This transcribed address was delivered by Professor Newton as the keynote comments at the Halabja Commemoration held at the Iraqi Cultural Center in Washington D.C. on March 16, 2012. The themes of this speech relate to the modern relevance of Halabja and its place within the larger scope of genocide committed against the Kurdish people.
Saturday, April 7, 2012
Newton: Keynote Address to the Memorial Commemorating the Genocide of Halabja
Friday, April 6, 2012
Kysar: On the Constitutionality of Tax Treaties
Taxes kindled the American Revolution. Revolt against collecting revenues without representation caused a tea party, propelling the colonies towards convening the First Continental Congress. Forgotten, though, is the role of taxes in shaping our fledgling nation immediately after the Revolution. Control over which governmental body could impose taxes inflamed the delegates to the Constitutional Convention. So important was the issue that the decision to originate revenue bills in the lower house of Congress constituted a cornerstone of the Great Compromise, thus birthing the representational structure of our country. This principle became embodied in the Constitution as the Origination Clause, ensuring that the power to tax would begin with the house that was directly elected and proportionate to the population.
Tax treaties (generally, bilateral instruments that mitigate or eliminate double taxation of income across jurisdictions) upset the intra-congressional balance that was carefully constructed by the Framers. Because tax treaties are generally considered to be self-executing, meaning that they need no implementing legislation to take legal effect, the ratification of a tax treaty cuts the House of Representatives wholly out of the process of lawmaking in the area of taxation. This outcome, I argue, lies in derogation of the Origination Clause and also runs counter to the important policies embodied in the Clause, such as the involvement of the proportionally represented house and the reduction of special interest deals. Contrary to current treatment, substantial constitutional and policy considerations mandate that tax treaties be implemented through legislation passed by both houses of Congress. Abiding by this condition has the practical effect of significantly reducing statutory overrides of tax treaties, a phenomenon partially resulting from the House’s jealous, albeit well-founded, guardianship over tax matters. My prescription thus allows our nation not only to honor our Constitution but also to better uphold our obligations under international law, creating more certainty for public and private actors. Additionally, this analysis makes important contributions beyond the context of tax treaties by shedding light on the vexing question of whether and when the Constitution limits the reach of treaties.
New Issue: Journal of International Arbitration
- Michael Hwang & Nicholas Thio, A Proposed Model Procedural Order on Confidentiality in International Arbitration: A Comprehensive and Self–Governing Code
- Seung Wha Chang, Inherent Power of the Arbitral Tribunal to Investigate Its Own Jurisdiction
- Daniella Strik, Investment Protection of Sovereign Debt and Its Implications on the Future of Investment Law in the EU
- Maciej Zachariasiewicz, Amicus Curiae in International Investment Arbitration: Can It Enhance the Transparency of Investment Dispute Resolution?
- Paul E. Mason, Follow-Up Note to ‘The Arbitrator as Mediator, and Mediator as Arbitrator’ (2011), J. Int.Arb. 6, 541 et seq.
Yusuf & Ouguergouz: The African Union: Legal and Institutional Framework
This work is an introduction to the origins, law and institutions of the African Union (AU). It examines the evolution, structures, legal standards and operational activities of this Pan-African organization, which replaced the Organization of African Unity (OAU) 10 years ago.
Although the AU came into being in 2001, so far there is no comprehensive work which addresses the institution, its organs and structures, the scope of its operations, its legal framework and the normative standards underpinning its objectives and functions or those underlying the conventions, charters and protocols it has enacted or inherited from its predecessor, the OAU. It is the aim of this work to fill that void. It has been conceived as a manual, and not as a scholarly treatise, so as to serve as a basic introduction to the institutional and legal framework of the AU and its affiliated organizations. It is meant to offer a concise and clear picture of the nature and workings of a continental institution aimed not only at promoting peace and unity in Africa but also at ensuring human security, development, human rights protection and good governance for the peoples of Africa.
Conference: Africa and International Law: Taking Stock and Moving Forward
A major objective of the conference will be to engage in a broad ranging conversation among scholars, practitioners and policy-makers to examine and evaluate how the international and regional regimes and institutions in Africa are producing new narratives of justice and how best they can make a real difference in responding to the challenges facing African peoples and governments.
Conference: Le droit international des investissements : entre unité et fragmentation
La 28e édition du Concours de procès simulé en droit international Charles-Rousseau amène les étudiants candidats sur le terrain du droit international des investissements. L’affaire fictivement portée devant le Centre international pour le règlement des différends relatifs aux investissements (CIRDI) soulève moult problèmes de droit des investissements comme de droit international général, que le présent colloque se propose de prolonger et de dépasser à travers la problématique de l’unité et de la fragmentation du droit international. Sous la présidence de S.E. M. Gilbert Guillaume, praticiens et universitaires, tous spécialistes reconnus de la question, vont s’interroger sur l’aspect unitaire ou fragmenté du droit international des investissements, avant d’envisager les rapports de cette branche du droit international avec les règles générales ou spécialisées de cet ordre juridique.
Thursday, April 5, 2012
Conference: Emerging Markets and the World Patent Order: Rules for an Altered Landscape
The world economy has changed dramatically during the past decade. Emerging markets such as Brazil, China and India are drivers of global economic growth, and individuals in these countries share a greater portion of global wealth. As the relative economic strength between countries and regions shifts, the capacity of policymakers in formerly dominant economic actors (including the United States, European Union and Japan) to control regulatory policy internationally - including patent policy - is challenged. Yet while emerging market governments continue to address common social problems of development (such as public health challenges), business leaders in these emerging market countries are developing increasingly "shared interests" with business leaders in the USA, EU and Japan - such as interests in creating innovative products and selling them profitably in growing markets. This convergence of business interests places pressure on the international patent system as the volume of patent filings increases, and as enterprises increasingly rely on patents as strategic cross-border weapons of competition. What are the opportunities and risks in this changing environment? How will consumers be affected? Why is patent policy increasingly being made in bilateral and regional settings?
This meeting brings together a group of the world's leading experts in patent law and policy to reflect on the implications of this changing international patent environment from the social, economic and political perspectives.
This conference will address developments in emerging market patent law that may influence the International Patent System. Participants will:
- Examine the extent to which patent laws, regulations and practices in Brazil, China, India, South Africa and other emerging market exonomies follow the model or differ from those in Europe, the United States and other 20th century economic leaders.
- Consider whether patent offices, administrative authorities and courts worldwide are prepared to deal with a substantially higher volume of patent applications and patents.
- Assess whether systemic problems with the international patent system adversely affect the rate or distribution of innovation. Discuss homogeneous and heterogeneous patent policies and systems.
- Analyze emerging powers, patents and preferential trade agreements.
Topics for discussion include:
- How are developed countries influencing patent-related policies and practices in the emerging market economies?
- What stresses are placed on patent offices, and how are offices addressing these stresses?
- What industries, if any, are adversely affected by systemic problems with the international patent system?
- Does experience point to a "single model" best patent system or to a variety of models adapted to national development strategies?
- What kind of IP provisions does Brazil, China or India seek when negotiating a trade agreement with an actor with less economic power?
New Issue: Stanford Journal of International Law
- Meredith Kolsky Lewis, Dissent as Dialectic: Horizontal and Vertical Disagreement in WTO Dispute Settlement
- S.I. Strong, What Constitutes an "Agreement in Writing" in International Commercial Arbitration? Conflicts Betweenthe New York Convention and the Federal Arbitration Act
- Valentina S. Vadi, Global Health Governance at a Crossroads: Trademark Protection v. Tobacco Control in International Investment Law
- Darren C. Zook, Reforming North Korea: Law, Politics, and the Market Economy
Conference: “Jus - Post - Bellum”: Mapping the normative foundations
The Jus Post Bellum Project is proud to host its launch conference, “‘Jus - Post - Bellum’: Mapping the normative foundations”, May 31 – June 1, 2012. It will be held at the Peace Palace. The first of several project seminars, this conference will seek to clarify the meaning and content of the concept (including, e.g., its relationship to and distinction from the field of transitional justice), including contemporary understandings and criticisms of the concept, and historical and modern approaches towards the definitions of key notions, such as “jus”, “post” and “bellum”.
The launch conference will include five panels: Situating the Concept, Mapping the Normative Framework(s), the Politics and Practice of Jus Post Bellum, Temporal Dimensions of Jus Post Bellum, and The ‘Jus’ in ‘Jus Post Bellum.’ There will also be a roundtable discussion on ‘At War’s End,’ by Larry May.
New Issue: Journal of Conflict Resolution
- Special Issue: Nonstate Actors, Fragmentation, and Conflict Processes
- Wendy Pearlman & Kathleen Gallagher Cunningham, Nonstate Actors, Fragmentation, and Conflict Processes
- Paul Staniland, Between a Rock and a Hard Place: Insurgent Fratricide, Ethnic Defection, and the Rise of Pro-State Paramilitaries
- Theodore McLauchlin & Wendy Pearlman, Out-Group Conflict, In-Group Unity?: Exploring the Effect of Repression on Intramovement Cooperation
- Kathleen Gallagher Cunningham, Kristin M. Bakke, & Lee J. M. Seymour, Shirts Today, Skins Tomorrow: Dual Contests and the Effects of Fragmentation in Self-Determination Disputes
- Victor Asal, Mitchell Brown, & Angela Dalton, Why Split? Organizational Splits among Ethnopolitical Organizations in the Middle East
- Jesse Driscoll, Commitment Problems or Bidding Wars? Rebel Fragmentation as Peace Building
Les pratiques comparées du droit international en France et en Allemagne
Conference: Les immunités à l’ère du « constitutionnalisme global »
Le colloque devrait s’ouvrir par une table ronde entre praticiens sur les immunités des Etats, se poursuivre par des échanges approfondis sur l’affaire qui oppose l’Italie et l’Allemagne devant la Cour internationale de Justice et reprendre, le lendemain, par des communications sur la contestation ou la limitation des immunités des Etats et de leurs agents, puis sur les activités commerciales des Etats et enfin sur les immunités des organisations internationales. Il devrait s’achever par une dernière table ronde sur les modifications en cours du sens et du rôle des immunités.
Scott: International Law, US Power: The United States' Quest for Legal Security
Observers of the USA's attitude towards international law seem to be perpetually taken aback by its actions, whether those relate to the use of force, the International Criminal Court or human rights. This book sets out to articulate the considerable degree of continuity in the nature of US engagement with international law. International Law, US Power explains that the USA has throughout its history pursued a quest for defensive and offensive legal security and that this was a key ingredient in the rise of the USA. Although skilful strategic involvement with international law was an ingredient in the USA 'winning' the Cold War, the rise of China and the growing negotiating strength of leading developing countries mean that the USA is likely to find it increasingly difficult to use the same set of techniques in the future.
Wednesday, April 4, 2012
New Issue: The Law and Practice of International Courts and Tribunals
- Laurence Boisson de Chazournes & Antonella Angelini, After "The Court Rose": The Rise of Diplomatic Means to Implement the Pronouncements of the International Court of Justice
- Attila Tanzi, On Balancing Foreign Investment Interests with Public Interests in Recent Arbitration Case Law in the Public Utilities Sector
- Yaël Ronen, Participation of Non-State Actors in ICJ Proceedings
- Oswaldo Ruiz-Chiriboga, The Independence of the Inter-American Judge
- Julien Fouret & Dany Khayat, International Centre for Settlement of Investment Disputes (ICSID) Case Law Review
New Issue: Journal of World Trade
- Syed Tariq Anwar, FDI Regimes, Investment Screening Process, and Institutional Frameworks: China versus Others in Global Business
- Biswajit Dhar & Kasturi Das, How Vulnerable Is India’s Trade to Possible Border Carbon Adjustments in the EU?
- Der-Chin Horng, Reshaping the EU’s FTA Policy in a Globalizing Economy: The Case of the EU-Korea FTA
- Ruth Hoekstra & Georg Koopmann, Aid for Trade and the Liberalization of Trade
- Pasha L. Hsieh, The Roadmap for a Prospective US-ASEAN FTA: Legal and Geopolitical Considerations
- Heng Wang, The Interpretation of GATS Disciplines on Economic Integration: GATS Commitments as a Threshold?
- Jonathan Holslag, Unravelling Harmony: How Distorted Trade Imperils the Sino-European Partnership
- Sergiy Beketov & Vitaliy Pogoretskyy, Bridging the Abyss? Lessons from Global and Regional Integration of Ukraine
Kelly: If the Glove or Shoe Fits: Court of International Trade Invokes Totes-Isotoner and Rejects Another Equal Protection Exception for Customs Cases in Rack Room Shoes v. United States
Call for Papers: International Law and Justice
The Australian and New Zealand Society of International Law & The Asian Society of International Law
Joint Conference on
International Law and Justice
Sydney, Australia, 25 - 26 October 2012
This Joint Conference of the Australian and New Zealand Society of International Law (‘ANZSIL’) and the Asian Society of International Law (‘Asian SIL’) will take place from Thursday 25 October to Friday 26 October 2012, hosted by the University of New South Wales in Sydney, Australia. This is the first formal event jointly organised by ANZSIL and the AsianSIL.
The last decade has seen a significant growth in international law activity and engagement across the region and sub-regions—with intersections growing among different fields of international law and the ongoing development of networks among professional communities of experts in international law and related disciplines and professions.
The Conference aims to bring together participants from across Asia and the Pacific, and beyond, to discuss topical issues relating to the broad theme of international law and justice. Most simply, to what extent can international law be an instrument of justice? Do we all share a common perception of justice and how does justice at an international level relate to other goals such as peace, equality, or development? Has the expansion of international law enhanced international justice and if so, for whom? To what extent has international law embraced the concept of intergenerational justice?
CALL FOR PAPERS – Deadline 30 May 2012
The Conference Organising Committee now invites proposals for papers to be presented at the Conference. Topics for papers can include, but are not limited to, the relationship between international law and justice in the context of:
- International courts and less formal dispute resolution processes
- Human rights and development
- The role, purpose, and effectiveness of international law
- International criminal law
- International security, including maritime security
- International environmental law
- The history and theoretical underpinnings of international law
- International organizations
- International trade law and international economic law
- International law education
- Polar regions
- Application of theories of justice to international law, international institutions and/or current international issues. The theories may cover formal, procedural, substantive, retributive, restorative justice or they may be drawn from any culture or religious tradition)
- Comparisons between theories of justice in different cultures
Papers with a focus on regional developments are particularly welcome. Potential paper givers are encouraged to address explicitly some aspect of the conference theme.
Those wishing to propose papers for presentation at the Conference should submit a one-page abstract and a one-page curriculum vitae by email to the Conference Organizing Committee at firstname.lastname@example.org, not later than Monday, 30 May 2012. The Conference Organising Committee will aim to inform applications of the outcome of their proposals by early July 2012. Further information about the Conference, including the program and registration details, will be available at a later date on the websites of ANZSIL: http://law.anu.edu.au/anzsil/ and the Asian SIL: http://www.asiansil.org/.
The conference is being organised in collaboration with the United Nations University and its Institute for Ethics Governance and Law, Griffith University, and other partners. It is anticipated that the biennial Ingram Colloquium on International Law and Development convened by the UNSW Faculty of Law will take place at the same time as the Conference.
Conference secretariat email: email@example.com
Conference: Eighteenth Investment Treaty Forum Public Conference
Recent developments in investor-State arbitration have highlighted once again the central role of consent in the establishment of arbitral jurisdiction. While consent remains a fundamental aspect of dispute resolution in public international law generally, its role is especially critical and complicated in investor-State arbitration where multiple treaties may intersect and the consent of multiple entities (State and individual) is involved.
This public meeting of the Investment Treaty Forum will examine the role of consent in the establishment of jurisdiction across three panels addressing problems and issues of importance and interest to practitioners, academics and government lawyers:
(1) Class Actions, Consent & Jurisdiction (looking at the issues raised by Abaclat v. Argentina among others);
(2) Counterclaims and Countermeasures (looking at the recent decisions in Roussalis v. Romania and Paushok v. Mongolia and the related issues raised when States assert countermeasures as a defense, as in Corn Products v. Mexico and ADM v. Mexico); and
(3) Competence de la Competance: Opting-out of Judicial Supervision of Jurisdictional Matters (looking at the issues raised in the recent set aside actions in BG Group v. Argentina (DC Ct. App. 2011) and Mexico v. Cargill (Ont. Ct. App. 2011)).
University of Bonn Institute for Public International Law Lunchtime Lecture Programme
- April 12, 2012: Daniel Joyner (Univ. of Alabama - Law), Iran’s Nuclear Program and International Law
- April 20, 2012: Susan Power (Griffith College Cork - Law), The Belligerent Occupant’s Administration of Oil Resources
- April 26, 2012: Irini Papanicolopulu (Univ. of Oxford - Law; Univ. of Milan - Law), The International Legal Regime Applicable to Persons at Sea
- May 3, 2012: Peter Malanczuk (Peking Univ. - Law), The Eurozone Crisis and the White Knight from China
- May 9, 2012: Jan Wouters (Univ. of Leuven - Law), Informal International Law-Making and Its Challenges
- May 24, 2012: Christian Tams (Univ. of Glasgow - Law), The International Court of Justice as an Agent of Legal Development?
- June 14, 2012: Jean d’Aspremont (Univ. of Amsterdam - Law), Holding International Organizations Responsible: The Cracks in the Law of International Responsibility
- June 28, 2012: Franklin Berman (Univ. of Oxford - Law; formerly, Legal Advisor, Foreign and Commonwealth Office), Reservations to Treaties – A Critical Appraisal of the ILC’s Guide to Practice
Tuesday, April 3, 2012
Roberts: Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System
Attempts to analyze controversial issues in the investment treaty system often result in participants drawing comparisons with and analogies from other legal disciplines, most notably public international law, international commercial arbitration, public law, trade law and human rights law. But how do these comparisons shape our thinking about the investment treaty system, why do different comparisons often support different answers to concrete problems, and which participants tend to support which paradigms and why?
This Article critiques the role that the five most common interpretive paradigms are playing in attempts to understand the nature of the investment treaty system. It provides a schema for analyzing what these approaches reveal and obscure about the system and why they often support conflicting outcomes on controversial issues. It also explores why different actors - including states, investors, NGOs, arbitrators and academics - are likely to argue for, or default to, different paradigms based on their divergent interests and/or backgrounds.
Conference: Assessing the Contributions and Legacy of the Special Court for Sierra Leone to Africa and International Criminal Justice
The University of Pittsburgh School of Law is pleased to announce that it will be holding an international conference assessing the contributions and legacy of the Special Court of Sierra Leone (SCSL) to Africa and International Criminal Justice in Pittsburgh, Pennsylvania, from Thursday April 19, 2012 through Saturday April 21, 2012.
The SCSL was established through signature of an unprecedented bilateral treaty concluded between the United Nations and the Government of Sierra Leone in January 2002. With a general mandate to deliver credible justice for the atrocities experienced in the small West African nation during a decade long civil war, the SCSL was designed to serve as an improvement on the existing ad hoc criminal tribunal model first deployed by the UN Security Council to address international crimes in the former Yugoslavia and Rwanda in 1993 and 1994 respectively.
For this reason, among others, the Statute of the SCSL contained many novel features. As part of this, it was the first independent tribunal to be given a circumscribed personal jurisdiction to prosecute only those “bearing greatest responsibility” for serious international/national crimes; the first modern tribunal to sit in the locus criminis – the place where the crimes were committed; the first to be funded entirely through voluntary contributions from UN member states; the first to be overseen by an independent management committee comprised of non-party states; the first to provide scope for the affected state (Sierra Leone) to appoint some of its principal officials, such as, some judges and the deputy prosecutor; as well as the first to operate alongside a truth and reconciliation commission in a post-conflict situation anywhere in the world.
Today, the SCSL, which was touted early on as a model for future ad hoc criminal tribunals, has completed all but one of its trials and therefore significantly wound down its operations. Only the trial of former Liberian President Charles Taylor remains on its docket. And even that case is expected to conclude, with all appeals, by mid-2012. In light of its pending closure, it is opportune to plan an assessment of the SCSL’s contribution and legacy both to Sierra Leoneans, in whose name it was asked to render impartial justice, and the international community, whose generous anti-impunity dollars made its work possible.
Essentially, as the SCSL becomes the first of the ad hoc international criminal tribunals to close down, we seek to provide a timely forum for those most familiar with and interested in its work to critically reflect on its contribution to Sierra Leone, Africa and international criminal justice. While memories are still fresh, up to 50 participants will be afforded a chance to step back and reflect on what worked, and what did not, and to capture, for posterity, their years of accumulated wisdom.
Consistent with its hybrid structure, the conference will aim to reflect the dual national and international character and ownership of the SCSL process. It will therefore elicit both Sierra Leonean and international perspectives on the successes and limitations of the SCSL, as well as identify a series of lessons learned for other African post-conflict situations and the International Criminal Court. As such, it will bring together a carefully selected list of invited academics, tribunal practitioners, policy-makers and civil society actors who have all participated, collaborated with, or closely followed, the work of the SCSL from its earliest days through to its twilight days.
In view of this focus, the conference will largely take up technical, big picture issues that are the domain of legal academic and practitioner experts in the international criminal law field. The areas of coverage will include, among others, the advantages and disadvantages of voluntary funding for future ad hoc courts; the successes, and limitations, of SCSL institutional innovations such as the Office of the Principal Defender and the Outreach Section; and the strengths and weaknesses of the institutional and jurisprudential contributions that the Court’s decisions and judgments have made to the trans-judicial dialogue on international criminal law and justice.
By convening the participants and experts to carry out the first and unprecedented early assessment of the work of the Sierra Leone tribunal, the third major UN-sponsored international penal court, it is expected that this conference and its outputs will make a valuable contribution to existing knowledge regarding the potential, and limits, of one of the more significant internationally supported anti-impunity initiatives in post-Cold War era Africa.
Kulesza: International Internet Law
This book discusses the international legal issues underlying Internet Governance and proposes an international solution to its problems. The book encompasses a wide spectrum of current debate surrounding the governance of the internet and focuses on the areas and issues which urgently require attention from the international community in order to sustain the proper functioning of the global network that forms the foundation of our information fuelled society. Among the topics discussed are international copyright protection, state responsibility for cyber-attacks (cyberterrorism), and international on-line privacy protection.
Taking a comparative approach by examining how different jurisdictions such as the United States, the European Union, China and Singapore have attempted various solutions to the problem of Internet Governance, the author offers a practical solution to the problem and is a proponent of International Internet Law. Kulesza suggests that just as in the case of International Environmental Law, an Internet Framework Convention could shape the starting point for international cooperation and lead to a clear, contractual division of state jurisdictional competences.
Ypi: Global Justice and Avant-Garde Political Agency
Why should states matter and how do relations between fellow-citizens affect what is owed to distant strangers? How, if at all, can demanding egalitarian principles inform political action in the real world? This book proposes a novel solution through the concept of avant-garde political agency. Ypi grounds egalitarian principles on claims arising from conflicts over the distribution of global positional goods, and illustrates the role of avant-garde agents in shaping these conflicts and promoting democratic political transformations in response to them. Against statists, she defends the global scope of equality, and derives remedial cosmopolitan principles from global responsibilities to relieve absolute deprivation. Against cosmopolitans, she shows that associative political relations play an essential role and that blanket condemnation of the state is unnecessary and ill-directed. Advocating an approach to global justice whereby domestic avant-garde agents intervene politically so as to constrain and motivate fellow-citizens to support cosmopolitan transformations, this book offers a fresh and nuanced example of political theory in an activist mode. Setting the contemporary debate on global justice in the context of recent methodological disputes on the relationship between ideal and nonideal theorizing, Ypi's dialectical account illustrates how principles and agency can genuinely interact.
Kuppuswamy: The International Legal Governance of the Human Genome
The human genome is a well known symbol of scientific and technological progress in the 21st century. However, concerns about the exacerbation of inequalities between the rich and the poor, the developing and the developed states, the healthy and the unhealthy are causing problems for the progress of scientific research. The international community is moving towards a human rights approach in addressing these concerns.
Such an approach will be piecemeal and ineffective so long as fundamental issues about economic, social and cultural rights, the so-called second generation of human rights, are not addressed. This book argues that, in order to be able to meaningfully apply a human rights framework to the governance of the human genome, the international human rights framework should be based on a unified theory of human rights where the distinction between positive and negative rights is set aside.
The book constructs a common heritage concept with the right to development at its core and explores the content of the right to development through rational human rights theory. It is argued that the notion of property rights in the human genome should be placed within the context of protecting human rights, including the right to development. The concept of common heritage of humanity, contrary to the widely held belief that it is in opposition to patenting of gene sequences, supports human rights-based conceptions of property rights.
This book fills a gap in the literature on international legal governance of the human genome will provide an essential reference point for research into the right to development, development issues in bioethics, the role of international institutions in law making and research governance.
Monday, April 2, 2012
New Issue: Mealey's International Arbitration Report
Conference: Pluralism v. Harmonization: National Adjudication of International Crimes
The objective of the conference on Pluralism v. Harmonization is to contribute to the development of international criminal law by the exchange of thoughts between legal scholars and practitioners from international as well as domestic institutions. It focuses on the fragmentation of core crimes prosecutions at the international and domestic level.
The Conference will be hosted at the historic Trippenhuis, the permanent headquarters of the Royal Netherlands Academy of Arts and Sciences (KNAW), located in the heart of Amsterdam, the Netherlands.
In the twentieth century, starting with Nuremberg in 1945, the international community witnessed the establishment and functioning of international tribunals and courts. In the twenty-first century, the paradigm has shifted to national courts to try persons for war crimes, crimes against humanity and genocide. In adjudicating international crimes, domestic courts may be viewed as representing the interests of the international community. As such they may be expected to rely on international norms in interpreting the law, or at least turn to international criminal tribunals for guidance. This is problematic; the international normative framework is cursory, incomplete and at times even inconsistent. The questions domestic courts are confronted with here touch upon the dilemma of a pluralistic school of thought versus the search for harmonization and unification of international criminal law.
The issue is particularly pertinent with regard to liability theories in international criminal law. At the international level the prosecution of those bearing greatest responsibility has proved to be difficult and has challenged traditional theories of criminal responsibility. The problem of linking those at leadership level to those at execution level puts a strain on the principle of individual criminal responsibility. Theories like Joint Criminal Enterprise and Control of the Crime have been developed as viable alternatives, yet they have not been without critique. Moreover, from an empirical point of view one may wonder whether these theories capture the reality of the commission of core crimes.
Problems in attributing liability are sometimes solved through evidentiary techniques. The use of circumstantial evidence, reliance on normative standards (‘reasonableness’) and the admissibility of large quantities of ‘evidence’ building a context of crimes rather than a focus on individual conduct can fill gaps in the liability theory. The link between substantive law and evidence law is too often overlooked and warrants closer scrutiny.
Differences in procedural criminal law contribute to the fragmentation of core crimes prosecutions at the national level, too. For instance, as evidentiary rules fall largely within the domain of domestic jurisdictions, the outcomes of national and international prosecutions of international crimes differ considerably. Through the due process clause of the Rome Statute’s Article 17, the ICC’s guiding role possibly also affects that area of law where fairness in procedure comes closest to fairness in outcome: law of evidence. However, taking fact-finding impediments and evidentiary challenges experienced at today’s international tribunals into account, who should guide whom?
Objective of the conference
The main objective of the conference is to explore the background and the consequences of ICL’s fragmentation at the international and national level. Thus, the speakers and participants will have to deal with questions on both international and national criminal law and procedure such as:
- To what extent is harmonizing ICL desirable, or even realistic? How does a pluralistic approach contribute to the development of ICL?
- How to deal with the tension between collective action and individual responsibility when prosecuting international crimes?
- To what extent does the principle of complementarity as laid down in Article 17 of the Rome Statute require adherence to international standards; does this also affect procedural law, in particular domestic laws of evidence?
- Given fact-finding impediments and evidentiary challenges when dealing with core international crimes, can national courts be of guidance to international criminal tribunals; or vice versa?
Cardesa-Salzmann: Constitutionalising Secondary Rules in Global Environmental Regimes: Non-Compliance Procedures and the Enforcement of Multilateral Environmental Agreements
Due to its remarkable success, the model of the Montreal Protocol’s non-compliance procedure (NCP) has been adopted in other environmental regimes, whose primary norms differ considerably. Hence, this article distinguishes different types of global environmental regimes and assesses the performance of NCPs therein as endogenous enforcement mechanisms. In fact, the reciprocal nature of the main conventional obligations in some more recent environmental regimes seems to hamper the effectiveness of compliance procedures. On this basis, the article puts forward some tentative considerations from a constitutional perspective. Drawing from the experience gained under environmental regimes in the region of the United Nations Economic Commission for Europe (UNECE), it explores the feasibility of transplanting some aspects of the model of the Aarhus Convention NCP into the more complex global context. Further, it reflects upon the potential of enhancing synergies between NCPs and national and international judiciaries as a step towards the consolidation of international public law in this area.
New Issue: Journal of World Energy Law & Business
- David John Frenkil & David P. Yaffe, Renewable Energy Certificates: a patchwork approach to deploying clean technologies
- Nong Hong, The energy factor in the Arctic dispute: a pathway to conflict or cooperation?
- Allan Ingelson, Lincoln Mitchell, & Christine Viney, NAFTA takings update the Glamis decision
- Eduardo Pereira, The enforceability of joint operating agreements: a perspective under Brazilian Law
- Pornchai Wisuttisak, Liberalization of the Thai energy sector: a consideration of competition law and sectoral regulation
New Issue: International Law: Revista Colombiana de derecho Internacional
- Alejandro Aponte-Cardona, Persecución penal nacional del homicidio en persona protegida: alcances y límites del derecho penal en contextos de justicia transicional
- Diego López-Medina, Recomendaciones para la elaboración de estrategias de priorización de casos en el marco de la Ley de Justicia y Paz
- Julio Andrés Sampedro-Arrubla, La justicia restaurativa: una nueva vía, desde las víctimas, en la soluci ón al conflicto penal
- Gustavo Emilio Cote-Barco, El proceso penal especial de Justicia y Paz: ¿verdadera alternativa para la transición a la paz u otro intento fallido de consolidación del Estado en medio de la guerra?
- Rafael A. Prieto-Sanjuan, Justicia y Paz, o cuando todos los caminos conducen a
- Rodrigo Uprimny-Yepes & Diana Esther Guzmán-Rodríguez, En búsqued a de un concepto transformador y participativo para las reparaciones en contextos transicionales
- Carlos H. Lozano-Acosta, El daño ambien tal en los programas de re paración colectiva para comunidades indígenas y afrodescendientes afectadas por el conflicto armado en Colombia
- Catalina Uprimny Salazar, Saberse algo de memoria en el proceso transicional colombiano
- Camila de Gamboa Tapias. La culpabilidad moral de los actos atroces en situaciones de violencia política
- Ana Milena Coral-Díaz, El cuerpo femenino sexualizado: entre las construcciones de género y la Ley de Justicia y Paz
- Juan Felipe García-Arboleda, El genocidio como nombre en disputa: La tensión de método entre la disciplina jurídica y la antropología
- Araceli Arancha García-del Soto & Rosemary Barbera, De esperas y esperanzas: Aspectos psicosociales en procesos de justicia transicional
Urueña: No Citizens Here: Global Subjects and Participation in International Law
International legal scholarship has traditionally celebrated the possibility of individuals being considered as subjects of international law. This book challenges that narrative, and reveals hidden patterns in the way we think about legal subjects in global governance. Building on the notion of a risk society, this book argues that international law creates fragmented subjectivities, whose conflicting identities help perpetuate a certain global loss of sense that is characteristic of our times. An innovative contribution that draws on a wealth of international legal materials (including human rights, EU law, international economic law, and international organizations), this book is useful to those with an interest in international legal theory, new approaches to international law, global constitutionalism, and global administrative law.
Conference: Still Waiting for Tomorrow: The Law and Politics of Unresolved Refugee Crises
This international conference, co-sponsored by BU Law, the American Society of International Law and the United Nations High Commissioner for Refugees, will address the law and politics of protracted refugee situations. The first part of the conference will focus on the scope and ramifications of such refugee crises on a global basis. The second part will aim at identifying state responses and policies addressing potential solutions to refugee crises.
Sunday, April 1, 2012
Schwöbel: Whither the Private in Global Governance?
In international legal scholarship, global governance ideas are being framed exclusively with recourse to public law - at the expense of private law. In this paper I question what the obscuring of private law conceptions and methodologies implies and whether international lawyers should pay more attention to such private law. Significantly, the burial or the obscuring of private law is predominantly occurring in theoretical rationalizations of ideas for holistic legal frameworks. De facto, private law has never been so prominent in the international sphere; indeed, it can be claimed that globalization is largely driven by private law. Suggestions for the accountability and transparency of transnational corporations, private military companies, and bilateral investment treaties are prominent examples of how public law solutions are being applied to private legal relations. Global governance and its inherent multifaceted and multifarious nature could capture private law impulses but instead is framed in a way to obscure them. In this, global governance is being aligned, largely by international lawyers, with other similar public law frameworks, including global constitutionalism and global administrative law. I argue that private law conceptions and methodologies should be taken seriously within global governance discourse as conceptions with progressive potential which do not take recourse to the power imbalances evident in most public law conceptions.