Showing papers in "American Journal of International Law in 2010"

The Copenhagen Climate Change Conference: A Postmortem

Abstract: Since the Kyoto Protocol’s entry into force in 2005, attention has focused on the question of what to do after 2012, when the Kyoto Protocol’s first commitment period ends. Should the Kyoto Protocol be extended through the adoption of a second commitment period, with a new round of emission reduction targets for developed country parties? And, if so, should a new agreement be adopted under the UN Framework Convention on Climate Change, which addresses the emissions of countries that either are not parties to Kyoto (the United States) or do not have Kyoto emissions targets (developing countries)? Or should a single new agreement be adopted that replaces the Kyoto Protocol and is more comprehensive in coverage, addressing both developed and developing country emissions?

Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States

Abstract: States entering into investment treaties establish dual roles for themselves as treaty parties (with an interest in interpretation) and actual or potential respondents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, investment tribunals often ignore the relevance and persuasiveness for interpretation of those parties� subsequent agreements and practice. The approach proposed here seeks to recalibrate interpretive power between states and tribunals by increasing consideration of such evidence.

Countering Piracy off Somalia: International Law and International Institutions

Abstract: Dealing with pirates off the coast of Somalia in the Gulf of Aden and the western Indian Ocean over the past two-plus years has highlighted the international law applicable to countering piracy at sea and the role of international institutions in that effort. This essay seeks to illuminate related issues with a view to improving counterpiracy action.

Interpreting Treaties for the Benefit of Third Parties: The “Salvors” Doctrine” and the Use of Legislative History in Investment Treaties

Abstract: In confrontations in particular disputes and especially in cases referred for third-party deci­ sion, it is common for one side to seek to overcome the prima facie “ordinary meaning” of a text by recourse to various supplementary means of interpretation. Because international deci­ sion processes are nonjury, the common law’s elaborate code regulating admissibility of evi­ dence has no analogue in international law; international courts and tribunals tend to allow the introduction of almost any material adduced by the parties but only occasionally to rely on it in their decision. Of late, however, there seems to be an increasing tendency for international investment tribunals to admit and rely on travaux preparatoires in their own treaty interpre­ tations. The ultimate ex cathedra endorsement of this trend by an especially distinguished group of jurists, whose imprimatur all but ensures its installation as a rule of international law, appears in a recent decision of an ad hoc committee operating under Article 52 of the ICSID Convention.1 In Malaysian H istorical Salvors v. G overnment ofM alaysia, which was decided on April 16, 2009, the ad hoc committee said, “In any event, courts and tribunals interpreting treaties regularly review the travaux preparatoires w h en ev e r they are brought to their attention; it is mythological to pretend that they do so only when they first conclude that the term requir­ ing interpretation is ambiguous or obscure.”2 We do not contest the accuracy of the ad hoc committee’s summary of trends in what we may call, for convenience, the “Salvors’ doctrine,” that is, the automatic admissibility and review of any travauxpreparatoires adduced by one or the other of the parties, without requiring a prior assertion, let alone decision, confirming the obscurity of the text or an ineluctably absurd reading resulting from the application of the method prescribed in Article 31 of the Vienna Convention on the Law of Treaties.3 Nor do we question that travaux are being con­ sulted only for the purpose of confirming the reasonable interpretation that the application of

Military lawyers on the battlefield: an empirical account of international law compliance

Abstract: This empirical study, based on personal interviews, draws on insights from organizational theory to consider how military lawyers embedded with troops can help produce battlefield decisions that comply with international legal norms. These lawyers appear to be most likely to function effectively and encourage legal compliance if certain organizational features are present. Accordingly, focusing on the links between organizational structure, institutional culture, and legal compliance through more nuanced qualitative analysis should contribute to a better understanding of international law compliance.

An Empirical Examination of Universal Jurisdiction for Piracy

Abstract: This essay presents a systematic study of the incidence of universal jurisdiction (UJ) prosecutions for the international crime of piracy. Using data on the number of piracies committed in a twelve-year period (1998-2009) obtained from international agencies and maritime industry groups, we determined the percentage of these cases where nations exercised universal jurisdiction. Studies of the worldwide use of UJ prosecutions for other crimes simply count how often universal jurisdiction has been exercised but do not attempt to determine the rate of prosecution. Simply counting cases does not allow one to appreciate the significance of universal jurisdiction in relation to the total problem. While the expressive or symbolic value of universal justice may be satisfied by a small number of isolated prosecutions, the deterrent effect depends on its incidence relative to the number of perpetrated crimes.

A Presumption Against Extrajurisdictionality

Abstract: In deciding whether federal statutes reach outside the United States, the Supreme Court employs a presumption against extraterritoriality. Its jurisprudence construing the canon has been inconsistent, however, and lower courts have amplified the confusion. This article proposes that the Court look for guidance to the international law of legislative jurisdiction. A presumption against extrajurisdictional, rather than extraterritorial, application of federal statutes would be more predictable and would better comport with reasonable assumptions of congressional intent

Kenya’s Piracy Prosecutions

Abstract: Kenya became a primary destination for the prosecution of pirates captured off the coast of Somalia from late 2008 to late 2009. Yet none of the pirates being tried in Kenya as of April 2010 were captured by Kenyan armed forces but, rather, by non-Kenyan forces whose countries had signed agreements with Kenya for it to conduct such trials. In Resolution 1851 of December 16, 2008, the United Nations Security Council had urged states and regional organizations to enter into such agreements. Kenya accordingly concluded agreements on prosecuting suspected pirates with the United Kingdom, the United States, the European Union, and Denmark. According to media reports, and as Kenya recently acknowledged, two others were negotiated, with China and Canada. Only the EU-Kenya agreement has been published. The British foreign secretary told the House of Commons that Kenya did not want its agreement with the United Kingdom to be made public. Consequently, it may well be that a Kenyan preference for secrecy prevented the public release of information on the other agreements signed by Kenya.

Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

Abstract: On July 13, 2009, the International Court of Justice delivered its judgment in the case between Costa Rica and Nicaragua concerning navigational and related rights on the lower course of Nicaragua’s San Juan river1 —that portion of the river subject to the terms of Arti­ cle VI of the April 15,185 8, T reaty of Limits, or J erez-Canas T reaty (1858 T reaty), which cre­ ates certain Costa Rican navigational rights on parts of the San J uan (see map prepared by ICJ). Costa Rica initiated this case on September 29,2005, with an application requesting the Court “to adjudge and declare that Nicaragua is in breach of its international obligations. . . in deny­ ing to Costa Rica the free exercise of its rights of navigation and associated rights on the San Juan River” (para. 12, quoting application). Costa Rica sought to found jurisdiction on the parties’ declarations under Article 36(2) of the Court’s Statute, the 2002 Tovar-Caldera Agree­ ment, and Article XXXI of the Pact of Bogota (para. 1). Nicaragua did not contest the Court’s jurisdiction. In a lengthy dispositif{para. 156), the Court found “that Costa Rica has the right of free navigation on the San Juan river for the purposes of commerce,” including the transport of passengers and tourists; that those persons need not obtain a Nicaraguan visa or purchase a tourist card; that “the inhabitants of the Costa Rican bank of the . . . river have the right to navigate between the riparian communities for the purposes of the essential needs of everyday life which require expeditious transportation”; and “that Costa Rica has the right of navigation . . . with official vessels used solely . . . to provide essential services for [those] inhabitants.” Costa Rica’s navigational rights do not cover either “vessels carrying out police functions” or “navigation . . . for the purposes of the exchange of personnel of the [Costa Rican] police bor­ der posts . . . [or ] of the re-supply of these posts, with official equipment, including service arms and ammunition.” As for Nicaragua’s right to regulate Costa Rican navigation on this portion of its river, the Court found that “Nicaragua has the right to require Costa Rican vessels . . . to stop at the first and last Nicaraguan post on their route to require persons . . .

Economic Foundations of the Law of the Sea

Abstract: The United Nations Convention on the Law of the Sea demonstrates plausible economic logic by assigning jurisdiction over portions of the ocean to the states that value them the most and can regulate them most cheaply, while respecting other states' interests in navigation and additional uses of the seas. For the vast oceanic areas that no state can regulate, the Convention provides for an open access regime subject to simple rules, mostly self-enforcing, to limit conflict over resources.

Protection of Indigenous peoples on the African continent: Concepts, position seeking, and the interaction of Legal Systems

Abstract: The negotiation of the 2007 Declaration on the Rights of Indigenous Peoples prompted the airing of African views on the protection of indigenous peoples, illustrated here by such issues as preferential treatment, collective versus individual rights, and the right to self-determination. The author stresses the need for systematic consideration of African particularities in focusing on the interactions between indigenous, national, and international law, exemplified by South African case law, which is seen as a laboratory where all these strands converge.

Claims (Ethiopia v. Eritrea) Eritrea's Damages Claims (Eritrea v. Ethiopia); Ethiopia's Damages Eritrea Ethiopia Claims Commission final award on damages arising from breaches of state responsibility and violations of jus in bello and jus ad bellum

Abstract: ERITREA'S DAMAGES CLAIMS (ERITREA V. ETHIOPIA), FINAL AWARD. At http://www.pca-cpa.org.Eritrea Ethiopia Claims Commission, August 17, 2009. ETHIOPIA'S DAMAGES CLAIMS (ETHIOPIA V. ERITREA), FINAL AWARD. At http://www.pca-cpa.org.Eritrea Ethiopia Claims Commission, August 17, 2009.

Government of Sudan v. Sudan People's Liberation Movement / Army ("Abyei Arbitration")

Abstract: On July 22, 2009, a five-member arbitral tribunal, operating under the Permanent Court of Arbitration’s Optional Rules for Arbitrating Disputes Between Two Parties of Which Only One Is a State, rendered its 4-1 decision in the excess-of-mandate and boundary-delimitation case between the government of Sudan (Government) and the Sudan People’s Liberation Movement/Army (SPLM/A).1 The tribunal was asked (1) to determine whether the Abyei Boundaries Commission (ABC) Experts (Experts) had, in their final report2 (Report), exceeded their mandate, which was “to define and demarcate the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905,”3 and, if so, (2) to delimit that region, known as the Abyei area (see map). The tribunal found that the Experts had not exceeded their mandate with respect to the southern boundary of the Abyei area, the northern limit of permanent N gok Dinka habitation, or the survival of established secondary (seasonal) rights on either side of the northern boundary. The tribunal did find, however, that the Experts had exceeded their man­ date with respect to the delimitation of the area of shared secondary rights in the north, and with respect to the delimitation of the northern, western, and eastern boundaries of the Abyei area for failing to state sufficient reasons for how they implemented their mandate. The tri­ bunal accepted the possibility of a partial nullity of the Experts’ Report and set aside only those decisions in the Report that were rendered in excess of the Experts’ mandate. In particular, the tribunal delimited new boundaries in the east and west, and ruled that, while the defined area

Michelot Yogogombaye v. Republic of Senegal

Abstract: On December 15,2009, the African Court on Human and Peoples’ Rights, based in Arusha, Tanzania, rendered its historic first judgment.1 In a short ruling accompanied by a separate opinion by Judge Fatsah Ouguergouz, the Court unanimously2 dismissed the case for lack of jurisdiction (paras. 37, 46; sep. op. Ouguergouz, J., para. 1). The applicant, Michelot Yogogombaye, is a Chadian living in Switzerland ( Yogogombaye, para. 1). On August 11, 2008, he initiated proceedings against Senegal, seeking an order to prevent Senegalese authorities from prosecuting former President Hissein Habre3 (id.). Habre, who ruled Chad for eight years, sought asylum in Senegal, a neighboring West African country , after he was deposed in December 1990 (para. 18). He is allegedly responsible for ordering the torture and deaths o f up to forty thousand Chadians during his eight years in office.4 Yogogombaye sought to establish the Court’s jurisdiction over the case. He claimed that Senegal, as a member o f the African Union5 (AU) and as party to the Protocol on the Estab­ lishment o f an African Court on Human and Peoples’ Rights6 (Protocol), had filed a decla­ ration pursuant to Article 34(6) o f the Protocol allowing the Court to hear human rights peti­ tions initiated by individuals (para. 17).

Ioan Micula, Viorel Micula, S.C. European Food S.A.., S.C. Starmill S.R.L., & S.C. Multipack S.R.L. v. Romania

Abstract: International Centre for Settlement of Investment Disputes arbitral award on nationality of claimants under a bilateral investment treaty

The 2009 Judicial Activity of the International Court of Justice

Abstract: The International Court of Justice issued three judgments in 2009: a final decision, of January 19, in Request for an Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States); a final decision on the merits, of February 3, in Maritime Delimitation in the Black Sea (Romania v. Ukraine); and a final decision on the merits, of July 13, in Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua). In addition, the Court, on May 28, rejected a request by Belgium for the indication of provisional measures directed at Senegal in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). The Court also issued orders fixing the time limits in several other pending cases.

The Constitutionalization of International Law. By Jan Klabbers, Anne Peters, and Geir Ulfstein. New York: Oxford University Press, 2009. Pp. xx, 393. Index. $120.00, £60.00.

Abstract: force. It also provides an indispensable measure o f stability, continuity, and structure to interna­ tional relations, diplomacy, and politics. These are points well worth making and perhaps even reit­ erating. But they have little, if any, apparent rela­ tionship— and certainly no necessary one— to the nonreductionist definition. Jeremy Waldron, almost alone among contem­ porary legal philosophers, has sought to call atten­ tion to— and in his own scholarship,21 in part to remedy— the remarkable absence o f work by con­ temporary analytic philosophers o f law on the nature o f international law:

ReliaStar Life Insurance Co. of New York v. EMC National Life Co. 546 F.3d 81

Abstract: United States Court of Appeals for the Second Circuit opinion on the award of attorneys� fees as a sanction for bad faith conduct in arbitration