Weekend Roundup: April 7-13, 2012

by An Hertogen

This week on Opinio Juris, Chris Borgen drew our attention to a NY Times op-ed explaining the surprising reason why in the grand bargain dividing the top posts at the World Bank and the IMF between the US and Europe, the US ended up with the World Bank rather than the IMF.

Kevin Heller posted the abstract of his response in a mini-symposium of the Texas International Law Journal on Karl Chang’s article arguing that the law of neutrality provides the legal framework for the US conflict with Al-Qaeda. He also referred us to Lawfare for a discussion of the Al-Nashiri prosecution. In a throwback to the Cold War, he also quizzed us on a quote about Cuba following the controversy surrounding Miami Marlin’s manager Ozzie Guillen, and posted about Congressman West’s allegations about Democrats being members of the Communist Party. He also critiqued ICC Prosecutor Moreno-Ocampo for undermining the OTP’s credibility in Côte d’Ivoire.

Peter Spiro wondered about the cautionary lessons for legal academics of “postparadigmism” in International Relations and discussed a European Court of Human Rights decision denying Greek non-resident citizens the right to vote in the Greek parliamentary elections from their foreign place of residence.

Ken Anderson posted about a speech by the CIA’s General Counsel at Harvard Law School. In her post on this speech, Deborah Pearlstein discussed the authority for the CIA’s use of force under US constitutional law and the restraints on this use of force under international law.

Duncan Hollis posted his compilation of online databases, gathered when editing his upcoming book The Oxford Guide to Treaties.

In a guest post, Doug Cassel continued his debate with Kevin Heller about Chevron in Ecuador.

Throughout this week we hosted an online symposium by the Virginia Journal of International Law. This symposium covered six articles drawn from the first two issues of the Journal’s volume 52. The first post introduced an article by I. Glenn Cohen on health care tourism. The article addressed the empirical question whether health care tourism reduces access to health care for the destination country’s poor, and the normative question whether international obligations arise for home countries. In their comments, Colleen M. Flood and Y.Y. Brandon Chen outlined four challenges and argued that any discussion on health care tourism needs to consider equity in the distribution of health care resources. Nathan Cortez’ comments focused on the global justice theories discussed in the article. He evaluated which theories best accommodate the empirical uncertainty about the impact of health care tourism on access to health care in the destination countries. The final response, by Jeremy Snyder and Valorie A. Crooks, also raised the dearth of empirical data on medical tourism. I. Glenn Cohen’s reply to the comments can be found here.

On Tuesday, the symposium discussed Stephan W. Schill’s argument that the legitimacy of international investment law can be enhanced through the adoption of a public law approach. Anthea Roberts raised four series of questions about this approach. Jürgen Kurtz questioned the choice to focus on domestic public law regimes rather than international public law regimes to inform the public law approach. In his reply, Stephan W. Schill clarified his concept of global public law.

On Wednesday, attention shifted to Gregory Shaffer and Joel P. Trachtman’s article on “Interpretation and Institutional Choice at the WTO”, introduced here by the authors. Rachel Brewster commented on the relationship between the drafters’ text and the Appellate Body’s interpretative methods, and questioned how the Appellate Body should deal with policy discretion in the implementation of the WTO Agreements. Robert Howse’s response addressed the role of non-WTO international law in WTO dispute settlement, arguing that that the Appellate Body has returned to greater openness to non-WTO international law than Shaffer and Trachtman’s article suggests. He also addressed the AB’s preference for balancing rather than “bright lines” and its efforts to enhance the precedential force of its own decisions. Joost Pauwelyn disagreed with the article’s generalizations in terms of welfare and participation levels. Gregory Shaffer and Joel P. Trachtman’s response to the comments can be found here.

The discussion continued on Thursday when the symposium discussed Sungjoon Cho’s article. As explained in his introduction, his article advances a sociological/constructivist paradigm to understand the WTO, as an alternative to the rationalist framework used in Gregory Shaffer and Joel P. Trachtman’s article. The latter replied to the critique on their article in their comments as part of the online symposium. In her comments, Claire Kelley pointed to the blind spots in the constructivist framework on questions of transparency, accountability, participation and legitimacy. Sungjoon Cho’s reply to both comments can be found here.

On Friday, a first article to be discussed was Aslı Ü. Bâli’s “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example”, introduced here. The article provides context to recent constitutional evolutions in Turkey, which are often presented as a model for democratization in other countries. Respondents were Dr. Hootan Shambayati and Tom Ginsburg. Aslı Ü. Bâli’s response can be found here. A second article was Marco Ventoruzzo’s “Like Moths to a Flame? International Securities Litigation after Morrison: Correcting the Supreme Court’s ‘Transactional Test’”, introduced here, on which Hannah Buxbaum commented.

We started a new series of posts with upcoming events to inform you of conferences and calls for papers that may be of interest. We also posted on two ASIL events for which the deadlines are closing in the next few days.

We thank all guest posters for their contributions this week and wish you all a very nice weekend!

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