This Article challenges the widely held belief that the Erie doctrine automatically applies in private international law cases – namely, cases where a United States federal court is asked by private litigants to apply foreign, non-United States law. Under the conventional understanding, the Erie doctrine not only requires federal courts to apply the law of the state in which the court sits but also to apply that state’s conflict-of-laws rules, even when those rules direct the court to apply the law of a foreign country. This Article argues that courts should question the mechanistic application of a doctrine announced in the 1930s (and updated to conflict of laws in the 1940s and 1970s) to the realities of private international litigation today, especially in light of more recent Supreme Court cases concerning constitutional constraints on choice of law. Among other findings, the Article provides empirical evidence uncovering a previously unrecognized connection in the scholarly literature: internationalizing the Erie doctrine may in part explain the increased use of the forum non conveniens doctrine by federal district courts. The Article also reframes the ongoing and contested scholarly debate between Professors Curtis Bradley, Jack Goldsmith, Harold Koh, and others regarding the application of Erie to customary international law in light of Erie’s application in private international law cases. The Article not only provides a new empirical and scholarly lens through which to view the international application of the Erie doctrine but also offers a suggested approach to be employed by courts when faced with such cases.
Saturday, October 23, 2010
Childress: When Erie Goes International
Friday, October 22, 2010
Hilpold: WTO Law and Human Rights: Bringing Together Two Autopoietic Orders
In comparison to GATT law, WTO law is characterized by a notably expanded coverage. Since its inception in 1995, its material density and reach has been further extended. It was only a question of time until the demand would come up for this branch of law to fulfil objectives laying outside the traditional borders of International Economic Law. In particular, it was recognized that WTO law touches in many way upon human rights issues. Vigorous claims were made to transform the WTO order into a human rights organization. Some authors were of the opinion that human rights law could be integrated into WTO law via the interpretative rules of the Vienna Convention on the Law of Treaties. This contribution tries to evidence that such attempts are inherently flawed. There is no possibility and not even a perceptible need to transform the WTO system into a human rights instrument. After examining the many areas of interaction between Human Rights Law and International Economic Law it is evidenced that the many common ends of each branch of International Law are best served if both masses of law are mutually coordinated but at the same time maintain their autopoietic nature. At the same time this is to demonstrate that fragmentation as a so-called problem of International Law is overrated.
New Issue: Journal of World Investment & Trade
- Rafael Leal-Arcas, The European Union’s Trade and Investment Policy after the Treaty of Lisbon
- John P. Gaffney, “Abuse of Process” in Investment Treaty Arbitration
- Abdullah Al Faruque, Mapping the Relationship between Investment Protection and Human Rights
- Panayotis M. Protopsaltis, The Challenge of the Barcelona Traction Hypothesis: Barcelona Traction Clauses and Denial of Benefits Clauses in BITs and IIAs
- Nguyen Mai Phuong & Umut Turksen, “The Honeymoon is Over” Vietnam and the WTO: A Critique of Foreign Direct Investment Commitments in Banking and Distribution Services
- Alberto Tita, Investment Insurance in International Law: A Restatement on the Regime of Foreign Investment
Dodge: Loose Canons: International Law and Statutory Interpretation in the Twenty-First Century
This short paper discusses international law and statutory interpretation in the Supreme Court’s recent decisions. It argues that the last decade has been one of ferment. Some Justices, most prominently Breyer and Ginsburg, have invented new canons to determine the extraterritorial reach of statutes. Other Justices, most prominently Scalia and Thomas, have relied on the presumption against extraterritoriality, though shifting it in important ways. Neither camp has made much use of the Charming Betsy canon because it would allocate prescriptive jurisdiction in a way that neither finds desirable. The paper will appear in a forthcoming book on the history of international law in the U.S. Supreme Court to be published by Cambridge University Press in 2011.
Amann: Cecelia Goetz, Woman at Nuremberg
Among the many women who played a role in the post-World War II trials of former Nazis and Nazi collaborators was a 30-year-old American, Cecelia Goetz. This essay, part of ongoing research on women at Nuremberg, to be published in “Women and International Criminal Law,” a forthcoming special issue of the International Criminal Law Review, discusses Goetz. Included are not only details on how and why she became a prosecutor in the Krupp trial at Nuremberg, but also a life story marked by many “first woman” chapters, on law review, at the Department of Justice, and, after Nuremberg, in the federal judiciary.
Workshops: Katzenstein, Keane
David Keane (Middlesex Univ. - Law) will give a talk today at the Lauterpacht Centre for International Law's Friday Lunchtime Lecture Series on "Survival of the Fairest? Evolution and the Geneticization of Rights."
Thursday, October 21, 2010
Parrish: Rehabilitating Territoriality in Human Rights
For many years, territorial principles anchored an international system organized around nation-states. Recently, however, the human rights movement has sought to change the state-centric focus of international law and overcome the limitations of a system where the territorial state is the primary actor. The field of human rights has promoted a new legal orthodoxy that places the person at the center of the international legal system. Within this orthodoxy, non-state actors play a prominent role, unilateral domestic lawsuits are promoted, and territorial borders give way when necessary for humanitarian intervention. In contrast, territorial conceptions of international law are viewed as outdated and ill-equipped to deal with a globalized world. Prevailing wisdom in the human rights community, at least among academic scholars, now suggests that non-territorial models of governance are better in protecting and enforcing human rights.
This article challenges that wisdom. Globalization and territorial governance can be consistent in the field of human rights. The article advances two principle arguments. First, concepts of territorial sovereignty and the multilateralism upon which international law operates achieves an underappreciated balance between state and individual rights that often serves as a foundational prerequisite for human rights to flourish. The rejection of territoriality may undermine the hard fought gains the human rights movement has achieved. Second, in the long run, strong territorial states will remain critical to a world system that promotes human dignity. A disaggregated state, where globalized, American-style interest group politics controls, is unlikely to be favorable to human rights over time. The article concludes that territorial approaches to global governance have greater promise than many assume to jump-starting greater respect for, and enforcement of, human rights. The human rights community would benefit from re-embracing traditional multilateral legal solutions as the primary way of achieving meaningful reform.
Conference: Défis énergétiques à la lumière du droit international au 21e siècle
Gibney & Skogly: Universal Human Rights and Extraterritorial Obligations
Globalization challenges fundamental principles governing international law, especially with respect to state sovereignty and international relations. This transformation has had a significant impact on the practice of trade law, financial regulation, and environmental law but relatively little effect on one area of law and regulation: human rights.
Universal Human Rights and Extraterritorial Obligations examines both the international and domestic foundations of human rights law. What other contemporary human rights debates have almost totally ignored is that in an increasingly interdependent world—where public and private international actors have great influence on the lives of individuals everywhere—it is insufficient to assess only the record of domestic governments in human rights. It is equally important to assess the effect of actions taken by intergovernmental organizations, international private entities, and foreign states.
From this standpoint, contributors to this book address how states' actions or omissions may affect the prospects of individuals in foreign states and asks important questions: To what extent do agricultural policies of rich countries influence the right to food in poorer countries? How do decisions to screen asylum seekers outside state borders affect refugee rights? How does cooperation among different states in the "war on terror" influence individuals' rights to be free from torture? This volume presents a brief for a more complex and updated approach to the protection of human rights worldwide.
Conference: Insolvabilité des Etats et dettes souveraines
Wednesday, October 20, 2010
Lewis & Frankel: International Economic Law and National Autonomy
- Robert Howse, The end of the globalization debate - continued
- Yuka Fukunaga, Global economic institutions and the autonomy of development policy: a pluralist approach
- Jason Beckett, Fragmentation, openness, and hegemony: adjudication and the WTO
- Tracey Epps, Demanding perfection: private food standards and the SPS Agreement
- Susy Frankel, Eroding national autonomy from the TRIPS Agreement
- Alberta Fabbricotti, The WTO and RTAs: a 'bottom-up' interpretation of RTAs' autonomy over WTO law
- Henning Grosse Ruse-Kahn, 'Gambling' with sovereignty: complying with international obligations or upholding national autonomy
- Meredith Kolsky Lewis, Safety standards and indigenous products: what role for traditional knowledge?
- Rafael Leal-Arcas, The GATS and temporary migration policy
- Pinar Artiran, A different approach to the external trade requirement of GATT Article XXIV: assessing 'other regulations of commerce' in the context of EC enlargement and its heightened regulatory standards
- Ko-Yung Tung, Foreign investors vs. sovereign states: towards a global framework, BIT by BIT
- Jane Kelsey, What about the people? How GATS Mode 4 transforms national regulation of temporary migration for remittances in poor countries
- Kate Miles, Reconceptualising international investment law: bringing the public interest into private business
Call for Submissions: Asian Journal of International Law
The first issue of the Asian Journal of International Law (AsianJIL) will be published by Cambridge University Press in January 2011.
The Journal is now soliciting submissions for future issues. Articles should be between 8,000 and 12,000 words (excluding footnotes) and be submitted exclusively to the AsianJIL, with publication subject to double-blind peer-review and editorial discretion.
For details on style and the submission process, as well as information on how to subscribe, visit www.AsianJIL.org.
AsianJIL is the journal of the Asian Society of International Law. It publishes peer-reviewed scholarly articles and book reviews on public and private international law. The regional focus of the Journal is broadly conceived. Some articles may focus specifically on Asian issues; others will bring one of the many Asian perspectives to bear on issues of global concern. Still others will be of more general interest to scholars, practitioners, and policymakers located in or working on Asia.
AsianJIL is published in English as a matter of practical convenience rather than political endorsement. English language reviews of books in other languages are particularly welcomed. The Journal is produced for the Asian Society of International Law by the National University of Singapore Faculty of Law.
For further enquiries, please email AsianJIL@nus.edu.sg.
Posner: Human Rights, the Laws of War, and Reciprocity
Human rights law does not appear to enjoy as high a level of compliance as the laws of war, yet is institutionalized to a greater degree. This paper argues that the reason for this difference is related to the strategic structure of international law. The laws of war are governed by a regime of reciprocity, which can produce self-enforcing patterns of behavior, whereas the human rights regime attempts to produce public goods and is thus subject to collective action problems. The more elaborate human rights institutions are designed to overcome these problems but fall prey to second-order collective action problems. The simple laws of war institutions have been successful because they can exploit the logic of reciprocity. The paper also suggests that limits on military reprisals are in tension with self-enforcement of the laws of war. The U.S. conflict with Al Qaeda is discussed.
Pippan: International Law, Domestic Political Orders, and the 'Democratic Imperative'
After the end of the Cold War, democratic transitions in many parts of the world, a significant increase in the number of signatories to global and regional human rights instruments containing participatory rights, and a growing interest in ‘free and fair’ elections on the part of the UN and other international organizations have led some legal scholars to assert the emergence of an internationally constituted ‘right to democratic governance’. In a certain sense, this was in line with the predominantly liberal reading of the events of 1989 in social science, which interpreted the demise of European communism as a confirmation of the superiority of Western-style democracy over other political regimes. In the controversial debate that followed its initial articulation in the early 1990s, the ‘democratic entitlement thesis’ was hailed by some commentators as finally giving substance to widely accepted but highly ambiguous international concepts such as self-determination, popular sovereignty and political participation, whereas others criticized it as a form of ‘liberal messianism’, or even as a ‘democratic jihad’.
The present essay aims to revisit the discussion in light of recent international developments, particularly within the United Nations. Following a general introduction (Section 1), it briefly recapitulates the major strands of the democratic norm thesis and the vivid critique it has received (Section 2). In order to better grasp the overall problématique raised by the thesis, the main section of the paper (Section 3) then addresses three interrelated, yet ultimately distinct, questions: Does the international legal system display any preference for democracy over other domestic political regimes and concurrent constitutional orders? If so, does the contemporary international order embrace any particular vision of democracy? Finally, provided the two prior questions can be answered in the affirmative, do any of the components of an emerging international vision of democracy have a universal legal character? The essay concludes (in Section 4) by arguing that, unless one (inappropriately) equates democracy with free and fair elections, no general rule of international law can be identified requiring states to design their domestic political and constitutional orders in accordance with a particular (e.g. liberal) model of democracy. Moreover, while the persistent refusal to allow for the holding of periodic and genuine elections may today be regarded as constituting a violation of a customary norm (an argument supported here), the responsible government usually does not forfeit its legal standing in the international arena. Notwithstanding these findings, it will be argued that an international regime on domestic democratic governance is progressively taking shape. This regime is comprised of principles, norms, rules, and standards with varying degrees of normativity, around which the expectations of international actors regarding efforts of states ‘to implement the principles and practices of democracy’ increasingly converge.
Tuesday, October 19, 2010
New Issue: Transnational Legal Theory
- Ming-Sung Kuo, The End of Constitutionalism As We Know It? Boundaries and the State of Global Constitutional (Dis)Ordering
- Pavlos Eleftheriadis, Human Rights as Legal Rights
- Rahul Rao, Disciplining Cosmopolitanism
- Asem Khalil, From Constitutions to Constitutionalism in Arab States: Beyond Paradox to Opportunity
New Issue: Revue de Droit International et de Droit Comparé
- J.-F. Leclercq, Condidérations sur quelques dispositions de droit international concernant la lutte contre le terrorisme
- H.- D. Bosly, Juridictions pénales et crimes internationaux
- G. Keutgen, L'arbitrage et la mondialisation du commerce
ASIL International Organizations Interest Group Works-in-Progress Workshop (Reminder)
The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on October 29, 2010, at the headquarters of the Organization of American States, Washington, DC. The workshop will begin at 9am and end by 430pm.
The workshop's format will be as follows. Each paper will be introduced by a commentator for about ten minutes. The author will have the opportunity to respond, if he or she wishes to do so. The floor will then be opened for comments, reactions, and discussion from the group as a whole. One of the sessions will focus the work of three junior scholars. The workshop is conducted on the assumption that everyone has read all of the papers in advance. One need not present a paper or comment on a paper to participate. The workshop is free for ASIL members and $15 for non-members. Participants must pre-register here. Lunch will be provided. Papers will be distributed the week of October 18.
The papers that will be presented include:
Kristen E. Boon (Seton Hall Univ. - Law), “Regime Collisions and the Role of the Law of Responsibility”
Richard Burchill (Univ. of Hull – Law), “Regional Organisations as an Expression of Diversity in the International System”
Noemi Gal-Or (Kwantlen Polytechnic Univ. – Politics and Law), “The International Responsibility of the WTO”
David Gartner (Arizona State Univ. – Law), “Beyond the Monopoly of States: Civil Society and the Governance of International Institutions”
Ian Hurd (Northwestern Univ. – Political Science), “Actor, Forum, Resource: Legal and Political Aspects of International Organizations”
Ian Johnstone (Tufts Univ. – Fletcher School) & Garth Schofield (Permanent Court of Arbitration), “Relational Contract Theory and UN Peacekeeping”
Young Scholars Panel:
Megan Donaldson (New York Univ. – Law), “The Politics of Transparency: The World Bank Access to Information Policy”
Joseph Perkovich (Dorsey & Whitney LLP), “The Institutional Legal Framework for Exchange Stability”
Guy Fiti Sinclair (New York Univ. – Law), “Of Living Trees and Constitutional Moments: Social Imaginaries and the Expansion of International Organizations”
We look forward to seeing you in Washington.
Jacob Katz Cogan
Symposium: Challenging EU Counter-Terrorism Measures Before the Courts: An Assessment of the Kadi Judgment
- Sara Poli & Maria Tzanou, The Kadi Rulings: A Survey of the Literature
- Marise Cremona, EC Competence, 'Smart Sanctions', and the Kadi Case
- Enzo Cannizzaro, Security Council Resolutions and EC Fundamental Rights: Some Remarks on the ECJ Decision in the Kadi Case
- Annalisa Ciampi, The Potentially Competing Jurisdiction of the European Court of Human Rights and the European Court of Justice
- Giorgio Gaja, Are the Effects of the UN Charter under EC Law Governed by Article 307 of the EC Treaty?
- Nikolaos Lavranos, The Impact of the Kadi Judgment on the International Obligations of the EC Member States and the EC
- Riccardo Pavoni, Freedom to Choose the Legal Means for Implementing UN Security Council Resolutions and the ECJ Kadi Judgment: A Misplaced Argument Hindering the Enforcement of International Law in the EC
- Martin Scheinin, Is the ECJ Ruling in Kadi Incompatible with International Law?
- Christian Tomuschat, The Kadi Case: What Relationship is there between the Universal Legal Order under the Auspices of the United Nations and the EU Legal Order?
- Federico Fabbrini, The Role of the Judiciary in Times of Emergency: Judicial Review of Counter-Terrorism Measures in the United States Supreme Court and the European Court of Justice
Monday, October 18, 2010
Paulussen: Male Captus Bene Detentus? Surrendering Suspects to the International Criminal Court
The infamous abduction of Adolf Eichmann in Argentina on 11 May 1960 and the recent kidnapping of suspected terrorist Abu Omar in Italy on 17 June 2003 show that the use of irregular means was and is still considered an option in apprehending suspects, especially when the interests are (considered to be) strong.
Since the International Criminal Court (ICC) also has to deal with suspects of serious crimes, one wonders what the position of this Court, arguably the most important institution in the field of international criminal justice, is towards suspects who claim that the way they were brought into the Court’s jurisdiction was irregular(male captus).
Basically, does it opt – taking into account, of course, that much will depend on the exact circumstances of the case – for effectiveness (in the sense of achieving prosecutions and convictions) and will it continue to exercise its jurisdiction notwithstanding themale captus (male captus bene detentus) or is it of the opinion that values such as fairness, human rights and the integrity of its proceedings demand that in the case of a male captus, the exercise of jurisdiction must be refused (male captus male detentus/ex iniuria ius non oritur)?
This study’s central question is how the ICC currently copes with the dilemmas that a male captus case can give rise to and how this approach is to be assessed. For this purpose, the author creates two evaluative frameworks; an external one (to find out how similar or different the ICC male captus position is to the position of other courts that have dealt with this problem before) and an internal one (to find out how the ICC position is to be assessed in relation to its own law).
Besides answering this specific central question, this study more generally combines two fascinating subjects which have not previously been put together in one book: the ICC and the much-debated male captus bene detentus maxim. Moreover, it makes a contribution to the male captus discussion itself, to the discussion as to how ICC judges and judges in general can best deal with alleged irregularities in the pre-trial phase of their case, to the discussion on how proceedings can be achieved which are considered both effective and fair.
New Issue: New Zealand Journal of Public and International Law
- 17th Annual Australia and New Zealand Society of International Law Conference: The Future of Multilateralism in a Plural World
- Joanna Mossop, Foreword
- Anand Satyanand, Opening Address by the Governor-General of New Zealand
- Colin Keating, Prospects for the Multilateral Security System
- Roger S. Clark, The International Criminal Law System
- Christopher C. Joyner, Reconciliation as Conflict Resolution
- Christopher Michaelsen, The Security Council's Practice of Blacklisting Alleged Terrorists and Associates: Rule of Law Concerns and Prospects for Reform
- Jacqueline Mowbray, Language in the UN and EU: Linguistic Diversity as a Challenge for Multilateralism
- Catherine Renshaw, Andrew Byrnes & Andrea Durbach, Human Rights Protection in the Pacific: The Emerging Role of National Human Rights Institutions in the Region
New Issue: Revue de l'Arbitrage
- Cécile Chainais, L'arbitre, le droit et la contradiction : l'office du juge arbitral à la recherche de son point d'équilibre
- Jérôme Barbet & Peter Rosher, Les clauses de résolution de litiges optionnelles
New Issue: Revue de Droit International et de Droit Comparé
- R. Boukhari, Les successions internationales en droit international privé tunisien
- I. Couzigou, Le référendum français et la construction européenne
- Michel Mahouve, Le cadre juridique international et national de lutte contre le terrorisme: une perspective prospective camerounaise
New Issue: Revue de droit international de sciences diplomatiques et politiques
- Mamoud Zani, La Convention des Nations Unies relative aux droits de l'enfant : A propos de l'opportunite d'une procedure de plaintes individuelles
- Mamoud Zani, Vers un veritable droit international des handicapes : La Convention de l'O.N.U. relative aux droits des personnes handicapees
- Laurent Lombart, Brefs propos sur l'eventuel rattachement de la Wallonie a la Republique francaise au regard du droit international
- Bertrand Ateba, Le poids de la Chine comme acteur structurateur de la recomposition de l'echiquier international
- Andre Oraison, A propos du nouveau statut interne du recif de Clipperton fixe par la loi ordinaire du 21 fevrier 2007, "portant dispositions statutaires et institutionnelles relatives a l'outre-mer"
Sunday, October 17, 2010
Sur: International Law, Power, Security and Justice: Essays on International Law and Relations
These collected essays deal with the evolutions and immutabilities of international society and international law during the last 25 years, a period during which these fields of study have undergone many changes. The starting point is that far from operating at different levels or being in conflict, international law and politics are closely intertwined. The book addresses the many different aspects of international law: the role and concept of the State, and the position of States in the international system; the bases, principles and evolution of public international law; questions of international security that still govern international relations; classic and current systems of peace and security maintenance; the standing, role and actions of the UN Security Council; arms control and limitation of armaments; unilateral uses of armed force and the legality of war; and humanitarian law and international criminal justice.
The perspective of these essays is not a theoretical or dogmatic vision of international law and politics; rather they are based upon the practices of States in the international arena, and the ways in which the guiding legal rules are elaborated and implemented.
These texts have been selected from Professor Sur's various books and numerous articles on international law and relations.