Archive for
January, 2008

Competition and Control: A Reply to Hakimi and Helfer

by Jacob Katz Cogan

Many thanks again to Monica Hakimi and Larry Helfer for commenting on my essay. I am grateful that they took the time to read and reflect upon it and to write such thoughtful comments for this symposium.

Monica points to two potential dangers of competition in international adjudication: first, that competition “would result in more fragmentation and confusion in the law”; and second, that competition (particularly competition that would result in a proliferation of courts) would decrease the authority of any single court and “that judicial decisions would therefore lose their place of prominence in the international legal process.” Both are important points. With regard to the first, I don’t think incoherence is a necessary consequence of competition, at least in the long-term. As Larry notes in his comments, “permitting litigants to choose among multiple tribunals and review bodies can promote jurisprudential coherence by encouraging jurists to engage in a dialogue over legal rules shared by more than one treaty system.” On the second point, I think the prominence and authoritativeness of particular international courts (and individual jurists) should depend more on their decisions then on their monopoly on decisionmaking. In this regard, competition may, in fact, be more helpful than hurtful, as it may encourage tribunals to decide cases in ways that increase their “authority to make and clarify the law for the international community.” Monica quite rightly points out that much of this discussion is premised on contested views of “what functions international courts should perform.” And I agree with her that, ideally, “the international legal process benefits when courts issue sound and authoritative pronouncements of law,” as they would “help make and clarify the law in an imperfect system that suffers from fragmentation and confusion.” But, as Monica recognizes as well, the ability of international courts to do precisely that is premised on effective controls.

Larry reiterates his view (see Why States Create International Tribunals, a piece co-authored with Anne-Marie Slaughter) that existing control mechanisms are sufficient. In support, he points to evidence that “States are cognizing the jurisdiction of international tribunals in growing numbers and litigating cases before such tribunals with increasing frequency.” I am not convinced that this evidence goes to the issue of the effectiveness of current controls. There are a number of reasons why States may accede to the jurisdiction of international courts (e.g., mimicry, credible commitments, etc.) that have nothing to do with the effectiveness of controls. Indeed, I doubt that States, when making the decision to set up or join a court, think much about control or, at least, not as much as they should. The better gauge is whether States continue to use an established court or whether they continue to delegate to an existing court. On the latter point, Larry points to the new powers conferred by the Treaty of Lisbon on the European Court of Justice to interpret the Charter of Fundamental Rights, as well as Protocol 11 to the European Convention on Human Rights, establishing the compulsory jurisdiction of the European Court of Human Rights over individual applications. I’m not sure, though, that these are good counterexamples. As I briefly note in the essay, “Judicial monopolies may be appropriate in domestic systems and in highly integrated regional systems, such as Europe, where controls may be more effectively wielded” (446). (As a side note, interestingly, two European Member States, Poland and the United Kingdom, demanded and received an exemption from Treaty of Lisbon’s extension of the ECJ’s jurisdiction.) As elaborated in the essay, I am, overall, less sanguine about current controls than Larry.

Larry concludes by raising two broader issues. On the second, calling for “additional empirical research analyzing the effects of different degrees of competition on judicial decision making,” I am in complete agreement. This area is ripe for empirical work, though it may be too early to do some of that work. On the first, suggesting that “before deciding whether existing control mechanisms are inadequate, one first needs a theory of whether judges are in fact exceeding their mandates,” I too am in agreement. Certainly, the types of controls employed in any particular case will depend on the mandate envisioned for that particular court. That does not preclude the use of competition as a control for judges-as-trustees (as well as judges-as-agents), unless one is interested not only in judicial lawmaking (or gap-filling, etc.) but also in a single (monopolistic) judicial lawmaker. In other words, an interest in a more expansive judicial mandate does not preclude competition, in and of itself.

Again, many thanks to Monica, Larry, the Virginia Journal of International Law, and Opinio Juris.

Competition and Control: A Response to Professor Cogan

by Larry Helfer

Thanks to Opinio Juris for inviting me to comment on Jacob Cogan’s interesting and thought-provoking paper, Competition and Control in International Adjudication. Jacob’s essay correctly recognizes that a system of controls is essential to the successful operation of the international legal system in general and international tribunals in particular. Controls are necessary, Jacob persuasively argues, because the states that create international tribunals and subject themselves to their jurisdiction benefit from adjudicating disputes before independent judges. Absent such controls, however, there is a risk that some judges will overreach, for example by engaging in various forms of activism or lawmaking, thereby frustrating the interests and objectives of the states that appointed them. The challenge that countries face, therefore, is how to preserve the independence of the international judiciary while providing an incentive for its members “to make rules—both procedural and substantive—that accord with the interests of States” and to curb their otherwise activist tendencies. (p.441) The solution the essay proposes is competitive adjudication—restructuring international adjudication to provide states with greater choice in selecting venues for adjudicating their disputes. Greater choice, Jacob argues, will create a rivalry among international courts and tribunals to attract litigants, thereby cabining judicial excesses. (p.449)

I agree with Jacob that competition is an important mechanism to control the output of international tribunals and, further, that competition can exist without compromising judicial independence. I also concur with the thoughtful analysis that appears in the essay’s conclusion, where Jacob critiques those commentators who argue that competition necessarily promotes incoherence and unpredictability in the international legal system. As I argued in an earlier piece on Forum Shopping for Human Rights, permitting litigants to choose among multiple tribunals and review bodies can promote jurisprudential coherence by encouraging jurists to engage in a dialogue over legal rules shared by more than one treaty system.

I part company with Jacob, however, over his view that there is insufficient competition in the international judicial system as it is currently structured. As Anne Marie Slaughter and I argued in Why States Create International Tribunals, international judges are subject to an diverse array of formal, structural, and political control mechanisms that states, both individually and collectively, can be applied both before a tribunal is created and after it is up and running. Judges also face discursive constraints generated by their participation in a global community of law. (For an illustration of the different types of controls and their operation, see table 3 on p.944) Viewed individually and in combination, these mechanisms—which include forum shopping among tribunals with overlapping jurisdictions—provide ample room for governments to limit judicial overreaching while preserving judicial independence.

Jacob disagrees. He challenges the “assumption that controls on international courts are sufficient and effective.” And he argues further that that “the weaknesses of judicial controls means that States are more likely to avoid courts, abandon them, or disregard their decisions, potentially condemning courts to irrelevance.” (p.415) If true, this would indeed be a serious threat to the international judicial system. But the revealed preferences of states do not support this claim, as the evidence in Why States Create International Tribunals reveals (see pp. 910-17). States are recognizing the jurisdiction of international tribunals in growing numbers and litigating cases before such tribunals with increasing frequency. These trends are especially pronounced for the WTO, the ICC, and human rights tribunals, and to a lesser degree, for regional tribunals whose competence covers trade and economic law. To be sure, not all tribunals have experienced such expansions. The compulsory jurisdiction of the ICJ and ITLOS, for example, has not been widely accepted. And there are also notable examples of backlash against tribunals, many of which Jacob describes in the essay.

Yet there is also striking evidence to the contrary. For example, states have expanded the jurisdiction of the two tribunals that Jacob identifies as immune from competition and therefore at risk of “market failure.” (pp.444-45) The recently-concluded Treaty of Lisbon delegates new powers to the European Court of Justice (ECJ) to interpret the now legally binding Charter of Fundamental Rights of the European Union as well as EU criminal justice agreements. A similar trend is underway in the European human rights regime. Until 1998, the jurisdiction of the European Court of Human Rights (ECHR) was optional. That changed with the ratification of Protocol 11, which made jurisdiction compulsory. Yet by then the ECHR had already significantly expanded the Convention’s rights and freedoms in ways that its founders could not have anticipated. Since making ECHR jurisdiction mandatory, the member states have continued to delegate additional authority to the ECHR by adopting new protocols.

Viewed cumulatively, this evidence suggests that states do not believe that independent international tribunals are “exceed[ing] their mandate[s].” (p.439) For even if Jacob is correct that states have difficulty checking judicial overreaching, they surely can decide not to delegate new powers to tribunals that have allegedly overreached or to voluntarily accept additional mechanisms for litigating disputes internationally.

I’ll conclude by briefly highlighting two broader issues that Jacob’s essay raises. First, before deciding whether existing judicial control mechanisms are inadequate, one first needs a theory of whether judges are in fact exceeding their mandates. Completing contracts, filling gaps, and engaging in judicial lawmaking may be precisely what states want a tribunal to do. For this reason, the very same activities that might be condemned as activism by one court may be welcomed in another. The broader theoretical question is whether international tribunals are the trustees or agents of states, an issue explored in depth in a thoughtful forthcoming article by Karen Alter, Agents or Trustees? International Courts in their Political Context, 14 European Journal of International Relations 33 (2008). Judicial trustees too need controls. But they are likely to be differently designed and differently utilized than the mechanisms used to control agents.

Second, Jacob’s essay highlights the need for additional empirical research analyzing the effects of different degrees of competition on judicial decision making. For example, the availability of multiple venues for adjudicating law of the sea disputes provides a natural experiment for testing some of Jacob’s theories. In such a high competition zone, we should expect the different tribunals and arbitral bodies to converge over time toward substantive standards that more faithfully reflects states’ interests. There are likely to be other empirical examples worth exploring.

In sum, Competition and Control in International Adjudication raises important and timely issues and is a welcome addition to the growing body of scholarship on international tribunals.

Competition and Control in International Adjudication: A Response

by Monica Hakimi

Jacob Cogan’s Competition and Control in International Adjudication provides a rich and thought-provoking analysis of the importance of, and options for, maintaining controls over international courts. Jacob argues that existing controls are relatively weak, and that we should encourage competition among courts to fill the gap. Competition, he asserts, will help constrain international judicial power and may lead to more desirable judicial decisions: If one court oversteps its mandate or issues unreasonable decisions, states will take their disputes elsewhere, and the overstepping or unreasonable court will be forced to adjust its practices to attract future business.

Jacob recognizes that it is too early to know for sure whether the proliferation of international courts will result in increased competition among courts, and in better, more reasoned judicial decision-making. I question to what extent it will. In order for market forces to affect judicial decision-making, international actors must have enough “market” information—i.e., information about the differences among courts, and about each court’s strengths and weaknesses—to enable them to choose among courts. Yet, as Jacob acknowledges (pages 429-430), international actors already have trouble tracking and digesting the many pronouncements and decisions of international courts. This problem would only multiply with an increase in the number of courts, and it likely would detract from the competition-enhancing effect of proliferation.

More importantly, any competition-related benefits of proliferation may be outweighed by larger, systemic costs. Specifically, the proliferation of international courts likely would result in more fragmentation and confusion in the law, and in a shift in the functions that courts perform. Different courts no doubt will interpret the same rules differently, and will thereby generate inconsistent claims on what the law is and how it should apply in future cases, in the absence of any final arbiter to resolve those questions. This has already happened to some extent in the context of direction and control responsibility. In Nicaragua v. United States, the ICJ found that, for a state to be responsible for directing or controlling the activities of a non-state actor, the state must exercise “effective control” over the relevant, wrongful acts. Then, in 1999, the ICTY suggested a shift in doctrine—to a more relaxed standard of “overall control.” In 2007, the ICJ held its ground, rejecting the ICTY standard of “overall control” and reiterating its standard of “effective control.” Under Jacob’s theory, the conversation between the ICJ and the ICTY is competition-enhancing. This might be true to the (limited) extent that the mandates of the ICJ and ICTY overlap. But in any event, the conversation results in a lack of coherence on what the law is or how it should apply in future cases.

One might respond to that concern by asserting that this is how the international legal process works. International law develops and evolves based on the myriad of conversations between different international actors. The proliferation of international courts would simply result in an increase in the number of judicial actors (as opposed to, for example, state actors) that participate in that process. But that would reflect a major shift in how international actors perceive and employ international courts. Courts perform two sorts of functions in the international legal process: (1) they resolve the particular disputes before them; and (2) they provide authoritative (even if not dispositive) statements of law for the international community as a whole. Jacob’s proposal for encouraging competition focuses on the first of these functions. Even if competition would make courts more effective in performing that function, however, it likely would undermine their efficacy in performing the second, more systemic function. An increase in the number of courts would mean that any one court would have less authority to make and clarify the law for the international community as a whole, and that judicial decisions would therefore lose their place of prominence in the international legal process. Judicial decisions would increasingly be among the cacophony of voices that together contribute to the evolution and development of law.

Jacob’s piece thus begs the question of what functions international courts should perform. I have mixed views on that question. On the one hand, I believe that the international legal process benefits when courts issue sound and authoritative pronouncements of law. Such pronouncements help make and clarify the law in an imperfect system that often suffers from fragmentation and confusion. On the other hand, the concern that Jacob addresses is a real one: Too often, international courts expand their authority or issue unsound, unreasoned decisions. Indeed, even the most authoritative courts (like the ICJ) seem to perform best when deciding cases (like maritime boundary cases) that are context-specific and that do not invite them to make new law or to resolve contested issues in existing law. In other words, international courts are better at resolving particular disputes than they are at authoritatively making and clarifying the law. Jacob’s proposal thus would focus courts on what they do best. Before we move in that direction, however, I encourage international lawyers to consider whether there are any options for control that enhance both judicial functions—that hold courts in check and improve the quality of their decisions, without undermining their authority to make and clarify the law.

Competition and Control in International Adjudication

by Jacob Katz Cogan

My thanks to Opinio Juris for hosting this online symposium, to the Virginia Journal of International Law for publishing my essay Competition and Control in International Adjudication, and especially to Monica Hakimi and Larry Helfer for commenting.

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

As befits an essay, this conclusion is meant to be as much thought-provoking as definitive. And, indeed, it is too early to know for certain if the approach I recommend will succeed, or whether the necessary competitive conditions are unattainable. That said, it appears that judges and arbitrators are beginning to respond (in desirable, though not always perfect, ways) to the existing competition in international adjudication. While there are potential hazards here, which we might discuss, I do believe that, where controls on courts and judges are ineffective, encouraging competition is an idea worth pursuing.

Do We Need a National Security Court? Conference at AU, February 1

by Peggy McGuinness

Global Parliament, The Movie

by Peter Spiro

Investment Protection in Extraordinary Times: A Reply to Professor Franck

by William Burke-White and Adreas von Staden

First, we thank Susan Franck again for her very insightful comments on our recent article, Investment Protection in Extraordinary Times: The Interpretation and Application of Non Precluded Measures Provisions in Bilateral Investment Treaties. We are pleased that she agrees with us on many points and welcome the thought provoking comments she has offered.

Our response focuses on the three issues Professor Franck identifies in the second half of her post, namely the questions of risk allocation, whether NPM clauses constitute an exception to liability, and, finally, whether the Argentine cases have broader applicability.

First, Professor Franck suggests that our paper treats bilateral investment treaties (BITs) as risk allocation devices. We fully agree with Professor Franck and recognize in our paper that BITs perform (or at least are assumed to perform) a broad range of functions including many of those she mentions. If one looks to the origin of the US BIT program, however, it becomes apparent that BITs also represent a bargain between free traders, who favored strong investor protections, and protectionists, who sought to preserve state freedom of action, particularly in the national security domain. The Exon-Florio Amendment is an oft-cited example of this bargaining process. Our focus on the risk allocation function of BITs is in part a response to this early bargain that underlies many states’ BIT programs. While scholarship to date has largely focused on the investor protection side of that bargain, our analysis of non precluded measures (NPM) clauses looks at how states have sought to limit their risks under BITs while simultaneously protecting cross-border investment.

We do not, however, argue, as Professor Franck seems to suggest, that BITs are “akin to a form of insurance” to protect “bad business judgments.” Rather, we recognize that BITs containing NPM clauses strike a balance. On one side of that balance, the substantive protections of the BIT limit the risks faced by investors by providing them legal recourse when their investments are interfered with by host states. On the other side of the balance, the NPM clauses in those BITs limit the risks faced by host states in the kinds of emergency situations covered by the NPM clause. The resulting treaty thus reflects the bargain between the two sets of interests in both the capital exporting and host states that allocates risks between the host state and investors.

Second, Professor Franck raises the interesting question of whether NPM clauses should be thought of as an exception to or an exclusion from liability. In fact, as the comparative analysis in our article recognizes, different states frame their NPM provisions in different ways. The net effect of either framing, however, is to remove actions taken by the host state that fall within the scope of the NPM clause from the substantive protections of the BIT and thereby preclude liability.

Professor Franck is correct to note that in most cases the affirmative defense of necessity in customary international law should be unnecessary where a BIT contains an NPM clause. More specifically, where a treaty contains an NPM clause of comprehensive scope, the narrow necessity defense under customary law will generally not become relevant. NPM clauses are generally drafted to provide states greater flexibility to respond to emergency situations than would have been available under the customary law defense of necessity. Hence, if a measure fails to be in conformity with the broader treaty-based NPM clause, it will also fail the narrower customary tests, and where it is covered by the NPM clause, the question of whether it also meets the customary necessity requirements becomes moot. There are two situations, though, in which the customary defense may become outcome-determinative. The first is provided by cases in which the BIT at issue does not contain an NPM clause to begin with; in such a case, the respondent state is left with the defenses provided by the customary law of state responsibility. The second concerns cases in which the applicable BIT does include an NPM clause, but of the limited type. Here, the NPM clause may fail to cover a certain state measure because the latter infringes on a treaty provision that falls outside of the NPM clause’s scope, but that measure may still be covered by the necessity defense whose coverage is not as such limited to any specific provisions.

Third, Professor Franck asks whether the Argentine cases are representative and make good law. We suggest that in increasingly globalized world, the threats of economic collapse, public order emergencies, or pandemic diseases are becoming all too common and that the Argentine experience is, unfortunately, likely to be repeated elsewhere if in a somewhat different form. From the jurisprudence of the ICSID tribunals that have issued awards in the Argentine cases thus far, it appears that these cases are not, in fact, leading to good law. As the Annulment Committee in the CMS case observed, the CMS Tribunal provided an “erroneous interpretation” of the NPM clause in the U.S.-Argentina BIT that “could have had a decisive impact on the operative part of the award.” Hard cases may well make bad law and we must hope that the Annulment Committee report and the cases against Argentina still to be decided will push toward better law that reflects the treaty commitments of Argentina and the United States.

On this point, Professor Franck further suggests that the significant sums awarded against Argentina thus far are statistical outliers. Her own empirical work on this question indicates that many ICSID awards are in fact relatively small, particularly compared to the awards against Argentina that routinely run into the hundreds of millions of dollars. Even if these awards are statistical outliers, states within the ICSID system are certainly taking notice. In May 2007, for example, Bolivia notified the World Bank that it was withdrawing from the ICSID Convention and Bolivian President Evo Morales urged his Latin American counterparts to do the same. Other states such as Venezuela and Ecuador have noted the desire to limit ICSID jurisdiction and minimize potential BIT liability. Bad law, even in a few outlier cases, thus poses real challenges to the legitimacy and effectiveness of the ICSID system and investor-state arbitration more generally. By fully recognizing the risk allocation states sought to create when they included NPM clauses in their BITs, that threat to the legitimacy and effectiveness of ICSID arbitration may be avoided. We hope our paper can contribute to that process.

Investment Protection in Extraordinary Times: A Response

by Susan Franck

The recent article by Burke-White and von Staden raises critical and timely issues about international economic law and treaty interpretation. The paper acknowledges challenges posed to the institutional legitimacy of investment treaty dispute resolution (which I have written about elsewhere) that are caused by different tribunals coming to different interpretations of the same or similar treaty provisions. It also considers the difficulties for international law when tribunals interpret treaty provisions in a manner that negates agreed areas of state responsibility and instead shifts to an analysis based on customary international law. In a day and age when rights-based adjudication depends on the interpretation of negotiated international agreements, these concerns are no small matter.

Using the Argentinean economic crisis of 2002 as a launching point, the article makes an important contribution to the doctrinal evolution and emerging jurisprudence related to international investment agreements. The paper offers a balanced analysis of Non-Precluded Measures (NPMs) provisions in investment treaties, which arguably permit states to use their police powers to regulate without imposing treaty-based liability, and contrasts this with the necessity defense customary international law. While acknowledging a similarity between the legal issues, Burke-White and von Staden explain the micro and macro implications of confounding the lex specialis analysis of the terms of an investment treaty with the interpretation of the necessity defense under customary international law. The article convincingly argues that tribunals, parties and policy makers ignore the distinction between these different concepts at their peril.

Rather than leaving readers without a paradigm for the future, the article provides a useful framework for analyzing NPM provisions. The analysis calls for a particularized consideration – on a treaty by treaty basis – of: (1) the nexus between the state action and a treaty’s particular scope [i.e. does the NPM clause require state action to be “necessary for” or “directed to” a particular end], and (2) the permissible objectives articulated by the treaty [i.e. “security” or “public health”]. Acknowledging state conduct may require independent evaluation by an arbitral tribunals, a more controversial aspect of the article argues that tribunals should use the European Court of Human Rights “margin of appreciation” to grant deference to a state’s internal determination of what circumstances fall within the scope of an NPM clause. As applied to Argentina’s financial crisis, this could mean that tribunals give a degree of deference to Argentina’s determination that the civil unrest related to its economic situation from 2001-2002 (that included a run on the banks, violent protests and the imposition of a state of emergency – see here) created a state of emergency covered by the NPM clause. The article also contains a useful flow chart [p86] that recommends how future tribunals should approach issues related to NPM clauses and necessity.

I often find that a quality, well-written and thought-provoking article leaves me with more questions than when I started. This article exemplified that experience. It left me wondering about the proper intersection of international economic and human rights law. It caused me to question the proper role of canons of construction in light of the Vienna Convention. I could go on. But for now, I will confine myself to three issues that intrigued me, perhaps because of my own scholarship and experience in practice with investment treaty dispute resolution.

First, the authors describe international investment agreements as risk allocation devices. While they may not intend to suggest this is the exclusive function of investment treaties, the analysis does not consider other potential purposes of investment treaties. Treaties also serve to signal a host state’s interest in foreign investment; and treaties can provide an incentive for domestic reforms that expand the “rule of law enclave” (see here) from an international investment agreement to the domestic setting. Framing investment treaties as a “risk allocation device” alone could improperly suggest that investment treaties are akin to a form of insurance. The merits decision in Maffezini emphatically disputed this point and explained it “must emphasize that Bilateral Investment Treaties are not insurance policies against bad business judgments.” [Para 64] If investors are really looking to manage their investment-related risk more effectively, perhaps the key is to procure more appropriate political risk insurance rather than relying on the potentially uncertain adjudicative outcome of arbitral tribunal (or other type of dispute resolution). Given the uncertainties of adjudication exemplified by the Argentine cases, one might reasonably expect that investors will take these risks into account and extract a financial premium for future foreign investment. As a result, one wonders whether the substance of the article’s analysis would change if other functions of investment agreements came to the fore.

The authors also construe NPM clauses as an “exception” to liability. [p80] One wonders whether this is the case in all treaties. If, for example, a treaty’s NPM provision were structured as an exclusion from liability (rather than an exception), perhaps the analysis of an NPM provision would be different. Although the results may be functionally equivalent (i.e. a tribunal renders an award that either obligates a state to pay or not), the distinction could be important. The general default under customary international law has been that, except in particular cases (state agreement to be bound, violations of the minimum standard of treatment, jus cogens and the like) states are not liable to individuals for their conduct. This means, prior to creating an affirmative liability on behalf of a state through a treaty and a forum for enforcement, the default is sovereign immunity. This means that investors should generally expect to carry the risk of investments and take precautionary measures – such as the purchase of political risk insurance or engaging in other risk diversification strategies. It also means that where states have excluded coverage of the substantive rights through an NPM clause, no affirmative cause of action accrues under the lex specialis of the investment treaty. This should mean that, unless an investor is alleging that a cause of action under customary international law, analysis of the affirmative defense of necessity under customary international law should be unnecessary. Irrespective of whether an NPM provision is an exclusion from or exception to liability, the authors usefully explain that: (1) a lex specialis exclusion should be analyzed separately from customary international law, and (2) a proper textual understanding of these matters is critical to the international economic legal order and sovereignty of states negotiating investment treaties.

Finally, as the article’s title suggests, the Argentinean situation does seem somewhat extraordinary. One wonders therefore how representative the Argentinean experience is of the investment treaty dispute resolution in general and the interpretation of NPM clauses in particular. The later is harder to ascertain, as there does not yet appear to have been extensive interpretation of these clauses in other cases. Nevertheless, the former is somewhat easier to assess. Preliminary analysis does suggest that Argentina’s experience may be akin to a statistical outlier (see here). If Argentina’s case is not representative, it may be that we are less concerned about the collateral effects of the current situation. Nevertheless, as hard cases can still make bad law, even statistical outliers offer information about institutional integrity that can be used to formulate structural improvements.

Ultimately, this article is a must-read for those who are interested in international investment agreements and the potential defenses that host states can raise in connection with investment disputes. Its framework for future analysis is worthy of attention by scholars, lawyers, arbitrators and policymakers who have an interest in ascertaining the scope of governmental authority and the balance of interests with the rights of private investors. I am grateful to have been selected as a commentator for this article, as it has provided me with an excuse to delve deeply into an excellent paper that involves an intellectually stimulating issue with implications for the real world.

Investment Protection in Extraordinary Times: Interpreting Non-Precluded Measures Provisions

by William Burke-White and Adreas von Staden

Let us begin first by thanking Opinio Juris and the Virginia Journal of International Law for the opportunity to discuss our new article, Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties. We also thank Susan Franck in advance for commenting on the article and for what we hope will be a lively discussion.

Our article examines the tension between the protection of the rights of cross-border investors and the ability of states to craft policy responses to emergency situations under bilateral investment treaties (BITs). In an ever more globalized world in which exceptional circumstances such as financial crises, terrorist threats, and public health emergencies are all too common, the allocation of risks between international investors and the host states of their investments with respect to state policies that seek to address such threats but may harm investor interests in the process is emerging as a critical question in the law of international investment.

As the number of BITs has expanded exponentially over the past decade and the number of claims brought before the International Center for the Settlement of Investment Disputes (ICSID) has likewise increased, states have come to face significant liability toward investors for their policies designed to respond to emergency situations. For example, in the last weeks of 2001, Argentina experienced a financial collapse of catastrophic proportions. In response to the crisis Argentina adopted a number of measures to stabilize the economy and restore political confidence, including a currency devaluation, that also imposed immediate and painful costs on all participants in the Argentine economy, including foreign investors. As a result, Argentina has become subject to no fewer than forty-three ICSID arbitrations brought by investors who assert that Argentina’s response to the crisis harmed investments protected by various BITs. Argentina’s potential liability from these cases alone could be greater than U.S.$8 billion, more than the entire financial reserves of the Argentine government in 2002.

While BITs are often thought of as extraordinarily strong instruments of investor protection, many such treaties contain an under-studied and long-dormant provision designed to protect state freedom of action in exceptional or emergency situations. For example, Argentina’s BITs with the United States, Germany, and the Belgian-Luxembourg Economic Union (“BLEU”) each contain a non-precluded measures (NPM) provision that limits the applicability of investor protections under the BIT in exceptional circumstances. These NPM clauses allow states to take actions otherwise inconsistent with the treaty when, for example, necessary for the protection of essential security, the maintenance of public order, or to respond to a public health emergency. NPM provisions effectively permit host-state impairment of covered investment and, in turn weaken the BIT as a means of investor protection. As long as the host-state’s actions are taken in pursuit of one of the permissible objectives specified in the NPM clause, acts otherwise prohibited by the treaty do not constitute breaches of the treaty and states should face no liability under the BIT.

The traditional understanding of BITs is that host states commit through such treaties not to injure foreign investors or, at least, to bear the costs if they do. We argue that NPM clauses perform a risk-allocation function, transferring the costs of harming an investment from host states to investors in exceptional circumstances. Under BITs that include NPM clauses, the state must compensate investors for harms that breach the treaty in ordinary circumstances, but in exceptional circumstances, such as the Argentine financial crisis, NPM clauses transfer those risks to the investor and the state will not be liable for actions that would ordinarily breach the BIT.

NPM clauses such as those in the Argentine treaties noted above are in fact relatively widespread in the legal regime governing international investment. They appear regularly in the BITs of states that play a major role in the international financial system, such as Germany, India, the Belgian-Luxembourg Union, Canada, and the United States. They also arise sporadically in particular BIT relationships of numerous other states. Of the 2000 BITs presently in force, NPM clauses appear in at least 200 such treaties. Hence, the implications of such clauses for the risk allocation between states and investors proves critical to the broader architecture of international investment law.

Our article provides a detailed and comparative analysis of the use and interpretation of NPM clauses in the practice of key states including the U.S., Germany, and India. From a technical perspective, we examine the key elements of NPM clauses and explore the potential interpretation of these clauses in the practice of states-parties to BITs. In so doing, we argue that many BITs containing NPM clauses are and were intended to be weaker instruments of investor protection then generally assumed and that they represent a more subtle bargain between investor protection and state freedom of action in exceptional circumstances than most scholars, or investors for that matter, have recognized.

Arbitral awards have recently been handed down by ICSID panels in the first four of the many cases brought against Argentina under the U.S.-Argentina BIT as a result of the economic crises. The four tribunals, however, took diametrically different approaches to the NPM clause of the U.S.-Argentina BIT. On identical facts, three tribunals found the NPM clause inapplicable and held Argentina liable for damages to investors in breach of the BIT. A fourth tribunal found Argentina’s invocation of the clause justified and held Argentina not liable for harms to investors caused during the period of necessity created by the economic crisis. In addition, an Annulment Committee under the ICSID Convention reviewed the first of these awards to hold Argentina liable and, found it to contain “errors and lucans” of law, apparently vitiating the award of precedential value and perhaps even calling into question the legitimacy of the ICSID system itself.

We further argue that the tribunals that have addressed NPM clauses to date have often failed to engage in the kind of rigorous treaty interpretation mandated by the Vienna Convention and instead have taken interpretive short-cuts that threaten the very legitimacy of the investor-state arbitration system. Underlying the analysis of NPM clauses in our paper is a call for arbitral tribunals to return to first principles of treaty interpretation and to give serious consideration to the text of a treaty and, to the degree permissible under the Vienna Convention, the intent of states entering into such a treaty.

From a practical perspective, our article provides an urgently needed framework for understanding, interpreting and applying NPM provisions in BITs. More broadly, we seek to use the interpretation of NPM clauses to consider more general issues about the process of treaty interpretation. Our paper offers four theoretical contributions to the existing literature on treaty interpretation, investment regulation, and international arbitration. The article’s first theoretical contribution is to question the standard assumption that BITs are solely instruments of investment protection by recognizing that such treaties often incorporate significant exceptions that preserve state freedom of action in exceptional circumstances. A second theoretical contribution is that the article begins a heretofore overlooked exploration of the legal mechanisms through which states control and allocate risks in their bilateral treaty agreements. Third, we critique the approach taken by all of the ICSID tribunals in the Argentina cases thus far, suggesting that their one-size-fits-all approach to interpretation does not reflect the range of meanings states have intended for NPM clauses. Finally, we suggest that the ICSID system would be strengthened if arbitral tribunals were to import the margin of appreciation doctrine from the European Convention on Human Rights and Fundamental Freedoms (ECHR) to the international investment context with respect to issues that touch at the core constitutional issues of the state in question, using the margin as a template for determining the deference to be accorded to a state’s own invocation of NPM provisions.

A Reply to Professor Mallat

by Haider Ala Hamoudi

I have very little add to Professor Mallat’s enlightening comments. To the extent that I have a criticism, it is that he is perhaps too quick to dismiss his own work, upon which my scholarship is based. To be sure, Professor Mallat has focused on Sadr’s reactions to Marxism, and the role he played within the Najaf seminaries to resist its encroachment. This was indeed the thrust of much of Sadr’s work, and as Professor Mallat shows, he was largely successful in these efforts. Professor Mallat’s exposure of precisely what Sadr had aimed to do, and the effects of his efforts on the seminaries, not to mention a broader Shi’i lay population that grew increasingly hostile to Marxism after him, was no easy feat. This is particularly so given how the premier Iraq historian of the period, Hanna Batatu, was so enamored of communist influence that he minimizes profoundly the effect of the Islamic movement and suggests that Saddam’s supposed efforts (I have my doubts that any such efforts were made) to incorporate the Shi’a more meaningfully in the Iraqi regime had largely succeeded. Mallat fills in where Batatu’s largest shortcoming lies, in examining the Islamic resurgence, the seminary structure in which it took root, and the influence it has had and continues to have on Iraq. This is not to disparage Batatu’s efforts, none have described the rise of the social classes prior to the 1958 Revolution or the Communist Party after it better than he has, only to point out a shortcoming that is too infrequently discussed and that, if more thoroughly examined, would give Professor Mallat his due as one of the premier Iraq scholars of the period.

Nevertheless, the question that remains these many years later, now that Batatu’s notions, at least concerning Shi’i integration into Ba’ath Iraq, have been proven so profoundly wrong, is why Sadr still retains such broad popularity among Shi’is. If the communists are no longer with us, and nobody is really interested in hearing Sadr’s theories on Islam’s incompatibility with Dialectic Materialism, why does virtually any bookstore in any Shi’i mosque I have seen in the United States carry a copy of Iqtisaduna alongside a collection of material from others concerning how to pray, the unassailable historical claims of Shi’ism concerning Apostolic succession, and similar works that are, for lack of a better word, considerably more down market? Why would it be the picture of Muhammad Baqir al-Sadr that sprang up in communities of the Iraqi Shi’i faithful days after Saddam had fallen, carried aloft by young men whose knowledge of Marxism is entirely from works of history? Why would Basra’s girls’ school be named for his sister? If it is not antipathy to communism, which had grown so irrelevant in Iraq that the Islamist parties bearing Sadr’s mantle did not even bother to protest the appointment of communists to Iraq’s Governing Council, then what, exactly is it that so animates Iraq’s Shi’a?

This, unfortunately, has been little discussed in much contemporary literature. Scholars from the leftist Hanna Batatu to Juan Cole have at various times dismissed Sadr’s ideas as being either hackneyed or naïve, attributable more to some incomprehensible loyalty than to anything original or interesting that Sadr may have said. What I have attempted to show in my work, and my earlier entry, is that this is quite far from the truth. Sadr’s work is not only original, it is also deeply, profoundly resonant with the sensibilities of so many modern Muslims in its calls for functional jurisprudence, and economic and political resistance to a global order with which so many Muslims are dissatisfied.

As for Professor Mallat’s comments on Islamic finance, I am perhaps less enthused by the substance of Sadr’s work Al Bank Al La Ribawi fil Islam (The Interest Free Bank in Islam), mostly because it seems that by considering borrower and lender as part of a single economic transaction, it minimizes the fundamental importance of the financial institution in aggregating and pooling risks and liquidity demands. The bank does more than connect one customer to another, after all, it provides its depositors with immediate liquidity over their relatively small deposits and its lenders considerably larger long term loans (aggregated from the depositor funds) whose repayment takes place over a period of years. This aggregation and pooling is the core of the bank’s service.

Nevertheless, Professor Mallat and I agree entirely on the substance of Islamic finance, and he is certainly right that Sadr’s approach is quite interesting and indicative of his functional style. If, Sadr wonders, the bank is using the capital of one group of people to fund another, why not simply consider transactions across the financial intermediary to be one collective whole, disregarding as a result the formal existence of the intermediary? While that particular idea may not be attractive, the approach, of seeking to attach an Islamic substance to a shar’ia form, is more satisfying than the deceptive nonsense that dominates the practice of Islamic finance, as Professor Mallat properly points out.

The Origins of Islamic Finance: A Response

by Chibli Mallat

This is a wonderful opportunity to bring Islamic law into the legal debate in the United States beyond the superficial level at which it usually takes place. This is the more welcome for someone who has written a book on Muhammad Baqer as-Sadr as the most creative Islamic thinker of the 20th century (The Renewal of Islamic Law, Cambridge 1993), and now sees a second generation of Sadr scholars, like Professor Hamoudi, engaging seriously his work in American legal academia.

In his article, Hamoudi uses Sadr’s work to show how a functionalist approach to Islamic law is combined with a real scholarly autonomy to provide a constructive criticism of the modern economic system. ‘Functionalist’ in this understanding is dual in Sadr’s work. On the one hand, Sadr breaks with ‘traditional’ scholarship in the constraining sense, which relegates scholars to boring and obscure discussions that have little or no use in modern society. On the other hand, functionalism means debate with the outside world on the highest possible plane, and engages the scholar of Islamic law in his society’s debate and pressing issues. Sadr’s seminal work, Iqtisaduna (1959-61), was responsive to a pervasive debate in Iraq at the time, indeed in the Middle East and elsewhere on the planet, when in the 1950s Soviet-style socialism was the central challenge to the dominant capitalist order. Prof. Hamoudi pushes the debate further, by showing that the ‘socialist’ contingency is only part of the picture in Sadr’s functionalism. He has now engaged the Sadr system in a planetary debate partly informed by the ascendancy of political Islam. In the course of this widening of the scope of Sadr’s worldview, Hamoudi places the debate opened by Sadr against the structure of law studying and teaching in ‘traditional’ scholars like Sadr. This is a welcome dimension of Sadr’s contributions, which I may have missed by discussing the Najaf schools too formally.

As for ‘scholarly autonomy’ in Sadr’s reinvigoration of Islamic law, Hamoudi operates on new terrain which comes from his engaging the legal debate in America, through the lens of what he calls ‘Langdellian formalism’. We agree, I think, that one of the important quality of Sadr’s work is a thorough scholarship that allows it to ‘form system’, in Hamoudi’s words ‘to show us the way’. I rested that conclusion in my early book on the sheer quality of Sadr’s scholarship, but Hamoudi adds a more interesting dimension. Building on Sadr’s discussion of objectivity and subjectivity (dhatiyya) in Iqtisaduna, he develops Sadr’s interpretation of Islamic law in a way that allows him to break away from formalism, while retaining a measure of objectivity which is defined by the autonomy of scholarship.

This then is applied to Islamic finance. I share Hamoudi’s criticism of the gimmickry that the modern-day practice of Islamic finance seems to relish. Since my first edited book on Islamic Law and Finance (London 1988) through to the work on Sadr’s interest-free Islamic bank (Sadr, al-bank al-la ribawi fil-Islam, Kuwait 1973, discussed in chapter 5 of my Renewal) and my more recent Introduction to Middle Eastern Law (Oxford 2007, chapter 9), I have been attentive to a field which has grown dramatically in terms of assets. I am not impressed by the gimmickry, and I join Mahmud al-Gamal and Haider Ala Hamoudi in their skepticism towards what Hamoudi rightly calls ‘hypocrisy.’ From a system which is informed by the moral unease in Islamic law toward speculative investment which is not underscored by labour, the current Islamic banks have engaged into a spate of dubious transactions with Arabic names that all but dupe the customer. Commercial contracts between investor and worker under the classic mudaraba, which had been already thoroughly examined by Abraham Udovitch (Partnership and Profit in Medieval Islam, Princeton 1970) are replaced with murabaha and tawarruq schemes that mean little other than contorted, allegedly Islamised schemes, which are in fact poor replicas of Western banking. This is unfortunate, and has been rightly exposed in the better literature which Hamoudi, Gamal and Ibrahim Warde represent.

In his Interest-Free Bank, Sadr offered an enticing scheme that never found its way to Islamic banks. Instead of conceiving of deposits and loans as ‘two-tier mudaraba’, he tried to think the contract between the bank’s borrower and the bank’s lender (the depositor) as one unit. Maybe this cannot work, but the effort exerted by Sadr deserves a better shot than all types of Western and Muslim legal advisors have been offering to Islamic capital invested in Islamic banking. Prof. Hamoudi and some of the more serious colleagues, in academia and in practice, will no doubt engage the field more seriously on this level.

Muhammad Baqir al-Sadr and the Origins of Islamic Finance

by Haider Ala Hamoudi

First, an obligatory and entirely deserved thanks to Chris Ripple and the editors of the Virginia Journal of International Law for giving me an opportunity to discuss my work on this blog, and to Chibli Mallat, the premier Sadr scholar of our time, for agreeing to comment thereon.

Sadr’s work Iqtisaduna is so multifaceted and complex that any depiction of it is necessarily reductive, and what I attempt here is not so much a depiction, as a summary of a depiction. I therefore beg the reader’s indulgence if what I present strikes him or her as a shallow rendition of the depths of Sadr’s thoughts on the subject of law, economics and jurisprudence, as it is nearly impossible to do justice to Sadr in this limited space.

It seems to me that the central jurisprudential paradox that Sadr was attempting to deal with is a universal one, discussed often in our own post-Realist academy. If the law is to be functional, that is, if it is to work as a tool in the maintenance of social order, then it necessarily must be responsive to the social, political and economic circumstances it seeks to control, and yet if the law is to be autonomous, that is, if it is to be independent of social, political and economic movements, then just as surely it must be insulated to some extent from those very circumstances. To particularize this to the Islamic experience, if the jurist were to sit in his seminary in entire isolation from the society in which he finds himself, and pronounce on subjects as arcane as the ritual purity of sweat of a man engaged in intercourse during the holy month of Ramadan (an actual example from the ruminations of a current Shi’i jurist), he might soon find himself marginalized and disregarded in favor of other movements whose message appear to the believers to be of more contemporary relevance. Such is precisely what Sadr saw as occurring in his native Iraq, as the work of Professor Mallat so ably demonstrates, the growing disenchantment among the Shi’a faithful with the clergy in the mid-20th century and an inexorable drift towards economic theories of the radical left, which appeared far more pertinent to the lives of the economically and politically marginalized Iraqi Shi’a.

Yet by the same token, as one of the most brilliant people of his generation, Sadr realized that if any jurist were merely to invent an economic system to his own liking, revising and revisiting doctrine as often as he saw fit to ensure a fair, functional and efficient economic system, then at some point the system, as a means of ensuring Islamicity in matters of commerce, would lose its credibility and appear to be little more than an endorsement of current, fashionable ideological conviction, bearing little to no connection to God’s Will as expressed in foundational text, such as the Qur’an and Muhammad’s statements, utterances and actions, collectively known as the Sunna.

Sadr expresses this paradox as a conflict between “subjectivity” (dhatiyya) and “principled interpretive effort” (ijtihad). He acknowledges that in selecting doctrine from the rules of the past, subjective, ideological choice is made but is careful not to endorse wholesale interpretations that might deviate from acceptable boundaries. Yet where are such boundaries to be found, one may ask?

In Sadr’s context, the answer lay in the institutional structure of Iraqi Shi’ism. Unlike Sunnism, whose doctrinal schools have largely disappeared (or lost nearly all their credibility due to state interference to the extent that they remain intact), Shi’ism has a highly coherent system of rulemaking. Independent seminaries are organized in Najaf, headed by some limited number of Grand Ayatollahs. As the Grand Ayatollahs pass on, others rise to replace them from the seminaries, determined partly by their reputation within the religious community and partly through the respect accorded them in the lay community, who tithe 20% of their earnings to the Grand Ayatollah whom they have selected as their own source of rules. (Each lay person must select a Grand Ayatollah, and independent interpretation is strictly forbidden by those who have not trained in the seminaries). Each Grand Ayatollah is independent of the other, in the sense that each makes his own rules through the exercise of his own interpretive effort from foundational text, and yet, given that they operate in the same location, with significant intermingling of seminary students, an interpretive community is formed. That interpretive community, believes Sadr, can be the basis of the law, insulated to be sure from “ordinary” politics, yet sensitive to it. No one jurist could shift rules rapidly, and yet all jurists should be sufficiently attuned to the social circumstances to allow them to play a role collectively in their reading of foundational text. Sadr is thus entirely unconcerned with faithful application of verse and chapter, not only is he not a textualist but through his dismissal of the notion that all of the Sunna are to be literally followed quite clearly he finds textualism unworkable. What Muhammad may have prohibited in his role as a judge between two economic actors of his time cannot be the basis of a modern rule in a different context, Sadr argues. It will not work. Functionality, and religious integrity, are the twin values Sadr seeks to achieve.

A common critique of Iqtisaduna, and Islamic economics generally, is that it is hopelessly naïve, entirely unworkable in the modern world. There is some truth to this, ironic as it may seem given Sadr’s inherently functional aproach. Sadr’s stubborn insistence on profit sharing rather than inequitable divisions of risk, in a manner that not only prohibits money interest but also salaried labor in particular industries (for there is no profit or loss sharing in a standard salary contract), seems wholly impossible. The notion that money interest forces loans to unprofitable industries because the lender cares not about the success of the business when his return is assured ignores bankruptcy risks and the possibility of limited liability, something Sadr does not even deign to discuss. Money interest does not, as Sadr argues, lead to disparities in wealth; in fact, quite the opposite is true because those individuals and enterprises that have the least access to capital are generally the most reliant on debt given the unwillingness of financiers to “share” profits with them.

So it is fair to ask what happened between theory and application to Islam’s most prominent voice in favor of a jurisprudence that is more sensible, if not entirely developed (undeveloped because of his premature murder by the Saddam Hussein regime in 1980). Why didn’t Sadr see the economic realities of our times and embrace more wholeheartedly American capitalism, leavening it perhaps with a healthy Islamic dose of social justice, another concept near and dear to Sadr’s heart. Why such an economic muddle?

A variety of explanations might be offered. Sadr is not an economist, it might be argued, and so his economic abilities and forecasting do not match his jurisprudence. Professor Mallat provides a far more charitable criticism, namely that Sadr’s work suffers from some anachronism—Sadr’s primary preoccupation was with Marxism, to which the Shi’a faithful were drifting, and not capitalism. Professor Mallat indicates properly that Sadr considered Zionism and Marxism to be Islam’s existential threats, the United States is at most a side player through its support of Zionism. Moreover, it was reasonable for developing nations to believe in the late 1950’s and early 1960’s, as Sadr was developing his economic theories, that the Soviet Union was as likely, if not more likely, to emerge victorious from the Cold War given the popularity of Marxist ideas. And indeed most of Sadr’s work on logic and philosophy as well as economics goes through great efforts to discredit Marxist theories that few take very seriously any longer.

I’d like to offer another explanation for Sadr’s approach, one intended to supplement rather than supplant Professor Mallat’s worthy considerations, and one developed with the perspective of the fifteen additional years that have passed since the publication of Professor Mallat’s book so shaped our understanding of Sadr’s influence on our times. Sadr’s disinclination to adopt more of contemporary capitalism, it might be said, stems not only from his preoccupation with Marxism, but also from his deep dissatisfaction with modern economic order. Sadr is purposefully rejecting as inimical to Islam and Muslims both American capitalism and Soviet communism, he seeks to create an independent form of economics, hence the title Iqtisaduna, or Our Economics, that will serve the interests of the Muslim community more effectively. By implication, then, neither the East nor the West was the appropriate model, and if Sadr’s focus was on the East, it was only because it was viewed as the more immediate threat. Something is rotten, however, in both systems, to Sadr’s mind, if they have led to such high levels of Muslim marginalization and discontent.

Going one step further, this does much to explain why the Muslim world continues to repeat, long after Marxism’s star has dimmed, Sadr’s call for an independent Islamic economic system. This rhetoric is repeated not only by comparative radicals such as President Ahmedinijad of Iran, but also by the considerably more moderate Mohammad Taqi Usmani, advisor to HSBC’s Shari’ah Banking division. Muslims are deeply dissatisfied with the modern economic system, they find it fundamentally troublesome, they fail to see how it might bring them peace and prosperity, and thus do so many of them reject it wholesale, resist it in favor of an alternative that has to date failed to bring very much success.

The point of these later ruminations is not at all to suggest that there is a hopeless divide between the Muslim civilizations and those of the West, such “clash of civilizations” rhetoric seems counterproductive and silly. Rather, I merely wish to suggest that the problems that exist with Muslim law to my mind at the present time are less that Islam needs to reform to reconcile itself with modernity (the still immensely popular Sadr provided the jurisprudential tools for that decades ago), and more that modernity must prove itself, to the satisfaction of contemporary Muslims, to be responsive to the needs, aspirations and expectations of the modern Muslim world. In a Muslim polity where, in large part, capitalism is synonymous with cronyism, corruption and astonishing disparities of wealth, secularism involves the wholesale killing of clerics and liberal democracy is an elaborate, theatrical sham, it is no surprise that this has yet to occur in large part. But if it could, and if Muslims could be convinced that there was something to globalization, private enterprise and secular, liberal democracy that responded to their very real aspirations, then Islam, and its law, will follow, in a manner that retains both its functional quality and its religious integrity. Sadr has already shown us the way.

VJIL Vol. 48-2: Opinio Juris Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law is pleased to continue its partnership with Opinio Juris in this second online symposium. This week, we will be featuring two articles and one essay just published by VJIL in Vol. 48-2, available here. Thank you to the moderators of Opinio Juris for making available this great forum for discussion.

On Tuesday, Haider Ala Hamoudi (University of Pittsburgh) will discuss his article, You Say You Want a Revolution: Interpretive Communities and the Origins of Islamic Finance. Professor Hamoudi’s article examines the jurisprudential philosophy of Iraqi Shi’i jurist Muhammad Baqir al-Sadr to demonstrate how some of Sadr’s radical notions can be used to make the shari’a a more salutary force in the economic and social order of Muslim states. Chibli Mallat of St. Joseph’s University (Beirut, Lebanon) will be the respondent.

On Wednesday, William Burke-White (University of Pennsylvania) and Andreas von Staden will discuss their article, Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties. In their article, Professors Burke-White and Mr. von Staden provide a detailed study of NPM clauses in international investment law and offer a framework for the interpretation of NPM clauses based on the practice of key states. Susan Franck (University of Nebraska) will be the respondent.

On Thursday, Jacob Katz Cogan (University of Cincinnati) will discuss his essay, Competition and Control in International Adjudication. Professor Cogan challenges the standard view that States have sufficient tools to constrain international courts and argues that increasing competition among international courts will more effectively constrain international judicial power and thereby increase the likelihood that States will accede to this authority. Monica Hakimi (Cardozo) and Larry Helfer (Vanderbilt) will be the respondents.

We hope that you will join in the online discussion this week. When the symposium concludes, please keep in contact with us through our website to continue the conversation.

On Torture and Humanitarian Intervention

by Roger Alford

Signing Off, with Thanks to All

by Tobias Thienel

New Iraq Flag — For a While…

by Kevin Jon Heller

ICTR Roundup

by Kevin Jon Heller

The Algebra of International Law

by Roger Alford

Davos Innovation: “Knowledge Concierge”

by Peter Spiro

Self-Executing Treaties, the Senate, and a Bit of German Law

by Tobias Thienel

Pushing Another Constitutional Envelope: Bush Going It Alone on Iraq Security Agreement?

by Peter Spiro

Why States Need an International Law for Information Operations

by Duncan Hollis

Welcome to the Blogosphere, Invisible College!

by Kevin Jon Heller

D.C. Circuit on Bivens Claims in the War on Terror

by Roger Alford

Restatement on International Commercial Arbitration

by Roger Alford

What Do Bad Policymaking and Bad Driving Have in Common?

by Peter Spiro

Saddam Prosecutor Transferred from the IHT — Likely Illegally

by Kevin Jon Heller

The Impact of Martin Luther King on International Law

by Roger Alford

When Are Sovereigns Immune and Indispensable?

by Roger Alford

Canada Thinks the US Tortures — At Least in Private

by Kevin Jon Heller

Inhuman Treatment, Evidence, and the Military Commissions Act

by Tobias Thienel

BJIL Call for Papers on Corporate Social Responsibility

by Roger Alford

Bobby Fischer, “United States Person”

by Peter Spiro

John Yoo, Unfazed

by Peter Spiro

New Book Project on the Nuremberg Military Tribunals

by Kevin Jon Heller

Book Review, Contemporary Issues in the Law of Treaties

by Duncan Hollis

Can the Security Council Displace Human Rights Treaties? (Al-Jedda, Part 2)

by Tobias Thienel

Book Discussion with Walter Russell Mead

by Roger Alford

Opinio Juris is pleased to announced that in cooperation with the Council on Foreign Relations we will be sponsoring a book discussion with Walter Russell Mead about his new book, God and Gold: Britain, America, and the Making of the Modern World.

The book discussion will be held the week of February 4, and we wanted to announce it early to give our readers the opportunity to buy the book and participate in the discussion. In addition to Mead’s participation, we will have prominent guests as well as the participation of the permanent contributors.

God and Gold is currently a bestseller on the Foreign Affair’s Bestseller List. The book posits that Britain and America were singularly responsible for shaping the modern world, helping to create the liberal, democratic capitalist system whose economic and social influence continues to grow around the world.

The New York Times has a nice review of the book, which includes this choice summary:

[Mead] believes every age needs a “liberal empire” to control the world’s seas and make free trade possible. This was discovered by the United Provinces of the Netherlands four centuries ago, then by the United Kingdom — and now by the United States. Indeed, “the last 400 years of world history can be summed up in 10 letters. … The story of world power goes U.P. to U.K. to U.S.” Each of these “liberal” maritime empires defeated towering, glowering rivals. From the Spanish Armada to Soviet tanks, they prevailed for one reason: they adhered to an unwritten code that the author wryly terms “the Protocols of the Elders of Greenwich.” These are simple. Build an open society at home. Channel its dynamism outward, toward the global economy. Use the full force of the state to control the oceans, protect commerce and defeat illiberal adversaries abroad. Open the global system to others, even your enemies, if they agree to abide by the rules. Then the world’s waters — and markets — will be yours.

Please go buy the book and join us the week of February 4 for a lively discussion with Walter Russell Mead.

Padilla v. Yoo and the Bivens National Security Exception

by Roger Alford

All Quiet on UNCLOS

by Duncan Hollis

Is the U.S. Army in Iraq acting for the UN?

by Tobias Thienel

Welcome New Guest-Blogger Tobias Thienel

by Kevin Jon Heller

The Spiritual Capital of Successful Countries

by Roger Alford

Philip Agee Is Dead. Should the Precedent Die With Him?

by Peter Spiro

Internationalism vs. Cosmopolitanism

by Roger Alford

Nick Rostow Is Soft on IL: Signs of a Republican Fissure?

by Peter Spiro

Bolten, Hadley, Perino — Oh, My!

by Kevin Jon Heller

Double Jeopardy and Crimes Committed Abroad

by Roger Alford

The Greatest Toy Ever

by Kevin Jon Heller

Liberia’s TRC Begins Work

by Kevin Jon Heller

Panamanian Officials Who Helped Free Posada To Be Prosecuted

by Kevin Jon Heller

(International) Law Deans

by Peter Spiro

Constitutional Comparativism and the Death Penalty for Child Rape

by Roger Alford

Forget Annexing Canada: Let’s Annex Western Europe

by Julian Ku

The Color of War

by Kevin Jon Heller

Padilla versus Yoo

by Duncan Hollis

Don’t Worry, Be Happy

by Roger Alford

Magistrate Rules Human Rights Groups Have Journalists Privilege

by Kevin Jon Heller

Israel v. Hamas: Is International Law Useful?

by Julian Ku


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I notice that none of us have posted on the Israeli military assault on Gaza.  This is not surprising, there is very little useful to say about it, especially from a legal point of view.  There is something depressingly predictable about the commentary arising out of Israel’s military incursion into Gaza.   Critics of Israeli policy in general have denounced the incursion, alleging (of course) war crimes.  Defenders of Israeli policy have supported the incursion foursquare, rejecting claims of disproportionate use of force.  Frankly, even if Israel hit Palestinians with bb guns, I am fairly sure that their military would be accused of war crimes.  And frankly, anything short of the use of nuclear force would probably receive staunch support from many pro-Israel commentators.  Is there any way to assess the legality of Israel and Hamas’ actions in a way that would be persuasive to both sides?

Availability Cascades and Global Warming

by Roger Alford

Divesting Federal Foreign Affairs Power? The Sudan Accountability & Divestment Act

by Duncan Hollis