Politics
Submission Deadline: 24 September 2010
In honor of Professor Jerome A. Cohen, who turns 80 on July 1, the New York University Journal of International Law and Politics is seeking papers addressing the interaction between the international legal system and Chinese and East Asian law and legal thought. East Asia’s distinctive institutions and legal systems continue to engage in a thought-provoking conversation with the global legal order, one that challenges traditional assumptions about international law.
Such interaction shows signs of effecting transformative changes both within domestic systems and at the international level. With the Jerome A. Cohen Prize, the Journal of International Law and Politics will honor a novel contribution to this growing body of scholarship. Papers may focus on any substantive discipline, although special consideration will be given to work relating to the subject areas currently taught by Professor Cohen: criminal justice, foreign investment law, and the role of Chinese legal thought in international law.
Submissions will be due 24 September 2010, and one paper will be selected for publication in the spring issue of the Journal. Other high-quality submissions also will be considered for publication. Submissions are expected to be fully formed, though the winner will be given a chance to substantially edit his or her piece before publication.
The winning essay will lead the spring issue of the Journal (issue No. 43:3). It will be preceded by an introduction, explaining that the essay was chosen through highly competitive and selective process, and giving an overview of the contributions of Professor Cohen to Chinese legal scholarship and U.S.-China relations. The winning essay will also be the subject of discussion, both in print and online, and the Journal of International Law and Politics will seek responses from among NYU faculty and fellows.
Please Send Articles to:
J. Benton Heath, Editor-in-Chief
New York University Journal of International Law and Politics
More on Professor Cohen: Jerome A. Cohen is a leading U.S. expert on East Asian law. He was appointed to the NYU law faculty in 1990, and he sits as an Adjunct Senior Fellow for Asia Studies on the Council on Foreign Relations. Professor Cohen’s publications include The Criminal Process in the People’s Republic of China, 1949-1963: An Introduction (Harvard University Press, 1968); People’s China and International Law (with H.D. Chiu) (Princeton University Press, 1974); China’s Legal Tradition (editor) (Princeton University Press, 1980); and Investment Law and Practice in Vietnam (1990). He also writes extensively for newspapers and magazines in the U.S. and Asia. Before his appointment at NYU, Professor Cohen held professorships at Harvard and Boalt Hall. He received his B.A. from Yale University in 1951, and his J.D. from Yale Law School in 1955. For more information on his most recent work, please visit the website of the U.S. Asia Law Institute, http://www.usasialaw.org/.
Monday, May 17, 2010
Conséquence du réchauffement climatique, la fente des glaces polaires modifie profondément l'accès à l'Arctique. L'ouverture de nouvelles routes maritimes navigables, l'accès à d'importantes réserves de pétrole, or, gaz, diamants et autres minerais, incitent les Etats côtiers (Russie, Etats-Unis, Canada, Danemark et Norvège) à revendiquer leur souveraineté sur l'océan Arctique. Signe de l'évolution du droit international en tant que règlement pacifique des différends, gageons que, ce que d'aucun qualifie de « bataille du grand nord », se joue sur un plan juridique. Dans cet ouvrage issu d'une étude universitaire de l'université Paris 1 Panthéon-Sorbonne, l'auteur Hélène De Pooter décrypte de manière objective les prétentions connues à ce jour des différents Etats et, à l'aide de cartes et croquis très éclairants, apprécie l'application des règles du droit de la mer dans cette zone.
Lock: Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of IOs Under the ECHR
The paper examines and critically assesses the ECtHR’s case law applying and distinguishing the Bosphorus decision. The discussion revolves around two major points: the first is the ECtHR’s distinction between cases where there was a domestic act or omission of some sort so that the Bosphorus case applies and member states can (generally) be held responsible; and cases where no such act can be found so that they are dismissed as inadmissible ratione personae. It is argued that this distinction is not convincing. The second point is the application of the Bosphorus decision in a number of cases. The paper tries to explore whether the exact conditions for the applicability of the presumption and its rebuttal have become any clearer.
Neumayer: Strategic Delaying and Concessions Extraction in Accession Negotiations to the World Trade Organization
Accession to the World Trade Organization (WTO) and its predecessor, the General Agreement on Tariffs and Trade (GATT), is like no accession to any other international organization. It is extremely demanding on applicant countries and time consuming. This article argues that existing GATT/WTO members select themselves into the Working Party of applicant countries, the body whose members can stall accession and engage in bilateral trade negotiations with the applicant, in order to strategically delay membership by the applicant country and/or extract concessions from it. Existing members will select themselves into a specific Working Party if they fear that they might lose out after the new member enters the exclusive club and benefits from its trading privileges, which will be the case if they are relatively dependent on bilateral trade with the applicant country and if they compete strongly with the applicant in terms of export product or export market structure. An empirical analysis of Working Party membership over the period 1978 to 2005 shows that the theoretically derived determinants of membership are in fact substantively important drivers of the composition of Working Parties in accession processes to the GATT/WTO.
Roberts: Who Killed Article 38(1)(b)? A Reply to Bradley and Gulati on Withdrawing from International Custom
Curtis Bradley and Mitu Gulati’s provocative article on “Withdrawing from International Custom,” 120 Yale Law Journal (2010) (forthcoming), shines light onto a central yet under-analyzed issue of customary international law and brings to bear thought-provoking research and analysis. Ultimately, however, the proposal that states should be able to individually withdraw from international custom as they often can from treaties is unconvincing and concerning because (1) it is based on questionable analogies between custom, on the one hand, and treaties and contract law, on the other, and (2) when understood in its real world context, rather than in the academic laboratory, it has the potential to facilitate opportunistic and abusive claims that undermine the interests of the international community.
Sunday, May 16, 2010
This Essay, a contribution to a symposium on Withdrawing from Customary International Law published in the Duke Journal of Comparative and International Law, analyzes the rules governing unilateral exit from multilateral treaties and considers the insights they offer for understanding how unilateral withdrawals from customary international law (CIL) might function in practice. Drawing upon my previous study of the design and use of treaty denunciation and withdrawal clauses, I argue that if the rules governing unilateral exit from CIL were to track those governing unilateral exit from treaties, states would be subject to a wide array of procedural and substantive constraints on their ability to exit from international laws they no longer intend to follow.
Part I reviews the procedural limitations on treaty denunciations, including the obligation to act in good faith, the requirement to provide reasonable notice of an intent to withdraw, and the possibility of offering a justification a state’s decision to quit a treaty. Part II analyzes the substantive constraints on treaty denunciations, including the presumption against partial exit and against withdrawals from treaties that contain no provisions governing denunciation or withdrawal. Part III analyzes the legal consequences of exit, including the withdrawing state’s continuing responsibility for violations that occurred before a denunciation or withdrawal takes effect. Part IV briefly concludes.