International Law Prof Blog

Beyond Borders: Extraterritoriality in American Law

Southwestern Law School in Los Angeles will hold a program on November 12 on Extraterritoriality in American Law.  The program runs from 9 a.m. to 5 p.m. and they have an impressive lineup of speakers.  For more information, contact the Southwestern Law Review Office at (213) 738-6744.

(mew)

Comparative Law Works in Progress Workshop - Yale Law School

Tomorrow is the deadline for submitting papers for possible presentation at the 6th Annual Comparative Law Works in Progress Workshop, to be held at Yale Law School on February 11-12, 2011.  The program is intended to provide an opportunity to discuss scholarly work and allow comparative law scholars to exchange ideas for two days.

Hat tips to Jacqueline Ross, Kim Lane Scheppele, and James Q. Whitman

(mew)

ICJ President Provides Annual Report

On Friday, the President of the International Court of Justice, Judge Hisashi Owada, gave his annual report to the United Nations General Assembly.  In his address, he emphasized the important role of the court in contributing to respect for and development of the rule of law.  He also highlighted the court's increasing case load, with sixteen active cases this past year alone.  While that might not sound like a lot by the standards of domestic courts, it is a larger than usual number of pending cases at the ICJ.  President Hisashi Owada noted this positive development as a sign that more members of the international community are resorting to the court for peaceful dispute resolution.  Territorial disputes, which are the most common types of disputes the court hears, remained part of its docket.  But this year's docket also included disputes relating to diplomatic protection (Honduras v. Brazil), sovereign immunity (Germany v. Italy), environmental protection (Australia v. Japan), enforcement of commercial and civil judgments (Belgium v. Switzerland), and allegations of racial discrimination (Georgia v. Russia), among other issues.  The Court also issued its closely scrutinized advisory opinion relating to the legality of Kosovo's unilateral declaration of independence.  For more information regarding the ICJ's annual report, click here.

(cgb)

WTO Extends Elimination Period for Certain Developing Country Export Subsidies

Yesterday, the World Trade Organization (WTO) Committee on Subsidies and Countervailing Measures announced its decision to give 19 developing countries a bit more time to eliminate their prohibited export subsidies.  Under the WTO Subsidies Agreement, export subsidies are defined as financial contributions made by governments to specific industries that confer benefits contingent upon export performance.  The Committee extended by one year (until the end of 2011) the requirement under WTO rules that all export subsidies be eliminated.

The beneficiary countries are the following: Antigua and Barbuda, Barbados, Belize, Costa Rica, Dominica, Dominican Republic, El Salvador, Fiji, Grenada, Guatemala, Jamaica, Jordan, Mauritius, Panama, Papua New Guinea, St. Kitts and Nevis, St. Lucia, Saint Vincent and the Grenadines, and Uruguay.  The export subsidy programs primarily relate to free trade zones and tax incentives for exporters.

More information about WTO subsidy and CVD measures can be found here.

(cgb)

Friday Fun: So You Want to Go to Law School

An attorney asks questions of a woman who is thinking of going to law school . . . .

 

Hat tip to Deborah Borman

(mew)

Foreign Direct Investment

If you teach Foreign Direct Investment (FDI) in your international law, international business, or trade class, you will be happy to see a useful, four-page publication that describes the most recent global investment trends.  I think it would be a good handout (or link) for students.  It is published by the United Nations Conference on Trade and Development (UNCTAD).  Click here to see the latest issue.

Among the highlights of the latest issue:  FDI flows to the United Kingdom and United States were hit especially hard in the second quarter of 2010.  Developing and transistion economies experienced similar decreases in FDI inflows. But during the same period FDI flows to China increased by 20 percent.  The Russian Federation saw an increase of 30 percent. 

Click here to read more.

(mew)

 

2010 Corruption Perceptions Index

Yesterday, the nonprofit organization, Transparency International (TI), released its annual Corruption Perceptions Index (CPI) for 2010.  The CPI is a measure of domestic, public sector corruption defined by TI as "the abuse of entrusted power for private gain."  According to a TI press release, the "2010 CPI show that nearly three quarters of the 178 countries in the index score below five, on a scale of from 0 (perceived to be highly corrupt) to 10 (perceived to have low levels of corruption), indicating a serious corruption problem."  Somalia was rated as the most corrupt country with Afghanistan and Myanmar tying for second-to-last place.  On a more positive note, three countries, Denmark, New Zealand and Singapore, tied for the top spot as the least corrupt countries.  The United States fell from 19 (2009) to 22 (2010) in the CPI. 

The CPI is created using different assessments and business opinion surveys carried out by independent institutions.  Broadly speaking, the questions asked in these assessments and surveys relate to bribery of public officials, kickbacks in government procurement, embezzlement of public funds, and questions regarding the strength and effectiveness of public sector anti-corruption efforts.

TI recommends greater government commitment to anti-corruption, transparency and accountability.  As part of that effort, TI advocates stricter implementation of the UN Convention Against Corruption.  That Convention entered into force in 2005 and already has 148 States Parties.  For more information about the UN Convention Against Corruption, click here.

(cgb)

United States: OECD recognises anti-bribery enforcement and recommends enhancements

Transnational bribery enforcement under the U.S. Foreign Corrupt Practices Act (FCPA) has increased significantly since the last OECD evaluation of the implementation of the OECD Anti-Bribery Convention by the United States, according to a new OECD report. But effectiveness could also be enhanced, including by taking into consideration private sector views in the United States’ periodic review of its policies and approach on facilitation payments.
 
Since 2002, 71 individuals and 88 enterprises have been held accountable, criminally and civilly, for transnational bribery. The U.S. has also achieved record penalties for FCPA violations during this period, including, in one case, USD 800 million against a single company.

In the context of its regular cycle of reviews, the 38-country OECD Working Group on Bribery has just completed the first review of a new phase of peer review mechanism, evaluating the United States enforcement of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments.

In its report, the Working Group commended the United States for its engagement with the private sector, substantial enforcement, and commitment from the highest levels of the U.S. Government. In addition to the recommendation on facilitation payments, it also made recommendations that include the following on ways to improve U.S. enforcement:

• Consolidating publicly available information on the application of the FCPA, including the affirmative defence for reasonable and bona fide expenses;
• To increase transparency, making public, where appropriate, more information on the use of Non-Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs) in specific cases; and
• Ensure that the overall limitation period applicable to the foreign bribery offence is sufficient to allow adequate investigation and prosecution.

The Working Group also highlighted good practices developed within the U.S. legal and policy framework that helped it achieve such a high level of enforcement, including the creation of specialised enforcement units dedicated to foreign bribery, and the use of plea agreements, DPAs and NPAs and the appointment of corporate monitors. These efforts have also encouraged the establishment of robust compliance programmes and measures among companies subject to U.S. anti-bribery law. The Working Group also welcomed the United States’ efforts to encourage close co-operation between the United States and foreign authorities.

The report, available at www.oecd.org/daf/nocorruption, lists all of the recommendations adopted by the Working Group on Bribery, and includes an overview of enforcement actions and specific legal and policy features in the United States for combating the bribery of foreign public officials. The United States will make an oral follow-up report on its actions to implement certain key recommendations of the Working Group after one year. The United States will further submit a written report to the Working Group within two years, which will be the basis of a publicly available evaluation by the Working Group of the United States’ implementation of the recommendations.

(From the OECD)

ABA Section of International Law Meeting - Next Week, in Paris

The International Law Section of the American Bar Association holds its fall meeting next week in Paris.  Click here for more information including the daily program schedule and registration information.  See you there!

(mew)

Student Delegates to 9th ASP for International Criminal Court

The Council for American Students in International Negotiations (CASIN) invites student applications to attend the 9th Session of the Assembly of States Parties of the International Criminal Court a the United Nations Headquarters New York, NY, from December 6th 2010- December 10th 2010.

The Council for American Students in International Negotiations (CASIN) strives to deepen the commitment of American students to multilateral institutions through scholarship, discourse, and engagement in international policy. One of our key initiatives is to expose students to international diplomacy in action on a number of topics. At this conference, students will have the opportunity to observe proceedings of the Assembly of States Parties, the governing body of the International Criminal Court.

If you are interested in attending please contact Anna Sandor at anna.sandor [at] americanstudents.us or tanya [at] americanstudents.us> for further information and for the conference application, which is due on November 1, 2010.

The organization has other events during the year (not just at exam time!).  Students who are interested in attending future delegations should sign up to be a member of CASIN on our website (membership is free). 

Hat tip to Anna Sandor

(mew)

October 24 Is United Nations Day

Today, Sunday, October 24, 2010, marks the 65th anniversary of the signing of the United Nations Charter by 50 member states.  Since 1945, UN membership has grown to 192 states.  President Truman issued the first UN Day Proclamation in 1947 asking Americans to spend time on UN Day reflecting on the importance of the UN to U.S. national security and to individuals.  While the UN is sometimes criticized for its inability to prevent or stop armed conflict, it carries out important work on many fronts on a daily basis, including coordination of international travel, mail and telecommunications, promotion of international trade and development, protection of refugees, and development of international rules to protect individuals and the environment, among many other activities.

The theme of this year's UN Day is "Engaging America with the Millennium Development Goals."  The MDGs were adopted in 1990 and include the following goals:

1.    Eradicate extreme poverty and hunger

2.    Achieve universal primary education    

3.    Promote gender equality

4.    Reduce child mortality

5.    Improve maternal health

6.    Combat disease

7.    Ensure environmental stability

8.    Develop a global partnership for development

More details regarding the MDGs and the progress that has been made can be found here.

(cgb)

Sixth Annual Comparative Law Works in Progress Workshop

On February 11-12, 2011, Yale Law School will host the Sixth Annual Comparative Law Works in Progress Workshop. The workshop is being co-sponsored by the American Society of Comparative Law, Yale Law School, University of Illinois College of Law, and Princeton University, Program of Law and Public Affairs. The sponsors intend for the workshop to provide a forum for scholars to explore comparative law works in progress in a more serious and thorough manner than is usually available at most conferences. Up to six papers will be accepted for presentation and discussion at the workshop. The participants at the workshop will consist of the authors, one commentator on each paper, faculty members of the host institution, and others interested in attending. The papers will be distributed and should be read before the workshop. Time at the workshop will be used for critique and discussion. Interested authors should submit papers electronically to Jim Whitman at Yale by November 1, 2010. (cgb)

Man Dies While Being Deported

A few weeks before private security companies are scheduled to sign onto a voluntary code of conduct comes news today of a death onboard a flight of a man being deported from the United Kingdom to Angola.  He was in the custody of guards for a private security company, after his appeal to remain in the European country was rejected.

“I am disturbed at seeing the manner in which migrants are being treated, with no dignity at all, due to the criminalization of irregular migration which leads to such a situation,” said Jorge Bustamante, the UN Special Rapporteur on the human rights of migrants, in a statement.

Jimmy Mubenga, an Angolan national, reportedly died 50 minutes after boarding a British Airways flight at Heathrow airport in London on 13 October. He was reportedly surrounded by three guards working for G4S, a private security company, when he died.

“I hope the fact that British Airways staff responsible for safety and security on board did not intervene, despite numerous cries for help, is not a reflection of a growing indifference to the human rights of persons under custody of an authority,” Mr. Bustamante said.  He and the UN Working Group on the use of mercenaries both welcomed the UK Government’s probe into the incident.

(Adapted from a UN Press Release)

(mew)

International Law Weekend in New York City

 

 

 

 

On October 21-23, 2010, the American Branch of the International Law Association and the International Law Students Association will present the annual International Law Weekend (“ILW”) in New York, in conjunction with the 89th annual meeting of the American Branch.

ILW 2010 brings together hundreds of practitioners, professors, members of the governmental and non-governmental sectors and students. It will feature numerous panels, distinguished speakers, receptions, and the Branch’s annual meeting. ILW 2010 will take place at the Association of the Bar of the City of New York on October 21, 2010, and at Fordham University School of Law on October 22 and 23. The overall theme of ILW 2010 is “International Law and Institutions: Advancing Justice, Security and Prosperity.”

Click here to see the schedule for International Law Weekend.

Click here for more information about the American Branch of the International Law Association (ABILA).

Click here for more information about the International Law Students Association (ILSA).

(mew)

ABA Section of International Law

The American Bar Association Section of International Law will hold its Fall Meeting in Paris, France, November 2-6, 2010 at the Westin Paris Hotel. 

Section meetings provide a great opportunity for law professors and lawyers interested in the most cutting-edge issues of international law.  The official brochure for the 2010 Fall Meeting can be found by clicking here. For additional information, please go to the conference website by clicking here. 

(mew)

WTO Complaint Against China's "Great Firewall" Being Contemplated

The ABA Journal carried an interesting international trade-related story recently regarding rumors that the United States and the European Union are considering filing a complaint against China under the dispute settlement processes of the World Trade Organization (WTO) with respect to China's restrictions on Internet access.  Also sometimes referred to as the "Great Firewall of China," the restrictions prohibit the vast majority of persons in China from freely accessing websites outside of China and from obtaining what the Chinese government considers to be politically senstive information.

The theory is that the Great Firewall violates China's obligations under the General Agreement on Trade in Services (GATS) by discriminating against foreign companies that maintain websites.  Article II of GATS contains a "most favored nation" principle which requires WTO Member States "to accord immediately and unconditionally to services and service providers of any other Member treatment no less favorable than that it accords to like services and service suppliers of any other country."  Thus, if China allows a different level of access to different Internet websites, it may be violating this provision.  In addition, Article XVII of GATS contains a "national treatment" obligation, which requires China to accord services and service suppliers of other WTO Member States treatment no less favorable than treatment given to domestic Chinese service providers.  This obligation only applies to those services sectors for which China has made a specific service commitment, however.

There are several possible weaknesses with these legal theories.  First, there may not be discrimination in fact if China places the same restrictions on all websites.  Second, it is not clear whether China has made a specific commitment under GATS which includes Internet service providers. Third, China is likely to argue that any such discrimination qualifies for an exception under Article XIV of GATS because the restrictions are necessary to protect public morals or to maintain public order.  As previously reported on this blog, there have been a number of WTO challenges to Chinese law and practices in the last couple of years and China has been found in violation of its WTO obligation on more than one occasion.  Therefore, this may be a case to watch. 

(cgb) 

Call for Papers: Asian Journal of International Law

Cambridge University Press will publish the first issue of the Asian Journal of International Law (AsianJIL) in January 2011. It is the Journal of the Asian Society of International Law.  The Journal is now soliciting submissions for future issues. Articles should be between 8,000 and 12,000 words (excluding footnotes) and be submitted exclusively to the AsianJIL, with publication subject to double-blind peer-review and editorial discretion.

It publishes peer-reviewed scholarly articles and book reviews on public and private international law. The regional focus of the Journal is broadly conceived. Some articles may focus specifically on Asian issues; others will bring one of the many Asian perspectives to bear on issues of global concern. Still others will be of more general interest to scholars, practitioners, and policymakers located in or working on Asia.  The Journal is published in English as a matter of practical convenience rather than political endorsement. English language reviews of books in other languages are particularly welcomed.

For more details on style and the submission process, as well as information on how to subscribe, click here or visit www.AsianJIL.org,

(mew)

ICC Appellate Chamber Allows Trial of Thomas Lubanga Dyilo to Resume

The appeals chamber of the International Criminal Court reversed an earlier decision to suspend the case against a notorious Congolese warlord, ruling that his trial will resume.

In July, the Court’s trial chamber suspended proceedings against Thomas Lubanga Dyilo, founder and leader of the Union of Congolese Patriots in the Ituri region of the eastern Democratic Republic of the Congo (DRC), saying that prosecutors had refused orders to disclose information to his defence. It also ordered the warlord’s release.

Judge Sang-Hyun Song, who presided over the appeals, said that it is undisputed that the prosecution did not divulge certain information.  But he said that the trial chamber erred by immediately ordering the proceedings to stop without first imposing sanctions to ensure prosecutors complied with its orders.  “Sanctions are a tool for Chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having to have recourse to the drastic remedy of staying proceedings,” Judge Song stressed.

Mr. Lubanga Dyilo, whose trial at The Hague-based ICC began last January, stands accused of having committed, as co-perpetrator, war crimes of enlisting and conscripting of children under the age of 15 into the Patriotic Forces for the Liberation of Congo, and using them to participate actively in hostilities in Ituri district between September 2002 and August 2003.

The case was referred to the ICC by the Congolese Government in April 2004. Other suspects standing trial at the ICC for alleged offences committed within the context of the DRC conflict are Germain Katanga and Mathieu Ngudjolo Chui. Bosco Ntaganda has been indicted but remains at large. ICC investigations in the DRC are ongoing.

(From a UN Press Release)

Louis Henkin (1917-2010)

Louis Henkin was born in the year of the Russian Revolution.  He died last week after a rich and wonderful life.  He was a professor at Columbia Law School and chaired its Center for the Study of Human Rights.  He is widely recognized as one of the most important scholars in the field of international law and U.S. foreign policy.  He was a president of the American Society of International Law and the American Society for Political and Legal Philosophy.  And to all of us who knew him, he was an all around wonderful guy.

Here is some more information about Professor Henkin, provided courtesy of Columbia Law School:

Louis Henkin was a clerk to Judge Learned Hand and to Justice Felix Frankfurter. He served as the book review editor for the Harvard Law Review. After a period as consultant to the United Nations Legal Department, Professor Henkin served with the Department of State from 1948 to 1956 in the U.N. Bureau and in the Office of European Regional Affairs (NATO). He went on to represent the U.S. on the committee drafting the Convention on the Status of Refugees and to serve on U.S. delegations to the U.N. and to international conferences.

Professor Henkin then spent a year at Columbia from 1956-1957 as associate director of the Legislative Drafting Research Fund while writing his first book, Arms Control and Inspection in American Law. After five years as professor of law at the University of Pennsylvania, he became a member of the Columbia Law School faculty in 1962. Simultaneously, Professor Henkin was also a faculty member of the School of International and Public Affairs, as well as of the Political Science Department in Columbia's Graduate School of the Arts and Sciences. He was the Hamilton Fish Professor of International Law and Diplomacy. Later, Professor Henkin was the Harlan Fiske Stone Professor of Constitutional Law, a position he held until he was designated University Professor in 1981.

Professor Henkin divided his time and interests among constitutional law, international law, law and diplomacy, and human rights, and specialized in the legal aspects of American foreign relations and international and comparative human rights.

He held the position of chairman of the board of directors for the Columbia University Center for the Study of Human Rights. In addition, Professor Henkin was the founding chair and director of the Law School's Institute of Human Rights. In 1982, the Law School awarded him the Medal for Excellence and, in 1999, it honored him by establishing the Louis Henkin Professorship in Human and Constitutional Rights.

Professor Henkin held positions in numerous domestic and international governing bodies. He served as a U.S. member of the Permanent Court of Arbitration from 1963-1969, as well as a member of the Advisory Committee on International Law at the U.S. Department of State from 1967-69, 1975-80, 1993-2010. In addition, he was an adviser on the Law of the Sea from 1973-80; president of the American Society of International Law from 1992-94; co-editor-in-chief of the American Journal of International Law from 1976-1984; chief reporter of the American Law Institute's Restatement of the Foreign Relations Law of the United States (Third); a fellow of the American Academy of Arts and Sciences; and on the board of directors of Human Rights First. Professor Henkin was a member of the Institut de Droit International, the American Philosophical Society, and the Human Rights Committee pursuant to International Covenant on Civil and Political Rights.

Professor Henkin's publications include Law for the Sea's Mineral Resources (1968); The Rights of Man Today (1978); How Nations Behave: Law and Foreign Policy (1979); The International Bill of Rights (ed., 1981); The Age of Rights (1989); Constitutionalism, Democracy, and Foreign Affairs (1990); Constitutionalism and Rights: The Influence of the U.S. Constitution Abroad (coed., with Rosenthal, 1990); International Law: Politics and Values (1995); Foreign Affairs and the U.S. Constitution (1996); Human Rights (coed., with D. Leebron, G. L. Neuman, and D. Orentlicher, 1999); International Law: Cases and Materials (coed., 2001); among other numerous books and articles.

Professor Henkin earned a Silver Star for service in the U.S. Army during World War II.

(mew)

International Environmental Law: U.S. Government Certification of Mexico Sea Turtle Conservation and Shrimp Imports

The U.S. Department of State has certified Mexico under Section 609 of United States Public Law 101-162, a law that prohibits the import of shrimp and shrimp products harvested in ways that may adversely affect some sea turtle species. This certification is based on a determination that Mexico’s turtle excluder devices (TEDs) program is comparable in effectiveness to the U.S. program.

The United States and Mexico have been working in close cooperation on sea turtle conservation as well as a range of bilateral fisheries and marine conservation issues of importance to the two Nations. The Government of Mexico implemented a plan of action in the past several months to strengthen sea turtle conservation in its shrimp trawl fisheries. This plan of action represents significant improvements in the use of turtle excluder devices by its fishing industry. The U.S. government’s decision regarding Mexico’s certification means that wild-harvested shrimp from Mexico’s commercial trawl fisheries now may be imported into the United States.

The shrimp and shrimp products importation prohibition does not apply when the Department of State certifies to Congress that the government of the harvesting nation has taken measures to reduce the incidental taking of sea turtles in its shrimp trawl fisheries, such as through the use of turtle excluder devices (TEDs), or that the fishing environment of the harvesting nation does not threaten sea turtles. This law has proven to be an effective conservation method to protect endangered sea turtles species by encouraging foreign governments to regulate the use of well-designed and installed turtle excluder devices. Other countries are currently assessing TED technology and the United States assists those efforts through technology transfers and capacity building in the hope that more countries can contribute to sea turtle species recovery and be added to the certified list.

(Information provided by the U.S. State Department)