Monday, December 31, 2007

König, et al.: International Law Today

Doris König (Bucerius Law School), Peter-Tobias Stoll (Georg-August-Universität Göttingen - Law), Volker Röben (Swansea Univ. - Law), & Nele Matz-Lück (Max-Planck Institut für ausländisches öffentliches Recht und Völkerrecht) have published International Law Today: New Challenges and the Need for Reform? (Springer 2008). Here's the abstract:

This collection of essays is based upon presentations given at a symposium on the occasion of the 65th birthday of Professor Rüdiger Wolfrum in December 2006. The contributions cover a wide range of contemporary issues of international law such as state responsibility, crisis management, unity of law, deep sea genetic resources, liability for environmental damage in Antarctica, human rights and intellectual property, and the protection of minorities. They all strive to contribute to the current state of academic discussion on different aspects of international law and offer valuable approaches to the solution of the relevant problems.

Contents include:
  • Tobias Stoll, Responsibility, Sovereignty and Cooperation - Reflections on the “Responsibility to Protect”
  • Markus Benzing, Sovereignty and the Responsibility to Protect in International Criminal Law
  • Volker Röben, Managing Risks to Global Stability: the UN Security Council’s New-found Role Post Iraq
  • Michael Köbele, Comment on the Contribution by Volker Röben
  • Nele Matz-Lück, Promoting the Unity of International Law: Standard-Setting by International Tribunals
  • Holger Hestermeyer, Where Unity Is at Risk: When International Tribunals Proliferate
  • Doris König, Genetic Resources of the Deep Sea - How Can They Be Preserved?
  • Silja Vöneky, The Liability Annex to the Protocol on Environmental Protection to the Antarctic Treaty
  • Karen Kaiser, The Strange Case of Human Rights and Intellectual Property: Is There a Way to Reconcile Dr. Jekyll with Mr. Hyde?
  • Rainer Grote, The Struggle for Minority Rights and Human Rights: Current Trends and Challenges
  • Nicola Wenzel, Minority Rights as Group-Protective Rights: A Challenge for the International Law of Human Rights

Sunday, December 30, 2007

Rau: The Arbitrator and Mandatory Rules of Law

Alan Scott Rau (Univ. of Texas, Austin - Law) has posted The Arbitrator and Mandatory Rules of Law (American Review of International Arbitration, forthcoming). Here's the abstract:

An endless literature exhorts us to ask whether international arbitrators have some sort of a duty or obligation to enforce rules of mandatory law. Such an abstract inquiry - untethered from the positive law implications of arbitral failure, or the pragmatic constraints that push individual behavior in one direction or another - seems obviously to elide just about all the interesting questions. Should, it is asked, arbitrators consider themselves as nothing more than the servant of the parties? Do their allegiances lie with the parties that appoint them, or the states that support them? Should they see their role as merely being concerned to keep a deal going without concern for the public interest - or should they perhaps identify themselves instead as statesmanlike jurists whose first dedication is to the law?

I examine in some detail a number of important concrete cases that have raised these questions, and try to understand them through the lens of two fairly straightforward priorities that ought to drive the engine - fidelity to the expectations of the contracting parties, and concern for the enforceability of the resulting award.

It can never, for example, be the case that in any arbitral proceeding party autonomy can be trumped - not, at least, in any interesting sense. (I am necessarily leaving to one side, then, cases where it is sought to use the arbitration mechanism as a tool to facilitate the parties' involvement behavior universally thought to be abhorrent).

Against this backdrop of his role as the parties' agent, our arbitrator is also likely to self-consciously define himself as a positivist who understands rules of law not as the residue of some system or structure to be decoded, but instead as the command of a sovereign. And so he is not encouraged to consider any matters divorced from the consequences of his behavior A vacated or unrecognized award is after all a fiasco, a sign of fecklessness or irresponsibility that hardly enhances market credibility: Precisely who, he will ask, is likely to be looking over his shoulder?

The apparent tension between the two parts of this paper - between the arbitrator's solicitude with respect to the ex ante expectations of the parties, and his attentiveness with respect to the ultimate fate of his award - can readily be overstated. With some common sense and ingenuity, it can be minimized even further.

Cummins: Digest of United States Practice in International Law, 2006

Sally J. Cummins (Office of the Legal Adviser, U.S. Dep't of State) has published Digest of United States Practice in International Law, 2006 (Oxford Univ. Press 2007). Here's the abstract:
This annual compilation of documents and commentary highlighting significant developments in public and private international law, and is an invaluable resource for practitioners and scholars in the field. Each annual edition compiles excerpts from documents such as treaties, diplomatic notes and correspondence, legal opinion letters, judicial decisons, Senate committee reports and press releases. All of the documents which are excerpted in the Digest are selected by members of the Legal Adviser's Office of the U.S. Department of State, based on their judgments about the significance of the issues, their potential relevance to future situations, and their likely interest to practitioners and scholars. In almost every case, the commentary to each excerpt is accompanied by a citation to the full text.

Saturday, December 29, 2007

New Issue: Global Governance

The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol. 14, no. 1, January-March 2008) is out. Contents include:
  • Giovanni Bassu, Law Overruled: Strengthening the Rule of Law in Postconflict States
  • Simon Chesterman, Globalization Rules: Accountability, Power, and the Prospects for Global Administrative Law
  • Klaus Dingwerth, North-South Parity in Global Governance: The Affirmative Procedures of the Forest Stewardship Council
  • Thomas N. Hale, Transparency, Accountability, and Global Governance
  • Simon Rushton, The UN Secretary-General and Norm Entrepreneurship: Boutros Boutros-Ghali and Democracy Promotion
  • Daniel C. Esty, Review Essay: Climate Change and Global Environmental Governance

Friday, December 28, 2007

Baughen: International Trade and the Protection of the Environment

Simon Baughen (Univ. of Bristol - Law) has published International Trade and the Protection of the Environment (Routledge 2007). Here's the abstract:

Analyzing globalization and the increasing tension it has caused between the goals of free trade and environmental protection, International Trade and the Protection of the Environment provides a comprehensive and detailed legal analysis, both at the national and international level of what looks set to become the new legal order of the twenty-first century.

This book asks the questions does the treatment of ‘measures tantamount to expropriation’ have the capacity to lead to a ‘regulatory chill’ on environmental protection and what are the possibilities for claims before the UK courts that are based on alleged violations of international law?

Thursday, December 27, 2007

Symposium: The Future of International Criminal Justice - Evolving Accountability from Nuremburg to the International Criminal Court

The latest issue of the Penn State International Law Review (Vol. 25, no. 4, Spring 2007) contains the proceedings of a symposium on "The Future of International Criminal Justice - Evolving Accountability from Nuremburg to the International Criminal Court." Contents include:
  • Symposium: The Future of International Criminal Justice - Evolving Accountability from Nuremburg to the International Criminal Court
    • Louis F. Del Duca, Introduction
    • Richard Goldstone, Historical Evolution - From Nuremberg to the International Criminal Court
    • Herbert Okun, The Role of International Criminal Justice in Peace Negotiations
    • Dermot M. Groome, Re-Evaluating the Theoretical Basis and Methodology of International Criminal Trials
    • David Crane, Hybrid Tribunals - Internationalized National Prosecutions
    • Clint Williamson, The Role of the United States in International Criminal Justice
    • Mary Robinson, Keynote Address - Rule of Law and International Human Rights in Challenging Times

Futamura: War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremburg Legacy

Madoka Futamura has published War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremburg Legacy (Routledge 2007). Here's the abstract:

Advocates of the ‘Nuremberg legacy’ emphasize the positive impact of the individualization of responsibility and the establishment of an historical record through judicial procedures for ‘war crimes’. This legacy has been cited in the context of the establishment and operation of the UN ad hoc International Criminal Tribunals in the 1990s, as well as for the International Criminal Court.

The problem with this legacy, however, is that it is based solely on the experience of West Germany. Furthermore, the effect of the procedure on post-conflict society has not been empirically examined. This book does this by analyzing the Tokyo Trial, the other International Military Tribunal established after the Second World War, and its impact on post-war Japan. Madoka Futamura examines the short- and long-term impact of the International Military Tribunal for the Far East (the Tokyo Trial), on post-war Japan, in order to improve the understanding of and strategy for ongoing international war crimes tribunals.

Wednesday, December 26, 2007

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 134, no. 4, Octobre-Novembre-Décembre 2007) is out. Contents include:
  • Doctrine
    • Cécile Legros, Les conflits de normes juridictionnelles en matière de transports internationaux de marchandises (suite)
    • Walid Ben Hamida, Clause de la nation la plus favorisée et mécanismes de règlement des différends: que dit l’histoire?
  • Variétés
    • Emmanuel Gaillard, Souveraineté et autonomie: réflexions sur les représentations de l’arbitrage international
    • Didier Laméthe, Les langues de l’arbitrage international: liberté raisonnée de choix ou contraintes réglementes?

New Issue: Arbitration: The International Journal of Arbitration, Mediation and Dispute Management

The latest issue of Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (Vol. 73, no. 3, August 2007) is out. Contents include:
  • David Altaras, Arbitration in England and Wales and the European Convention on Human Rights: should arbitrators be frightened?
  • Houston Putnam Lowry, A participant’s view of United Nations Commission on International Trade Law’s Working Party II (Arbitration) Proceedings in January 2006
  • Alexander Belohlavek, Arbitration in the Czech Republic
  • Thomas Wardyński, The status of arbitration and arbitration law in Poland
  • Crenguta Leaua, Arbitration in Romania
  • Gerald Zeiler, Treaty v. contract: which panel?
  • Alexander Muranov & Demitriy Davydenko, Summary of the law and practice of enforcement of foreign judgments in Russia
  • William Wood, Mediation: the next ten years
  • Richard Anderson & John Aycock, The introduction of payment and adjudication provisions into the construction laws of the Isle of Man

New Issue: ICC International Court of Arbitration Bulletin

The latest issue of the ICC International Court of Arbitration Bulletin (Vol. 18, no. 1, 2007) is out. Contents include:
  • Laurence Kiffer, Amiable composition and ICC Arbitration
  • Extracts from ICC arbitral awards relating to amiable composition

New Volume: Finnish Yearbook of International Law

The latest volume of the Finnish Yearbook of International Law (Vol. 16, 2005) is out. Contents include:
  • Symposium: The National Implementation of the Rome Statute of the International Criminal Court
    • Foreword
    • Mattias Goldmann, Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law
    • Implementation of the Rome Statute in Albania
    • Magdalena Forowicz, Implementation of the Rome Statute in Belgium
    • Rain Liivoja, René Värk, & Merri Kastemäe, Implementation of the Rome Statute in Estonia
    • Jussi Ohisalo, Implementation of the Rome Statute in Finland
    • Martin Hess, Nandor Knust, & Christine Schuon, Implementation of the Rome Statute in Germany
    • Paola Sacchi & Silvia Borelli, Implementation of the Rome Statute in Italy
    • Sergey Vasiliev & Anna Ogodorova, Implementation of the Rome Statute in Russia
    • Simon P. Olleson & Matthew R. Brubacher, Implementation of the Rome Statute in the United Kingdom
  • Tobias Bräutigam, Comparative Law and the U.S. Supreme Court: Roper v. Simmons and the Quest for Theory
  • Linda Johanna Friman, War and Peace in Outer Space: A Review of the Legality of the Weaponization of Outer Space in the Light of the Prohibition on Non-Peaceful Purposes
  • Jan Klabbers, Reflections on Soft International Law in a Privatized World
  • James O’Connor, U.S. Neoconservatism and the Rule of Radical Occasionalism - Carl Schmitt’s War on Terror?
  • Aurel Sari, The Danish Cartoon Row: Re-Drawing the Limits of the Right to Freedom of Expression?

Tuesday, December 25, 2007

Frederking: The United States and the Security Council: Collective Security Since the Cold War

Brian Frederking (McKendree College - Political Science) has published The United States and the Security Council: Collective Security Since the Cold War (Routledge 2007). Here's the abstract:

This book describes the rules governing international security decision-making and examines the different understandings of collective security in the post-Cold War world.

The post-Cold War world has largely been a struggle over which rules govern global security. Discussions and decisions following the events of 9/11 have highlighted differences and disputes in the United Nations Security Council. Where Russia, China, and France prefer ‘procedural’ collective security, in which all enforcement attempts must be explicitly authorized by the Security Council, the US and Britain prefer ‘substantive’ collective security, in which particular countries can sometimes take it upon themselves to enforce the rules of the global community.

Using a constructivist theory of global security to analyze a series of case studies on Iraq (1990-91); Somalia, Rwanda, and Haiti; Bosnia and Kosovo; Afghanistan and Iraq (2003), the author demonstrates how competing interpretations of collective security recur. Challenging the claim that 9/11 fundamentally changed world politics, Brian Frederking argues that the events exacerbated already existing tensions between the veto powers of the UN Security Council.

Carreau & Juillard: Droit international économique

Dominique Carreau (Université Paris I (Panthéon-Sorbonne)) & Patrick Juillard (Université Paris I (Panthéon-Sorbonne)) have published the third edition of Droit international économique (Dalloz 2007). Here's the abstract:
L'internationalisation des économies nationales ne cesse de s'accroître depuis les dernières décennies. Elle n'a cependant pas encore rattrapé le niveau qui fut le sien au XIXe siècle. Le XIXe siècle, en effet, demeure l'âge d'or d'un libéralisme qui trouve son aboutissement dans une division internationale du travail fondée sur la loi de l'avantage comparé. L'actuelle interpénétration des économies, qu'on dénomme, en forçant le trait, " mondialisation ", a été favorisée par la mise en place d'un encadrement conventionnel qu'ont voulu les Etats après la Seconde Guerre mondiale. Cet encadrement, paradoxalement, poursuivait un objectif de libéralisation : les derniers obstacles à la réalisation de cet objectif ont disparu avec le discrédit du modèle de planification centralisée. La création d'un système commercial de portée universelle devenait possible, et le 1er janvier 1995, l'OMC se substituait au GATT. La libéralisation des échanges de biens et de services ne pouvait pas ne pas s'accompagner de la libéralisation des investissements. Cette dernière se manifeste par la prolifération des accords bilatéraux de promotion et de protection, dont le nombre s'élève actuellement à près de 3000. C'est de l'ensemble de ces phénomènes que cet ouvrage s'efforce de rendre un compte aussi exact que possible. Aussi s'attache-t-il à présenter, dans chacun des éléments qui le composent, ce que l'on peut désormais appeler le système économique international. Une place importante est accordée au commerce des biens et services - tant il est vrai que l'échange demeure le moteur de l'économie internationale. Mais l'établissement des personnes et l'investissement des capitaux ne peuvent en être dissociés. Enfin, les mécanismes de financement, public ou privé, du système constituent le facteur commun à tous ces développements. Ce précis s'adresse donc tant aux étudiants de 2e et 3e cycles auxquels la matière est enseignée dans le cadre de leurs cursus respectifs, qu'aux praticiens du droit des affaires internationales.

Wouters & De Meester: The World Trade Organization: A Legal and Institutional Analysis

Jan Wouters (Katholieke Universiteit Leuven - Institute for International Law) & Bart De Meester (Katholieke Universiteit Leuven - Institute for International Law) have published The World Trade Organization: A Legal and Institutional Analysis (Intersentia 2007). Here's the abstract:

The World Trade Organization, set up in 1995, has become a centrepiece of global economic governance in a fragmented international legal and institutional system. The WTO oversees an extensive body of international trade rules. But it has also become a widely contested organization, as its trade rules affect a great variety of rules and policies on environmental protection, public health, technical standards, cultural diversity, financial stability and professional qualifications. Whether it likes it or not, the WTO is put at the centre of global economic governance and no internationally oriented legal practitioner, government official, academic or student can afford to neglect this swiftly developing body of law. This book introduces the institutional and substantive legal aspects of the WTO. It thereby addresses both the vertical interactions of WTO law with domestic legal systems and the horizontal interactions between WTO rules and other areas of international regulation. Starting from the history and theory of international trade law, the book discusses the content and application of the basic principles in the different WTO agreements. Furthermore, it also clarifies the decision-making processes and dispute settlement system of the WTO.

Sunday, December 23, 2007

Genocide Accountability Act of 2007

On Friday, President Bush signed into law the Genocide Accountability Act of 2007 (text here). As the White House press release notes, the statute "expands criminal liability for participation in acts of genocide committed outside of the United States to persons not covered by current [U.S.] criminal law." Prior to passage of the Act, the ability of the United States to prosecute persons accused of genocide was limited to U.S. nationals or persons who committed genocide on U.S. territory. Now it includes, among other categories of persons, an "alleged offender [who] is brought into, or found in, the United States, even if that conduct occurred outside the United States." Kevin Jon Heller provides commentary at Opinio Juris.

New Issue: World Arbitration and Mediation Review

The latest issue of the World Arbitration and Mediation Review (Vol. 1, no. 5, 2007) is out. Contents include:
  • International Arbitration
    • Anna Conley, A Comparative Law Analysis of U.S. Judicial Assistance
    • Anne-Marie Loong, Steps Toward an International Arbitration Culture? A Dissenting View from the People's Republic of China
    • Jennifer Anglim Kreder, A Nazi-Looted Art Tribunal

Wendel: State Responsibility for Interferences with the Freedom of Navigation in Public International Law

Philipp Wendel has published State Responsibility for Interferences with the Freedom of Navigation in Public International Law (Springer 2007). Here's the abstract:

A multitude of conventions covering the law of the sea contain provisions on compensation for wrongful interferences with navigation. Even though interferences by warships and coast guard vessels appear to be more frequent due to a perceived increased risk of international crimes at sea, the compensation provisions have hardly been applied.

This book analyzes all relevant compensation provisions and compares them to the general law of state responsibility. The author discusses such issues as the responsibility of international organizations, liability for lawful conduct, and several and joint liability in public international law.

Saturday, December 22, 2007

WTO Arbitrator's Decision: United States - Measures affecting the cross-border supply of gambling and betting services

Yesterday, an Article 22.6 Arbitrator issued its decision in United States - Measures affecting the cross-border supply of gambling and betting services (DS285). Antigua and Barbuda brought the original complaint. The full Decision can be found here. A summary of the case can be found here. A discussion of the Decision can be found at the International Economic Law and Policy Blog.

Barcelo: Anti-Foreign-Suit Injunctions to Enforce Arbitration Agreements

John James Barcelo III (Cornell Univ. - Law) has posted Anti-Foreign-Suit Injunctions to Enforce Arbitration Agreements. Here's the abstract:
Despite agreeing that courts should exercise great caution concerning anti-foreign-suit injunctions, the author argues in favor of such a remedy in a particular setting where enforcing an agreement to arbitrate is at stake. That setting occurs when the parties to an arbitration agreement place the arbitration seat in a particular country (F1) and also choose that country's law to govern the arbitration agreement (its existence, validity and scope). Such an agreement should be understood as choosing F1 courts to resolve any differences over the "ordinary arbitrability" of the dispute (existence, validity,and scope of the arbitration clause). Thus, if one of the parties tries to litigate the dispute in a different country (F2), that party acts in breach of the arbitration agreement and may be enjoined from doing so. The author argues that parties wanting a strongly enforceable arbitration clause will favor this remedy and will want to place the arbitration seat in, and choose the law of, a country that will provide it. The author would make an exception where F2 may have a strong public policy reason to treat the subject matter as not capable of settlement by arbitration - a "public policy" challenge to arbitrability, as opposed to a "garden variety" existence, validity, or scope challenge to arbitrability. In a "public policy" case an F1 court should not issue an anti-foreign-suit injunction. The author discusses two recent court decisions in the UK (Through Transport and West Tankers) that exemplify the approach advocated.

Friday, December 21, 2007

Boas: The Milošević Trial: Lessons for the Conduct of Complex International Proceedings

Gideon Boas (Monash Univ. - Law) has published The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings (Cambridge Univ. Press 2007). Here's the abstract:

When Slobodan Milošević died in the United Nations Detention Unit in The Hague over four years after his trial had begun, many feared - and some hoped - that international criminal justice was experiencing some sort of death itself. Yet the Milošević case, the first trial of a former head of state by a truly international criminal tribunal and one of the most complex and lengthy war crimes trials in history, stands for much in the development and the future of international criminal justice, both politically and legally. This book, written by the senior legal advisor working for the Trial Chamber, analyses the trial to determine what lessons can be learnt that will improve the fair and expeditious conduct of complex international criminal proceedings brought against former heads of state and senior political and military officials, and develops reforms for the future achievement of best practice in international criminal law.

SFRC: Report on the Law of the Sea Convention Now Available

The Senate Foreign Relations Committee's Report on the United Nations Convention on the Law of the Sea (together with minority views), which was issued on Wednesday, is now available here.

New Issue: Archiv des Völkerrechts

The latest issue of Archiv des Völkerrechts (Vol. 45, no. 3, September 2007) is out. Contents include:
  • Andreas Fischer-Lescano, Subjektivierung völkerrechtlicher Sekundärregeln. Die Individualrechte auf Entschädigung und effektiven Rechtsschutz bei Verletzungen des Völkerrechts
  • Oliver Diggelmann, Staatsverbrechen und internationale Justiz. Zur Einlösbarkeit der Erwartungen an internationale Straftribunale
  • Christoph Ashauer, Die Menschenrechte im Notstand. Eine Untersuchung zu den Voraussetzungen der Derogation nach Artikel 15 EMRK unter besonderer Berücksichtigung der Figur des überpositiven Notstandes
  • Gernot Biehler, Property Rights for Individuals under International Humanitarian Law

New Issue: American Review of International Arbitration

The latest issue of the American Review of International Arbitration (Vol. 17, no. 1, 2006) is out. Contents include:
  • Leon E. Trakman, "Legal Traditions" and International Commercial Arbitration
  • Anna Conley, A New World of Discovery: The Ramifications of Two Recent Federal Courts' Decisions Granting Judicial Assistance to Arbitral Tribunals Pursuant to 28 U.S.C. § 1782
  • Stephan Wilske, Laurence Shore & Jan-Michael Ahrens, The "Group Of Companies Doctrine" - Where Is It Heading?
  • Peter Ashford, Documentary Discovery and International Commercial Arbitration
  • J.P. Duffy, Arbitral & Judicial Decisions Opposing Confirmation of International Arbitration Awards: Is It Worth The Sanctions?

Thursday, December 20, 2007

WTO Panel Report: United States - Final Anti-dumping Measures on Stainless Steel from Mexico

Today, a Panel established by the WTO's Dispute Settlement Body issued its Report on the case United States - Final Anti-dumping Measures on Stainless Steel from Mexico (DS344). Mexico brought the complaint. The full Report can be found here. An excerpt containing just the Panel's conclusions and recommendations can be found here. A summary of the case can be found here.

SFRC: Report on the Law of the Sea Convention

Yesterday, December 19, the Senate Foreign Relations Committee submitted its Report (Ex. Rept. 110-9; not yet available online) on the United Nations Convention on the Law of the Sea (Treaty Doc. 103-39). The Committee favorably reported the Convention on October 31, following hearings on September 27 and October 4.

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 46, no. 4, July 2007) is out. Contents include:
  • The Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, with introductory note by Charles Mooney
  • Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock, with introductory note by Harold S. Burman
  • International Court of Justice: Case Concerning Ahmadou Sadio Diallo, with introductory note by Viren Mascarenhas
  • United States Supreme Court: Permanent Mission of India to the United Nations v. New York, with introductory note by Bruce Zagaris
  • European Court of Human Rights: Behrami v. France, with introductory note by Stephanie Farrior
  • Supreme Court of Canada: R. v. Hope, with introductory note by David P. Stewart
  • International Centre for the Settlement of Investment Disputes: Waguih Georg Siag v. The Arab Republic of Egypt, with introductory note by Charles Own Verrill
  • South Pacific Fisheries Management Organization, with introductory note by Holly Koehler

Symposium: Judgment at Nuremberg

The latest issue of the Washington University Global Studies Law Review (Vol. 6, no. 3, 2007) contains the proceedings of the symposium "Judgment at Nuremberg," held at the Washington University in St. Louis School of Law, September 30-October 1, 2006. Contents include:

Wednesday, December 19, 2007

WTO Compliance Panel Report: United States - Subsidies on Upland Cotton

Yesterday, a Compliance Panel released its Report on the case United States - Subsidies on upland cotton (DS267). Brazil brought the complaint. The full Report can be found here. An excerpt containing just the Panel's findings and conclusions can be found here. A summary of the case can be found here.

ASIL's International Law 2008

The American Society of International Law recently unveiled International Law 2008, a "web-based initiative to gather and disseminate information to the public and the news media about where the U.S. presidential candidates stand on important international legal issues." The website explains that the project includes three components: (1) a collection of candidates' policy statements and speeches on topics related to international law; (2) candidate surveys, designed to provide an opportunity for 2008 U.S. presidential candidates to elaborate on their views of the role of international law in U.S. foreign policy; and (3) "ASIL Leaders' Views," featuring answers from members of the ASIL Executive Council to the question "What is the most important international law-related issue facing the next U.S. administration and why?" Thus far, Hillary Clinton, John Edwards, Dennis Kucinich, and Barack Obama have submitted responses to the candidate surveys. ASIL's International Law 2008 complements well the Campaign 2008 website of the Council on Foreign Relations, which focuses on the foreign policy positions of the presidential candidates.

Joachim, Reinalda, & Verbeek: International Organizations and Implementation: Enforcers, Managers, Authorities?

Jutta Joachim (Univ. of Hannover - Institute of Political Science), Bob Reinalda (Radboud University Nijmegen - International Relations), & Bertjan Verbeek (Radboud University Nijmegen - International Relations) have published International Organizations and Implementation: Enforcers, Managers, Authorities? (Routledge 2008). Contents include:
  • Part 1: Introduction
  • International Organizations and Implementation
  • Part 2: The Institutional Resources of International Organizations
  • Miriam Hartlapp, Two Variations on a Theme?
  • Thomas Conzelmann, Beyond the Carrot and the Stick
  • J.C. Sharman, International Organizations and the Implementation of New Financial Regulations by Blacklisting
  • Steffen Bauer, Bureaucratic Authority and the Implementation of International Treaties
  • George Christou & Seamus Simpson, International Policy Implementation through Gate Keeping
  • Kerstin Martens & Carolin Balzer, All Bark and No Bite?
  • Part 3: Domestic-Level Factors, International Organizations and Implementation
  • Anna van der Vleuten, Pincers and Self-Interest
  • Esther Versluis, ‘The Achilles’ Heel of European Regulation’
  • Dora Piroska, The Implementation of the Basel Capital Accord in Hungary and Slovenia
  • Pat Gray, International Financial Institutions and Russia’s Civil Service Reform
  • David J. Galbreath, International Organizations, Party Politics and the Promotion of Minority Rights in the Baltic States
  • Part 4: Conclusion
  • Enforcers, Managers, Authorities?

Tuesday, December 18, 2007

van der Wilt: Halilović on Appeal: The Intricate Concept of "Effective Control"

Harmen van der Wilt (Univ. of Amsterdam - Law) has posted Halilović on Appeal: The Intricate Concept of "Effective Control", a commentary on the ICTY Appeals Chamber's judgment in the Halilović case. Here's the abstract:
The commentary addresses pertinent questions raised in the recent Appeals Judgement, which resulted in the acquittal of Halilović, pertaining to the doctrine of superior criminal responsibility. It analyses the nature of the required 'superior-subordinate (hierarchical) relationship' and the difficulties it gives rise to in determining the criminal responsibility of a de facto military commander, such as Halilović, who was the chief of the Supreme Command Staff of the Army of Bosnia and Herzegovina in 1993.

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 22, no. 12, December 2007) is out.

New Issue: Leiden Journal of International Law

The latest issue of the Leiden Journal of International Law (Vol. 20, no. 4, December 2007) is out. Contents include:
  • John Dugard, The Future of International Law: A Human Rights Perspective - With Some Comments on the Leiden School of International Law
  • Essays in Honour of John Dugard: The Protection of the Individual in International Law
    • Thomas Skouteris and Annemarieke Vermeer-Künzli, Editors' Introduction: John Dugard and the Protection of the Individual in International Law
    • Rosalyn Higgins, Human Rights in the International Court of Justice
    • Arnold N. Pronto, ‘Human-Rightism’ and the Development of General International Law
    • Theo van Boven, The United Nations High Commissioner for Human Rights: The History of a Contested Project
    • Antoine Buyse & Rick Lawson, State Recognition: Admission (Im)Possible
    • Larissa van den Herik, The Security Council's Targeted Sanctions Regimes: In Need of Better Protection of the Individual
    • Nico Shrijver, The UN Human Rights Council: A New ‘Society of the Committed’ or Just Old Wine in New Bottles?
    • Paul J.I.M. de Waart, Israel's Settlement-Policy Stumbling-Block in the Middle East Peace Process
    • Antonio Cassese, On Some Problematical Aspects of the Crime of Aggression
    • Claus Kress, The Crime of Aggression before the First Review of the ICC Statute
    • Niels Blokker, The Crime of Aggression and the United Nations Security Council
    • Elies van Sliedregt, International Crimes before Dutch Courts: Recent Developments
    • Zsuzsanna Deen-Racsmány, Diplomatic Protection and International Criminal Law: Can the Gap Be Bridged?
    • James L. Kateka, John Dugard's Contribution to the Topic of Diplomatic Protection
    • Paula Escarameia, Professor Dugard as an Innovator in the Work of the International Law Commission
    • Annemarieke Vermeer-Künzli, Diallo and the Draft Articles: The Application of the Draft Articles on Diplomatic Protection in the Ahmadou Sadio Diallo Case
    • Max du Plessis, Professor John Dugard: A South African Perspective
    • Jackie Dugard, Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa's Transformation
    • Curriculum Vitae and Publications of John Dugard

New Issue: Criminal Law Forum

The latest issue of Criminal Law Forum (Vol. 18, nos. 3-4, December 2007) is out. Contents include:

  • Jonathan Clough, Bridging the Theoretical Gap: The Search for a Realist Model of Corporate Criminal Liability
  • Héctor Olásolo, A Note on the Evolution of the Principle of Legality in International Criminal Law
  • Kate Warner, Mandatory Sentencing and the Role of the Academic
  • Robert J. Currie, Abducted Fugitives Before the International Criminal Court: Problems and Prospects

New Issue: International Tax Journal

The latest issue of the International Tax Journal (Vol. 33, no. 6, November-December 2007) is out. Contents include:
  • Douglas L. McHoney & J. Michael Cornett, Applying Recent Code Section 165(g)(3) Guidance in an International Context
  • Samuel Y.S. Chan & John W.S. Lee, Tax Incentives in Hong Kong for Offshore Funds and Investment Schemes

New Issue: Netherlands International Law Review

The latest issue of the Netherlands International Law Review (Vol. 54, no. 3, December 2007) is out. Contents include:
  • Ademola Abass, The United Nations, The African Union and the Darfur Crisis: Of Apology and Utopia
  • Abdul Ghafur Hamid, The Legality of Anticipatory Self-Defence in the 21st Century World Order: A Re-Appraisal

Monday, December 17, 2007

ICTR: Trial Chamber Judgment in Case Against Karera

On Friday, December 7, the ICTR Trial Chamber rendered its judgment in the case (No. ICTR-01-74) against François Karera, former Prefect of Kigali-Rural. (Press release here; judgment not yet available online.) Karera was charged with genocide, complicity in genocide, and crimes against humanity (extermination and murder) based upon his participation in the killing of Tutsis in April and May 1994. The Trial Chamber found him guilty of one count of genocide and both counts of crimes against humanity. He was acquitted on the complicity in genocide charge, which was an alternative to the genocide count. The Trial Chamber sentenced Karera to life imprisonment.

Clark: Domesticating Sole Executive Agreements

Bradford R. Clark (George Washington Univ. - Law) has published Domesticating Sole Executive Agreements (Virginia Law Review, Vol. 93, p. 1573, November 2007). Here's the abstract:

At a time when many question the wisdom and constitutionality of unchecked executive power, the Supreme Court has recently recognized virtually unlimited presidential power to make “sole executive agreements” with the force of federal law. Although such agreements with foreign nations are neither approved by the Senate as a “Treaty” nor enacted by Congress as a “Law,” the Court has asserted that they are generally “fit to preempt state law, just as treaties are.” To be sure, Presidents have long used sole executive agreements as a means of implementing their underlying constitutional and statutory authority. The Court’s novel conception of such agreements as an independent source of federal power, however, is in tension with the Supremacy Clause, which recognizes only the “Constitution,” “Laws,” and “Treaties” of the United States as the supreme law of the land. Significantly, each of these sources of law must be adopted by the Senate acting in conjunction with one or more additional actors. Allowing the President to use sole executive agreements to override preexisting legal rights circumvents the political and procedural safeguards built into the Constitution. The Court has attempted to justify its novel approach by invoking two well-known historical precedents: executive agreements settling claims by U.S. nationals against foreign sovereigns, and an executive agreement recognizing the Soviet Union and assigning its claims against U.S. nationals to the United States. Taken in historical context, however, neither precedent supports a freestanding presidential power to make sole executive agreements with the force of federal law.

Cogan: Competition and Control in International Adjudication

I have posted my essay Competition and Control in International Adjudication (Virginia Journal of International Law, forthcoming). Here's the abstract:
This Essay takes issue with the standard view among international law and international relations scholars that States have sufficient and effective tools to constrain international courts. Like international organizations generally, international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their mandates or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates. It also makes States more likely not to consent ex ante to the jurisdiction of international courts, to withdraw from the jurisdiction of courts to which jurisdiction they had previously consented, and to disobey judicial decisions. In other words, weak judicial control mechanisms create weak dispute resolution mechanisms. This is not optimal, as the international system needs greater not fewer opportunities for peaceful dispute settlement. In order to strengthen international courts, we need to think anew about how best to maintain control over them. The answer, though, is not, as some would have it, to decrease judicial independence by increasing direct State control. Instead, this Essay argues that increasing competition among international courts will more effectively constrain international judicial power and, consequently, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better - and perhaps convergent - decisions. Therefore, in contrast to the received wisdom that international courts, as they proliferate, should be more respectful and deferential to each other, this Essay claims that such system-protective doctrines are counterproductive. Instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.

New Issue: Vereinte Nationen

The latest issue of Vereinte Nationen (Vol. 55, no. 5, 2007) is out. Contents include:
  • Anja Papenfuß, Editorial: Gute Nachrichten aus New York
  • Thorsten Benner & Philipp Rotmann, Operation Blauhelmreform. Ban Ki-moons umstrittener Umbau der Hauptabteilung Friedenssicherungseinsätze
  • Waldemar Hummer & Jelka Mayr-Singer, Wider die Straflosigkeit. Das Internationale Übereinkommen zum Schutz aller Personen vor dem Verschwindenlassen
  • Anja Titze, Die Vereinten Nationen und indigene Völker. Zu Entstehung und Gehalt der Erklärung der Vereinten Nationen über die Rechte der indigenen Völker
  • Stephan Rößler, Architektur und Politik. Vom Völkerbundpalast zum Entwurf für einen Neubau am UN-Amtssitz

Sunday, December 16, 2007

Ecuador's Notification Pursuant to Article 25(4) of the ICSID Convention

On December 4, 2007, the Secretary-General of ICSID received a notification under Article 25(4) of the ICSID Convention from the Republic of Ecuador. Article 25(4) of the Convention provides that a "Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre." Ecuador's notification indicated that it would not consent to ICSID arbitration of disputes pertaining to investments in natural resources, such as oil, gas, and minerals. Ecuador had recently enacted a royalty tax on hydrocarbon investments, and it clearly envisages challenges to that law. Ecuador's actions are part of a wider dissatisfaction among some Central and South American countries with international investment law and particularly its dispute settlement regime. Bolivia, for instance, withdrew from the ICSID Convention earlier this year, and Venezuela and Nicaragua have also indicated that they may do the same. Ecuador has threatened to revise certain bilateral investment treaties as well.

New Issue: Journal of World Investment and Trade

The latest issue of the Journal of World Investment & Trade (Vol. 8, no. 5, October 2007) is out. Contents include:
  • Okezie Chukwumerije, Interpreting Most-Favoured-Nation Clauses in Investment Treaty Arbitrations
  • Mahmoud K. EI Jafari, Possibilities of Promoting Employment and Trade undre Siege: The Case of the Euro-Palestine
  • Zeng Huaqun, Partnership and Cooperation "One China, Four WTO Memberships": Legal Grounds, Relations and Significance
  • Tarcisio Gazzini, The Role of Customary International Law in the Field of Foreign Investment
  • Ursula Kriebaum, Regulatory Takings: Balancing the Interests of the Investor and the State
  • Jacques Werner, The Global Arbitrators

R (on the application of Al-Jedda) v. Secretary of State for Defence

On December 12th, the House of Lords issued its judgment in R (on the application of Al-Jedda) v. Secretary of State for Defence. The appellant is a U.K. and Iraqi national who has been held without charge by British authorities in Iraq since October 2004. He claimed that his detention violated the Human Rights Act 1998 and the English common law. British authorities claimed that he "was suspected of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq . . . [that he was] personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against coalition forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high tech detonation equipment into Iraq for use in attacks against coalition forces." The appellant denied these claims. This appeal, though, did not pertain to these allegations.

The House of Lords distinguished three questions on appeal. First, was the U.K. government liable for the appellant's allegedly wrongful detention or was the United Nations the responsible party because the impugned acts were attributable to the organization as a result of Security Council resolutions authorizing the Multinational Force in Iraq? Second, are British obligations under the European Convention on Human Rights qualified by those that arise under the U.N. Charter, particularly relevant Security Council resolutions? Third, what law applies to the appellant's detention, English common law or Iraqi law? The principal opinions were given by Lord Bingham of Cornhill and Lord Rodger of Earlsferry. On the first question, the Lords of Appeal (Lord Rodger, dissenting) found that the allegedly wrongful conduct was attributable to the United Kingdom and not the United Nations. The majority distinguished the admissibility decision of the Grand Chamber of the European Court of Human Rights in Behrami v. France, Saramati v. France, Germany and Norway (Application Nos. 71412/01 and 78166/01, May 2, 2007), which attributed the acts of KFOR to the United Nations and not to the individual countries that contributed forces to that mission. On the second question, all five Lords of Appeal found that the United Kingdom's obligations under the European Convention had to be limited by those due under the Charter. In this case, Lord Bingham wrote, the United Kingdom had the authority to detain the appellant, but, even so, it "must ensure that the detainee's rights under Article 5 [of the European Convention] are not infringed to any greater extent than is inherent in such detention." On the third question, the Lords of Appeal agreed that Iraqi tort law governed.

This case is interesting, of course, in its own right, but it has particular resonance given the Supreme Court of the United States's recent cert. grants in Munaf v. Geren (No. 06-1666) and Geren v. Omar (No. 07-394). For the opinion of the D.C. Circuit in Munaf, the petition for certiorari, and the brief in opposition to the petition, see here. For the same for Omar, see here.

Saturday, December 15, 2007

ITLOS: Wolfrum's Statement to the General Assembly

On Monday, December 10th, International Tribunal for the Law of the Sea President Rüdiger Wolfrum addressed the General Assembly on its agenda item "oceans and the law of the sea." (Statement here; ITLOS press release here; UN meeting report here.) Judge Wolfrum's statement, for the most part, recited, in the standard fashion of such addresses, the activities of the Tribunal during the past year. He reserved for the last part of his talk, interestingly, a discussion of why the Tribunal should be the preferred dispute resolution mechanism of parties to the Law of the Sea Convention and other international agreements. The ITLOS is hardly swamped with business, and clearly Judge Wolfrum is attempting to convince States to send their disputes to the Tribunal and not to its competitor fora, such as the International Court of Justice and arbitration. I'll have more to say about competition in international adjudication next week once I post an essay of mine that is forthcoming in the Virginia Journal of International Law. For now, here's the relevant excerpt from Judge Wolfrum's statement:

. . . The choice of procedure under article 287 of the Convention is of particular relevance as, apart from the Tribunal, there are two other compulsory procedures under the Convention, namely, the International Court of Justice and arbitration (Annexes VII and VIII). The default procedure is, however, arbitration. This explains why the provisional measures cases the Tribunal has dealt with under article 290, paragraph 5, of the Convention were the subject of subsequent proceedings before Annex VII arbitral tribunals. I refer to the Southern Bluefin Tuna cases, the MOX Plant case and the Land Reclamation case. In respect of these cases, the Tribunal has not only made a significant contribution to the development of environmental law but has also assisted the parties in resolving their differences. In this regard, allow me to quote from an article published by the distinguished Professor J.G. Merrills that [I quote] “it is clear that in all three cases the main substantive contribution came not from the Annex VII tribunal, supposedly there to determine the merits, but rather from ITLOS, exercising its incidental jurisdiction” [end of quote] [J.G. Merrills, The Mosaic of International Dispute Settlement Procedures: Complementary or Contradictory?, NILR, LIV (2007), pp. 361-393, at p. 381.]

Compared with an arbitral tribunal constituted to deal with a specific case, the Tribunal, as a permanent institution, has the advantage of ensuring consistency in the development of a coherent corpus of jurisprudence. May I add that, in my view, harmonization of international jurisprudence may be achieved only through permanent courts and tribunals. This should be borne in mind when States make their declarations on the choice of dispute settlement under article 287 of the Convention. In this respect, I should like to note that in 2007 one State Party, Trinidad and Tobago, made a declaration under article 287 by which it chose, in order of priority, the International Tribunal for the Law of the Sea and the International Court of Justice.

It may also be useful to observe that parties have the option for their dispute to be heard before an ad hoc special chamber, in accordance with article 15, paragraph 2, of the Statute. Parties may choose any of the 21 judges to sit in the chamber and may also appoint judges ad hoc if the chamber does not include a member of the nationality of the parties. Parties may also propose modifications and additions to the Rules of the Tribunal. Furthermore, parties do not have to bear the costs of proceedings. Indeed, access to the Tribunal and its facilities is not subject to any fees and is free to States Parties. Likewise, the remuneration of judges and Registry staff members is financed through the regular budget of the Tribunal and not by the parties to the dispute. This is particularly advantageous when all the costs relating to the functioning of an arbitral tribunal are taken into consideration (remuneration of arbitrators, registrar and registry staff members, rental of premises, and translation and interpretation services).

I should explain that the jurisdiction of the Tribunal is not limited to issues concerning the United Nations Convention on the Law of the Sea and that there are other possibilities which States Parties may use to confer jurisdiction upon it. A dispute may be brought before the Tribunal on the basis of any international agreement related to the purposes of the Convention which specifically confers jurisdiction on the Tribunal. A number of agreements have been concluded which contain provisions stipulating that disputes arising out of the interpretation or application of these agreements could be submitted to the Tribunal. A well-known example of such an agreement is the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995. It is worth noting that this Agreement extends mutatis mutandis the mechanism contained in Part XV of the Convention to any dispute between States Parties to this Agreement – whether or not they are also parties to the Law of the Sea Convention.

Recently, in May 2007, a new convention, the Nairobi International Convention on the Removal of Wrecks, was adopted at a diplomatic conference organized by the International Maritime Organization. This convention also contains a dispute-settlement clause that refers to Part XV of the Law of the Sea Convention. The inclusion of jurisdictional clauses of this nature is a useful development and I am therefore thankful to the sponsors of the draft resolution for having noted that States Parties to an international agreement related to the purposes of the Convention may submit to the Tribunal any dispute concerning the interpretation or application of that agreement which is submitted to it in accordance therewith.

Provisions conferring jurisdiction on the Tribunal may also be included in bilateral agreements. The Tribunal is the natural choice for States parties when they conclude a treaty relating to law of the sea matters, such as the laying of pipelines, the conservation and management of fisheries resources, marine scientific research, and the management of joint exploitation zones. In the case of agreements concluded by the European Community, the Tribunal is, in fact, the only permanent court available to the parties to the dispute.

Mr President, the Tribunal is thus prepared to discharge the functions entrusted to it by the Convention. . . .

Resolutions of Ratification: Tax Treaties with Belgium and Germany

On Friday, December 14, the Senate, by the requisite two-thirds vote of members present, agreed to the resolutions of advice and consent to ratification of: the Convention between the Government of the United States of America and the Government of the Kingdom of Belgium for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and accompanying Protocol, signed at Brussels on November 27, 2006 (Treaty Doc. 110-3); and the Protocol Amending the Convention between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital and to Certain Other Taxes, signed at Berlin on June 1, 2006 and an Exchange of Notes dated August 17, 2006 (Treaty Doc. 109-20). The resolutions of ratification contained no reservations, understandings, or declarations. The Senate Foreign Relations Committee favorably reported the treaties on October 31, following a hearing on July 17. The Committee submitted its reports on November 14.

Ndiaye & Wolfrum: Mensah Festschrift

Tafsir Malick Ndiaye (Judge, International Tribunal for the Law of the Sea) & Rüdiger Wolfrum (Judge, International Tribunal for the Law of the Sea) have published Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Martinus Nijhoff Publishers 2007). Contents include:

  • R.P. Anand, Towards a new universal international law: an Asian perspective
  • Laurence Boisson de Chazournes, Precaution in international law: reflections on its composite nature
  • Jutta Brunnée, International law and collective concerns: reflections on the responsibility project
  • Malgosia Fitzmaurice, The European Convention on Human Rights and Fundamental Freedoms and the Human Right to a Clean Environment: the English perspective
  • M.C.W. Pinto, Some thoughts on the treatment of inter-governmental organizations and their personnel
  • C.F. Amerasinghe, Reflections on the judicial function of international law
  • Anthony Aust, Peaceful settlement of disputes: a proliferation problem?
  • Julio Barboza, Provisional measures, or the dangers of being too exceptional
  • L. Yves Fortier, Entre l’arbre et l’ecorce (between a rock and a hard place): can international commercial arbitration deliver on environmental disputes?
  • Philippe Gautier, Environmental damage and the United Nations Claims Commission: new directions for future international environmental cases?
  • Maurice Kamto, Considerations actuelles sur l’inexecution des decisions de la Cour internationale de Justice
  • Vaughan Lowe, The interplay between negotiation and litigation in international dispute settlement
  • Tafsir Malick Ndiaye, La recevabilite devant les jurisdictions internationals
  • Francisco Orrego Vicuña, New issues in the settlement of disputes on international investments: the global reach of the role of dispute settlement
  • Philippe Sands, Litigating environmental disputes: courts, tribunals and the progressive development of international environmental law
  • Arthur Watts, Preparation for international litigation
  • Rüdiger Wolfrum, Taking and assessing evidence in international adjudication
  • Michael Wood, The selection of candidates for international judicial office: recent practice
  • Alan Boyle & Christine Chinkin, UNCLOS III and the process of international law-making
  • Jean-Pierre Cot, The law of the sea and the margin of appreciation
  • Edgar Gold, Fair treatment of seafarers in the event of a maritime accident: new international guidelines
  • Manos Jacobson, Uniform application of the international regime on liability and compensation for oil pollution damage
  • A.L. Kolodkin, Y.V. Bobrova, & G.G. Shinkaretskaia, Peaceful uses of the seas in the light of new challenges and threats
  • Djamchid Momtaz, La Convention sur la protection du patrimoine culturel subaquatique
  • Proshanto K. Mukherjee, The penal law of ship-source marine pollution: selected issues in perspective
  • Myron H. Nordquist, International law governing places of refuge for tankers threatening pollution of coastal environments
  • Peter H. Sand, Public trusteeship for the oceans
  • Louis Savadogo, La Charte africaine des transports maritimes: principes, regles et techniques
  • Budislav Vukas, Sea boundary delimitation and internal waters
  • Sam Bateman, The regime of the exclusive economic zone: military activities and the need for compromise?
  • Hugo Caminos, Categories of international straits excluded from the transit passage regime under part III of the United Nations Convention on the Law of the Sea
  • Andree Kirchner, The outer continental shelf: background and current developments
  • Rainer Lagoni, Offshore bunkering in the exclusive economic zone
  • W. Michael Reisman & Mahnoush H. Arsanjani, Some reflections on the effect of artisanal fishing on maritime boundary delimitation
  • Betsy Baker, States parties and the Commission on the Limits of the Continental Shelf
  • Rosalie Balkin, The rise and rise of IMO’s liability and compensation regimes
  • Agustin Blanco-Bazán, Suppressing unlawful acts: IMO incursion in the field of criminal law
  • William Edeson, Article XIV of the FAO Constitution, international legal personality and the Indian Ocean Tuna Commission
  • Moritaka Hayashi, Regional fisheries management organizations and non-members
  • Doris König, The EU directive on ship-source pollution and on the introduction of penalties for infringements: development or breach of international law?
  • Julian Roberts & Martin Tsamenyi, The regulation of navigation under international law: a tool for protecting sensitive marine environments
  • Tullio Treves, Some international law aspects of the use of vessel monitoring systems for preventing illegal unreported unregulated fishing
  • Jon M. Van Dyke, Allocating fish across jurisdictions
  • David Anderson, Article 283 of the United Nations Convention on the Law of the Sea
  • Nisuke Ando, The southern bluefin tuna case and dispute settlement under the United Nations Convention of the Law of the Sea: a Japanese perspective
  • P. Chandrasekhara Rao, Delimitation disputes under the United Nations Convention on the Law of the Sea : settlement procedures
  • Robin Churchill, From port to court state? International litigation as a possible weapon to combat sub-standard ships
  • Barbara Kwiatkowska, The 2006 Barbados/Trinidad and Tabago maritime delimitation (jurisdiction and merits) award
  • L.D.M. Nelson, The jurisprudence of the International Tribunal for the Law of the Sea: some observations
  • Shabtai Rosenne, Arbitrations under Annex VII of the United Nations Convention on the Law of the Sea
  • Donald R. Rothwell, The contribution of the ITLOS to oceans governance through marine environmental dispute resolution
  • Michael White, Prompt release cases in ITLOS
  • Charles E. Di Lea, International approaches to global environmental challenges
  • Christine Domince, The iron Rhine arbitration and the emergence of a principle of general international law
  • David Freestone, The establishment, role, and evolution of the global environment facility: operationalising common but differentiated responsibility?
  • Mojtaba Kazazi, The UNCC follow-up programme for environmental awards
  • Alexandre Kiss & Dinah Shelton Strict liability in international environmental law
  • Anthony Amos Lucky, The interest of Caribbean states in the nuclear age: with specific reference to Trinidad and Tabago
  • W. Paatii Ofosu-Amaah, Reflections on developing countries’ role in negotiating the pre-Rio Conference environment-related treaties: a proposal of action for enhancing their role and effectiveness

Friday, December 14, 2007

Bellinger: Lecture on International Dispute Resolution at the World Legal Forum

We noted earlier this week, the speech John B. Bellinger, III (Legal Adviser, U.S. Department of State) delivered at the Oxford Prisoners in War conference on Monday. Earlier that same day, in The Hague, Bellinger delivered a lecture on international dispute resolution at the World Legal Forum. Here's an excerpt:

The United States has particular reasons to seek peaceful and effective international dispute settlement. Few if any international disputes do not have an impact on our security, humanitarian, and economic interests. Thus, we rely heavily on international institutions and international law to find peaceful and effective resolutions to conflicts and disagreements.

But we also believe that successful dispute resolution requires that states be active and politically engaged in seeking a settlement. That is where I want to focus my remarks today. It is not enough to turn over a problem to international organizations and hope that after a time, a solution will emerge. Such formal resolution mechanisms have a vital role to play, and can be a decisive factor in resolving disputes. But especially in the most serious crises, there is no substitute for the application of political will and energy by states.

With respect to dispute resolution mechanisms, the United States has typically taken a pragmatic approach—using such mechanisms where they fit the problem and can advance the parties toward a resolution. Moreover, no one mechanism of dispute resolution is inherently superior to another. The United States has made use of a wide range of mechanisms—some within existing institutional frameworks, others wholly ad hoc—to try to address the critical peace and security problems of our time. In this respect, we have wholeheartedly embraced the perspective of Article 33 of the UN Charter, which suggests an array of resolution mechanisms to disputing parties.

Consistent with this approach, the United States has resorted to international courts and tribunals where they are likely to be most effective—for example, where they are tasked with enforcing a fairly specific set of obligations. This is evident in the United States’ strong support for the World Trade Organization, which has a dispute settlement mechanism tailored to address trade issues. In the last dozen years, the US and the EU have managed to resolve a number of trade disputes through the WTO—some affecting critical industries and involving billions of dollars, without resort to a damaging trade war.

Courts or tribunals can also be tailored to address specific political or security problems. Indeed, the very act of establishing a tribunal can take a particular issue off the table and make resolution of a broader dispute easier. The Iran-US Claims Tribunal, based here in The Hague, was created as part of an arrangement that resolved a major crisis and led to the release of the U.S. hostages. In a different vein, the Permanent Court of Arbitration, also here in The Hague, has provided a mechanism for states to reduce conflict by allowing resolution of disputes on an ad hoc basis.

More recently, the United States has firmly backed the Special Tribunal created, in accordance with UN Security Council Resolution 1757, to bring to justice those responsible for the murder of former Lebanese Prime Minister Rafik Hariri and others. Although deference to a state’s internal legal process is the norm, this was a case where that process was itself subverted by threats of violence and terrorism. We strongly hope that the Tribunal will ultimately punish those responsible for the assassinations and put to rest the resulting civil discord. And we also owe a note of thanks to the Dutch, who have kindly agreed to host the Special Tribunal.

By contrast, we have found it more difficult to reach political consensus for a single tribunal covering all manner of international law disputes. The International Court of Justice was meant to serve as the ultimate arbiter of most international law issues affecting the UN Charter. Although it has not achieved this lofty and difficult aspiration, we believe the court can play a constructive role in resolving international disputes. To be sure, the United States—like many countries—does not accept the mandatory jurisdiction of the ICJ. But we have nevertheless turned to the ICJ to address a number of disputes, including a longstanding boundary issue with Canada and Iran’s takeover of our embassy in Tehran in 1979. These cases allowed the ICJ to do what it does best: resolve a concrete dispute in light of well-developed international law.

We believe, however, that some look to courts and tribunals for more than they realistically can deliver, because they somehow regard them as the most authentic source of international law. Efforts to lure international courts and tribunals into choppier political waters can often prove embarrassing to those bodies. Justice Holmes of our Supreme Court once said, “Great cases, like hard cases, make bad law.” This is especially true of inherently political cases, which can strain the legitimacy of international legal institutions and undermine the capacity of those institutions to contribute to effective dispute settlement. A notable example is the ICJ’s advisory opinion process, which allows the court to opine on matters without full participation by all disputing parties and tends to cast the court in the role of arbitrating political conflict.

Despite these concerns, the United States believes that an effective ICJ is invaluable to advancing the rule of law and encouraging the peaceful settlement of international disputes. That commitment is evident in the Avena case, which President Bush has determined to enforce by instructing our states to provide new hearings to the 51 foreign nationals covered by the ICJ
order. This has been deeply controversial in the affected states, and there has been strong resistance to the President’s actions. But we remain committed to complying with the ruling, and have asked our Supreme Court to give full effect to the President’s decision.

But I want to leave international courts and tribunals to the side for now, and focus my remaining time on other mechanisms of dispute settlement. Most international disputes do not end up in court. Instead, they are managed by the international community, and often resolved, through many other formal and informal mechanisms. One such mechanism is the process of consultation and confidence-building that can prevent mutual suspicion from developing into full blown disputes. Another is the ongoing monitoring and negotiation, which can help resolve a dispute that has already taken concrete shape. The distinctions between these mechanisms of dispute settlement are not always clean: a single international institution might engage in each of these forms of dispute settlement, depending on the nature of the problem. But we believe these various mechanisms are different tools in the lawyer and policymaker’s toolbox, and which one is best typically depends on the problem to be solved. . . .

International disputes can be handled through formal or informal frameworks of negotiation and mediation. The United States supports many organizations that offer formal frameworks for resolving disputes at an early stage. US border issues with Canada and Mexico have long been managed by international commissions, which address not only issues related to the actual borders, but also water use, navigation, and environmental disputes. In addition, the United States has supported the work of the NAFTA Free Trade Commission in addressing trade-related disputes through non-binding mechanisms before those disputes reach arbitration.

But we believe that informal negotiation and mediation—where states must engage and real political effort must be expended—are often the best way to address the most serious international disputes. Such disputes never invite neat solutions, and effective settlement is mainly a political problem. . . .

In closing, I wish to reiterate that the United States is firmly committed to UN Charter principles for resolving international disputes peacefully. We are not wedded to any particular theory of how that should be done. Instead, we believe in a pragmatic approach, and believe in the need to rely upon whatever mechanism can best reduce, manage, or resolve disputes. International law—the Charter in particular, with its purpose of “maintain[ing] international peace and security”—expects states to do exactly this.