New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 23, no. 3, 2008) is out. Contents include:

• David Freestone, Principles Applicable to Modern Oceans Governance
• David L. VanderZwaag & Nilufer Oral, International Ocean Governance in the 21st Century
• Rosemary Rayfuse & Robin Warner, Securing a Sustainable Future for the Oceans Beyond National Jurisdiction: The Legal Basis for an Integrated Cross-Sectoral Regime for High Seas Governance for the 21st Century
• David L. VanderZwaag & Ann Powers, The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance
• Nilufer Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea
• Maria Gavouneli, Mediterranean Challenges: Between Old Problems and New Solutions
• Barbara Lausche, Wider Caribbean Region - A Pivotal Time to Strengthen Regional Instruments For Biodiversity Conservation
• Louise Angélique de La Fayette, Oceans Governance in the Arctic
• Adriana Fabra & Virgina Gascón, The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Ecosystem Approach

Symposium: The Rise of Transnational Networks

The Southern Methodist University School of Law will host a symposium on "The Rise of Transnational Networks," November 7, 2008, in Dallas. The program is here. Why attend?

In the last few decades, judges, legislators, prosecutors, and agency officials have increasingly been coordinating policy and decision-making across borders through informal networks. Such coordination has often occurred without formal legal sanction and is especially prominent in areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law. But it also occurs in more politically charged areas, such as constitutional law, national security, law enforcement, and human rights.

This conference will review the record of transnational networks and the promise they hold for deeper and more effective international cooperation. Under what conditions are transnational networks likely to arise and how do they function? What are their advantages over traditional diplomacy and international organizations, and in what circumstances are networks most likely to be successful? What are some of the main obstacles to their legitimacy and effectiveness, and how can these obstacles be overcome?

Resolutions of Ratification: Law Enforcement, Tax, and Additional Treaties

Yesterday, the Senate, by the requisite two-thirds vote, agreed to the resolutions of advice and consent to ratification of the following treaties:

• Extradition Agreement with the European Union (Treaty Doc. 109-14) with 22 related bilateral agreements;
• Extradition Treaty with Latvia (Treaty Doc. 109-15);
• Extradition Treaty with Malta (Treaty Doc. 109-17);
• Extradition Treaty with Estonia (Treaty Doc. 109-16);
• Extradition Treaty with Bulgaria and an Agreement on Certain Aspects of Mutual Legal Assistance in Criminal Matters with Bulgaria (Treaty Doc. 110-12);
• Extradition Treaty with Romania and Protocol to the Treaty on Mutual Legal Assistance in Criminal Matters with Romania (Treaty Doc. 110-11);
• Treaty with Malaysia on Mutual Legal Assistance (Treaty Doc. 109-22);
• Protocol Amending 1980 Tax Convention with Canada (Treaty Doc. 110-15);
• Tax Convention with Bulgaria with Proposed Protocol of Amendment (Treaty Doc. 110-18);
• Tax Convention with Iceland (Treaty Doc. 110-17);
• 1992 Partial Revision of the Radio Regulations (Geneva 1979) (Treaty Doc. 107-17);
• 1995 Revision of the Radio Regulations (Treaty Doc. 108-28);
• CCW Protocol on Incendiary Weapons (Protocol III) (Treaty Doc. 105-1(B));
• CCW Protocol on Blinding Laser Weapons (Protocol IV) (Treaty Doc. 105-1(C));
• Amendment to Article 1 of the Convention on Prohibitions or Restrictions on Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects (Treaty Doc. 109-10(B));
• Treaty with Sweden on Mutual Legal Assistance in Criminal Matters (Treaty Doc. 107-12); and
• Mutual Legal Assistance Agreement with the European Union (Treaty Doc. 109-13) with 25 related bilateral agreements.

The resolutions of ratification, with any reservations, understandings, declarations, and conditions, can be found here, here, here, here, here, here, here, and here.

Workshops: Benvenisti & Downs, Burnett, Dunoff

Eyal Benvenisti (Tel Aviv Univ. - Law) & George Downs (New York Univ. - Politics) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Global Governance and Legal Theory on "Toward Global Checks and Balances."

Christina Burnett (Columbia Univ. - Law) will give a talk today at the New York University School of Law Legal History Colloquium on "A Clash of Constitutionalisms: The Conflict over the Platt Amendment, 1900-1901."

Jeffrey Dunoff (Temple Univ. - Law) will give a talk today at the Harvard Law School International Law Workshop on "Ruling the World? Constitutionalism, International Law and Global Governance."

ICC: Withdrawal of French Declaration to Rome Statute

When France ratified the Rome Statute in 2000, it entered a declaration that it did "not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory." Article 124 of the Statute permitted such declarations but sunsetted their effect at seven years after the Statute's entry into force. France's declaration, therefore, was due to expire on July 1, 2009. Instead of letting it run its course, though, France withdrew the declaration this summer, with a year still to go. France's action leaves Colombia as the only State Party with an active Article 124 declaration. Why did France bother to withdraw its declaration with only months remaining? Clearly it thought there was advantage in doing so. Perhaps it was an easy way to pay some heed to pro-ICC advocates in France and elsewhere. Perhaps it is a signal to the Court itself that France continues to support the institution. Perhaps it was done to indicate that France would not seek to extend Article 124's force at the Rome Statute review conference next year. Those who know what France's intent was are encouraged to contact the editor.

Update: Sixth Committee of the UN General Assembly

A new session of the UN General Assembly - its sixty-third - has begun. The GA's Sixth Committee (Legal) will convene on Monday, October 6th. The Committee's provisional programme of work (A/62/456) is here; the Bureau's proposed revised overall work programme is here. In addition to the annual reports of the International Law Commission and UNCITRAL, there are a number of topics of interest on the agenda, including (among others) criminal accountability of United Nations officials and experts on mission; consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives; the status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts; measures to eliminate international terrorism; administration of justice at the United Nations; and the final form of the ILC's draft articles on nationality of natural persons in relation to the succession of States. The Bureau's proposed programme of work on the debate on the ILC Report is here. Other relevant documents are available here. Customarily, the President of the International Court of Justice visits the Committee; thus far, though, a date for that visit has yet to be announced. The meeting of Legal Advisers will take place on Monday, October 27th, and Tuesday, October 28th. It is also worth noting two non-Sixth Committee matters: Consideration of the Annual Report of the International Court of Justice will be taken up by the General Assembly directly on Thursday, October 30th. The election of five judges to the International Court of Justice will take place on Thursday, November 6th.

Hamant: Démembrement de l'URSS et problèmes de succession d'Etats

Hélène Hamant has published Démembrement de l'URSS et problèmes de succession d'Etats (Brylant 2008). Here's the abstract:

Avec la « chute du Mur » a resurgi la question de la succession d'Etats. Consacré en décembre 1991 par les accords de Minsk et d'Alma-Ata créant le CEI, le démembrement de l'URSS, sur le territoire de laquelle existent désormais quinze Etats, en est la manifestation la plus spectaculaire. Cet ouvrage se veut une synthèse d'ensemble des problèmes ainsi soulevés. L'auteur s'interroge tout d'abord sur la nature du démembrement de l'URSS : consiste-t-il en une dissolution ou est-il assimilable à une série de successions ? Autrement dit, l'URSS a-t-elle disparu ou est-elle continuée par la Russie ? Au-delà de son intérêt théorique, touchant au phénomène de la disparition de l'Etat, la réponse à cette question a une incidence directe sur le règlement de la succession. L'auteur analyse ensuite les modalités de la succession notamment à la lumière de l'alternative entre le principe de la « table rase », qui vaait marqué le droit de la succession d'Etats au moment de la décolonisation, et celui de la continuité des droits et obligations de l'Etat prédécesseur. Ce faisant, cet ouvrage permet de confronter les solutions adoptées aux règles inscrites dans les deux conventions de Vienne sur la succession d'Etat, de 1978 et 1983. Les Etats baltes font l'objet d'un traitement à part dans la mesure où ils se sont présentés comme la restauration des Etats indépendants de l'entre-deux-guerres et qu'en conséquence, ils ne relèveraient pas de la succession d'Etats de l'URSS. Après avoir envisagé le règlement de la succession en matière de traités, biens et dettes en général, l'auteur se penche plus particulièrement sur la succession en matière militaire : non seulement l'URSS était une superpuissance disposant d'un potentiel militaire nucléaire et conventionnel considérable, mais la succession en ce domaine a donné lieu à des mécanismes particuliers faisant apparaître ce dernier comme une catégorie à part. Sont ainsi étudiés le sort de l'armée soviétique et celui des traités de désarmement et de maîtrise des armements qui avaient constitué une pièce essentielle de l'équilibre géostratégique entre l'EST et l'Ouest (TNP et traités FCE, ABM, INF et START).

Heller: Situational Gravity Under the Rome Statute

Kevin Jon Heller (Univ. of Auckland - Law) has posted Situational Gravity Under the Rome Statute (in Future Perspectives on International Criminal Justice, Carsten Stahn & Larissa van den Herik eds., forthcoming). Here's the abstract:

The ICC is often derided as the "African Criminal Court." That criticism cannot easily be dismissed: all of the Office of the Prosecutor's (OTP) current investigations focus on African states - Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan - and it is analyzing the situations in three other African states, Cote D'Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq - the latter despite its conclusion that there was a "reasonable basis to believe" that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment.

The OTP has not denied - nor could it - that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims.

This essay critiques the OTP's quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that offend the fundamental values of the international community - those that cause "social alarm"; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

Guzman: Determining the Appropriate Standard of Review in WTO Disputes

Andrew T. Guzman (Univ. of California, Berkeley - Law) has posted Determining the Appropriate Standard of Review in WTO Disputes. Here's the abstract:

The WTO's dispute settlement system - and, more particularly, WTO panels and the Appellate Body (AB) - are charged with ruling on the consistency of the actions of WTO Members with the obligations imposed by the WTO Agreements. To do so, panelists and AB judges must first determine the standard of review they are to adopt. A more deferential standard will increase the range of activities that the panel or AB will find permissible, while a more stringent standard will narrow that range. With the exception of the Anti-Dumping Agreement, however, neither the Dispute Settlement Understanding nor the specific WTO Agreements themselves provide much guidance regarding the standard of review that should be applied. Article 11, the key provision in the DSU, leaves a great deal to be worked out in litigation.

Identifying the appropriate standard of review requires a determination as to whether the authority to approve certain decisions lies with the Member State or the judicial organs of the WTO. A deferential standard leaves that authority substantially with the state, while a de novo standard gives the panel that authority.

This paper provides an analysis of the costs and benefits associated with more or less stringent standards of review. It argues that WTO-review is desirable primarily because panels and the AB are able to approach disputed issues without bias. The states involved in a dispute, in contrast, have an incentive to view both facts and law in a way that suits their own objectives. Panels and the AB, however, are poorly positioned, relative to states, to assess the legal, cultural, economic, and political context within states. This inevitability means that, in some cases, it is wise to leave greater discretion to the states. The different abilities of Member States and the judicial organs of the WTO allow us to develop a sense of when the standard of review should be more or less deferential. Where a lack of bias is particularly important and where the issues involved are ones in which a panel can be expected to have great expertise, a more stringent standard of review would be appropriate. Where, on the other hand, a case demands detailed knowledge of events or priorities in a state, the case for a more deferential standard of review is stronger.

After elaborating the above perspective on the appropriate standard of review, the paper then provides several examples of the standards that the panels and the AB should adopt, as well as examples of standards they have actually adopted. Among the disputes considered will be those implicating the SPS Agreement; the Anti-Dumping Agreement; the Safeguards Agreement; the national treatment and most-favored nation obligations; and the general exceptions contained in Article XX of the GATT.

Workshop: Vázquez

Carlos Manuel Vázquez (Georgetown Univ. - Law) will give a talk today at the Georgetown University Law Center Faculty Research Workshop on "Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties."

El Zeidy: The Principle of Complementarity in International Criminal Law

Mohamed M. El Zeidy (Legal Officer, International Criminal Court) has published The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Martinus Nijhoff Publishers 2008). Here's the abstract:

The principle of complementarity is the corner stone for the operation of the International Criminal Court (ICC). It organizes the functional relationship between domestic courts and the ICC. This is the first careful study of the historical antecedents of the principle of complementarity, which has become so central to the operation of contemporary international criminal law. The study draws upon the first efforts at international prosecution, after the First World War, and then traces the evolution of the concept through the drafting of the 1937 treaty on terrorism, and the post-Second World War tribunals. It examines in an exhaustive manner the work of the International Law Commission that led to the drafting of the Rome Statute of the International Criminal Court, up to the deposit of the draft statute with the UN General Assembly in 1994. It considers the travaux préparatoires of the Rome Statute itself, in a most thorough manner. It also examines the post-Rome developments, particularly the original interpretations of the relevant provisions of the Statute by both the Office of the Prosecutor and the Pre-Trial Chambers. This is a study that is of intrinsic historical interest, but also one that may help to guide interpreters of the Statute in the years to come.

Workshop: Cogan

Jacob Katz Cogan (Univ. of Cincinnati - Law) will give a talk today at the Georgetown University Law Center International Legal Theory Colloquium on "Representation and Power in International Organization: The Operational Constitution and Its Critics."

Annual Report of the International Criminal Court

The Annual Report of the International Criminal Court to the United Nations for 2007-2008 is now available. Previous reports can be found here.

New Issue: Revue québécoise de droit international

The latest issue of the Revue québécoise de droit international (Vol. 19, no. 2, 2006) is out. Contents include:

• Rémi Bachand, La critique en droit international: Réflexions autour des livres de Koskenniemi, Anghie et Miéville
• Frédérique Sabourin, Le contrat sans loi en droit international privé
• Yann Joly & Deborah Schorno, Le brevet: Valet ou roi du droit à la santé?
• Kirk Shannon, Passing the Poisoned Chalice: Judicial Notice of Genocide by the ICTR

SFDI: La responsabilité de protéger - Colloque de Nanterre

The Société Française pour le Droit International has published La responsabilité de protéger - Colloque de Nanterre (Pedone 2008). Contents are available here. Here's the abstract:

Cet ouvrage constitue les actes du 41ème colloque de la Société française pour le droit international qui s'est tenu à l'Université de Paris X-Nanterre du 7 au 9 juin 2007.

ICJ: Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Conclusion of Public Hearings)

Today, the International Court of Justice concluded its public hearings in the case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine). The case concerns the delimitation of the exclusive economic zones and continental shelf appertaining to Romania and Ukraine in the Black Sea. Case documents, including the application, written proceedings, and the verbatim record of the current hearings, are available here.

At the conclusion of the proceedings, the Agents of the Parties presented their final submissions to the Court, as follows.

For Romania:

Romania respectfully requests the Court to draw a single maritime boundary dividing the maritime areas of Romania and Ukraine in the Black Sea, having the following description:

(a) from point F, at 45° 05' 21" N, 30° 02' 27" E, on the 12-nautical-mile arc surrounding Serpents’ Island, to point X, at 45° 14' 20" N, 30° 29' 12" E;

(b) from point X in a straight segment to point Y, at 45° 11' 59" N, 30° 49' 16" E;

(c) then on the line equidistant between the relevant Romanian and Ukrainian adjacent coasts, from point Y, passing through point D, at 45° 12' 10" N, 30° 59' 46" E, to point T, at 45° 09' 45" N, 31° 08' 40" E;

(d) and then on the line median between the relevant Romanian and Ukrainian opposite coasts, from point T - passing through the points of 44° 35' 00" N, 31° 13' 43" E and of 44° 04' 05" N, 31° 24' 40" E, to point Z, at 43° 26' 50" N, 31° 20' 10" E.

For Ukraine:

For the reasons given in Ukraine’s written and oral pleadings, Ukraine requests the Court to adjudge and declare that the line delimiting the continental shelf and exclusive economic zones between Ukraine and Romania is as follows:

(a) from the point (point 1) identified in Article 1 of the 2003 Treaty between Ukraine and Romania on the Régime of the Ukrainian-Romanian State Border, having the co-ordinates of 45° 05' 21" N; 30° 02' 27" E, the line runs along a straight line to point 2, having the co-ordinates of 44° 54' 00" N; 30° 06' 00" E; then

(b) from point 2, the line runs along an azimuth of 156° to point 3, having the co-ordinates of 43° 20' 37" N; 31° 05' 39" E; and then continues along the same azimuth until it reaches a point where the interests of third States potentially come into play.

The co-ordinates are referenced to the Pulkovo datum (i.e., using the Krasovsky ellipsoid), and all lines are loxodromes.

Conference: The WTO in Difficult Times: New Challenges and New Prospects

The Singapore Management University School of Law and the Asian WTO Research Network will host a conference on "The WTO in Difficult Times: New Challenges and New Prospects," October 10-11, 2008, in Singapore. The program is here. Why attend?

The subprime meltdown, inflation, global food shortage, and rising oil prices . . . the world has become a very different place as we entered 2008. How will the new economic environment affect the World Trade Organization (WTO), and how shall the WTO deal with these new challenges in such difficult time? Bringing together leading WTO scholars from Asia and beyond, this international conference will provide a good opportunity to reflect upon some of the most pressing issues facing the multilateral trading system today.

Online Edition of the Max Planck Encyclopedia of Public International Law

Oxford University Press recently launched online the Max Planck Encyclopedia of Public International Law, edited by Rüdiger Wolfrum. This is a new edition of the Encyclopedia of Public International Law, which was published between 1991 and 2001 under the direction of Rudolf Bernhardt. Articles are being uploaded in phases. Thus far, over 450 articles are online; another set is due to be uploaded in October. A list of recently published articles is here; a list of all planned articles is here. A print version will appear once online publication is completed in 2010.

Conference: Looking Past Guantanamo: Are New Concepts Needed for Terrorist-Related Detentions?

Today, at American University's Washington College of Law, there will be a conference on "Looking Past Guantanamo: Are New Concepts Needed for Terrorist-Related Detentions?" The program is available here. Why attend?

Cosponsored by Washington College of Law, the National Institute of Military Justice and the Federalist Society, and in cooperation with the ABA Section of International Law National Security Committee. The next conversation in global counter-terrorism will consider the long-term future of terrorist-related detentions. The resolution of this conversation will depend on chosen model to govern the detention. Many lawyers have argued that the United States and its allies are at war with terrorists under the laws of armed conflict. Yet others counter that terrorism is fundamentally a domestic criminal offense and should be prosecuted under the law enforcement paradigm. While substantial efforts have been made to resolve these and related disagreements by making procedural alterations in the military commissions or the proposed National Security Court, many critics argue that these modifications are unable to overcome the very same conceptual challenges that justify the changes. After more than six years of discussion, this issue remains unresolved within the legal community. This conference advances that conversation by asking whether the law enforcement and international humanitarian law models are able to theoretically address the unique characteristics of international terrorism or whether new concepts are needed.

Workshop: Beard

Jack Beard (Univ. of California, Los Angeles - Law) will give a talk today at the UCLA School of Law Friday Colloquium on "The Law of Virtual War."

ICTY: Trial Chamber Judgment in the Case Against Ljubiša Petković

On September 11th, the ICTY Trial Chamber rendered its judgment in the case (No. IT-03-67-R77.1) against Ljubiša Petković. Petković was charged (order here) with contempt of the Tribunal for having knowingly and willfully interfered in the administration of justice by refusing to respect a summons and appear as a witness before the Chamber.

In its decision (summary here; press release here; judgment not yet available online), the Trial Chamber found Petković guilty and sentenced him to four months imprisonment.

ICTY: Trial Chamber Judgment in the Case Against Rasim Delić

On Monday, the ICTY Trial Chamber rendered its judgment in the case (No. IT-04-83) against Rasim Delić, former Commander of the Main Staff of the Army of the Republic of Bosnia and Herzegovina. Delić was charged, under a theory of superior responsibility, with four counts of war crimes (murder, cruel treatment, and rape) for failure to take reasonable steps to prevent and punish crimes that occurred during his command (amended indictment here). In February of this year, the Trial Chamber, in an oral decision (transcript here), acquitted Delić of one of the counts (rape).

In Monday's judgment (judgment here; summary here; press release here), the Trial Chamber acquitted Delić of all the remaining charges except one count of war crimes (cruel treatment), for which it entered a conviction over the dissent of Judge Moloto. Delić's sole conviction was for failing to take the necessary and reasonable measures to prevent and punish the crimes of cruel treatment committed by the El Mujahed Detachment (EMD) in the village of Livade and in the Kamenica Camp in July and August 1995. Judge Moloto disagreed with the majority's conclusion that Delić had effective control over the EMD. On the other counts, the Chamber found either that Delić did not retain superior responsibility over the forces that committed the crimes or that he did not have reason to know that crimes were about to be or had been committed. The Trial Chamber sentenced Delić to three years imprisonment.

Mégret: International Criminal Law: A New Legal Hybrid?

Frédéric Mégret (McGill Univ. - Law) has posted International Criminal Law: A New Legal Hybrid?. Here's the abstract:

This paper seeks to establish the viability of the "convergence" thesis as applied to common and civil law by an examination of the emergence of international criminal law, particularly as it is applied by international criminal tribunals. It suggests that the concept of "legal hybrid" is that which most approximates the conditions in which two legal systems or traditions do not simply overlap, but blend into a sui generis system that is more than the sum of both. It traces the dynamics of that hybridization, in an attempt to understand how transystemic "areas" in the law are produced, sustained and developed.

Van Schaack & Slye: Chapters from The Essentials of International Criminal Law

Beth Van Schaack (Santa Clara Univ. - Law) & Ron Slye (Univ. of Seattle - Law) have posted a number of chapters from their forthcoming book The Essentials of International Criminal Law (Aspen Publishers):

• The Crimes of Terrorism
• The Internationalization of Crimes
• The Legal Regulation of War

Bzostek: Why Not Preempt? Security, Law, Norms and Anticipatory Military Activities

Rachel Bzostek (California State Univ., Bakersfield - Political Science) has published Why Not Preempt? Security, Law, Norms and Anticipatory Military Activities (Ashgate 2008). Here's the abstract:

Anticipatory military activities, which include both preemptive and preventive military actions, are at the centre of American strategic doctrine – however, states rarely use these activities. Rachel Bzostek puts forward an integrated analysis to help understand why states have or have not undertaken such activities in the past. By exploring what kinds of strategic or structural elements compel states or leaders to take anticipatory military action, as well as how these concepts are viewed in both international law and the just war tradition, this book uses case studies to explore those elements that have played an influential role in the decision-making process.