Saturday, March 8, 2014

Van Schaack: The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change

Beth Van Schaack (Santa Clara Univ. - Law) has posted The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change (International Law Studies, forthcoming). Here's the abstract:

The extraterritorial application of states’ human rights obligations has emerged as a pressing issue in international human rights law. And, it is destined to remain so given that states are increasingly asserting their power abroad in ways that affect the rights of individuals beyond national borders. As domestic courts, international tribunals, and human rights treaty bodies increasingly confront fact patterns and claims requiring a consideration of whether a particular human rights obligation applies extraterritorially, they have struggled to create a defensible and coherent framework of analysis. This process of doctrinal development and evolution has been decentralized to a certain degree since the various human rights instruments contain slightly different formulations for their scope of application, and there is no appellate body to harmonize the law. Nonetheless, through a process of cross-fertilization and parallel reasoning, a doctrinal convergence is now discernable within the opinions and other views of authoritative decision-makers representing the range of human rights treaty bodies and tribunals that have confronted the issue. According to this consensus, states owe human rights obligations to all individuals within the authority, power, and control of their agents or instrumentalities and can be found responsible whenever they cause harm to such individuals. In terms of which rights and obligations apply extraterritorially, human rights bodies are increasingly adopting a calibrated approach that hinges on the nature of the right, the degree of control the state exercises over the territory, individuals, or transaction in question.

Starting in 1995, but more consistently during the Bush Administration, the United States has in its filings before these human rights bodies advanced a categorical and contrarian position that the obligations contained in the relevant human rights instruments have no extraterritorial application. This unqualified position is increasingly out-of-step with the established jurisprudence and with arguments being advanced, and conceded, by our coalition partners and other allies. As such, the United States now finds itself in a knotty adversarial posture with several human rights bodies on this issue and the related choice of law question.

This dispute is more than a simple matter of competing semantics and treaty interpretations that will be resolved by clever exercises of statutory interpretation or a more searching review of the legislative history. Rather, there are broad philosophical principles at issue that go to the very heart of the human rights project. In particular, this debate surfaces a perennial tension between the idealized vision of human rights as universal attributes that we all enjoy simply by virtue of our shared humanity and the more realist view that human rights obligations are merely contractual undertakings that are binding only insofar as states have specifically consented to them as a function of pacta sunt servanda. And yet, the applicable texts are open to several equally plausible interpretations, and the legislative history is inconclusive as to states’ original intentions; this indeterminacy invites a teleological interpretive approach that must prioritize universality. The law has headed in a direction that is consistent with this imperative and is keeping pace with globalization and multitude of ways that states can assert their power abroad. This is fitting, because the alternative — that the treaties would permit states to harm people abroad in ways that would be prohibited at home — is untenable and perverse.

Its firm stance confirms the United States as a persistent objector to any emerging customary norm. Nonetheless, the failure to acknowledge limited, well-established, and principled exceptions to a strictly territorial application of its human rights obligations ultimately undermines the legitimacy of U.S. arguments in these fora as well as its commitment to the human rights project more broadly. This paper argues that the upcoming hearings before the Human Rights Committee (HRC) — the treaty body charged with interpreting the International Covenant on Civil and Political Rights (ICCPR) — offer an opportunity for the Obama Administration to advance a more nuanced position that allows it to remain faithful to its lex specialis arguments, but also to make certain strategic concessions on extraterritoriality. The proposed shift in approach will demonstrate the United States’ respect for the views of human rights bodies and of its allies, bolster the universality of certain core human rights protections, and do much to bring to a close a historical chapter marred by allegations that the United States was endeavoring to create, and exploit, rights-free zones. Furthermore, the change of course advocated will not prejudice, and may actually enhance, more meritorious arguments at the United States’ disposal.

This paper proceeds in four steps. By way of background, it quickly reviews the relevant treaty language and travaux préparatoires. With reference to exemplary decisions, it then maps the process of doctrinal development across the array of human rights treaty bodies and international tribunals (with a nod to some relevant domestic pronouncements) in order to identify the expanding areas of doctrinal consensus. Against this backdrop, it presents the United States’ rhetorical positions before several human rights bodies. By way of prescription and conclusion, it suggests some subtle concessions the United States could make in the forthcoming consultations before the Human Rights Committee, where it has reached a “stalemate” on this question. Although at first glance the United States position appears deeply entrenched, subtle cues in the United States’ most recent submission to the HRC suggests that its position on these issues may be softening and that the time for such a shift in approach may be ripe.

Friday, March 7, 2014

New Issue: International Community Law Review

The latest issue of the International Community Law Review (Vol. 16, no. 1, 2014) is out. Contents include:
  • Caroline Joan S. Picart, Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part II
  • Tony George Puthucherril, Rising Seas, Receding Coastlines, and Vanishing Maritime Estates and Territories: Possible Solutions and Reassessing the Role of International Law
  • Zoilo A. Velasco, Self-determination and Secession: Human Rights-based Conflict Resolution
  • Gian Maria Farnelli, Back to Lotus? A Recent Decision by the Supreme Court of India on an Incident of Navigation in the Contiguous Zone
  • Stefania Negri, Sovereign Immunity v. Redress for War Crimes: The Judgment of the International Court of Justice in the Case Concerning Jurisdictional Immunities of the State (Germany v. Italy)

New Issue: European Journal of International Relations

The latest issue of the European Journal of International Relations (Vol. 20, no. 1, March 2014) is out. Contents include:
  • Jan Aart Scholte, Reinventing global democracy
  • Bastiaan van Apeldoorn & Naná de Graaff, Corporate elite networks and US post-Cold War grand strategy from Clinton to Obama
  • Matthew Fluck, The best there is? Communication, objectivity and the future of Critical International Relations Theory
  • Leonardo Baccini, Cheap talk: Transaction costs, quality of institutions, and trade agreements
  • Jonas Tallberg & James McCall Smith, Dispute settlement in world politics: States, supranational prosecutors, and compliance
  • Celina Del Felice, Power in discursive practices: The case of the STOP EPAs campaign
  • Lisa Strömbom, Thick recognition: Advancing theory on identity change in intractable conflicts
  • Markus Kornprobst, From political judgements to public justifications (and vice versa): How communities generate reasons upon which to act
  • Ian Hall, The satiric vision of politics: Ethics, interests and disorders
  • Jürgen Rüland, The limits of democratizing interest representation: ASEAN’s regional corporatism and normative challenges
  • Felix Berenskoetter, Parameters of a national biography

Buchanan: The Ethics of Revolution and Its Implications for the Ethics of Intervention

Allen Buchanan (Duke Univ. - Law and Philosophy) has published The Ethics of Revolution and Its Implications for the Ethics of Intervention (Philosophy & Public Affairs, Vol. 41, no. 4, pp. 291–323, Fall 2013). Here's the introduction:

We may be entering a new Age of Revolution. Revolutions have recently occurred across North Africa, while the brutal revolutionary conflict in Syria continues. The recent flowering of just war theory has not yet explicitly extended its reach to revolutions, perhaps due to a suspicion that revolutions present ethical issues that are not amenable to a tradition of theorizing that focuses on conflicts between states, rather than on those in which (some of) the people of a state seek to overthrow the government. Of course, one major element of an ethics of revolution has occupied a central role in Western political thought: Locke, for example, has a good deal to say about what qualifies as a just cause for revolution, and the idea of just cause is a key component of jus ad bellum doctrine. The question of whether the other components of jus ad bellum theories developed for interstate wars apply to the quite different situation of revolution has not been addressed; nor has a jus in bello theory been developed for revolutionary conflicts.

Both the humanitarian law of war and contemporary just war theory do, however, address one issue that a comprehensive ethics of revolution, in its jus in bello part, should include: namely, the ethics of ‘irregular’ combatants, fighters who do not wear identifying insignia and who mingle with the civilian population. But as I shall argue, developing a plausible doctrine on that issue would comprise only one small part of a comprehensive ethics of revolution.

Similarly, although recent work on the ethics of terrorism (and counterterrorism) clearly has implications for the jus in bello part of an ethics of revolutions—since revolutionaries often resort to terrorism—it falls far short of a thoroughgoing investigation of the ethics of revolution. For one thing, the focus of the literature on the ethics of terrorism has been acts of violence against noncombatants intended to influence the behavior of those in political power (by causing fear or terror in their constituencies, who will then exert pressure on their leaders to change course). But revolutionaries frequently use violence and sometimes outright acts of terrorism against other noncombatants—namely, other oppressed people—not to change the behavior of the regime, but to increase participation in the struggle or to eliminate rivals for leadership of the revolution.4 Such acts are morally problematic to say the least, but to my knowledge they have not been considered in the recent literature on terrorism. This omission is both a deficiency in theorizing about the ethics of terrorism and a failure to engage with an important element of the ethics of revolution.

Writing on the ethics of humanitarian intervention has tended to focus on interventions to stop genocides or large-scale killings, not on revolutions. It is true that some supporters of the United States–led invasion of Iraq in 2003 claimed that it was justified as a case of forcible democratization, a democratic revolution from without, as it were (and that the absence of weapons of mass destruction was therefore irrelevant to the justification of the war). But they did not argue, and could not plausibly have argued, that the invasion was an effort to support a revolution, because no revolution was underway at the time of the invasion.

This is not to say that current theorizing about the ethics of humanitarian intervention has no implications for revolution. A popular stance on the ethics of humanitarian intervention (in its jus ad bellum part) is that it is not justified unless there is large-scale violence, and this stricture could be understood to apply to revolutionary conflicts as well as ethnonational conflicts of the sort that have been the focus of the humanitarian intervention literature. Nonetheless, neither contemporary just war theories, nor theories of the ethics of terrorism, nor theories of the ethics of humanitarian intervention have engaged seriously with the ethics of revolution considered as a legitimate object of normative analysis in its own right.

In this article, I begin a systematic exploration of the ethics of revolution, focusing first on the ethics of those who typically initiate revolutions, whom I will refer to as The Aspiring Revolutionary Leadership (ARL for brevity). Then I will consider the ethics of intervention in revolutions.

In the first part of the article, I argue that in the cases in which the Just Cause Requirement is most clearly and fully satisfied, structural features of the revolutionary situation will often make it extremely difficult or impossible for revolutionaries to satisfy reasonable jus in bello principles, while at the same time satisfying the jus ad bellum Reasonable Likelihood of Success Requirement. My initial disturbing conclusion in this first part of the article is that it is seldom morally justifiable to initiate revolution in the very cases in which the cause for revolting is most clearly and fully just. Second, I then argue that when the initiation of revolution is not morally permissible, participation in a revolution that has already begun can nonetheless be justified. So, a third conclusion will be that it is unhelpful to ask whether a revolution was justified. Instead, the moral assessment must be disaggregated, distinguishing between two subjects of evaluation: the initiation of the revolution and its continuance. Paradoxical though it may seem, there is nothing inconsistent in acknowledging that the actions by which a revolution is initiated—and which must be performed if the revolution is to have a significant chance of succeeding—are morally unjustifiable, while at the same time asserting that the revolution is morally justifiable, where this means that the continuation of the revolutionary struggle is morally permissible. Next, I argue that on further analysis some of the prima facie morally impermissible tactics ARLs often employ—in particular, some uses of coercion against fellow oppressed people to overcome regime-imposed obstacles to collective action against the regime—are morally justifiable, while others are not.

The second part of the article uses the first part's findings concerning the ethics of revolution to explore the ethics of intervention in revolution. There I argue for three main conclusions. First, even if the initiation of a revolution is severely tainted by immoral actions perpetrated by the ARL, it may nonetheless be morally justifiable for third parties to intervene in support of it.

Second, given a proper understanding of the tactics frequently employed by the ARL—and that they often must use if revolution is to have a significant chance of succeeding—the practical value of two seemingly plausible principles of intervention turns out to be much less than has been thought. Both the principle that intervention should not occur until there is widespread support for a revolution (Mill's Principle) and the principle that intervention should not occur without the “consent” or “approval” of the people (the Consent Principle) figure prominently in the contemporary literature on the ethics of intervention. Both still enjoy considerable popularity, though both have been criticized. I will advance novel criticisms of them, showing that proponents of these principles have failed to see that the behavior of the ARL will frequently undercut the rationale for these principles. I conclude that Mill's Principle and the Consent Principle were designed for a world quite different from that in which revolutions typically occur, in blissful ignorance of the grim facts about revolutions in our world. Finally, I then argue that there is a reason in favor of early intervention that has not been appreciated: in principle it can avoid the spiral of coercion that occurs as the regime tries to thwart the ARL's attempt to solve the collective action problem of mass participation by raising the costs of participation in the revolution and the ARL responds by increasing coercive pressure on the masses to participate by raising the costs of not participating.

My methodology in this article is distinctive: I approach the ethics of revolution by focusing on the problems that the initiators of revolution typically face, drawing on relevant social-science literature, including historical work on actual revolutions, and also on the literature on collective action problems. Then, instead of attempting to apply a theory of intervention developed for other sorts of cases (in particular, intervention to stop massive ethnonational violence), I draw out the implications of a factually informed investigation of the ethics of revolution for developing an ethics of intervention in revolutions.

Shereshevsky: Monetary Compensation as a Remedy for Fair Trial Violations Under International Criminal Law

Yahli Shereshevsky (Hebrew Univ. of Jerusalem - Law) has posted Monetary Compensation as a Remedy for Fair Trial Violations Under International Criminal Law (New Criminal Law Review, forthcoming). Here's the abstract:
When international criminal courts face violations of the right to a fair trial, they encounter a dilemma: if they provide a significant remedy, such as a stay of proceedings, the remedy inevitably undermines the ability to punish the perpetrators of international crimes; on the other hand, if they grant a minimal remedy or no remedy at all, the right to a fair trial is undermined. This dilemma has led to the adoption of an interest balancing approach to remedies. Under this approach, sentence reduction plays a prominent role in remedying fair trial violations that do not undermine the court’s ability to accurately determine the accused’s guilt. This article argues that sentence reduction is an inadequate remedy, since it inevitably either harms the goals of international criminal sentencing or does not provide an effective remedy for violations of the right to a fair trial. Instead, monetary compensation should be the remedy for such violations. By granting monetary compensation the court creates a separation between the punishment and the remedy and thus can usually provide an effective remedy for the accused without harming the main goals of international criminal justice.

New Issue: International Theory

The latest issue of International Theory (Vol. 6, no. 1, March 2014) is out. Contents include:
  • Erik Ringmar, The search for dialogue as a hindrance to understanding: practices as inter-paradigmatic research program
  • Moonhawk Kim & Scott Wolford, Choosing anarchy: institutional alternatives and the global order
  • Fabian Schuppert, Beyond the national resource privilege: towards an International Court of the Environment
  • Symposium ‘Theories of Territory beyond Westphalia’
    • David Miller, Debatable lands
    • Margaret Moore, Which people and what land? Territorial right-holders and attachment to territory
    • Ayelet Banai, The territorial rights of legitimate states: a pluralist interpretation
    • Cara Nine, When affected interests demand joint self-determination: learning from rivers
    • Frank Dietrich, Territorial rights and demographic change

Thursday, March 6, 2014

Call for Papers: Denialism and Human Rights

The Maastricht Centre for Human Rights has issued a call for papers for a conference on "Denialism and Human Rights," to take place January 22-23, 2015. Here's the call:

Call for papers

Conference on Denialism and Human Rights

22 & 23 January 2015, Maastricht, the Netherlands

After having rejected the scientific wisdom about AIDS, former South African president Thabo Mbeki and his government were directly responsible for many avoidable deaths according to research by Harvard University. (The Guardian, 2008)

Dutch Cardinal Ad Simonis claimed that church leaders were not aware of child sex abuse. Speaking on the TV he said - in German - "wir haben es nicht gewusst" and added "I know that is a very dangerous remark and heavily loaded, but it's true." (RNW, 2010)

A discussion paper on Rwanda, prepared by an official in the Office of the Secretary of Defense stated: “Be Careful. Legal at State was worried about this yesterday—Genocide finding could commit [the U.S. government] to actually "do something."” (Power, 2001)

The cases above illustrate that the safeguarding of human rights remains problematic, despite the proliferation of human rights instruments and the many actions taken by a variety of actors, such as governmental and non-governmental organizations, (individual) states and the international community over the past decades. Human rights violations do still occur and injustice remains rampant. Central to this problem appears to be that social, economic, cultural and political structures in societies provide for denialist defense mechanisms. Such deeply embedded denialism causes and/or facilitates human rights violations, because the true nature of the problems involved remains fully or partly unacknowledged and as a result appropriate action remains absent. In order to safeguard the effectuation of human rights it is thus pertinent to acknowledge and address this problem of denialism and develop strategies to move beyond it.

We challenge all scholars, practitioners, and students from various disciplines and fields to unearth and address denialism in the context of their own particular area of research. We especially invite them to consider and deal with the following issues:

- Firstly, a clear conception and definition of denialism should be developed. What does denialism exactly entail? On what social, economic, cultural and political structures and mechanisms in societies does it operate and how? What ideologies and prejudices are involved?

- Secondly, denialism operating in practice should be investigated and its relation to and particular relevance for human rights issues should be clarified. In which concrete cases do we see denialsm ‘at work’? What are the implications in terms of human rights? How is the effectuation of these rights blocked or obstructed? Is denialism only destructive or can it also be constructive? Can human rights discourse itself be in denial?

- Thirdly, how should we deal with denialism and move to a situation of human rights consistent behavior and change? Is it always possible to move from denial to compliance? What are suitable strategies or policies? Is legislation required? Which factors obstruct human rights change in denialist situations?

The conference format will be a mixture of small panels with plenary keynote sessions. The Maastricht Centre for Human Rights welcomes papers and suggestions for panels related to the questions raised above and the conference theme more generally. To this end, scholars, practitioners/ field workers, and students from various academic disciplines (such as law, psychology, political science, international relations, criminology, anthropology, sociology, etc.) and other relevant practice based fields are encouraged to apply. A selection of papers will be published in an edited book. The deadline for submissions of papers and panel descriptions (max. 300 words) is 1 August 2014 via Notification of acceptances will be sent by e-mail by 15 September 2014.

More information about the programme, the key note speakers, the conference fee and the details on the submission of papers will follow in due course on the website of the Maastricht Centre. For more information about the project, see also our blog.

New Issue: Global Trade and Customs Journal

The latest issue of Global Trade and Customs Journal (Vol. 9, no. 3, 2014) is out. Contents include:
  • Alejandro Jara, Enhancing the Efficiency of the Panel Process at the WTO
  • Jorge Miranda, Interpreting Paragraph 15 of China’s Protocol of Accession
  • Eugenia Costanza Laurenza & Bruno G. Simões, How Canada – Renewable Energy Supports the Use of the Alternative ‘Commercial Reasonableness’ Standard in Future Feed-In Tariff Disputes
  • Gilles Muller, The Liberalization of Legal Services within the EU Internal Market

Mavroidis: Reaching Out for Green Policies. National Environmental Policies in the WTO Legal Order

Petros C. Mavroidis (Columbia Univ. - Law) has posted Reaching Out for Green Policies. National Environmental Policies in the WTO Legal Order. Here's the abstract:
The WTO does not squarely address the issue of jurisdictional ambit of national policies (affecting trade). And yet, absent some agreement as to what trading nations can and cannot do, the WTO loses much of its effectiveness. In the absence of explicit regulation of the issue in the WTO contract, one would reasonably expect WTO Members to behave in line with the postulates governing allocation of jurisdiction embedded in public international law. WTO practice evidences neither an explicit acceptance nor a refusal of these rules.

ESIL Lecture Series (Video)

The European Society of International Law has posted on YouTube two more installments in the ESIL Lecture Series. (ESIL has its own YouTube Channel.) The lectures are:

van Aaken: Shared Responsibilities in International Law: A Political Economy Analysis

Anne van Aaken (Univ. of St. Gallen - Law) has posted Shared Responsibilities in International Law: A Political Economy Analysis (in Shared Responsibilities in International Law, André Nollkaemper & Dov Jacobs eds., forthcoming). Here's the abstract:

Problems which can only be resolved through international cooperation are increasing. Due to this increase, states cooperate more than ever with each other and with international organizations (IOs) but often insufficiently to solve the problems. When social scientists analyze the potential for cooperation on global public goods, they focus on the benefits from cooperation and on the game theoretic structures under which cooperation may arise; they have until now, however, neglected to study state responsibility as a sanctioning mechanism and especially its different forms of apportionment when responsibility is shared.

I submit that this is a crucial variable for understanding why cooperation arises since it impacts the propensity to cooperate in the first place. Different rules of apportionment under Art. 47 Draft Articles on State Responsibility lead to different cooperative outcomes. Taking into account other goals of state responsibility such as compensation and prevention of harm, it is possible via game theory to construct an optimal apportionment of responsibility in situations of shared responsibility. In principle, independent responsibility, the current general principle, is worst for the propensity to cooperate, proportional responsibility best and joint and several liability lies in the middle of the extremes, although it is best from a compensatory perspective.

Wednesday, March 5, 2014

Nelaeva & Marochkin: Law-Making Capacity of International Tribunals (In the International Tribunal for the Former Yugoslavia Jurisprudence)

G. Nelaeva & Sergei Yurievich Marochkin (Tyumen State Univ. - Law) have posted Law-Making Capacity of International Tribunals (In the International Tribunal for the Former Yugoslavia Jurisprudence) (Tyumen State University Herald (Law), No. 3, 2013, pp. 116-123). Here's the abstract:
International tribunals established in the 1990s by the UN Security Council (International Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)) made a significant contribution to the development of international criminal law. For instance, one of their most important achievements is prosecution of rape and sexual assaults. These crimes have been codified in international law as crimes against women’s chastity or family honor and thanks to the case-law of the tribunals (mostly, ICTY) they have been viewed as crimes against sexual autonomy of an individual and as much serious as murder. The article looks at the case-law of the ICTY where rape and sexual violence were tried as falling within the category of war crimes (namely, cruel treatment, outrages upon personal dignity and torture) even if the explicit prohibition of the crime was included only in Article 5 (“crimes against humanity”) of the ICTY Statute. Decisions of the tribunals have served as a basis for provisions of the Rome Statute of the International Criminal Court (ICC) and as an example of formation of new international law norms by means of judicial decisions.

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 29, no. 1, Winter 2014) is out. Contents include:
  • Alternative Dispute Resolution in Investment Disputes
    • IBA Rules for Investor-State Mediation
    • Anna Joubin-Bret & Barton Legum, A Set of Rules Dedicated to Investor–State Mediation: The IBA Investor–State Mediation Rules
    • Silvia Constain, Mediation in Investor–State Dispute Settlement: Government Policy and the Changing Landscape
    • Roberto Echandi & Priyanka Kher, Can International Investor–State Disputes be Prevented? Empirical Evidence from Settlements in ICSID Arbitration
    • Susan D. Franck, Using Investor–State Mediation Rules to Promote Conflict Management: An Introductory Guide
    • Susan D. Franck & Anna Joubin-Bret, Investor–State Mediation: A Simulation
    • Frauke Nitschke, The IBA’s Investor–State Mediation Rules and the ICSID Dispute Settlement Framework
    • Wolf von Kumberg, Jeremy Lack, & Michael Leathes, Enabling Early Settlement in Investor–State Arbitration: The Time to Introduce Mediation Has Come
  • Case Comments
    • Roland Kläger, Werner Schneider (liquidator of Walter Bau AG) v Kingdom of Thailand: Sovereign Immunity in Recognition and Enforcement Proceedings under German Law
    • S. I. Strong, Ambiente Ufficio SpA and others v Argentine Republic: Heir of Abaclat? Mass and Multiparty Proceedings
  • Articles
    • Zachary Douglas, The Plea of Illegality in Investment Treaty Arbitration
    • Inna Uchkunova & Oleg Temnikov, Enforcement of Awards Under the ICSID Convention—What Solutions to the Problem of State Immunity?

New Issue: Arbitration International

The latest issue of Arbitration International (Vol. 30, no. 1, 2014) is out. Contents include:
  • Brooks E. Allen & Tommaso Soave, Jurisdictional Overlap in WTO Dispute Settlement and Investment Arbitration
  • Carlo de Stefano, Arbitration Agreements as Waivers to Sovereign Immunity
  • Gyooho Lee, Keon-Hyung Ahn, & Jacques de Werra, Euro-Korean Perspectives on the Use of Arbitration and ADR Mechanisms for Solving Intellectual Property Disputes
  • Lucas Bastin, Amici Curiae in Investor-State Arbitration – Eight Recent Trends
  • Philippe Cavalieros, In-House Counsel Costs and Other Internal Party Costs in International Commercial Arbitration
  • Amir Ghaffari & Emmylou Walters, The Emergency Arbitrator – The Dawn of a New Age?
  • Louise Hauberg Wilhelmsen, The Recast Brussels I Regulation and Arbitration – Revisited Or Revised?

New Issue: Global Society

The latest issue of Global Society (Vol. 28, no. 1, 2014) is out. Contents include:
  • Special Issue: American Philanthropy and the Hard, Smart and Soft Power of the United States
    • Inderjeet Parmar & Katharina Rietzler, American Philanthropy and the Hard, Smart and Soft Power of the United States
    • Katharina Rietzler, Fortunes of a Profession: American Foundations and International Law, 1910–1939
    • Andrew Johnstone, Shaping our Post-war Foreign Policy: The Carnegie Endowment for International Peace and the Promotion of the United Nations Organisation during World War II
    • David Ekbladh, The Interwar Foundations of Security Studies: Edward Mead Earle, the Carnegie Corporation and the Depression-Era Origins of a Field
    • Inderjeet Parmar, American Power and Philanthropic Warfare: From the War to End All Wars to the Democratic Peace
    • Bruce Cumings, Biting the Hand That Feeds You: Why the “Intelligence Function” of American Foundation Support for Area Studies Remains Hidden in Plain Sight
    • Giles Scott-Smith, Maintaining Transatlantic Community: US Public Diplomacy, the Ford Foundation and the Successor Generation Concept in US Foreign Affairs, 1960s–1980s
    • Nick Cullather, “Stretching the Surface of the Earth”: The Foundations, Neo-Malthusianism and the Modernising Agenda
    • Rasmus Gjedssø Bertelsen, American Missionary Universities in China and the Middle East and American Philanthropy: Interacting Soft Power of Transnational Actors

Dalhuisen: Legal Reasoning and Powers of International Arbitrators

Jan Hendrik Dalhuisen (King's College London - Law) has posted Legal Reasoning and Powers of International Arbitrators. Here's the abstract:
This article deals with the reasoning of international arbitrators and the powers they have in this regard. It explores the great differences in the manner and method of reasoning and explains how international arbitrators handle these differences; what might be expected from them; how much should be subject to review; and how accountability could be enhanced.

New Issue: Review of International Political Economy

The latest issue of the Review of International Political Economy (Vol. 21, no. 2, 2014) is out. Contents include:
  • Jean-Frédéric Morin, Paradigm shift in the global IP regime: The agency of academics
  • Susanne Lütz & Matthias Kranke, The European rescue of the Washington Consensus? EU and IMF lending to Central and Eastern European countries
  • Jana Grittersová, Non-market cooperation and the variety of finance capitalism in advanced democracies
  • Romain Felli, An alternative socio-ecological strategy? International trade unions’ engagement with climate change
  • Hannah Murphy, The World Bank and core labour standards: Between flexibility and regulation
  • Benjamin A.T. Graham, Diaspora-owned firms and social responsibility
  • Steven Samford & Priscila Ortega Gómez, Subnational politics and foreign direct investment in Mexico
  • Marc R. DeVore & Moritz Weiss, Who's in the cockpit? The political economy of collaborative aircraft decisions

Tuesday, March 4, 2014

New Issue: Revue Hellénique de Droit International

The latest issue of the Revue Hellénique de Droit International (Vol. 66, no. 1, 2013) is out. Contents include:
  • Dossier spécial - La Proposition de Règlement du Conseil du 16 mars 2011 relatif à la compétence, la loi applicable, la reconnaissance et l’exécution des décisions en matière de régimes matrimoniaux
    • Zoé Papassiopi-Passia, La Proposition de Règlement du Conseil du 16 mars 2011 relatif à la compétence, la loi applicable, la reconnaissance et l’exécution des décisions en matière de régimes matrimoniaux et la Convention de La Haye du 14 mars 1978 sur la loi applicable aux régimes matrimoniaux – Traits généraux
    • Maria Ch. Sotiropoulou, The option given to spouses to chose the applicable law defined in the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes: Progress or not?
    • Georgios Panopoulos, Proposition de Règlement du Conseil relatif à la compétence, la loi applicable, la reconnaissance et l’exécution des décisions en matière de régimes matrimoniaux – Reconnaissance, force exécutoire et exécution : full faith and credit, comment et en quoi ?
    • Haris Meidanis, The Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes: Effects on third parties
  • Études
    • Gino Naldi & Konstantinos Magliveras, The ever difficult symbiosis of Africa with the International Criminal Court
    • Emmanuelle Stavraki, Le statut de la femme dans l’ordre juridique islamique
    • Etienne Marque, Les aspects environnementaux du Traité de la Charte de l’Énergie

New Issue: Revue de Droit International et de Droit Comparé

The latest issue of the Revue de Droit International et de Droit Comparé (Vol. 91, no. 1, 2014) is out. Contents include:
  • P. Renteria & G. Tepedino, Le droit des biens entre équité et justice sociale : instruments de régularisation foncière au Canada et au Brésil
  • G. Keutgen, La réforme 2013 du droit belge de l'arbitrage
  • J.B. Mbokani, L'application du statut de Rome par les tribunaux congolais - Vers une banalisation des crimes de droit international ?

Gostin: Global Health Law

Lawrence O. Gostin (Georgetown Univ. - Law) has published Global Health Law (Harvard Univ. Press 2014). Here's the abstract:

The international community has made great progress in improving global health. But staggering health inequalities between rich and poor still remain, raising fundamental questions of social justice. In a book that systematically defines the burgeoning field of global health law, Lawrence Gostin drives home the need for effective global governance for health and offers a blueprint for reform, based on the principle that the opportunity to live a healthy life is a basic human right.

Gostin shows how critical it is for institutions and international agreements to focus not only on illness but also on the essential conditions that enable people to stay healthy throughout their lifespan: nutrition, clean water, mosquito control, and tobacco reduction. Policies that shape agriculture, trade, and the environment have long-term impacts on health, and Gostin proposes major reforms of global health institutions and governments to ensure better coordination, more transparency, and accountability. He illustrates the power of global health law with case studies on AIDS, influenza, tobacco, and health worker migration.

Today’s pressing health needs worldwide are a problem not only for the medical profession but also for all concerned citizens. Designed with the beginning student, advanced researcher, and informed public in mind, Global Health Law will be a foundational resource for teaching, advocacy, and public discourse in global health.

Conference: The Political Economy of International Law

On May 16-17, 2014, the Department of Legal Sciences at the Università degli Studi di Roma "La Sapienza" Faculty of Law will hold a conference on "The Political Economy of International Law." The program is here. Here's the idea:
On May 16-17, 2014, the Sapienza University in Rome, Italy, will be hosting a conference on “The Political Economy of International Law” (PEIL Conference). Political Economy seeks to study the “why” questions (why do we have laws, institutions, independent courts) using as explanatory variables the “who” questions (who are the actors – legislators, executives, judges, interest groups – that participate in shaping the law) and “what” motivates them (their preferences) on the one hand and on their constraints (power, resources, given institutions and law etc.) on the other hand. A change of the law is attributed to changes in the constraints. Political Economy explains why we sometimes are unable to achieve the best possible outcome (e.g. preventing climate change) and suggests how to move in a way that would be efficient and democratic. This conference will explore the idea that Political Economy and International Law can interact and balance each other out in a way that can be beneficial to the whole humanity. We, the international lawyers, have indeed the knowledge of the institutions and the experience to seek to reduce the powers of interest groups and to improve the power and welfare of the peoples and of civil societies (or should we speak about a global civil society?). Political Economy as a social science tool can assist lawyers to understand the underlying problems structure and find solutions.

New Issue: International Relations

The latest issue of International Relations (Vol. 28, no. 1, March 2014) is out. Contents include:
  • Jason Ralph, The liberal state in international society: Interpreting recent British foreign policy
  • Samuel Layton, Reframing European security: Russia’s proposal for a new European security architecture
  • Tapio Kanninen & Touko Piiparinen, Why bureaucracies matter in the global age: A post-Weberian explanation with the case study of preparing and implementing the United Nations’ An Agenda for Peace
  • Jack L. Amoureux & Brent J. Steele, Competence and Just War
  • Paolo Rosa, The accommodationist state: Strategic culture and Italy’s military behaviour
  • Paul Roe, Gender and ‘positive’ security

Monday, March 3, 2014

New Issue: Human Rights Review

The latest issue of the Human Rights Review (Vol. 15, no. 1, March 2014) is out. Contents include:
  • Special Issue: Understanding Resistance to the EU Fundamental Rights Policy
    • C. Leconte & Elise Muir, Understanding Resistance to the EU Fundamental Rights Policy
    • Elise Muir, Fundamental Rights: An Unsettling EU Competence
    • Maartje de Visser, National Constitutional Courts, the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape
    • François Foret, Religion and Fundamental Rights in European Politics: Convergences and Divisions at the European Parliament
    • Carlo Ruzza, Civil Society Actors and EU Fundamental Rights Policy: Opportunities and Challenges
    • Cécile Leconte, The EU Fundamental Rights Policy as a Source of Euroscepticism

Foakes: The Position of Heads of State and Senior Officials in International Law

Joanne Foakes (formerly, Foreign and Commonwealth Office, United Kingdom) has published The Position of Heads of State and Senior Officials in International Law (Oxford Univ. Press 2014). Here's the abstract:

The legal position in international law of heads of states and other senior state representatives is at the heart of the conflict thrown up by recent changes in the international legal order. The establishment of the International Criminal Court and the ad hoc criminal tribunals reflects a growing belief that heads of states and other senior state representatives should be held accountable for serious violations of international law. It is now questioned whether foreign states and their officials still have immunity from proceedings concerning grave human rights abuses in national courts.

This book provides a comprehensive treatment of this key issue, covering both civil and criminal proceedings before domestic courts and the position before international courts and tribunals. The positions of both serving and former heads of states are examined and, where appropriate, so is that of their family members. The wide variety of constitutional forms and titles enjoyed by heads of states and senior state representatives is considered and their internationally relevant powers and functions outlined. The implications of recognition or lack of it are assessed, together with the practical and legal consequences of loss of office and/or exile in a foreign state. In examining the position of heads of state and other senior representatives in foreign states, attention is given to the question of immunities before the local courts, and to other privileges, protections, and courtesies to which they may be entitled.

The book draws a distinction between the personal immunity (ratione personae) enjoyed by heads of states which derive from their status or office, and the official act immunity (ratione materiae) enjoyed by all state officials. It closely examines the relationship between state immunity as it has developed under the restrictive doctrine and the immunities to which individuals are entitled. Careful consideration is given to separate regimes of international immunities such as special missions.This systematic analysis of the legal position of heads of states takes into account the history of the subject, relevant state practice (judicial and legislative), the impact of relevant international treaties, and international judicial or arbitral decisions on the matter.

Rau: Arbitrators Without Powers? Disqualifying Counsel in Arbitral Proceedings

Alan Scott Rau (Univ. of Texas, Austin - Law) has posted Arbitrators Without Powers? Disqualifying Counsel in Arbitral Proceedings (Arbitration International, forthcoming). Here's the abstract:

This is a longer version of a presentation made at the 17th Annual IBA International Arbitration Day in Paris, on February 14, 2014.

The succession of conferences and the proliferation of soft law instruments are always pretty reliable indicators that a particular problem has risen to the level of the consciousness of the international community. That is abundantly true here: They are testimony to a general recognition of the need to identify what limits there may be to the permissible conduct of counsel in international arbitration, and -- always the most interesting question -- to identify the appropriate fora in which such questions can be addressed and resolved.

My focus here will be on a relatively small piece of the overall puzzle: Rather than to approach globally the problem of sanctions for supposed "counsel misconduct," I want instead to focus on one particular sanction -- one that is growing, and promises to grow even more, in importance: the ability of the tribunal to "exclude," or "disqualify," counsel of one of the parties from the proceedings.

While the abstract "power" to do so should not be doubted, the Devil, as usual, is lurking in the details. I discuss two critical contexts in which the question may arise -- disqualification on the ground of some relationship with a member of the tribunal, and disqualification on the ground of some conflict of interest with another client arising out of a prior representation. Each is beginning to be the subject of a developing arbitral jurisprudence. And I think the overarching theme in both cases is the same: The tribunal ought not to be concerned with questions of deontology -- with the particular content of national rules of professional conduct -- and ought not in fact to think of itself as engaging in discipline at all; disqualification is not "principled," and the sole definition of the tribunal's task is to ensure the integrity of the process against the imputation of bias or unfairness between the parties.

In this enterprise the elaboration of "transnational rules" of conduct will have only a limited importance: Capturing the "core concepts" and "common grounds" in the various contingent national formulations, they will inevitably and with some justice be deprecated as minimalist lawmaking -- that is, "lawmaking" content only to set out what amounts to a lowest common denominator. Of course, standards intended to be applied in a variety of transnational settings can only find acceptance if they are consciously abstracted from local legal cultures -- if they refuse to make the difficult choices between them. At the same time they will also be closely congruent with the neo-liberal agenda that privileges arbitral autonomy, serving to forestall officious meddling by adventuresome state courts: And precisely because of their regulatory spareness, transnational rules will have the virtue of directing the attention of arbitral tribunals to the core of what alone is critical -- that is, to what is minimally necessary to ensure the fairness of the proceedings.

d'Aspremont: The Multidimensional Process of Interpretation: Content-Determination and Law-Ascertainment Distinguished

Jean d'Aspremont (Univ. of Manchester - Law) has posted The Multidimensional Process of Interpretation: Content-Determination and Law-Ascertainment Distinguished (in Interpretation in International Law, A. Bianchi, D. Peat & M. Windsor eds., forthcoming). Here's the abstract:

This chapter is premised on the idea that international lawyers, while trying to give meaning to legal rules (content-determination) or while engaging in the identification of rules (law-ascertainment), necessarily commit themselves to certain techniques, rhetoric and traditions that are provided by the normative universe of international law. In doing so, this chapter, drawing on the insightful metaphor at the heart of this volume, argues that the object of the game of interpretation should be seen as multi-dimensional. Playing the game of interpretation consists not only of attributing meaning to the rules (content-determination), but also of ascertaining what is and what is not law (law ascertainment).

This chapter is structured as follows. Part II discloses the understanding of interpretation that the subsequent argument is premised on. Part III sets out the central distinction between content-determination and law-ascertainment as interpretive processes. Both the common and distinctive features of law-ascertainment and content-determination processes are discussed here, with a focus on the type of constraints that have been put in place to domesticate them. While constraints on content-determination processes have most of the time been envisaged as ‘rules’ in mainstream international legal scholarship, constraints on law-ascertainment processes, although often referred to as ‘secondary rules’, are better seen as indicative of a professional community’s practices and traditions. Part IV concludes with a few epistemological remarks on the place and the state of the debate on interpretation in contemporary international legal scholarship.

Meyer: Book Review, Economic Foundations of International Law, by Eric A. Posner and Alan O. Sykes

Timothy Meyer (Univ. of Georgia - Law) has posted Book Review, Economic Foundations of International Law, by Eric A. Posner and Alan O. Sykes (American Journal of International Law, forthcoming). Here's the abstract:

This essay reviews Eric Posner’s and Alan Sykes’ Economic Foundations of International Law. In the last ten years or so, economic analysis of international law has established itself as a mainstream discipline, providing insights into why international law is structured as it is, the conditions under which it is effective, and how it might be improved. Economic Foundations consolidates and extends these insights. As such, the book is destined to be a starting place for economic analysis of international law. The book is divided into five parts. Part I provides an introduction to international law and the tools necessary to the economic analysis of it. Part II applies these tools to the background institutions of international law, including chapters on treaties, customary international law, international institutions, and the relationship between domestic and international law, among others. Parts III (“Traditional public international law”, IV (“The Environment”), and V (“International Economic Law”) apply the economic framework to substantive areas of the law, including chapters on investment law, trade law, international criminal law, human rights, and the law of the sea.

Given the book’s admirable breadth, no single review can do justice to it. In this essay, I focus primarily on the economic analysis of international lawmaking. The book gives the conventional account of international lawmaking, describing and analyzing the creation of law through three distinct pathways: custom, treaties, and international institutions. The book does an excellent job of applying economic analysis to these traditional modes of lawmaking. At the same time, international lawmaking has changed dramatically in recent decades. Economic analysis can shed light on these new patterns of lawmaking as well. For example, customary international law is no longer formed only through bilateral or mini-lateral interactions among states that give rise to unwritten precedent. States regularly use treaties and international institutions to codify or declare the content of customary international law, a form of universal lawmaking amenable to economic analysis. Similarly, the distinction between treaties and international institutions is increasingly artificial. Today, most major multilateral treaties are negotiated within institutions, such as diplomatic conferences or Conferences of the Parties to a framework convention, that resemble legislative bodies. These institutions rarely have the ability to enact binding law directly, and so Posner and Sykes do not consider them “legislatures.” Yet, like domestic legislatures, they operate under procedural rules that structure negotiations and they adopt draft instruments that may become binding law. New institutional economics can explain this shift towards legislative institutions as the principal way to structure multilateral negotiations. Specifically, procedures like adoption — in which an institution’s members must collectively approve a legal instrument before any subset of its members may individually choose to be bound by it — create holdup power which states can use to enforce “vote-trading” agreements that span multiple negotiations.

Sunday, March 2, 2014

Wöss et al.: Damages in International Arbitration under Complex Long-term Contracts

Herfried Wöss (Wöss & Partners, S.C.), Adriana San Román Rivera (Wöss & Partners, S.C.), Pablo Spiller (Univ. of California, Berkeley - Business), & Santiago Dellepiane (Compass Lexicon) have published Damages in International Arbitration under Complex Long-term Contracts (Oxford Univ. Press 2014). Here's the abstract:

Damages are a topic of central importance in international arbitration, being very often the principal concern of the parties, and an indication of the performance of their counsel. They are also one of the most complex topics. This book addresses the many competing factors that contribute to their nature and amount: while they are compensatory, they may be subject to counterclaims and set-offs, affected by failures to mitigate, or inflated by considerations such as interest and costs. Specialist evidence is relied on to complete composite calculations, taking into account such evasive factors as the destruction of market value, uncertainty of future revenues, projected interest rate changes, and lost dividends. The lack of understanding of the underlying considerations, methods such as "splitting the baby", or dogmas such as the misinterpreted "efficient breach of contract", combined with the already high level of burden of proof, can make successful damages claims or properly reasoned awards difficult to achieve.

This book provides in-depth analysis of the legal, financial, and economic issues involved in the preparation of claims and arbitral awards for damages and loss of income, for the breach of complex long-term contracts in international arbitration. The authors address matters such as the but-for method and the reconstruction of the hypothetical course of events as well as the quantification of damages.

It provides a detailed coverage of issues arising when structuring, arbitrating, or making an award on damages, making it a valuable reference for practitioners in the field. It includes a number of leading cases (including commercial and investment arbitrations), focusing on the damages analysis for breach of contract.