Saturday, September 24, 2011

Koremenos: Institutionalism and International Law

Barbara Koremenos (Univ. of Michigan, Ann Arbor - Political Science) has posted Institutionalism and International Law. Here's the abstract:
This paper surveys the Institutionalist literature in International Relations and its intersection with International Law scholarship. The Rational Design research agenda and the follow-up project, “The Continent of International Law,” are highlighted, given that they aim to be genuinely interdisciplinary. The premise of this agenda is that the details of international law are indeed important and should be studied, but we cannot understand international agreement design and compare across agreements without understanding the underlying cooperation problems the actors are trying to solve – that is, all the stuff international politics is made of (enforcement problems, uncertainty problems, distributions problems, etc). Three areas of international relations are covered: the making, interpretation, and enforcement of law. Perhaps more than any other of the main theories of International Relations, Institutionalism speaks rigorously to all three of these topics. Moreover, connections to the literature in International Law are pointed out. However, the Institutionalist literature would also benefit from a more extensive dialogue with other theoretical approaches, and several opportunities for such mutual enrichment are pointed out in the paper. Finally, the paper charts an agenda for future work in the Institutionalist framework.

Friday, September 23, 2011

Symposium: Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration (Reminder)

As noted previously, the Center for the Study of Dispute Resolution at the University of Missouri School of Law will host a symposium on "Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration," on October 21, 2011. The program is here. Here's the idea:

Once upon a time, international commercial arbitration and litigation were considered mutually exclusive means of resolving transnational disputes. However, those days appear to be gone forever. Instead, the existence of an arbitration agreement in a transnational dispute seems to be nothing more than an invitation for lawyers to engage in extensive (and expensive) tactical maneuvering in a variety of venues, both arbitral and judicial.

Some may see creative strategizing as the natural by-product of the significant amounts of money that are often at issue in these sorts of disputes. However, the border skirmishes between international commercial arbitration and litigation can also be attributed to the uncertainty that arises when the substantive and procedural laws of different jurisdictions collide.

Keynote speaker Gary Born joins panelists from Canada, Austria, Switzerland and the United States in a frank and timely discussion of some of the issues that can develop when parties attempt to combine litigation tactics with international commercial arbitration. This group of experts provides a uniquely transnational perspective on some of the most pressing questions facing the legal community today.

Panel: International Justice: Between Impunity and Show Trials

On February 3, 2012, the School of Oriental and African Studies, University of London will host a panel discussion with Martti Koskenniemi and Jacques Verges on the topic "International Justice: Between Impunity and Show Trials." Here's the idea:

When former President Milosevic began his defence at The Hague, now 10 years ago, there was no reason to be surprised by his chosen tactics. By turning the accusing finger towards the West, in particular the members of the North Atlantic Treaty Organization (NATO), for their alleged complicity in first destroying what Milosevic called "mini-Yugoslavia" (Bosnia-Herzegovina) and in 1999 waging a war of aggression against his own country, he aimed to avoid conducting his defence under conditions laid down by his adversaries. At the same time, his manoeuvre highlights, like so many other cases, the difficulty of grappling with large political crises by means of individual criminal responsibility and gives reason to question the ability of criminal trial to express or conserve the 'truth' of a complex series of events involving the often erratic action by major international players, Great Powers, the European Union, the United Nations, and so on.

This panel discussion will explore - on the eve of the decennial anniversary of the Milosevic case - whether international justice oscillates ambivalently between the wish to punish those individually responsible for international crimes and the danger of staging show trials in that process.

Roscini: The United Nations Security Council and the Enforcement of International Humanitarian Law

Marco Roscini (Univ. of Westminster - Law) has posted The United Nations Security Council and the Enforcement of International Humanitarian Law (Israel Law Review, Vol. 43, pp. 330-359, 2010). Here's the abstract:

This Article discusses the competences and powers of the UN Security Council in securing compliance with international humanitarian law, in particular through the adoption of the measures provided in Chapter VII of the Charter. The competence of the Council in this field can be founded on several legal grounds: on a broad interpretation of the notion of “threat to the peace” (Article 39 of the Charter), on Article 94(2) with regard to the International Court of Justice’s judgments establishing violations of the jus in bello and also on the customary duty to ensure respect for international humanitarian law as reflected in Article 1 Common to the 1949 Geneva Conventions on the Protection of the Victims of War. In particular, such customary provision empowers the Security Council to react to any violation of international humanitarian law regardless of a nexus with concerns of international stability. Although the Council has adopted a variety of measures in relation to violations of the laws of war, the most incisive ones are those provided in Articles 41 and 42 of Chapter VII, which however are not without problems. The role the Security Council has played in the enforcement of international humanitarian law has been criticized because of its selective and opportunistic approach, which is due to the political nature of the organ. Also, in several instances the Council, far from securing compliance with the jus in bello, has instead interfered with its application.

However selective and imperfect the Council’s approach might be, though, its power to adopt decisions binding on UN members and its competence to take or authorize coercive measures involving the use of force make it potentially a formidable instrument against serious violations of international humanitarian law, partly remedying the lack of enforcing mechanisms in the treaties on the laws of war.

Krajewski & Birhanu: Acceding to the WTO from a Least-Developed Country Perspective

Markus Krajewski & Fikremarkos Merso Birhanu have published Acceding to the WTO from a Least-Developed Country Perspective: The Case of Ethiopia (Nomos 2011). Here's the abstract:

Acceding to the World Trade Organization (WTO) entails enormous challenges for developing countries, in particular least-developed ones such as the effects of market opening and international competition on the local economy as well as fundamental aspects of law and regulatory reform.

The present volume addresses these questions from the perspective of Ethiopia, which is negotiating its accession to the WTO since 2003. Topics addressed include the effects of WTO law on agriculture, intellectual property rights and financial market regulation as well as regional integration in Africa. The book is not only of interest from the Ethiopian perspective, but will appeal to all interested in the impact of world trade law on developing countries.

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 9, no. 4, September 2011) is out. Contents include:
  • Current Events: The Residual Mechanism: Bringing the Work of the Ad Hoc International Criminal Tribunals to Completion
    • Daryl A. Mundis, Foreword
    • Guido Acquaviva, Was a Residual Mechanism for International Criminal Tribunals Really Necessary?
    • Thomas Wayde Pittman, The Road to the Establishment of the International Residual Mechanism for Criminal Tribunals: From Completion to Continuation
    • Catherine Denis, Critical Overview of the ‘Residual Functions’ of the Mechanism and its Date of Commencement (including Transitional Arrangements)
  • Articles
    • Robert Charles Clarke, Return to Borkum Island: Extended Joint Criminal Enterprise Responsibility in the Wake of World War II
    • Diane Bernard, Ne bis in idem — Protector of Defendants’ Rights or Jurisdictional Pointsman?
  • Revisiting Classics
    • Guido Acquaviva, At the Origins of Crimes Against Humanity: Clues to a Proper Understanding of the Nullum Crimen Principle in the Nuremberg Judgment
  • Anthology: Donnedieu de Vabres on Universal Jurisdiction
    • Paola Gaeta, Introductory Note
    • Henri Donnedieu de Vabres, The System of Universal Jurisdiction: Jurisdiction: Historical Origins and Contemporary Forms
  • Highlights
    • Ruth Frölich, Current Developments at the International Criminal Court
  • Readers' Comments
    • Neil Boister & Benn McGrady, Why and How to Make a Treaty Crime of Medicine Counterfeiting: A Reply to Attaran, Bate and Kendall
    • Amir Attaran, Roger Bate, and Megan Kendall, A Response to the Comments by Boister and McGrad
  • Book Reviews: Core Readings in International Criminal Law
    • Robert Cryer, Superior Scholarship on Superior Orders: An Appreciation of Yoram Dinstein’s The Defence of ‘Obedience to Superior Orders’ in International Law
  • Book Reviews: Review Essay
    • William Thomas Worster, On the Purposes of Legality and its Applicability to International Law

New Issue: Journal of International Arbitration

The latest issue of the Journal of International Arbitration (Vol. 28, no. 4, August 2011) is out. Contents include:
  • Nicolas C. Ulmer, Language, Truth, and Arbitral Accuracy
  • Cornel Marian, Who is Afraid of Nottebohm? — Reconciling the ICSID Nationality Requirement for Natural Persons with Nottebohm’s “Effective Nationality” Test
  • Rosa M. Abrantes-Metz & Santiago Dellepiane, Using an Event Study Methodology to Compute Damages in International Arbitration Cases
  • Fan Kun, Prospects of Foreign Arbitration Institutions Administering Arbitration in China
  • Nicholas Pengelley, Confidentially Speaking: Commercial Arbitration in Canada’s Open Courts
  • Beatrice Castellane, The New French Law on International Arbitration
  • Nadia Darwazeh & Baptiste Rigaudeau, Clues to Construing the New French Arbitration Law — An ICC Perspective on Procedural Efficiency, Good Faith, and Independence
  • Jennifer Kirby, Witness Preparation: Memory and Storytelling
  • Jacob Grierson & Mireille Taok, Dallah : Conflicting Judgments from the U.K. Supreme Court and the Paris Cour d’Appel

New Volumes: Recueil des Cours

Volumes 345 and 349 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law are out. Contents include:
  • Volume 345
    • K. Meziou, Migrations et relations familiales
    • Elihu Lauterpacht, Principles of Procedure in International Litigation
  • Volume 349
    • J. Malenovský, L’indépendance des juges internationaux
    • Guiguo Wang, Radiating Impact of WTO on Its Members’ Legal System: The Chinese Perspective

Thursday, September 22, 2011

New Issue: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

The latest issue of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Vol. 71, no. 3, 2011) is out. Contents include:
  • Internationale Zusammenarbeit: Von Friedenssicherung zu nachhaltiger Entwicklung. Vorträge des vierten Symposiums des Arbeitskreises junger Völkerrechtlerinnen und Völkerrechtler (AjV) am Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg, 23.-24. Oktober 2010
    • M. von Engelhardt, Reflections on the Role of the State in the Legal Regimes of International Aid
    • C. Steinorth, Demokratie lite? Möglichkeiten und Grenzen des Demokratisierungsbeitrags der Vereinten Nationen in Postkonflikt-Gesellschaften
    • C. Daase, Liberia’s Governance and Economic Management Assistance Programme – A New Model of Shared Sovereignty?
    • E. Schmid, War Crimes Related to Violations of Economic, Social and Cultural Rights
    • M. Riegner, Die internationalisierte Verfassungsgerichtsbarkeit in Kosovo: Instrument zur Friedenssicherung und Entwicklungsförderung?
    • C. Djeffal, The Iron Rhine Case – A Treaty’s Journey from Peace to Sustainable Development
    • E. Milano & I. Papanicolopulu, State Responsibility in Disputed Areas on Land and at Sea

New Issue: International Theory

The latest issue of International Theory (Vol. 3, no. 3, November 2011) is out. Contents include:
  • Shmuel Nili, Democratic disengagement: toward Rousseauian global reform
  • Tine Hanrieder, The false promise of the better argument
  • Ray Block & David A. Siegel, Identity, bargaining, and third-party mediation
  • Ingrid Creppell, The concept of normative threat
  • Yves Winter, The asymmetric war discourse and its moral economies: a critique

Conference: 2011 ASIL Midyear Meeting and Research Forum

The American Society of International Law will hold its second annual Midyear Meeting and inaugural Research Forum on November 3-5, 2011, at UCLA Law School. The program for the Midyear Meeting is here, and for the Research Forum here (scroll to the bottom) and here.

Weiler & Baetens: New Directions in International Economic Law: In Memoriam Thomas Wälde

Todd Weiler & Freya Baetens have published New Directions in International Economic Law: In Memoriam Thomas Wälde (Martinus Nijhoff Publishers 2011). Contents include:
  • Emmanuel Gaillard, Where Public Meets Private: Introduction
  • Moshe Hirsch, Human Rights & Investment Tribunals Jurisprudence Along the Private/Public Divide
  • Stephan Schill, Public or Private Dispute Settlement? The Culture Clash in Investment Treaty Arbitration and its Impact on the Role of the Arbitrator
  • Giudetta Cordero Moss, The Transnational Law of Contracts: What It Can and What It Cannot Achieve
  • Klaus Peter Berger, Codification of the New Lex Mercatoria through the Internet: The TransLex Principles at
  • Devashish Krishan, Thinking About BITs and BIT Arbitration: The Legitimacy Crisis That Never Was
  • Detlev F. Vagts, Field-Specific Applications: Introduction
  • Hans Van Houtte, Arbitration to Settle Private War-Damage Claims? The Eritrea-Ethiopia Claims Commission Revisited
  • Karl Sauvant, Foreign direct investment for development: the United Nations Code of Conduct and the search for balance in international investment rules
  • Mark Kantor, Negotiated Settlement of Public Infrastructure Disputes
  • Peter Muchlinski, International Corporate Social Responsibility and International Law
  • Robert Pritchard, The Legal Landscape of International Energy Investment After the 2008 Global Financial Crisis
  • Ximena Bustamante, Investor-State Mediation: Reflections on its Feasibility from a Process Perspective
  • Daniel Vock, International Economic Law in a Wider Context: Introduction
  • Nicholas J. Birch, Ian Laird, & Borzu Sabahi, International Investment Law Regime and the Rule of Law as a Precondition for International Development
  • Todd Weiler, An Historical Analysis of the Function of the Minimum Standard of Treatment in International Investment Law
  • Stephane Brabant, Anna Kirk, & Jonathan Proust, States, Sanctions and Soft Law: An Analysis of Differing Approaches to Business and Human Rights Frameworks
  • Tai-Heng Cheng, Positivism, New Haven Jurisprudence, and the Fragmentation of International Law
  • Andrea Bjorklund & Sophie Nappert, Beyond Fragmentation
  • Appendices: Transcripts Memorial Symposium for Professor Thomas Wälde
  • Appendix A: Part 1, Roundtable on Cross-Cutting Issues on Energy & Natural Resources and Development, Co-Moderated by Arif Ali and Timothy McCrum, Contributors: William Fox, Elizabeth Bastida, Ibibia Worika, Christian Pielow, Andrey Konoplyanik, Borzu Sabahi, Graham Coop
  • Appendix A: Part 2, Roundtable on Cross-Cutting Issues on Energy & Natural Resources and Development, Continued, Co-Moderated by Arif Ali and Timothy McCrum, Contributors: William Fox, Elizabeth Bastida, Ibibia Worika, Christian Pielow, Andrey Konoplyanik, Borzu Sabahi, Graham Coop
  • Appendix B: Special Presentation on Foreign Investment and the Work of The UN's Special Representative on Business & Human Rights, Moderated by Stéphane Brabant, Contributors: Peter Muchlinski, Lorenzo Cotula , Andrea Shemberg
  • Appendix C: Roundtable: What Does the Future Hold for International Arbitration?, Moderated by Tim Nelson, Contributors: Hew Dundas, Bart Legum, Mark Feldman, Sophie Nappert
  • Appendix D: Reflections Upon the Idea of International Judicial Review, Moderated by Robert Voltera, Contributors: Stephan Schill, Ian Laird, Todd Weiler, Klaus Reichert
  • Appendix E: Roundtable on the Question of Convergence in International Law, Moderated by Kaj Hober
  • Appendix F: Closing Remarks, Philip Andrews-Speed

New Volume: International Law Studies (Blue Book) Series

The latest volume in the International Law Studies (Blue Book) Series (Vol. 86, 2010) is out. The theme is "The War in Iraq: A Legal Analysis"; the editor is Raul A."Pete" Pedrozo. Contents include:
  • Raid Juhi al-Saedi, Regime Change and the Restoration of the Rule of Law in Iraq
  • John F. Murphy, Iraq and the “Fog of Law”
  • Raul A. “Pete” Pedrozo, Legal Bases for Military Operations in Iraq
  • Andru E. Wall, Was the 2003 Invasion of Iraq Legal?
  • Alexandra Perina, Legal Bases for Coalition Combat Operations in Iraq, May 2003–Present
  • David Turns, The International Humanitarian Law Classification of Armed Conflicts in Iraq since 2003
  • Neil Brown, Legal Considerations in Relation to Maritime Operations against Iraq
  • Charles J. Dunlap, Jr., Come the Revolution: A Legal Perspective on Air Operations in Iraq since 2003
  • Michael L. Oates, The Iraq War: A Commander’s Perspective
  • Marc Warran, The “Fog of Law”: The Law of Armed Conflict in Operation Iraqi Freedom
  • Clyde J. Tate II, The Occupation of Iraq
  • George K. Walker, Occupation in Iraq: Issues on the Periphery and for the Future: A Rubik’s Cube Problem?
  • Eyal Benvenisti & Guy Keinan, The Occupation of Iraq: A Reassessment
  • Dale Stephens, Counterinsurgency and Stability Operations: A New Approach to Legal Interpretation
  • Richard Pregent, Rule of Law Capacity Building in Iraq
  • Naz K. Modirzadeh, The Dark Sides of Convergence: A Pro-civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict
  • Brian J. Bill, Detention Operations in Iraq: A View from the Ground
  • Laurent Colassis, The Role of the International Committee of the Red Cross in Stability Operations
  • Yoram Dinstein, Concluding Observations: The Influence of the Conflict in Iraq on International Law

Wednesday, September 21, 2011

Woods: Moral Judgments & International Crimes: The Disutility of Desert

Andrew K. Woods (Harvard Univ. - Law) has posted Moral Judgments & International Crimes: The Disutility of Desert (Virginia Journal of International Law, forthcoming). Here's the abstract:

The international criminal regime is deeply retributive. But scholars rarely defend the regime in retributive terms, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist ground that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars implicitly adopt a behavioral theory known as the “utility of desert,” a theory that draws on the fast-expanding literature on moral intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law.

This Article fills this gap and argues that whatever its merits in the domestic realm, there are special behavioral reasons to be skeptical about the “utility of desert” claim in the international context. Moral intuitions as heuristics for moral judgments are error-prone, and the international criminal regime has a number of extraordinary features which may increase the likelihood and cost of these errors, including: the complexity of the crimes; the unusual diversity of stakeholders who possess heterogeneous intuitions; and the regime’s multiple goals, some of which are inhibited by moral condemnation. After examining the significance of these differences, the Article outlines the implications of the analysis for regime design. Some of these design implications accommodate the international criminal regime’s current retributive approach, and some are fundamentally incompatible with retributivism.

New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 22, no. 3, August 2011) is out. Contents include:
  • Editorial
    • JHHW, Editorial: The Birth of Israel and Palestine – The Ifs of History, Then and Now; Junior Faculty Forum for International Law; The Last Page and Roaming Charges; Eric Stein RIP; In this Issue
  • Articles
    • Rafael Domingo, Gaius, Vattel, and the New Global Law Paradigm
    • Monique Chemillier-Gendreau, Contribution of the Reims School to the Debate on the Critical Analysis of International Law: Assessment and Limits
    • Solomon T. Ebobrah, Towards a Positive Application of Complementarity in the African Human Rights System: Issues of Functions and Relations
    • Juan A. Marchetti & Petros C. Mavroidis, The Genesis of the GATS (General Agreement on Trade in Services)
  • The European Tradition in International Law: Walther Schücking
    • Christian J. Tams, Introduction
    • Christian J. Tams, Re-Introducing Walther Schücking
    • Frank Bodendiek, Walther Schücking and the Idea of ‘International Organization’
    • Mónica García-Salmones, Walther Schücking and the Pacifist Traditions of International Law
    • Ole Spiermann, Professor Walther Schücking at the Permanent Court of International Justice
    • Jost Delbrück, Law’s Frontier – Walther Schücking and the Quest for the Lex Ferenda
  • Roaming Charges: Moments of Dignity: Polish Youth on Warsaw's Pilsudski Square
  • Critical Review of International Governance
    • Ronagh McQuigg, How Effective is the United Nations Committee Against Torture?
  • Critical Review of International Governance and Jurisprudence
    • Stefano Piedimonte Bodini, Fighting Maritime Piracy under the European Convention on Human Rights
  • EJIL: Debate!
    • Alexander Orakhelashvili, Immunities of State Officials, International Crimes, and Foreign Domestic Courts: A Reply to Dapo Akande and Sangeeta Shah
    • Dapo Akande & Sangeeta Shah, Immunities of State Officials, International Crimes and Foreign Domestic Courts: A Rejoinder to Alexander Orakhelashvili
  • Review Essay
    • Reut Yael Paz, Between the ‘Public’ and the ‘Private’
  • Literature Review Essay
    • Stephan W. Schill, W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law

New Issue: New York University Journal of International Law and Politics

The latest issue of the New York University Journal of International Law and Politics (Vol. 43, no. 4, Summer 2011) is out. Contents include:
  • Margaret L. Satterthwaite, Indicators in Crisis: Rights-Based Humanitarian Indicators in Post-Earthquake Haiti
  • Doreen Lustig, The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at Nuremberg: Revisiting Franz Neumann's Concept of Behemoth at the Industrialist Trials

d'Aspremont: Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules

Jean d'Aspremont (Univ. of Amsterdam - Law) has published Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (Oxford Univ. Press 2011). Here's the abstract:

This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyzes the virtues of formalism, construed as a theory of law ascertainment, as a means of distinguishing between law and non-law. The theory of formalism is re-evaluated against the backdrop of the growing acceptance by international legal theorists of the blurring of the lines between law and non-law. At the same time, the book acknowledges that much international normative activity nowadays takes place outside the ambit of traditional international law and that only a limited part of the exercise of public authority at the international level results in the creation of international legal rules.

The theory of ascertainment that the book puts forward attempts to dispel some of the illusions of formalism that accompany the delimitation of customary international law. It also sheds light on the tendency of scholars, theorists, and advocates to deformalize the identification of international legal rules with a view to expanding international law. The book seeks to revitalize and refresh the formal identification of rules by engaging with some tenets of the postmodern critique of formalism. As a result, the book not only grapples with the practice of law-making at the international level, but it also offers broad theoretical insights on international law, dealing with the main schools of thought in legal theory (positivism, naturalism, legal realism, policy-oriented jurisprudence, and postmodernism).The main theory of law ascertainment presented in this work rests on a rejuvenated and modernized version the social thesis found in English analytical jurisprudence.

Tuesday, September 20, 2011

Kearney: Why Statehood Now: A Reflection on the ICC’s Impact on Palestine’s Engagement with International Law

Michael G. Kearney (London School of Economics - Law) has posted Why Statehood Now: A Reflection on the ICC’s Impact on Palestine’s Engagement with International Law (in Is There a Court for Gaza? A Test Bench for International Justice, C. Meloni & G. Tognoni eds., forthcoming). Here's the abstract:
This essay seeks to reflect on the sudden emergence in the international law discourse of a sustained debate on the question of statehood since, after all, the question of Palestinian statehood has been an issue of concern even before 1947. Since the beginning of the second intifada in 2000, the emphasis in legal analysis of the conflict has moved from one primarily focused on individual violations of international human rights and humanitarian law to consideration of broader questions of public international law. This paper aims to reflect, generally, on this development, by touching upon why a legal analysis fitted into a framework largely restricted to human rights and humanitarian law in the Palestinian territory occupied since 1967, is being expanded temporally and normatively to engage with the overarching politico-legal questions around statehood, colonialism, and self-determination that have for the most part remained in the background of legal analysis since Palestine’s first encounters with the international legal framework under the aegis of the League of Nations.

New Issue: Journal of International Dispute Settlement

The latest issue of the Journal of International Dispute Settlement (Vol. 2, no. 2, August 2011) is out. Contents include:
  • Thomas Schultz, Arbitration as an iPhone, or Why Conduct Academic Research in Arbitration?
  • William W. Park, Arbitration in Autumn
  • George A. Bermann, ‘Domesticating’ the New York Convention: the Impact of the Federal Arbitration Act
  • François Ost, The Twelfth Camel, or the Economics of Justice
  • Stephan W. Schill, Allocating Adjudicatory Authority: Most-Favoured-Nation Clauses as a Basis of Jurisdiction—A Reply to Zachary Douglas
  • Alexander Orakhelashvili, The Competence of the International Court of Justice and the Doctrine of the Indispensable Party: from Monetary Gold to East Timor and Beyond
  • Katherine Del Mar, Weight of Evidence Generated through Intra-Institutional Fact-finding before the International Court of Justice
  • Ralf Michaels, A Fuller Concept of Law Beyond the State? Thoughts on Lon Fuller’s Contributions to the Jurisprudence of Transnational Dispute Resolution—A Reply to Thomas Schultz
  • Peer Zumbansen, Debating Autonomy and Procedural Justice: The Lex Mercatoria in the Context of Global Governance Debates—A Reply to Thomas Schultz
  • David Holloway, Avoiding Duplicative Litigation about Arbitration Awards within the EU
  • Sophie Nappert & Dieter Flader, A Psychological Perspective on the Facilitation of Settlement in International Arbitration—Examining the CEDR Rules
  • David Schneiderman, Legitimacy and Reflexivity in International Investment Arbitration: A New Self-Restraint?

Alston: The CIA and Targeted Killings Beyond Borders

Philip Alston (New York Univ. - Law) has posted The CIA and Targeted Killings Beyond Borders (Harvard National Security Journal, forthcoming). Here's the abstract:
This Article focuses on the accountability of the Central Intelligence Agency (CIA) in relation to targeted killings, under both United States law and international law. As the CIA, often in conjunction with Department of Defense (DOD) Special Operations forces, becomes more and more deeply involved in carrying out extraterritorial targeted killings both through kill/capture missions and drone-based missile strikes in a range of countries, the question of its compliance with the relevant legal standards becomes ever more urgent. Assertions by Obama administration officials, as well as by many scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a ‘free pass’ to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.

van Dam: The Netherlands Found Liable for Srebrenica Deaths

Cees van Dam (King's College London) has posted an ASIL Insight on The Netherlands Found Liable for Srebrenica Deaths.

Helfer: Flexibility in International Agreements

Laurence R. Helfer (Duke Univ. - Law) has posted Flexibility in International Agreements (in International Law and International Relations: Taking Stock, Jeffrey Dunoff & Mark A. Pollack eds., forthcoming). Here's the abstract:
The chapter provides an overview of flexibility mechanisms in international agreements and the role of such mechanisms in promoting or inhibiting international cooperation. Part I reviews the many flexibility devices available to treaty makers. It divides these tools into two broad categories: formal mechanisms (such as reservations, escape clauses, and withdrawal provisions) and informal practices (such as auto-interpretation, nonparticipation, and noncompliance). Part II reviews the international law and international relations scholarship on the design and use of treaty flexibility mechanisms, focusing on studies of exit and escape clauses. Part III highlights several conclusions that emerge from the burgeoning literature on treaty flexibility and suggests avenues for future research.

Monday, September 19, 2011

Call for Submissions: Journal of International Organizations Studies

The Journal of International Organizations Studies has issued a call for submissions. Here's the call:

The Journal of International Organization Studies is a new, peer-reviewed journal that seeks to encourage the creation of a distinct field of international organization studies. It aims to provide a window into the state of the art in international organization research, and function as a platform for interdisciplinary dialog on international organizations.

The Journal of International Organization Studies’ mission is to support innovative approaches in the study of international organizations. We particularly welcome papers that explore new grounds and transcend the traditional perspective of international organizations as merely the sum of its members and their policies. The journal's focus is the analysis and development of IO specific concepts, theories and methodologies. JIOS works across disciplines and therefore especially welcomes meta-disciplinary analyses that will provide a foundation for communication across academic fields and disciplines.

JIOS publishes the full range of theoretical approaches, while theoretical and empirical studies will be hosted in equal proportion. JIOS welcomes scholarship about specific organizations as well as the phenomenon of international organizations, their structures and processes, and their place in the international community.

JIOS publishes three types of articles:

  • research papers (8,000 – 10,000 words, incl. footnotes and references)
  • reviews of literature or disciplinary approaches (book reviews: 800 - 1,200 words, subject
  • reviews: 2,000 – 3,000, incl. footnotes and references)
  • "Insider's View" (3,000 – 7,000, incl. footnotes and references): contributions from practitioners on the inner workings of international organizations.

Published twice annually online and print-on-demand.

Lavelle: Legislating International Organization: The US Congress, the IMF, and the World Bank

Kathryn C. Lavelle (Case Western Reserve Univ. - Political Science) has published Legislating International Organization: The US Congress, the IMF, and the World Bank (Oxford Univ. Press 2011). Here's the abstract:
In Legislating International Organization, Kathryn Lavelle argues against the commonly-held idea that key international organizations are entities unto themselves, immune from the influence and pressures of individual states' domestic policies. Covering the history of the IMF and World Bank from their origins, she shows that domestic political constituencies in advanced industrial states have always been important drivers of international financial institution policy. Lavelle focuses in particular on the US Congress, tracing its long history of involvement with these institutions and showing how it wields significant influence. Drawing from archival research and interviews with members and staff, Lavelle shows that Congress is not particularly hostile to the multilateralism inherent in the IMF and World Bank, and has championed them at several key historical junctures. Congress is not uniformly supportive of these institutions, however. As Lavelle illustrates, it is more defensive of its constitutionally designated powers and more open to competing interest group concerns than legislatures in other advanced industrial states. Legislating International Organization will reshape how we think about how the U.S. Congress interacts with international institutions and more broadly about the relationship of domestic politics to global governance throughout the world. This is especially relevant given the impact of 2008 financial crisis, which has made the issue of multilateralism in American politics more important than ever.

Schultz: Secondary Rules of Recognition and Relative Legality in Transnational Regimes

Thomas Schultz (Graduate Institute of International and Development Studies) has posted Secondary Rules of Recognition and Relative Legality in Transnational Regimes (American Journal of Jurisprudence, forthcoming). Here's the abstract:
Understanding the nature and contours of transnational legality is an important challenge, as it may bear on the place that transnational law should be given within the existing frameworks of public and private international law. This article discusses three questions, which have emerged in the field of international arbitration and are primarily of a philosophical nature, that help us understand certain aspects of transnational legality: (1) What is the role of social conventions among international adjudicators for the development of transnational regimes? (2) What are the ethical considerations connected to the recognition as law of one or several transnational arbitral regimes? (3) What are the legal consequences of the recognition as law of one or several transnational arbitral regimes? These three questions shed light on the nature and role of secondary rules of recognition in transnational regimes and on the distinction between relative legality (what a legal system considers to be law, its own or that of other systems) and absolute legality (what a neutral observer considers to be law).

Rovine: Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2010

Arthur W. Rovine has published Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2010 (Martinus Nijhoff Publishers 2011). The table of contents is here. Here's the abstract:
The 2010 volume of Contemporary Issues in International Arbitration and Mediation - The Fordham Papers is a collection of important works in the field written by the speakers at the 2010 Fordham Law School Conference on International Arbitration and Mediation. 24 papers are organized into the following five parts: Part I: Investor-State Arbitration, Part II: Key Issues in the U.S. Law of International Arbitration, Part III: Dispute Resolution by the World Trade Organization, Part IV: How Major Corporations View International Arbitration, Part V: International Mediation.

Symposium: International Humanitarian Law

A recent issue of the Israel Law Review (Vol. 43, no. 2, 2010) contains a symposium on international humanitarian law. Contents include:
  • Nigel Rodley & Yuval Shany, Introduction
  • Dino Kritsiotis, The Tremors of Tadić
  • Jean d’Aspremont, Multilateral versus Unilateral Exercises of Universal Criminal Jurisdiction
  • Marco Roscini, The United Nations Security Council and the Enforcement of International Humanitarian Law
  • Matthew Happold, Protecting Children in Armed Conflict: Harnessing the Security Council’s "Soft Power"
  • Andrea Breslin, Ensuring Respect for International Humanitarian Law: The European Union’s Guidelines on Promoting Compliance with IHL
  • Eitan Diamond, Before the Abyss: Reshaping International Humanitarian Law to Suit the Ends of Power

New Issue: Aegean Review of the Law of the Sea and Maritime Law

The latest issue of the Aegean Review of the Law of the Sea and Maritime Law (Vol. 1, no. 2, October 2011) is out. Contents include:
  • Pelayia Yessiou-Faltsi, The 1952 Brussels International Convention on the arrest of ships for maritime claims and on jurisdictionImportant steps for the unification of maritime law
  • Ling Zhu, The bunkers convention and limitation of liability
  • Martin David Fink, Contemporary views on the lawfulness of naval blockades
  • Rytis Satkauskas, Piracy at sea and the limits of international law
  • Jun Tsuruta, The Japanese Act on the Punishment of and Measures against Piracy
  • Irini Papanicolopulu, On the interaction between law and science: considerations on the ongoing process of regulating underwater acoustic pollution
  • Ioannis Konstantinidis, Dispute settlement in the law of the sea, the extended continental shelf in the Bay of Bengal and the CLCS: some preliminary observations on the basis of the case Bangladesh/Myanmar before the International Tribunal for the Law of the Sea
  • Romulo R. Ubay, Evidence in international adjudication: map evidence in territorial sovereignty dispute cases
  • Joji Morishita & Dan Goodman, The IWC moratorium on commercial whaling was not a value judgment and was not intended as a permanent prohibition

Teitel: Humanity's Law

Ruti G. Teitel (New York Law School) has published Humanity's Law (Oxford Univ. Press 2011). Here's the abstract:

In Humanity's Law, renowned legal scholar Ruti Teitel offers a powerful account of one of the central transformations of the post-Cold War era: the profound normative shift in the international legal order from prioritizing state security to protecting human security. As she demonstrates, courts, tribunals, and other international bodies now rely on a humanity-based framework to assess the rights and wrongs of conflict; to determine whether and how to intervene; and to impose accountability and responsibility. Cumulatively, the norms represent a new law of humanity that spans the law of war, international human rights, and international criminal justice. Teitel explains how this framework is reshaping the discourse of international politics with a new approach to the management of violent conflict.

Teitel maintains that this framework is most evidently at work in the jurisprudence of the tribunals-international, regional, and domestic-that are charged with deciding disputes that often span issues of internal and international conflict and security. The book demonstrates how the humanity law framework connects the mandates and rulings of diverse tribunals and institutions, addressing the fragmentation of global legal order.

Comprehensive in approach, Humanity's Law considers legal and political developments related to violent conflict in Europe, North America, South America, and Africa. This interdisciplinary work is essential reading for anyone attempting to grasp the momentous changes occurring in global affairs as the management of conflict is increasingly driven by the claims and interests of persons and peoples, and state sovereignty itself is transformed.

Sunday, September 18, 2011

Raustiala: NGOs in International Treatymaking

Kal Raustiala (Univ. of California, Los Angeles - Law) has posted NGOs in International Treatymaking (in Oxford Guide to Treaties, forthcoming). Here's the abstract:
This essay, forthcoming in the Oxford Guide to Treaties, surveys the role of NGOs in treatymaking. It asks four key questions. First, what roles do NGOs play today in treaty processes, and how have these roles changed? Second, what explains the increased prominence of NGOs? Third, are NGOs a salutary addition to treatymaking or illegitimate special interests? And finally, Four, what is the broader significance of NGO activity for international law and international order? NGOs are clearly important players in treatymaking today. But their roles remain, to a large degree, circumscribed and controlled by states. Indeed, NGO participation is frequently useful to governments and the rules and practices regulating their participation in treaties reflect this often symbiotic relationship. And at the most fundamental level, the presence of NGOs in contemporary treatymaking and implementation- which for brevity I will refer to as treaty processes- is a sign of the expansion of the domain of treatymaking. As international law has increasingly expanded its substantive ambit, it has come to govern more and more of what has traditionally been thought to fall within the sphere of national law. In turn, the process of international lawmaking has come to resemble the process of national lawmaking. Like lobbyists in national capitals, NGOs tell us where governing power is; increasingly, that power rests at the international level.