Kiderlen: Von Triest nach Osttimor

Hans F. Kiderlen has published Von Triest nach Osttimor: Der völkerrechtliche Rahmen für die Verwaltung von Krisengebieten durch die Vereinten Nationen (Springer 2008). Here's the abstract:

Die UN-Verwaltungen im Kosovo und Osttimor haben den Blick der Öffentlichkeit auf die Verwaltung von Krisengebieten durch die Vereinten Nationen gelenkt, die in eben diesen Gebieten alle drei Staatsgewalten auf sich vereint haben. Vor diesem Hintergrund legt der Autor umfassend die völkerrechtlichen Grundlagen und Grenzen einer Ausübung territorialer Hoheitsgewalt durch die Vereinten Nationen in Krisengebieten dar. Ausführlich werden dabei auch die praktischen Probleme einer Krisengebietsverwaltung, wie sie im Kosovo oder in Osttimor aufgetreten sind, einer rechtlichen Würdigung unterzogen.

Julia Vadala Taft

Our condolences to William Howard Taft, IV, and the entire Taft family on the passing of Julia Vadala Taft. Julia Taft was, among many things, a former assistant secretary of state for the Bureau of Population, Refugees, and Migration and a former director of the UN Bureau for Crisis Prevention and Recovery. She was, by all accounts, a remarkable person.

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 135, no. 1, Janvier-Février-Mars 2008) is out. Contents include:

• Doctrine
• Pascal de Vareilles-Sommières & Anwar Fekini, Les nouveaux contrats internationaux d'exploration partage de production pétrolière en Libye. Problèmes choisis (1re partie)
• Carine Brière, Le règlement (CE) no 864/2007 du 11 juillet 2007 sur la loi applicable aux obligations non-contractuelles (Rome II)
• Vèronique Huet, Les circonstances excluant l'illicèitè et le recours à la force
• Variétés
• Moustapha Lô Diatta, L'évolution des accords bilatéraux sur les travailleurs migrants
• Philippe Roussel Galle, De quelques pistes d'interprétation du règlement (CE) no 1346/2000 sur les procédures d'insolvabilité: la circulaire du 15 décembre 2006

Conference: Society of International Economic Law Inaugural Conference

The Society of International Economic Law's inaugural conference will take place July 15-17, 2008, at the Centre for Trade and Economic Integration at the Graduate Institute of International and Development Studies, Geneva. The draft program is here. I previously noted the call for papers here.

Jupille & Snidal: The Choice of International Institutions: Cooperation, Alternatives and Strategies

Joseph Jupille (Univ. of Colorado - Political Science) & Duncan Snidal (Univ. of Chicago - Public Policy & Political Science) have posted The Choice of International Institutions: Cooperation, Alternatives and Strategies. Here's the abstract:

We develop a framework that explains the choice of institutions to address international cooperation problems. We begin with boundedly rational actors who make institutional choices based on the properties of the cooperation problem they face and the menu of international institutions available to them. If the institutional status quo offers an appropriate venue for the prevailing cooperation problem, then actors will either use a focal institution or select a readily available alternative; if no suitable venue is available in the institutional status quo then costlier and riskier strategies of institutional change and creation will be pursued. The framework further allows us to incorporate the impact of international organizations and governance arrangements on the menu for institutional choice, to combine elements of rationalist and constructivist institutional accounts, and to address distributional and power considerations inherent to the choice of international institutions. The paper contains many empirical illustrations and is followed by a companion paper that applies the framework to the ongoing development of international institutions for financial reporting.

Gillies & Dahdal: Waiver of a Right to Arbitrate by Resort to Litigation, in the Context of International Commercial Arbitration

Peter S. Gillies (Macquarie Univ. - Law) & Andrew Dahdal (Macquarie Univ. - Law) have posted Waiver of a Right to Arbitrate by Resort to Litigation, in the Context of International Commercial Arbitration. Here's the abstract:

This paper examines the circumstances in which a party to an arbitration agreement may be deemed to have waived its right to arbitrate a dispute comprehended by the agreement, by involvement in litigation concerning this dispute. The focus is on the law in common law jurisdictions, particularly Australia and the United States of America. United Kingdom law will also be briefly surveyed. The paper focuses on the 2006 decision of the Australian Federal Court in Comandate Marine Corp v Pan Australia Shipping Pty Ltd, which afforded the topic significant treatment. The theoretical bases for sustaining waiver claims are analysed, including waiver as a discrete doctrine, abandonment, estoppel, election, repudiation of contract and variation of contract. The policies that underlie and inform the development of principles for testing waiver submissions are noted.

D'Amato: International Law as a Unitary System

Anthony D'Amato (Northwestern Univ. - Law) has posted International Law as a Unitary System. Here's the abstract:

When two states have a dispute, the other 188 states in the world are more than passive observers. They do not want the dispute to spread. They want the dispute to be resolved in a way that does not stimulate further related disputes. In brief, the uninvolved nations have an interest in peaceful conflict-resolution. That interest coincides with existing international law which is itself peace-seeking (international law shuns anarchy). International law is a coherent, complex, self-adapting, and purposive system; it makes its presence felt in all international disputes and controversies because it represents the aggregate interest of all the states not directly involved in a given dispute. There are many payoffs in conceptualizing international law as a system suggested in this paper, but by far the most important is to transfer zero-sum international wars and conflicts into n-person non-zero-sum games. These games involve maximin strategies of both conflict and cooperation. Indeed, they account for the vast amount of cooperation in the world - cooperation that accumulates over time even as disputes or wars cancel themselves out.

Kelly: International Law and the Shrinking Space for Politics in Developing Countries

J. Patrick Kelly (Widener Univ. - Law) has posted International Law and the Shrinking Space for Politics in Developing Countries (in Comparative Constitutionalism and Rights: Global Perspectives, forthcoming). Here's the abstract:

This article asks to what extent and by what processes should international legal norms be incorporated into domestic constitutions particularly in developing countries. It raises several concerns about the democratic legitimacy of many international legal norms and therefore about the wisdom of the developing countries incorporating international legal norms into domestic law without extensive political deliberation. The internationalization of constitutional interpretation rests on several problematic assumptions. First, proponents of internationalization of constitutional interpretation assume that several international norms, originally only human rights but now increasingly environmental norms, are universal and should be incorporated without specific democratic approval. Second, other international norms, delineated as customary international norms, are perceived to be formed by the consent of the world community of nations and are therefore obligatory.

The importation of international norms by developing countries is especially problematic because they have so little input into international norms and institutions. Developing countries are receivers of international law, not makers of international law. Such norms may be of questionable legitimacy in these societies, and may be inappropriate policy choices in countries at a different stage of economic development than more developed western countries.

My concern is that with globalization and the increased dominance of the western democracies in international law formation there has been a turn away from consent as the basis of international law making and towards "Naturalism." Premature international legalism takes normative development and sensible trade-offs out of the realm of both international and domestic politics without the necessary political deliberation. Rights have costs both in financial resources and political resources that should be assessed along with competing claims.

Danchin: International Law, Human Rights and the Transformative Occupation of Iraq

Peter Danchin (Univ. of Maryland - Law) has posted International Law, Human Rights and the Transformative Occupation of Iraq (in Great Expectations: The Role of International Law in Restructuring Societies After Conflict, forthcoming). Here's the abstract:

This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More specifically, it considers the Iraqi occupation in light of two competing sensibilities in international legal argument. On one view, which I term "legal formalism", the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations Charter which posits both the subject of international law and its liberty in formal terms as "the state" and "sovereign equality" respectively. On a rival view, which I term "instrumental anti-pluralism", the purpose of international law is to project a universal regime based on a rationally reconstructed and universally authoritative morality. Here the identity of the sovereign as a subject of international law is understood in material terms as "the liberal democratic state" and sovereignty is understood as the equal treatment of legal subjects so defined. The chapter argues that that the attempt to transform the Iraqi constitutional structure via military occupation illustrates the complex dialectic between the formal and instrumental views, a dialectic that oscillates precariously between imperial imposition in the name of liberal democracy on the one hand, and a desperate attempt to secure internal legitimation for the new political order on the other. The role of international law in this process is ambiguous and paradoxical. On one hand, the law assumes an instrumentalist anti-formal guise facilitating the external project of imposing subjective material norms on a resistant political order. On the other hand, it provides a formal anti-instrumental site of deliberation, contestation and struggle critical to the internal project of the emergence of a distinctly Iraqi constitutionalism. The contradictions generated by this dialectic allow us to see how international law both constructs and mediates between certain "internal" and "external" forms of rationality.

Zacklin's Lauterpacht Lectures (Update)

On January 22, 23, and 24, 2008, Ralph Zacklin, former Assistant Secretary-General for Legal Affairs, United Nations, delivered the Sir Hersch Lauterpacht Memorial Lectures at the University of Cambridge. His topic was "The United Nations Secretariat and the Use of Force in a Unipolar World." Zacklin's "notes" (really the text of his lectures) are now available online here. An expanded version of the lectures will be published by Cambridge University Press.

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 10, no. 6, November 2007) is out. Contents include:

• Carlos M. Correa, Patenting Human DNA: What Flexibilities Does the TRIPS Agreement Allow?
• Hamed El-Said & Mohammed El-Said, TRIPS-Plus Implications for Access to Medicines in Developing Countries: Lessons from Jordan–United States Free Trade Agreement
• Alpana Roy, A New Dispute Concerning the TRIPS Agreement: The United States and China in the WTO

Workshop: Shaffer

Gregory Shaffer (Loyola Univ., Chicago - Law) will give a talk today at the University of Georgia School of Law International Law Colloquium on “A Structural Theory of WTO Dispute Settlement: Why Institutional Choice Lies at the Center of the GMO Case.”

Treaty Transmittal: Protocol Amending the 1980 Tax Convention with Canada

On Thursday, March 13, the President transmitted to the Senate, for its advice and consent to ratification, the Protocol Amending the Convention Between the United States of America and Canada with Respect to Taxes on Income and on Capital done at Washington on September 26, 1980, as Amended by the Protocols done on June 14, 1983, March 28, 1984, March 17, 1995, and July 29, 1997, signed on September 21, 2007, at Chelsea. The transmittal package (Treaty Doc. 110-15) is here. According to the transmittal letter: "The proposed Protocol would eliminate withholding taxes on cross-border interest payments. In addition, the proposed Protocol would coordinate the tax treatment of contributions to, and other benefits of, pension funds for cross-border workers. The proposed Protocol also includes provisions related to the taxation of permanent establishments, so-called dual-resident corporations, income derived through certain entities that are considered fiscally transparent, and former U.S. citizens and long-term residents. The proposed Protocol further strengthens the existing Treaty's provisions that prevent the Treaty's inappropriate use by third-country residents. The proposed Protocol also provides for mandatory resolution of certain cases before the competent authorities."

Shaffer: A New Legal Realism: Method in International Economic Law Scholarship

Gregory Shaffer (Loyola University, Chicago - Law) has posted the abstract of A New Legal Realism: Method in International Economic Law Scholarship (in International Economic Law - The State & Future of the Discipline, forthcoming). Here's the abstract:

This paper provides a typology and brief assessment of four varieties of international law scholarship: formalist/doctrinal, normative/activist, theoretical/analytical, and empirical. It then develops an argument about the particular importance of empirical work from a "new legal realist" orientation. The paper contends that the distinctive features of a new legal realist approach are its commitment to empirical work, in particular of a qualitative nature, its engagement with critical analysis, and its commitment to translating empirical findings for a legal policy audience. This translation takes two forms. The paper situates "new legal realism" in relation to the original legal realist movement in the United States. A larger work-in-progress addresses its relation to the predominant theoretical perspectives on international law that have emerged.

Baylis: Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transnational Networks

Elena A. Baylis (Univ. of Pittsburgh - Law) has posted Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transnational Networks. Here's the abstract:

This Article argues that transnational networks of UN officers, NGOs, embassy officials, and local judges and attorneys offer an effective way for the international community to contribute to justice in post-conflict states by supporting national trials, facilitating the use of international criminal law, and investing in the national court system. I consider the role of international criminal law in post-conflict justice through an appraisal of the first national courts to use the International Criminal Court's Rome Statute directly in trials for war crimes and crimes against humanity. International criminal law was not incorporated into these cases through traditional mechanisms, such as legislative implementation or consideration of international jurisprudence, or even through the direct involvement of the ICC. Rather, the use of international law and the trials themselves were spurred by the work of transnational networks on the broader goals of post-conflict justice and rebuilding the national justice system. Theories of international lawmaking, such as theories of global governance, transnational networks, transnational legal process, policy-oriented jurisprudence, and legal pluralism, focus our attention on the critical aspects of these networks that enabled them to convey international law effectively in a chaotic post-conflict context, in particular, hybrid processes and domestic control. I do not suggest that the international community should support all national trials without distinction, but I do contend that it is only by investing in weak, corrupt, and deeply flawed national courts that the international community can promote what should be the ultimate goal of post-conflict justice efforts: rebuilding national justice systems. All in all, these cases suggest a model for international involvement in post-conflict justice. Key characteristics include: (1) reliance on transnational networks to convey international criminal law and resources into national settings; (2) hybrid processes in which international actors play a supporting role; and (3) integration of international support for atrocity trials into broader efforts to rebuild national judicial systems.

Conference: International Law in the English Legal System (Update)

I previously reported that the British Institute of International and Comparative Law and the Society of Legal Scholars Public International Law Group will host their 17th Conference on Theory and International Law, April 14, 2008, in London. The topic is "International Law in the English Legal System." The program is now available:

Session 1: Non-Justiciability and Act of State

• Matthew Happold (University of Hull) (Chair)
• Dapo Akande (University of Oxford): “Non-Justiciability and the Foreign Act of State Doctrine in English Law”
• Amanda Perreau-Saussine (University of Cambridge): “British Acts of State Abroad in British Courts”

Session 2: The Legal Effects of Unincorporated Treaties and Other International Instruments

• Paul Eden, University of Sussex) (Chair)
• Anthony Aust (London School of Economics): “Al-Jedda Changes Nothing”
• James Harrison (University of Edinburgh): “Treaty Interpretation and the Use of International Law by United Kingdom Courts”
• Bharat Malkani (University of Bristol): “An Exception to the Rule: The Application of Human Rights Treaties in English Courts”

Session 3: Customary International Law in English Law

• Colin Warbrick (University of Birmingham) (Chair)
• Patrick Capps (University of Bristol): “Customary International Law in English Courts: A Restatement”
• Roger O’Keefe (University of Cambridge): “The Doctrine of Incorporation Revisited”

Session 4: International Law, Human Rights and English Law

• Elizabeth Wilmshurst (Chatham House) (Chair)
• Ed Bates (University of Southampton): “State Immunity for Torture”
• Lorna McGregor (Redress): title tbc
• Phoebe Okowa (Queen Mary, University of London): “Diplomatic Protection in English Law: The Guantanamo Bay Experience”

Workshops: Carrozza, Cogan

Paolo Carrozza (Univ. of Notre Dame - Law) will give a talk today at the Georgetown Law Center International Human Rights Colloquium on "The 'Art' of Democracy and the 'Taste For Local Freedom': International Human Rights and the American Constitutional Difference."

Jacob Katz Cogan (Univ. of Cincinnati - Law) will give a talk today at Boston College Law School on "Representation and Power in International Organization: The Current Constitutional Crisis."

Patel: India and International Law

Bimal N. Patel (Organisation for the Prohibition of Chemical Weapons) has published Volume 2 of India and International Law (Martinus Nijhoff Publishers 2008). Here's the abstract:

India and International Law, volume 2 examines India’s policy and practical approach to modern and emerging subjects such as energy, investment, sports, banking, biotechnology, taxation, water courses, feminism, air law and role of India in UN reforms. The most discussed interlinked issues of civilian nuclear energy and nuclear weapons are analysed in two separate chapters. This volume also examines legal challenges and offers possible solutions in the area of private international law, which hopefully would serve the purposes of relevant policy-makers, judiciary, common men and women and 2.5 million Non-Resident Indians (NRIs).

India and International Law, volume 2 will enable the readers to realize the sheer magnitude of legal challenges faced by India, hence, one way forward is to consider some of the suggestions offered by the authors. It is hoped that these two volumes will provide a useful framework for similar studies and will remain a must source of consultation for those who are interested in India’s state practice on international law.

Contents include:

• Bimal N. Patel, Introduction
• Amal K. Ganguli, Interface between International Law and Municipal Law: Role of the Indian Judiciary
• Bimal N. Patel, India and the UN Reforms
• Priya Pillai, India and the Nuclear Weapons Proliferation
• Fakiha Khan, India and the International Law of Civilian Nuclear Energy
• G.N. Sinha, India and International Energy Law
• Krishnendu Mukherji, Climate Change, Energy Law and India
• Autar Krishen Koul & Mihir Chatterjee, International Financial Institutions and Indian Banking: A Legal Profile
• A. Lakshminath, Patent Laws in India: One Step Forward and Two Steps Backward
• Devashish Krishan, India and International Investment Laws
• Shannu Narayan, Bilateral Tax Treaties: A Review of Indian Laws
• R. Rajesh Babu, Combating Public Corruption in India and the United Nations Convention against Corruption
• K. Sriram, Sports Broadcasting Regulations and India
• V.S. Elizabeth, Feminism and International Law in India
• B.C. Nirmal, Violence against Women: International and National Human Rights Jurisprudence
• Jaydeepsinh G. Vaghela, Judiciary of India and the Implementation of International Environmental Law in India: Some Remarks
• Kondaiah Jonnalagadda, Jurisdictional Issues in the Enforcement of Foreign Divorce Decrees in India
• Anil Malhotra & Ranjit Malhotra, Family Laws and Religion – An Indian Experience
• Bimal N. Patel, Concluding Remarks
• Bhandary M. Leeladhara, Status of India: Signature and Ratification of Multilateral Treaties Deposited with the United Nations Secretary-General as of 20 July 2007
• Bimal N. Patel, Select Bibliography

Workshop: Fletcher, Koskenniemi

George Fletcher (Columbia Univ. - Law) will give a talk today at the Columbia University Law School Faculty Lunch Series on "Correcting Evil: Tort Liability for Civil Rights Abuse."

Martti Koskenniemi (Univ. of Helsinki - Law & New York Univ. - Law) will give a talk today at the New York University Institute for International Law and Justice International Legal Theory Colloquium on "International Law and Raison D’état; Rethinking the Prehistory of International Law."

Posner: Human Welfare, Not Human Rights

Eric A. Posner (Univ. of Chicago - Law) has posted Human Welfare, Not Human Rights. Here's the abstract:

Human rights treaties play an important role in international relations but they lack a foundation in moral philosophy and doubts have been raised about their effectiveness for constraining states. Drawing on ideas from the literature on economic development, this paper argues that international concern should be focused on human welfare rather than on human rights. A focus on welfare has three advantages. First, the proposition that governments should advance the welfare of their populations enjoys broader international and philosophical support than do the various rights that are incorporated in the human rights treaties. Second, the human rights treaties are both too rigid and too vague - they do not allow governments to adopt reasonable policies that advance welfare at the expense of rights, and they do not set forth rules governing how states may trade off rights. A welfare treaty could provide guidance by supplying a maximand along with verifiable measures of compliance. Third, the human rights regime and international development policy work at cross-purposes. Development policy favors the poorest states, while the human rights regime condemns the states with the worst governments: unfortunately, the poorest states usually have the worst governments. Various possible welfare treaties are surveyed.

Gopalan: A Demandeur-Centric Approach to Regime Design in Transnational Commercial Law

Sandeep Gopalan (Arizona State Univ. - Law) has posted A Demandeur-Centric Approach to Regime Design in Transnational Commercial Law. Here's the abstract:

Recent scholarship on international agreement design has almost exclusively focused on the public international law area. The literature on regime design in the area of international private law lacks a solid theoretical foundation. Academic writing on public international law's state-centric approach is only amenable to crude transplantation and poses several puzzles in the international private law context. Resolving these puzzles is important because of the proliferation of transnational commercial agreements in areas that were traditionally the province of domestic law. This paper attempts to provide a starting point to address the theoretical vacuum. Part I argues that functionalist, liberal, and realist theories cannot fully explain transnational commercial law agreement design. Part II puts forth a demandeur-centric approach with the aid of examples that span the spectrum from hard law to soft law. Part III concludes that agreement design in transnational commercial law is premised on demandeur preferences and relative power.

Workshop: Guilfoyle

Douglas Guilfoyle (University College London - Law) will give a talk today at University College London as part of the International Law Association British Branch seminar series. The subject is: "Policing the High Seas: Concurrent Jurisdictions, Immunity and State Responsibility."

New Issue: Chinese Journal of International Law

The latest issue of the Chinese Journal of International Law (Vol. 7, no. 1, March 2008) is out. Contents include:

• Rein Müllerson, Promoting Democracy without Starting a New Cold War?
• Michelle Burgis, Discourses of Division: Law, Politics and the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
• Cheng Yan Ki Bonnie, Implementing Security Council Resolutions in Hong Kong: An Examination of the United Nations Sanctions Ordinance
• Sienho Yee, Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States
• Wang Haiping, Comments on the 2007 Draft Manual on International Humanitarian Law in Air and Missile Warfare
• Gao Jianjun, Reasonableness of the Bond under Article 292 of the LOS Convention: Practice of the ITLOS
• Lu Song, The EOS Engineering Corporation Case and the Nemo Debet Bis Vexari Pro Una et Eadem Causa Principle in China
• Bernhard Hofstötter, Cyprus under British Rule: An International Law Analysis of Certain Land Surveys and Land Assignments Between 1878 and 1955

Paris: The Sun Climbs Slow: Justice in the Age of Imperial America

Erna Paris has published The Sun Climbs Slow: Justice in the Age of Imperial America (Knopf Canada 2008). Here's the abstract:

A powerful investigation of the story and individuals behind America’s refusal to acknowledge international law and an inquiry into the urgent role of international criminal justice from the award-winning, bestselling author of Long Shadows.

In this groundbreaking investigation, Erna Paris explores the history of global justice, the politics behind America’s opposition to the creation of a permanent international criminal court, and the implications for the world at large.

At the end of the twentieth century, two extraordinary events took place. The first was the end of the Cold War, which left the world with a single empire that dominated global affairs with a ready fist. The second event was the birth of the International Criminal Court - the first permanent tribunal of its kind. The ICC prosecutes crimes against humanity, war crimes and genocide. Its mandate is to confront impunity and demand accountability for the worst crimes known.

But on March 11, 2003, when the new court was inaugurated in a moving ceremony, one country was conspicuously missing from the celebrations. The government of the United States had made it clear that the International Criminal Court was not consistent with American goals and values.

The Sun Climbs Slow grapples with an emerging dilemma of the twenty-first century: the tension between unchallenged political power and the rule of international law.

Lowe: The Place of Dr. Thomas Baty in the International Law Studies of the 20th Century

Vaughan Lowe (Univ. of Oxford - Law) has posted The Place of Dr. Thomas Baty in the International Law Studies of the 20th Century. Here's the abstract:

Thomas Baty, an English lawyer who became Legal Adviser to the Japanese Foreign Ministry during the first half of the twentieth century, is one of the most intriguing figures in international law. This paper examines his life and his remarkable body of writing.