Our friends at the University of Amsterdam’s Center for International Law have asked us to announce the European Science Foundation’s upcoming conference, The Responsibility to Protect: From Principle to Practice.  Here is the description of the conference, which sounds like it’s well worth attending:

Five years after its acceptance by the 2005 World Summit, it is time to consider the contribution that the Responsibility to Protect (R2P) has made and could make to the prevention of mass atrocities.

The consensus among the Member States of the United Nations, as reflected in the General Assembly debate in the summer of 2009 is broad but not necessarily deep. While there is considerable general support for R2P along the three pillars suggested by the UN Secretary-General (responsibility of states to protect their own populations, assistance and capacity building and timely responses), fundamental questions remain. For instance: what does R2P add to the already existing obligations of states and to the substantial arsenal of instruments at the possession of the international community to prevent and respond to mass atrocities? Does R2P entail a risk of opening the door to external intervention? And how can R2P be operationalised and implemented in concrete circumstances?

Knowledge of the impact of the principle is limited. Recent practice shows both instances of where the international community succeeded (Kenya) and failed (Darfur) to prevent mass atrocities, but in neither of these cases it is obvious that success or failure could be attributed directly to the use, or lack of use, of the concept of R2P.

The conference will be held from June 8-12 in Linkoping, Sweden.  Speakers include Francis Deng, Edward Luck, Ambassador Heraldo Munoz, Nicolas Michel, Larry May, Daphna Shraga, and Paola Gaeta.  The conference will be chaired by the University of Amsterdam’s Andre Nollkaemper.

The deadline to submit papers for consideration is March 22 — just a few days from now.  A draft of the final program is available here.

Japan triumphs in a big way at the CITES meeting in Doha, as the U.S. proposed ban on bluefin tuna trade goes down 20-68.

The rejection of the bluefin proposal was a clear victory for the Japanese government, which had vowed to go all out to stop the measure or else exempt itself from complying with it. Japan, which consumes nearly 80 percent of the bluefin catch, argued that the International Commission for the Conservation of Atlantic Tunas, or Iccat, should be responsible for regulating the fishery, not the United Nations. European Union nations, whose fleets are most responsible for the overfishing of bluefin, abstained from voting in the second round after their own watered-down proposal was rejected.

The U.S. proposal for polar bears also went down, this time with Canada leading the opposition.

I am not a huge fan of restrictive and protectionist trade policy, but I can’t offer any serious legal quarrel with the recently proposed Trade Reform, Accountability, Development and Employment Act by the growing anti-trade bloc in the U.S. Congress.  As Lori Wallach from Public Citizen notes, the Act offers a radically new approach to U.S. trade policy.  The Act explicitly conditions expedited consideration of trade agreements by Congress to agreements which have addressed labor, environmental, national security, and other considerations.  As a policy matter, this goes beyond tying the President’s hands in trade negotiations: It is taking over trade negotiations by essentially mandating the key content of almost any U.S. trade agreement, and gives the President very little flexibility.

From a U.S. constitutional law perspective, the Act is a remarkable attempt to micromanage U.S. trade agreements, by mandating certain provisions before getting expedited consideration before Congress.  But since it only applies with respect to expedited congressional consideration, I don’t see any separation of powers problem here.  Moreover, the Act even contains a requirement that any trade agreement requiring a U.S. state to comply with procurement or investment rules will not be enacted unless that state’s individual consent is obtained.  This appears to give individual states either a veto or a right to “opt out” of the trade agreement.

As a policy matter, I think this means there will be no new trade agreements for the foreseeable future. As a legal matter, we may be seeing a re-assertion of congressional control over certain aspects of U.S. trade policy,and perhaps foreign policy as well.

Sure there is some dispute about settlements in East Jerusalem, or something, but here are some international law disputes that really matter. At CoP15, or the 15th Meeting of the Parties to the Convention on the International Trade in Endangered Species - currently going on in Doha, parties are discussing: resuming (or not resuming) the trade in ivory and imposing a ban on the commercial fishing of bluefin tuna, and a ban on commercial trade in polar bears (a U.S. proposal) as well as other issues.  CITES is a fascinating regime for regulating  trade in wildlife and conservation.  Does it work? That’s always hard to say. At least with respect to the ivory ban, there is reason to think that the ban backfired.  But then again, it is hard to imagine Japan battling furiously against the bluefin tuna ban if it didn’t think CITES had real teeth. Then again, like its battles over whales, Japan is increasingly on their own here.

DOHA — Japan was accused of scare tactics at world talks on wildlife protection on Monday as it campaigned against a proposal to curb trade in bluefin tuna, the succulent sushi delicacy….

“Japan’s lobbying is formidable. Three or four people from the Japanese delegation are constantly criss-crossing the Convention, arranging meetings,” he told AFP.

On Sunday, Japanese delegates met with some African nations, said a negotiator from west Africa.

“We are used to it. They do the same thing before each meeting of the International Whaling Commission,” the body that oversees global whale populations, he said.

The general consensus among comments to my post last week on the previously-unacknowledged U.S.-Japanese security agreements was “no big deal.”  These pacts reinforce an already well-developed practice of states doing deals–whether legally binding or political commitments–without U.N. registration or public disclosure.  Similarly, they reinforce existing views of Executive authority to conclude sole-executive agreements on defense-related matters for the United States. 

So, if everyone’s OK with such secret deals, how do we feel about secret negotiations?  If you’re the European Parliament (EP), the answer is apparently, “not too good.”  Last week the EP voted 633-13 (with 16 abstentions) to call for more transparency in on-going multilateral negotiations for an Anti-Counterfeiting Trade Agreement (ACTA).  The ACTA is a proposed agreement by OECD states to strengthen intellecutal property rights enforcement and combat counterfeiting and priacy of music, films, luxury brands, etc.  The ACTA negotiations have been on-going since 2007 (the next round begins April 12 in New Zealand) with all the participants agreeing to keep the negotiations confidential.  Members of the EP apparently have problems with this lack of transparency and want to see (and have the public see) what the negotiators are up to.  Here’s what the EP press release had to say:

The Commission and the Council should grant public and parliamentary access to the Anti-Counterfeiting Trade Agreement (ACTA) negotiation texts and MEPs should be fully informed in good time about their initiatives, says an EP resolution adopted on Wednesday by 633 votes in favour, 13 against, and 16 abstentions. Otherwise, Parliament “reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives.”

Parliament called on the Commission to continue the negotiations on ACTA and limit them to the existing European intellectual property rights enforcement system against counterfeiting” . . .  In its resolution, Parliament voices concern over the lack of transparency in the negotiations, and the fact that no parliamentary approval was sought for the negotiating mandate.  MEPs recall that, since the entry into force of the Lisbon Treaty on 1 December 2009, “the Commission has had a legal obligation to inform Parliament immediately and fully at all stages of international negotiations.”  ACTA provisions “should not affect global access to legitimate, affordable and safe medicinal products, including innovative and generic products”, says the resolution.

USTR is leading the talks for the United States, and it appears pretty tight lipped on the progress of negotiations.  That said, it appears they’ve taken precautions to keep at least some interested stakeholders in the loop — provided those stakeholders agree to keep mum on what they learn because of the negotiations’ “national security” implications.

Having done a fair bit of treaty negotiations when I served in the State Department, I’m certainly not a Wilsonian when it comes to such talks.  There’s a lot to be said for keeping talks confidential, most notably in allowing a more honest exchange of what positions parties believe they can accept without having to posture for domestic audiences.  Others, however, assume that when treaty obligations would directly effect individuals, the public has a right to know the proposed terms of any deal.  Here, the United States is apparently proposing to do this as a sole executive agreement, meaning that neither the Senate nor Congress would have to consent to the agreement.  Of course, that also means that the agreement would need to find its authority under existing U.S. IP laws or areas of sole executive authority.  If so, that seems to undercut any argument that the ACTA will have dramatic domestic impacts (at least for those in the United States).  Still, I’d be interested what others view as an acceptable line between public and confidential negotiations.  Am I being too kind to government interests in favoring a broad entitlement to confidentiality at least until the negotiators reach agreement on a text?  

Of course, whether or not you believe secret negotiations are appropriate may now be a moot point.  If the ACTA is any guide, the reality is that confidential multilateral negotiations are rarely confidential.  Leaks abound.  Indeed, the EP vote appears to have been a reaction to the latest in a long line of leaks about the various negotiating positions.  My My sense, moreover, is that this reflects a general trend in multilateral negotiations.  Bilateral negotiations (or those involving a handful of parties) may still get the benefits of confidentiality.  But once you get a certain number of participants involved (not to mention the stakeholders they consult, with or without confidentiality agreements), it becomes very hard to avoid leaks and other disclosures.  Now maybe some confidentiality is better than none.  But I believe that the age when multilateral negotiators could work largely in secret has passed.  And, if that’s the case, those going into such negotiations need to operate under a different set of assumptions in terms of the positions they advance, and the deals they cut.  In the information age, if those positions and deals are at all disputed, we should expect they’ll get posted somewhere on the Internet, and dispensed with remarkable rapidity to those interested (including, one expects, the Opinio Juris community).

Ilya Somin has a characteristically thoughtful post on the shortcomings of the U.N. system for promoting human rights and of international human rights law more generally, as seen in the recent hapless efforts of the U.N. Human Rights Council to protect Iranians from repression by their own government.

The bottom line is that the main weaknesses of the international human rights system are structural. By giving so much influence to the very sorts of governments that human rights law is supposed to constrain, it actually empowers oppressors much more than victims. In the short run, liberal democratic governments should work to limit the scope of the system and and prevent its pernicious elements from overriding their own domestic law, a point McGinnis and I emphasized in our articles linked above. In places like Iran, progress in protecting human rights probably depends on action by liberal democracies and internal dissidents acting outside the confines of the UN system. Liberal democracies cannot and will not always prioritize the promotion of human rights. But they have fewer perverse incentives on these issues than dictatorships do.

I pretty much agree with Somin’s critique of the UN human rights system.  On the other hand, I am not sure what the U.S. and other liberal democracies’ posture should be with respect to the UN system. Rather than vilify the system, I think the U.S. should make a good faith effort to participate in the system (e.g. the current Obama Administration policy).  On the other hand, the U.N. system cannot be seen as the only legitimate source of the content of international human rights law.  U.S. and other liberal countries’ participation must never concede this point, and must always retain the option for a non-U.N. mechanism to enforce and protect human rights if the U.N. continues to be “captured” by unsavory regimes.  A separate “League of Democracies” might help.  I admit this sort of balancing policy is tricky, and the U.S. has never quite figured out how to do this. I am curious what his approach would be or the views of our readers.

Here is another persuasive account of why the U.S. is disadvantaged by not joining the UN Convention on the Law of the Sea.  The case is fairly simple: There is a lot of oil and natural gas up there, and the U.S. can’t negotiate with other countries to divvy it up until it signs on to UNCLOS.

The 5.5 million-square-mile area north of the Arctic Circle — part of the U.S., Russia, Canada, Denmark (which owns Greenland), Finland, Norway, Iceland and Sweden — contains up to 25 percent of the Earth’s undiscovered oil and gas reserves, according to the U.S. Geological Survey. . . .

But to remove those resources you have to own them, and nations are now scrambling to claim vast new areas of sea bottom. They can do so by proving them to be extensions of their continental shelves. In summer, U.S., Russian, Canadian, and Danish scientists aboard icebreakers conduct studies to support claims submitted to a U.N. commission. In theory, the U.S. could gain an undersea region as big as California.

That’s the good news, but the bad news is that the United States is last in the claims race. The U.N. Commission on the Limits of the Continental Shelf has begun examining claims from Russia and Norway, which could be granted before the U.S. formally joins the process. Although the U.S. is gathering information for a claim, it cannot be submitted — nor can the U.S. have a say in the claims of other nations — until the government signs an international treaty. The agreement under which the apportionment of riches will go forward — the 1982 Law of the Sea Convention – lays out a comprehensive set of rules governing ocean issues, including protection of marine environments. All Arctic nations except the U.S. have signed. “If this were a ball game,” one Coast Guard admiral told me, “the U.S. wouldn’t be on the field or even in the stadium.”

The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the U.S. Army’s Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity.

On March 8th, the Supreme Court “invited” the Solicitor General to file a brief in Carmichael v. Kellogg, Brown & Root (KBR), a case pending a certiorari decision by the Court.  Carmichael involves the application of the political question doctrine (PQD) to government contractor tort liability on the battlefield, an issue which extends well beyond just this case.

In May, 2004, Sergeant (SGT) Keith Carmichael was a military escort and passenger in a KBR tractor-trailer in Iraq when the contractor employee driving lost control of the vehicle, which plummeted into a ravine.  SGT Carmichael suffered severe injuries — his wife filed suit on his behalf. The District Court for the Northern District of Georgia initially denied KBR’s motion to dismiss, but after two years of discovery the court dismissed the case on PQD grounds. The US Court of Appeals for the 11th Circuit affirmed that decision, holding that to adjudicate Carmichael’s claims would require judicial second guessing of how the military conducts war time convoy operations.

Carmichael is one of at least 17 cases in which contractor defendants have asserted the PQD as a defense.  The lawsuits stem from alleged wrongs committed in both Iraq and Afghanistan, and have been filed by plaintiffs ranging from former detainees suing contract interrogators and interpreters, to contract employees suing contractors following insurgent attacks, to US service members, like SGT Carmichael, suing contractors after vehicle and aircraft crashes.  One interesting aspect of this litigation is that the fundamental aim of the PQD is to address whether the judiciary should review government action or decisions — yet private contractors are asserting the defense in cases where the US government is not a named party and has yet to intervene or submit an amicus brief in any of the cases.

Prior to Carmichael, two other federal appellate decisions found that the PQD did not preclude battlefield related litigation.  In the first, McMahon v. Presidential Airways, the 11th Circuit considered the crash of a Blackwater subsidiary aircraft in Afghanistan, which killed several U. S. service members (the crash and subsequent litigation were featured on a recent 60 Minutes episode).  In the second, Lane v. Halliburton, the 5th Circuit reviewed suits filed by KBR truck drivers (or their representatives) who were injured or killed when insurgents attacked their logistics convoy in Iraq in 2004.  Yet in Carmichael, a convoy accident case with no overt combat related factors (IEDS, insurgents, etc.) the same 11th Circuit from McMahon held that the PQD applied.  One way to reconcile McMahon and Carmichael is the amount of discovery; the dismissal in McMahon came relatively early on while in Carmichael there had been two years of discovery.

While the Supreme Court’s invitation to the Solicitor General does not mean the Court will grant Carmichael’s certiorari petition, it would seem to make such a grant more likely.  The potential outcome may well be the court addressing a host of important issues, ranging from the separation of powers inherent in the PQD, to the scope of the executive branches’ authority (and responsibilities) in wartime and the implications of the US military’s reliance on contractors.  Regardless of whether the Court hears the case, the first notable event will be whether, in a case pitting a severely injured combat veteran against a government contractor, the US government accepts the Supreme Court’s invitation to submit a brief.  If so, it will be the first time that the Executive branch makes its views known on whether and how the PQD applies to government contractor tort liability on the battlefield.

In the long-running battle between Chevron and Ecuador over environmental damage, a federal court in New York has denied Ecuador’s motion to stay arbitration of a Ecuador-U.S. BIT claim. In September 2009, Chevron filed a notice of arbitration alleging, among other things, that “Ecuador has breached … the Ecuador-United States BIT, including its obligation to afford fair and equitable treatment, … an effective means of enforcing rights, non-arbitrary treatment, [and] non-discriminatory treatment.”

In the hearing this week, counsel for plaintiffs in the underlying Ecuadorian litigation described the arbitration as “a collateral attack” on a future Ecuadorian judgment. “There is no demonstration that there’s even any prejudice to Chevron at this point,” said Jonathan Abady. “There’s no judgment that has been rendered.” The Court nonetheless denied Ecuador’s motion to stay the BIT arbitration and allowed the question of due process violations to go forward to arbitration:

The petition contains … specific grounds asserted by Chevron why a judgment rendered against it pursuant to the litigation now pending in the Ecuadorian Court would not be one rendered in accordance with due process…. I am returning only the arbitrability of the due process claim, and I am expressing no opinion with respect to any other claim or with respect to any claim for relief. Those matters are for the arbitrators. There are also significant issues that have been raised concerning the timing of proceedings before the arbitrators, specifically, whether the arbitration can commence prior to the rendering of a decision in the suit now pending, and that is one of the … many issues for the arbitration panel to determine, giving consideration to the interests of the parties in matters of timing, which seems to be a great concern.

My sense is that Chevron is bringing this action not only in an attempt to succeed on the merits of its due process claim, but also to send a signal to the Ecuadorian court that any future action that denies Chevron basic due process will be subject to international scrutiny. The Ecuadorian court now faces the unpleasant prospect of knowing that the Ecuadorian government may be on the hook financially for any improper judgment rendered against Chevron.

I also think it is quite plausible that the BIT arbitration is an opening salvo in future attempts by Chevron to challenge the enforcement of the Ecuadorian judgment in foreign courts. If a BIT arbitration panel concludes that Chevron has been denied due process, this would significantly bolster arguments that the foreign judgment should not be enforced in the United States under the Hilton v. Guyot standard. If the arbitral tribunal concludes that Chevron has been denied due process or fair and equitable treatment in the Ecuador litigation, then it will be difficult to enforce an Ecuadorian judgment in the United States consistent with the Hilton test requiring a showing of “a full and fair trial abroad … under a system of jurisprudence likely to secure an impartial administration of justice … and [that] there is nothing to show either prejudice in the court … or fraud in procuring the judgment.”

It is always unpleasant to get lectured by foreign governments about “violating international law”, but this is something U.S. government officials should be used to.  Still, it must be galling for the new U.S. administration to be lectured by Brazil’s president over U.S. non-compliance with a WTO ruling on cotton subsidies.

The United States must comply with a World Trade Organization ruling on U.S. cotton subsidies to uphold international law and order, President Luiz Inacio Lula da Silva said on Wednesday.

Brazil detailed on Monday a list of 102 U.S. goods that will be subject to import tariffs within 30 days unless both countries can reach an agreement to settle a long-standing dispute over U.S. cotton aid considered illegal by the WTO.

“Brazil is not interested in confrontation. We’re interested in respect for the decisions of the WTO. Either we respect institutions or the world will fall into disarray,” Lula said during the inauguration of a power plant in near Sao Paulo.

The U.S. is ready to make a deal, except that it has very little to deal with. After all, the U.S. Congress (with full knowledge it was violating the WTO ruling), re-authorized the subsidies at dispute here.  So the best the U.S. Trade Rep can do is promise to try to get Congress to change the law.  If I am Brazil’s President, I wouldn’t take that deal.

Yesterday, the Japanese Government (now led by the Democratic Party after nearly five-plus decades of rule by the Liberal Democratic Party) confirmed that in the 1960s Japan and the United States entered into a series of secret defense pacts.  Specifically, a committee of scholars has identified various tacit agreements allowing U.S. warships to carry nuclear weapons into Japanese ports, granting unrestricted use of U.S bases in Japan in the event of a renewed Korean conflict, and requiring Japan to fund the clean-up of U.S. bases in Okinawa after it regained control over that territory in 1972.  For years, the Japanese government had denied these agreements existed, notwithstanding widespread suspicions that they did.  Thus, most of the media attention has focused on how yesterday’s disclosures will play out under the Japanese legal system (especially given the Constitution’s renunciation of war).  Others have asked if the admission signals some new shift in U.S.-Japanese foreign relations.

I’m curious, however, about two other issues.  First, what status, if any, did these pacts have under international law?  Although colloquially referred to as “secret treaties” in Japan, it’s not clear to me whether there were any actual treaties involved.  The Japanese government’s disclosure raises interesting questions about the ability of states to do oral and secret treaties as well as how we should differentiate such legal instruments from political commitments.  Second, apart from the international legal status of these deals, there’s the question of their status under U.S. law.  Under what authority did the United States conclude them?  If they were intended to be legally binding, were they done as executive agreements pursuant to the President’s foreign affairs or commander-in-chief powers? Or, was there some congressional authority that warrants considering them as congressional-executive agreements?  And if they were not legally binding, does that mean the President could do them without consulting Congress at all?

I’m not exactly surprised to read this:

United Nations human rights investigators called on the Obama administration on Tuesday to prosecute the accused September 11 masterminds in a civilian court, declaring that U.S. military tribunals would not be fair.

The White House is reviewing options to bring the 9/11 detainees to justice and U.S. officials said on Friday senior administration officials may recommend that Khalid Sheikh Mohammed and four other suspects in the 2001 attacks face a military trial.

“I take the view that the Military Commissions Act is fundamentally flawed. It is very far from international fair trial standards and probably cannot be fixed,” said Martin Scheinin, U.N. special rapporteur on the protection of human rights and fundamental freedoms while countering terrorism.

But I am surprised just how little the opinion of these rapporteurs matter in the burgeoning U.S. debate over where to try the 9/11 terrorists. No one in the Obama Administration seems to care much. I wonder if they have even bothered to issue a rebuttal.  After all, the current military commission system was amended in accordance with proposals from the Obama Administration, supposedly to make them compliant with domestic and international standards.  A rebuttal seems necessary at some point.  Another task for our State Department’s Legal Adviser?

Given our past discussions about State Department Legal Adviser Harold Koh on this list, I thought I’d pass along word of an upcoming event some might find of interest. My colleagues at the American Bar Association’s Standing Committee on Law and National Security are hosting a breakfast discussion with Koh this coming Tuesday, March 16, from 8:00-9:00 a.m. The event is open to the public and will be held at the University Club, 1135 16th Street, N.W., Washington, D.C. Registration is required, as is payment: the cost is $25.00 per person. If readers in the D.C. area are interested in attending, contact committee staffer Matthew Owens, owensm@staff.abanet.org.

Amid the war of words between Germans and Greeks over a possible Greek bailout, the Deputy Prime Minister of Greece has accused the Germans of stealing “the Greek gold that was in the Bank of Greece, they took away the Greek money and they never gave it back…”  This was part of the reason why Greeks (presumably the ones now boycotting German goods) are not exactly feeling grateful to Germany for possibly bailing out their troubled public finances.  As I understand it, some Greeks have maintained claims against Germany for wartime abuses and thefts. Germany’s response, I believe, is to cite the 1960 FRG-Greece treaty as a final settlement of all such war-related claims. I take it the protesters in Greece don’t accept this lawyerly argument, even though it is a pretty persuasive one.  It demonstrates the limit of even ironclad international law obligations to settle deep-seated political disputes.  Will the Germans ever get out from under the WWII guilt trip?  Probably, but international treaties won’t be vehicle to do so.

The always knowledgeable Marko Milanovic, responding to an earlier post of mine, reviewed the possibility of an international tribunal resolving the Falklands dispute here, and concludes that no court decision will happen because  ”… the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution.”

Marko’s argument seems persuasive.  There is a long and confusing historical record to battle over with respect to title, and there are serious questions about the right of “self-determination” as applied to the Falklands. Yet there are many more difficult disputes that have been tossed to the ICJ (see, e.g., Kosovo).  So I’m not sure why this dispute is particularly worse. Indeed, there seems to be lots of law where, and lots of interesting facts. It would make a terrific case.

But Marko is of course right that the UK might indeed lose, and so might Argentina.  But that always seems to be the case in ICJ cases.  And this could happen.  The UK has accepted the ICJ’s compulsory jurisdiction.  All Argentina would have to do is accept compulsory jurisdiction and take the UK to the World Court.

But having thought about and read about it some more, I begin to see why this won’t happen.  What is different here, as this article suggests, is the stakes.  Oil!  Natural gas!  The stakes are simply much too high to permit some random judges in the Hague to determine the outcome here.  So it is dumped back in the realm of politics, where it belongs.

As I have noted earlier, there is a pitched battle between victims of Pan Am 73 terrorist hijacking over the distribution of treaty funds secured by the United States for American victims in a 2008 diplomatic settlement with Libya. The treaty and Executive Order stipulate that the money shall be distributed solely for the benefit of United States nationals, but foreign nationals are claiming that they are entitled to the overwhelming majority of the funds pursuant to a Joint Prosecution Agreement signed among the passengers of Pan Am 73, most of whom were non-Americans. The American terrorist victims argue that the contract is inapplicable to a diplomatic settlement, and alternatively, that it is void for public policy because the contract cannot contravene the federal policy designed to distribute these funds for American victims, and only American victims. They contend that the JPA places an obstacle in the way of the United States’ efforts to effectuate the comprehensive settlement on behalf of U.S. nationals and undermines the essential purpose of applicable federal law.

Last week, a federal district court judge in Washington, D.C. heard oral arguments on a motion to compel arbitration of this dispute pursuant to an arbitration clause in the Joint Prosecution Agreement. Press reports of the developments are here, here, and here.

One of the most unusual twists in the case is that the implementing statute, the Libyan Claims Resolution Act (“LCRA”), immunizes the assets from “attachment or any other judicial process” before, during, and after the assets are held by the U.S. Department of Treasury for distribution to the American victims. In other words, when Treasury cuts a check to the American victims who succeed before the Foreign Claims Settlement Commission, those assets remain immune from attachment or any judicial process. How then can non-American victims attempt to seize those assets pursuant to a contract claim? The answer should be that they cannot. Consistent with the arbitrability doctrine, a competing federal statute overrides the general requirements of the FAA, precluding arbitration of the contract claims….

Politico (linked here to Yahoo) carries a story today on a letter drafted by Benjamin Wittes and signed by a number of conservative and centrists lawyers, former Bush administration officials, and policy analysts on conservative attacks on the role of lawyers in terrorism cases - the so-called Al Qaeda 7 at the Justice Department.  I’m one of the signers, but there are many more important and prominent signers, including John Bellinger, Matthew Waxman, David Rivkin and Lee Casey.  It will almost certainly gain more signatures as the week goes on, and my thanks to Ben for putting it together.

Our friends at the German Yearbook have asked us to post the following call for papers, and we are happy to oblige:

The German Yearbook of International Law is Germany’s oldest yearbook in the field of public international law. The GYIL is published annually by the Walther Schücking Institute for International Law at the University of Kiel and contains contributions on topics addressing international law, including neighboring fields such as international criminal law, international humanitarian law, international economic law, and the international law of the sea. We aim to provide a forum for scholars in international law – both inside and outside Germany – to publish new research on and analysis of current issues in international law. The Yearbook features a ‘Forum’ for which a prominent scholar of international law is invited to write a stand-alone article and a ‘Focus’ section for which a group of experts are invited to write articles examining various aspects of a topic set in advance by the editors. Recent Focus sections have examined regional human rights mechanisms (2009), poverty as a challenge to international law (2008) and German approaches to international law (2007). The 2010 Focus section will examine climate change.

In a departure from past editions, the “General Articles” section of Vol. 53 (2010) of the GYIL will be open to submissions from the entire academic community, which will be independently peer-reviewed by a community of renowned experts. All work submitted will be scrutinized based on its intellectual quality and its significance in advancing academic discourse. The Editors have thus decided to issue this general call for papers to invite interested parties to submit a paper for consideration for inclusion in the forthcoming edition.

Persons interested in publishing in the GYIL should submit a manuscript conforming with the house-style of the GYIL (which is available on request) dealing with any topic of interest in the field of public international law to the editors by 1 September 2010. Potential authors are also requested to include a brief biographical statement, including information regarding current academic affiliations and general research interests. All inquiries and materials should be addressed to the assistant editors of the GYIL via e-mail: yearbook@internat-recht.uni-kiel.de

That’s a bit of an overstatement, but this review of Michael Byers’ latest book: Who Owns the Arctic: Understanding Sovereignty Disputes in the North, reminds me of the surprising legal positions taken by Russia, Canada, and the United States over the legal status of the Northwest Passage.

It is ironic that while Russia supports Canada’s claim to the Northwest Passage, the United States opposes it. With the recent disappearance of multi-year ice, the Passage (or Passages, for there are several) gives access to shipping through the Canadian archipelago of 19,000 islands that lie scattered in a huge pyramid from Iqaluit in the east to the Beaufort Sea in the west, with its apex at the northern tip of Ellesmere Island.

It is also ironic that Canada is in the position of making aggressive claims for territorial sovereignty, while the U.S. is all of a sudden the guardian of the international community’s interest in keeping the seas free.  And it is ironic that Byers, no sovereigntist, is a sharp critic of Canada’s failure to more aggressively assert its territorial sovereignty.