International Law Experts Research Articles

Review Essay of Forging a Convention for Crimes Against Humanity, by L. Sadat, Ed, (New York, NY: Cambridge University Press, 2011)

Forging a Convention for Crimes against Humanity includes the text of the Proposed International Convention on the Prevention and Punishment of Crimes against Humanity, an account of the historical development of the Proposed Convention, and 15 scholarly papers by leading experts in international criminal law. The papers were initially presented and discussed at a conference held at the Washington University School of Law on 13 and 14 April 2009. They range in focus from technical discussions of specific legal issues to analyses of earlier codifications and definitions of crimes against humanity in the Rome Statute of the International Criminal Court (ICC) and in the statutory laws of the ad hoc tribunals. In general, this is an outstanding and thought provoking work that will be an essential reference to academics, legal scholars, practitioners, human rights advocates, and those who are engaged in the study and promotion of international criminal law.

New Possibilities for Argumentation in International Labour Law and Corporate Liability Coming Up?

Discussion of the (pending) Schlecker-case (C-64/12). The Schlecker case is of importance for experts in international labour law, but possibly also for those who are concerned with Transnational Corporate Social Responsibility and, more generally, with the possible contribution of PIL to Social Justice.

Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights

On 28 September 2011, at a gathering convened by Maastricht University and the International Commission of Jurists, a group of experts in international law and human rights adopted the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. The experts came from universities and organizations located in all regions of the world and included current and former members of international human rights treaty bodies, regional human rights bodies, and former and current Special Rapporteurs of the United Nations Human Rights Council.

Human Rights Norms for a Globalized World: The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights

AbstractThe Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights were adopted on 28 September 2011 by leading experts in international law and human rights. The Maastricht Principles enunciate the parameters within which extraterritorial obligations must be discharged. Economic globalization fosters an accountability gap and has made evident an imbalance between the scope of influence of states and the way in which their legal responsibility is defined. Still, the extraterritorial dimensions of economic and social rights have been approached by courts and human rights expert bodies in a largely ad hoc fashion. By authoritatively bringing together the requirements of international human rights law in this fast‐evolving area, the Principles should contribute to reconciling the human rights duties of states with globalization.

Defining International Law Librarianship in an Age of Multiplicity, Knowledge, and Open Access to Law

Many law librarians are experts in international law and legal research. The concept of ‘international law librarianship,’ however, encompasses something more than a field of study in which a group of experts practice their profession. In the broader sense, the idea suggests a common calling, similar interests, and goals shared by librarians with a range of specialties beyond international law, working in all types of law libraries. What commonalities create and sustain the concept of international law librarianship? This paper suggests that they can be found in: law librarians’ common need to respond to the ‘multiplicity’ of information sources facing twenty-first century legal researchers; the development and nurturing of a shared base of professional knowledge; and a common commitment to work toward ensuring free and open access to legal information globally.

Legislative Attack

Israel’s 22-day attack on Gaza in December 2008—January 2009 exposed a paradox: the attack was not only one of the most violent and destructive of Israel’s recent wars on the Palestinians and the one most strongly opposed by its critics, but also the one in which Israeli experts in international humanitarian law (IHL) — the area of the law that regulates the conduct of war — were most closely involved. The article demonstrates how these facts are connected.

Pathfinder on International Investment Law and Alternative Dispute Resolution Web-Based Resources

This pathfinder is intended to assist government officials, investors, practitioners, arbitrators, scholars, and other stakeholders in locating literature on the dialogue of international investment law and dispute resolution. This document covers online resources useful in promoting collaborative relationships among experts in international investment law and dispute resolution. Primary international investment law materials include multinational and bilateral investment and trade agreements, as well as domestic laws and regulations of foreign investments made in other countries. Traditional topics of interest under international investment law include tax, antitrust, securities, corporate, environmental, and labor laws. Arbitration is a dispute resolution process typically conducted in a non-judicial setting. As a general concept, alternative dispute resolution is broadly construed to include negotiation, mediation, conciliation, and arbitration. These techniques are not considered to be mutually exclusive and one or more techniques may be used in sequence or as part of a combination. The process is simple and traditionally governed by the rules of a neutral arbitration organization selected by the parties or an agreement administered by a panel of arbitrators agreed upon by the parties. Confidentiality requirements are often included. The presence of confidentiality requirements can limit access to information. The large number of dispute resolution institutions adds a complexity to locating certain information on awards. This paper presents selected resources in the areas of international investment law and dispute resolution, including the following categories: locating literature and resources; organizations, associations, societies, and institutions; arbitration; rules; news services, discussion lists and blogs; resources regarding conventions, treaties, cases, and awards; other web resources; specialized journals; resource guides, pathfinders and annotated bibliographies; and UNCTAD. Resources available solely in print and resources the scope of which is limited solely to an individual nation are excluded as beyond the scope of this document.

Under What Circumstances May the OAS Apply the Democracy Clause to a Member State?

The three categories of events that should grant the activation of the democracy clause and, eventually, lead to the suspension of a member state from its participation in the various organs of the OAS are: (1) the forcible overthrow of a democratically constituted government; (2) the unconstitutional interruption of the democratic order; or (3) the unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state. Although both the Charter of the OAS and the Inter-American Democratic Charter fail to explicitly define the circumstances that qualify as a “forcible overthrow,” an “interruption of the democratic order,” or an “alteration that seriously impairs the democratic order,” academic studies by international law experts and scholars in the field of the inter-American system for the protection of democracy provide insight into specific events that fit within the scopes of these phrases. Drawing from these academic works, the events that can lead to the suspension of a government from the OAS can be divided into three subcategories within a continuous spectrum. On one end of this spectrum, we find the circumstances constituting those scenarios that can be classified as a “coup-d’etat;” next, we find the circumstances resembling coups, called “coup-like situations;” and thirdly, at the other end of the spectrum, we find the circumstances constituting gradual, sustained, or systematic erosion of the essential elements of democracy.

Expanding the NAFTA Chapter 19 Dispute Settlement System: A Way to Declaw Trade Remedy Laws in a Free Trade Area of the Americas?

Chapter 19 of the NAFTA transfers judicial review of U.S., Canadian, and Mexican government investigations under the controversial anti-dumping and countervailing duty (AD/CVD) laws from national courts to binational panels of private international law experts. The system stands as a unique surrender of judicial sovereignty to an international body, a hybrid of national courts and international dispute settlement with as yet no parallel in the world of international trade or other international law regimes. Binational panel decisions have been controversial because agencies chafe at their intimate examination of agency findings and supporting evidence. Panels also are viewed as substantially more likely to overturn agency conclusions than national courts. Given the record of chapter 19 NAFTA panels, the paper examines whether the system created to fill a unique need among the NAFTA parties may have broader utility, albeit one perhaps less true to its original purpose. U.S. recalcitrance on proposed changes to its AD/CVD laws (and its agricultural subsidies) were the principal reasons that Brazil forced Free Trade Area of the Americas (FTAA) talks onto the back burner to await the Doha Round results on these issues. The United States is unlikely to condone major changes to the WTO Anti-Dumping and Subsidies Agreements, which will become the final sticking point for reaching agreement after members resolve the agriculture issues now blocking conclusion of the Doha Round of multilateral trade negotiations. Thus, trade remedies will again surface as major issues once FTAA talks resume. Studies indicate that binational panels reverse agency decisions at a greater rate than national courts and that existence of the system has reduced the rate of filing of industry requests for AD/CVD investigations. Rather than attempting to finding an elusive middle ground of substantive revisions to these laws, might changing the method of review of agency determinations furnish a missing piece in the puzzle of FTAA negotiations? Although Brazil's (and other FTAA country) officials may at first glance see nothing in a Chapter 19 process that addresses their substantive AD/CVD conflicts with the United States in such cases as orange juice and steel, reflection may reveal that Chapter 19 has demonstrated yet again what good lawyers have always known, that procedure can become substance in the twinkle of an eye. In short, more than one way exists to reduce the trade-restricting effect of U.S. AD/CVD investigations. Improvements would have to be made, including introduction of an automatic and effective right of appeal whose absence arguably undercuts the credibility of the process by awarding enormous power to panels. Adoption of a system such as NAFTA's chapter 19 on a 34-nation basis not only may ameliorate long-intractable conflicts over trade remedy laws, but implementation of such a system also will have substantial positive effects for civil society in general. Dispute settlement systems promote timeliness, inclusive record keeping, and impartiality in the administrative decisional process. They improve governmental accountability on several levels. By improving participation of all levels of society in their governance, international trade dispute settlement systems strongly promote the rule of law.

Marine Technology, Oceanic Research Activities and Their Integration into the General Framework of International Law

Marine technology is a fundamental component in the conduct of oceanic research activities. This article focuses on three oceanic research activities—ocean exploration, outer continental shelf delimitation and operational oceanography—that provide important benefits to all societies and yet are not well known by the general public. It is suggested that the peripheral status of these activities, by contrast with research impinging on marine mammals, is due to the absence of international disputes since the end of WWII involving oceanic research. This positive development, however, is offset by the development of the law governing oceanic research activities away from a body of legal experts in international law. The marginal regulation of ocean exploration, outer continental shelf delimitation and operational oceanography suffers from definitional, fragmentation and complementarity defects, as well as from the absence of a case law in the field that could assist the international judicial and legal professions, as well as policymakers, oceanographers, and law enforcement agencies in ensuring a greater degree of legal certainty, predictability, and security in the face of important new expansionary claims and new technologies.

Comment on Niels Petersen – A Democratic Union: Coherent Constitutional Principle or Prosaic Declaration of Intent?

First, it should be noted that there is a clear tension between democratic principles and strengthening the process of European integration. We should also bear in mind that until recently the notion of democracy was not solely associated with the functioning of international institutions, even though many of them include parliamentary bodies. Instead, it was only in the last decades of the 20th century that the democratic way of thinking entered into international relations. Despite this development, many international law experts either deny the possibility of introducing democracy in international institutions or simply pass over the issue.1

Oklahoma court of Criminal Appeals: Osbaldo Torres V. The State of Oklahoma

Osbaldo Torres was tried by jury, convicted of first degree murder and other charges, and received the death penalty in the Oklahoma County District Court, Case No. CF-1993-4302. This Court affirmed Torres's conviction for murder, and the United States Supreme Court denied Torres's petition for certiorari. This Court denied Torres's first Application for Post-Conviction Relief on August 4,1998. Torres's application for federal habeas relief was denied. This Court subsequently denied Torres's second Application for Post-Conviction Relief. Torres's execution date is set for Tuesday, May 18,2004. On April 29,2004, Torres filed a Subsequent Application for Post-Conviction Relief. The State filed a Response on May 11,2004. Briefs were also filed on behalf of amici curiae the Government of the Republic of Mexico and international law experts and former diplomats.

The Chinese (Broken) U‑shaped Line in the South China Sea: Points, Lines, and Zones

Introduction Since the emergence of international law in relation to land, air(space), and sea, points (or dots, dian), lines (xian), and zones (or planes, mian or qu), both real and imagined, have become of vital importance. The relation of points, lines, and zones is governed by the laws of geometry: two connected points make one line, at least two points are needed to draw a line, and a minimum of one line is required to form a zone. In legal maritime parlance, points can be labelled basepoints or trijunction points (among other things). The description of lines is quite complex, ranging from the general: baselines, straight lines, agreed closing lines, (1) and thalweg lines (imaginary lines along the deepest part of the main channel of, for example, a river); to the specific: for example, the Green Line separating East and West Beirut in Lebanon, or the Mogadishu Line (in existence since early 1993), or the Attila Line dividing the Turkish Cypriot Zone in the north of Cyprus Island from the southern Greek Cypriot Zone, or the unilateral North Limit Line between North and South Koreas, or the Line of Control in disputed Kashmir (between India and Pakistan). Lines can also become maritime zones of one kind or another: the coastal zone, for example, which is not defined in the April 1982 United Nations Third Convention on the Law of the Sea (hereinafter 1982 Law of the Sea) and which suggests that the 1982 Law of the Sea has ambiguities and legal loopholes. This article focuses on the Chinese (broken) U-shaped line. This line is the traditional Chinese maritime boundary in the South China Sea (SCS), the fifth largest body of water on earth, and it intersects waters off four Southeast Asian countries. The first section discusses the positive and negative aspects of this line, while considering some other points of interest that are more ambivalent. The second section examines the relationship between the U-shaped line and other maritime concepts. It should be noted at the outset that this author is of the view that, due to the lack of an effective form of world government, which could enforce international law and punish culprits, politics of one kind or another dominates in the international arena. War may also follow political struggle. Many experts in international law concede that political will, among other things, is necessary to resolve legal disputes at sea, especially in view of the fact that there has been no consistent pattern of human behaviour in this area. It can, therefore, be argued that it is generally brute (political and/or military) force, not international law, which determines the fate of points, lines, and zones at sea; and that this will be the case for at least the next few decades. (2) A good example of this is what is happening to Huangyan Dao (also known as Democracy or Scarborough Island), which is part of the Zhongsha Island Group (Macclesfield Bank). (3) Until recently, the fate of this island has been immaterial to most Chinese and foreign experts, because (as Chiu Hungdah observes) the Zhongsha is submerged and, therefore, according to international law, both Taiwan and mainland China cannot say that they possess it. (4) Nevertheless, in what can be described as an act of gerrymandering, Beijing has laid claim to Huangyan Dao, incorporating it as part of the Zhongsha Island Group. This act can, from the Chinese point of view, be compared with the appropriation of Hawaii by the United States. The example of Huangyan Dao, must, however, be seen in the context of the Chinese (broken) U-shaped line, which will be discussed in detail below. The U-shaped Line I shall begin by discussing the genesis (5) of the U-shaped line, which was first delineated by Hu Jinjie, a Chinese cartographer, in December 1914, after the Republic of China's recovery, in October 1909 (according to the Chinese lunar calendar), of the Dongsha (or Pratas) Island Group from Imperial Japan. …

CHANGING THE RULES FOR NAFTA DISPUTES

THE NORTH AMERICAN FREE TRADE Agreement isn't simply about opening the borders of Canada, Mexico, and the U.S. to increasing flows of goods. NAFTA also includes a provision that corporations are using to challenge—and to get compensation for—a variety of laws and rules seen as hurting their investments. Some disputes under this provision involve chemical producers contesting environmental regulations. But both the procedure by which these investment cases are processed and the fact that this provision of NAFTA has been used to challenge environmental laws are under attack. The disputes have been resolved behind closed doors by a panel of three arbiters who are experts in international law. One arbiter is selected by the company bringing the case and one by the government defending its policy. The third is chosen jointly by the two parties. The NAFTA governments had given tribunals no direction on whether the arbiters should accept arguments, called friend-of-the-court briefs, from parties ...

Influenza as a bioweapon

Influenza as a bioweapon

The Self-Defeating International Criminal Court

Great expectations greeted the opening of the International Criminal Court (ICC) on July 1, 2002. Kofi Annan captured these expectations when he expressed the hope that the new ICC would deter future war criminals and bring nearer the day when no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity.' Chris Patten, the European Union Commissioner for External Relations, echoed this theme when he stated that the new Court's purpose was to ensure that genocide and other such crimes against humanity should no longer go unpunished.2 Scores of other world officials, human rights activists, and international law experts made similar predictions. These are unrealistic dreams. They are unrealistic for many reasons. But perhaps the most salient reason is that the ICC as currently organized is, and will remain, unacceptable to the United States. This is important because the ICC depends on U.S. political, military, and economic support for its success. An ICC without U.S. support -and indeed, with probable U.S. opposition-will not only fail to live up to its expectations. It may well do actual harm by discouraging the United States from engaging in various human rights-protecting activities. And this, in turn, may increase rather than decrease the impunity of those who violate human rights. I lay out the mechanisms of ICC futility and perversity as follows. Part I shows why the ICC will be incapable of punishing serious human rights abusers. Part II shows how the ICC will likely lead to less rather than more punishment for human rights abusers. Part III asks why the ICC framers might have designed a self-defeating institution. The Conclusion qualifies the analysis and points to larger lessons.

The limits of unilateralism from a European perspective

Unilateralism' is a sensitive issue in Europe. However, it is ill-defined and a serious effort is required to define this term of art. It needs to be contrasted to terms such as 'multilateralism', 'bilateralism', and 'international cooperation'. Moreover, the term 'unilateralism' is closely tied to the territorial limitations of state jurisdiction. This article focuses on the limits of unilateralism without denying that there may be exceptional instances where unilateral action in the above sense cannot be avoided. One of the most problematic categories of state action in terms of 'unilateralism' and 'extra-territoriality' appears to be that where a state (ab)uses a trade measure in order to exercise coercion or pressure on another state or its citizens with the purpose of 'convincing' that state or its citizens to take action outside the territorial jurisdiction of the former state. The European approach to unilateralism is characterized by extreme prudence and limited flexibility with regard to attempts by individual states to usurp the role of 'world policeman'. There can be no doubt that the issue of 'unilateralism' has recently gained increasing attention in international relations, specifically though not exclusively between the United States and Europe. A symposium bringing together legal experts from the United States and Europe is thus a welcome opportunity to set the record straight on a number of concepts and potential misunderstandings that have led to tensions and irritations which we would hope to be able to reduce in the future. The multiple contact points between Europe and the United States, for instance in the context of the New Transatlantic Agenda and the Transatlantic Economic Partnership, provide ample opportunity to discuss and, hopefully, prevent irritations about each other's policy and concepts on a broad basis, but must be accompanied and stimulated by a thorough debate between experts in international law and international relations. When talking about 'unilateralism', it is crucial to understand clearly what this is all about. I am aware that there is no internationally agreed definition of this somewhat provocative term, and I will thus attempt to clarify the debate in suggesting

Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights

Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights Cees Flinterman (bio), Scott Leckie (bio), and Victor Dankwa (bio) I. Introduction In 1986 the International Commission of Jurists, the Maastricht Centre for Human Rights of the University of Limburg (the Netherlands), and the Urban Morgan Institute for Human Rights, College of Law, University of Cincinnati (Ohio, USA) convened a group of distinguished experts in international law to consider the nature and scope of the obligations of state parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR). 1 This meeting (which was attended, among others, by some members of the then newly constituted ECOSOC Committee on Economic, Social and Cultural Rights and by staff members of the United Nations and Specialized Agencies) resulted in the adoption of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights. At the initiative of the Netherlands government, these Principles have been issued as an official UN document; they have also [End Page 705] been published in the Human Rights Quarterly and in the Review of the International Commission of Jurists. 2 Over the past ten years economic, social and cultural rights have received more, although certainly not yet sufficient, attention at the international governmental level. The Committee on Economic, Social and Cultural Rights has played a most constructive role in this respect. Mention should also be made of the various studies in the field of economic, social and cultural rights undertaken by special rapporteurs appointed by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. In 1993, the Second World Conference on Human Rights in Vienna reaffirmed the universality, interdependence, and indivisibility of economic, social, cultural, civil, and political rights, and stressed the need for elaborating an Optional Protocol to the ICESCR. 3 In this respect also relevant is the comprehensive report of the Netherlands Advisory Committee on Human Rights and Foreign Policy on the issue of economic, social and cultural rights. 4 This report contains twenty-nine recommendations concerning, inter alia, economic, social and cultural rights in a UN context, in specialized UN organizations, and in regional organizations. It also submits some recommendations concerning certain fundamental questions, such as the relevance of an integrated approach to civil and political rights and economic, social and cultural rights. 5 The report was in general favorably received by the Netherlands government, except for the recommendation concerning the introduction of an individual and collective complaint procedure under the ICESCR. 6 The monitoring of the progressive realization of economic, social and cultural rights is extremely complicated and requires an enormous amount of good quality data. Some have expounded the view that economic and social indicators should be developed to assess progress in the realization of [End Page 706] economic, social and cultural rights. 7 It is certainly worthwhile to pursue this inquiry in light of the conclusions reached by a UN Seminar on Appropriate Indicators to Measure Achievements in the Progressive Realization of Economic, Social and Cultural Rights. This seminar concluded inter alia that it is necessary to develop new approaches in data collection, analysis, and interpretation, focusing on the status of the poor and disadvantaged groups but also disaggregating the data for a number of variables, including gender. 8 However, another potentially fruitful approach may be to focus on identifying violations enumerated in the ICESCR. The proposal to elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is based on the same premise. This proposal was submitted by the Committee on Economic, Social and Cultural Rights, the monitoring body under the ICESCR, and is now pending before the UN Commission on Human Rights. The Optional Protocol is intended to provide for a communications procedure concerning violations of all rights set forth in the ICESCR. 9 The Limburg Principles already made an early start in identifying the issue of violations of economic, social and cultural rights. 10 In a recent [End Page 707] article on a violations approach for monitoring the ICESCR, Audrey Chapman argued that it is time for NGOs, governments, and human rights monitoring bodies to reorient their work toward identifying and rectifying violations...

Harm to the environment: the right to compensation and the assessment of damages

This collection of essays by a group of international environmental law experts focuses on the growing and controversial international debate about environmental damage. Rules concerning liability and compensation come into play when administrative regulations have failed to prevent the occurrence of environmental damage. After such occurrence interest focuses upon the question of compensation either in the form of reinstatement of the environment or, if that is not possible or economically feasible, by making financial compensations. The essays in this volume address the current state of the law in the US and Europe and pose questions about its future development.

An international criminal tribunal: The difficult union of principle and politics

When the war criminal Adolf Eichmann was kidnapped from Argentina by agents of the state of Israel and forced to stand trial before an Israeli tribunal, world opinion was mixed. Almost everyone rejoiced that one of the most callous mass murderers of the twentieth century was finally being forced to take public responsibility for his crimes. However, it was also recognized that the Israeli government's action compromised another state's sovereignty and was itself probably unlawful.The Eichmann case illustrated a political and legal dilemma that has frustrated the development of international criminal law as a discrete discipline. Over the centuries, by custom and by treaty, rules governing the behavior of states and individuals in times of armed conflict have emerged as part of public international law. But one element was lacking: a means of enforcement. Heads of state and government policymakers, whether ruling as princes or as democratically elected representatives, have with few exceptions avoided responsibility for their conduct by claiming state sovereignty, knowing no international mechanism existed to call them to account. Until the twentieth century, the international community paid scant attention to the lack of an international forum to prosecute perpetrators of crimes against the international.After the second world war, the victorious Allies decisively brought key war criminals to trial in Nuremberg and Tokyo. These tribunals' jurisdiction extended to senior officials in the German and Japanese governments and went beyond traditional war crimes to include crimes against the peace and crimes against humanity. Although the Nuremberg and Tokyo trials generally accorded with accepted standards of procedural justice, they were tainted by the fact they were created by the victors and were widely perceived, by the vanquished at least, as the imposition of victors' law.The need to establish an independent international criminal tribunal with relatively broad jurisdiction was recognized by the United Nations early on. The goal of setting up such a court, which would have jurisdiction over individuals alleged to have committed a number of international crimes, has been championed by various intergovernmental and nongovernmental organizations, diplomats, and international law experts. Unfortunately, efforts have repeatedly foundered, with the issue resurfacing in an immediate way only in response to the ghastly events played out in the former Yugoslavia. Although there seems to be growing support for a permanent international criminal tribunal, the community of nations has no consensus on the range of offenses that would fall within its jurisdiction. Perhaps a permanent court will emerge in the near future, prompted finally by the tragedy of Yugoslavia and Rwanda.