In 1973, Hans Blix and Jirina Emerson edited the Treaty Maker’s Handbook to help newly emerging States appreciate, post-decolonization, the intricacies of treaty-making as a matter of both domestic and international law. One of the work’s lasting legacies was the inclusion of sample provisions drawn from existing treaties on various treaty topics such as participation, entry into force, reservations, and amendments. The volume became a staple among treaty negotiators, and continues to be used today even as it becomes increasingly dated.

With due credit given to Blix and Emerson, one of the key features of my forthcoming book – The Oxford Guide to Treaties is a new set of treaty clauses. The volume includes 350 clauses taken from an array of existing treaties on 23 different treaty issues, such as the various ways treaty clauses may define a treaty’s object and purpose, delineate territorial and extraterritorial application, identify a treaty’s relationship to other treaties, or authorize simplified amendment procedures.

I found some of these clauses the old fashioned way, using multi-volume hard-bound sets of books like those edited by Bevans or UST (the US Treaty Series). But, far more often, I did my research on-line. As a result, I’ve now become a bit of a connoisseur of treaty databases. For years, a new major, multilateral treaty meant a new web-site dedicated to that treaty, which invariably includes its text and other relevant documentation (Final Acts, Records of the Meeting of the Parties, etc.). Bilateral treaties have long been much harder to track down. Today, however, States and International Organizations (IOs) are increasingly making all their treaty commitments publicly available on the Internet. In some cases, these treaties are organized in multiple ways, not just chronologically, but also by party, specific treaty features, or even, in a few cases, with full-text search capabilities. As a result, almost every treaty now ends up on a web-site somewhere. This development is a welcome one for both practitioners and scholars. Practitioners can now easily access texts that may implement the relative rights or duties of their clients (whether States, IOs, corporations or individuals) while scholars can get a better sense of the full panoply of modern treaty practice, whether for purposes of isolating specific practices or testing propositions as part of the new empiricism in international law.

In a future post, I plan to offer my unabashed (but admittedly unscientific) review of some of the major treaty databases, including the good, the bad, and (sometimes) the ugly. For now, I wanted to pass along a listing of public treaty databases, figuring folks might appreciate having them all collected in one locale.  I’ve not listed databases where you have to pay to get the treaty text (I’m looking at you IMO) because I question why a treaty text negotiated among nation states cannot be publicly available at least in some form on-line.  I’ve also limited my listing to those sites in English, not because they’re better, but because my facility in non-English texts is less than ideal.  I would, however, welcome comments on additional databases with which readers are familiar in the hopes that this post might become a common repository for those interested in doing treaty research of one form or another. Following the jump, I’ve listed alphabetically (and with hyperlinks!) 24 treaty databases readers may wish to consider visiting in their future practice or research:

Just a quick note to flag an upcoming symposium at Georgetown Law on Corporate Responsibility under the Alien Tort Statute. It’s scheduled for all day March 27, 2012.  Here’s a quick description of the event:

Alien Tort Statute (ATS) litigation has emerged as a focal point in the field of corporate responsibility over the past decade, as foreign plaintiffs alleging violations of international law argue their cases in federal court.  For corporations doing business abroad, liability under this statute is controversial and has the potential for substantial effects on human rights outcomes, environmental effects, foreign investment and human development, and business practices in general. The Supreme Court will hear an Alien Tort Statute case this term, Kiobel v. Royal Dutch Petroleum, to consider the question of corporate liability under the statute.

This symposium, sponsored by the Georgetown Journal of International Law and the Center on Transnational Business and the Law, will provide a critical examination of the role of the Alien Tort Statute as it relates to corporate responsibility.  Diverse viewpoints will be well represented. The event will feature a Keynote Address by Donald Francis Donovan, Esq., Debevoise & Plimpton LL.P. and President-elect, American Society of International Law, and discussion from the following panelists: John Bellinger, Bradford Clark, William Casto, Vivian Curran, Bill Dodge, Jonathan Drimmer, Nicole Erb, Jodi Flowers, Jon Hacker, Ziad Haider, Kristin Myles, Bill Reinsch, Kirsten Sjovoll, Beth Stephens.

For more details, see the preliminary schedule here. The symposium is open to the public with registration on a first-come, first served basis.

Although I’ve blogged with Opinio Juris for more than six years now, I would never describe myself as a frequent blogger; at my best, I’ll give you 2 posts a week, more often just one.  Of late, however, my blogging has been even more sporadic. Here’s the reason:

After more than two years of work, of which the last 3 months were particularly intense, I submitted a draft manuscript for The Oxford Guide to Treaties to OUP at the end of January. The Guide is designed to be a comprehensive and current overview of treaty law and practice for academics and practitioners alike. It combines 25 chapters on all the basic issues that arise in treaty-making, (including formation, application, interpretation and exit) with a survey of common treaty clauses, including 350 examples from existing treaties. The book is due in print this summer, but feel free to pre-order your copy now.  I’m sure I’ll blog about it more in the coming months (as well as a few treaty-related issues I picked up along the way).  For now, however, I’d love reader feedback on the proposed cover above.

And for those of you who want more details on the project itself, a table of contents follows the jump.

I’m so saddened to report that Professor David J Bederman has passed away at the age of 50 after a lengthy illness. Emory has a tribute to David here.

I still vividly remember my first encounter with David’s work when I was a new attorney in the Legal Adviser’s Office and read his concise, witty and simply wonderfully written introductory text, International Law Frameworks. I was inspired by how he managed to condense (accurately) the intellectual history of international law into a mere dozen pages. I was struck both then, and later as I came to know David as a colleague, by just how wide and deep his knowledge was of international law, and the truly passionate manner in which he pursued his interests in this field (which, I’d add was only one among many areas of expertise, alongside admiralty law and a successful Supreme Court practice).

Over the last six months, I was fortunate enough to work with David on a chapter that he wrote for my forthcoming Oxford Guide to Treaties. David authored the chapter on Third Party Rights and Obligations in Treaties. I was so impressed that, even as his health failed him, he wanted to hone his chapter into what I hope will be a seminal contribution to the field of treaty law.  I know I’m not the only international lawyer who was touched by David or his work, but I will say I consider myself fortunate to have known and worked with him.

In lieu of flowers, the family asks that donations to be made in Professor Bederman’s memory to the Patient Assistance Fund at the Winship Cancer Institute at Emory University or to the laboratory of Dr. H. Richard Alexander Jr., professor of research and associate chairman for clinical research at the University of Maryland Medical Center in Baltimore.

I’m looking forward to our joint symposium on Marko’s impressive book on extraterritorial treaty application. But before that begins, I wanted to flag a new opportunity for those looking to get international experience outside the United States. The Fulbright Program is inaugurating a new ‘Public Policy Fellowship’ for academic year 2012-2013. Here’s how they described it to me:

The Fulbright Public Policy Fellowship will allow fellows to serve in professional placements in foreign government ministries or institutions and gain hands-on public sector experience in participating foreign countries while simultaneously carrying out an academic research/study project. Fulbright Public Policy Fellowships will be offered in the following countries:

• Bangladesh
• Cote d’Ivoire
• Dominican Republic
• Guatemala
• Haiti
• Jamaica
• Mongolia
• Nepal
• Nigeria
• Thailand
• Tunisia

U.S. Embassies, Fulbright Commissions (where applicable), and host country governments will coordinate appropriate professional placements for candidates in public policy areas including, but not limited to, public health, education, agriculture, justice, energy, environment, public finance, economic development, information technology, and communications.

Candidates must be in receipt of a master’s or J.D. degree by the beginning of the Fellowship (Summer – Fall 2012) or be currently enrolled in a Ph.D. program.  Applicants must also have at least two years of work experience in public policy-related fields.

The Application for the Fulbright Public Policy Fellowship opened on November 4, 2011.  Applicants must complete and submit the Fulbright U.S. Student Application including the supplemental Fulbright Public Policy Fellowship section by February 1, 2012.  Departure for assignments will begin in Summer – Fall 2012.

To access an application go here.

Starting this coming Tuesday, Opinio Juris is pleased to host a joint symposium with the Yale Law Journal on a new article by Oona Hathaway and Scott Shapiro, Outcasting: Enforcement in Domestic and International Law. Here’s the abstract:

This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such as police or militia, that employ physical force to maintain order. Instead, outcasting involves denying the disobedient the benefits of social cooperation and membership. Law enforcement through outcasting in domestic law can be found throughout history – from medieval Iceland and classic canon law to modern-day public law. And it is ubiquitous in modern international law, from the World Trade Organization to the Universal Postal Union to the Montreal Protocol. Across radically different subject areas, international legal institutions use others (usually states) to enforce their rules and typically deploy outcasting rather than physical force. Seeing outcasting as a form of law enforcement not only helps us recognize that the traditional critique of international law – that it is not enforced and is therefore both ineffective and not real law – is based on a limited and inaccurate understanding of law enforcement. It also allows us to understand more fully when and how international law matters.

You can download a copy of the article over at SSRN (or check it out at the YLJ site).  We’re also pleased to welcome a group of distinguished commentators for the discussion: Samantha Besson from the University of Fribourg, Gary Bass from the Woodrow Wilson School at Princeton, and Miguel Maduro of EUI (and previously Advocate General for the European Court of Justice). It’s a great line-up and we’re very much looking forward to the conversation beginning on November 15.

Next Friday (November 18), Berkeley (along with the ICRC and ASIL’s Lieber Society) is hosting what looks like a fantastic conference on the issue of ‘cyber war’ and the relevant questions of law, ethics and policy. Here’s how they’re describing it:

The seminar will examine legal, ethical and policy issues posed by cyber warfare.  While much attention has been paid to jus ad bellum issues – examining when and under what circumstances a cyber attack constitutes an armed attack for the purposes of self defense – relatively little discussion has focused on how cyber warfare might require new rules, or new interpretations of rules, regarding the conduct of hostilities, or the jus in bello, once armed conflict has begun.

The Internet in Bello seminar will provide an opportunity for scholars and practitioners to explore issues such as intelligence-gathering and other means of ‘preparing the battlefield’; neutrality before and during cyber war, starting with how to interpret in the Internet era the traditional requirement that neutral States not participating in a given armed conflict not allow the movements of troops or weapons across their territories; as well as questions relating to how cyber operations intersect with the established rule that an attack is an act of violence, and the fundamental humanitarian principle of distinction, which holds that civilians should be protected against dangers arising from military operations.

The Deputy Head of US Cyber Command, Lt. Gen. Robert Schmidle, Jr, USMC, is the key note speaker, joined by an impressive array of US and British Legal Scholars, including, among others, Sir Daniel Bethlehem, former legal adviser to the UK foreign office, current ASIL President and Berkeley’s own David Caron as well as Professors Beth van Schaak (Santa Clara), Sean Watts (Creighton), and Eric Talbot Jensen (BYU). You can see the full line-up and the program here.

My one dig with this conference (and ones like that now seem to be popping up with regularity) is that registration is open to those who want to attend physically. It would be nice if these discussions of law and cyberspace could actually take place in cyberspace.  Be that as it may, for those of you lucky enough to be in the area, you can register to attend here.

Secretary of State Hillary Clinton had to cancel her visit to London today for the much-hyped cybersecurity conference, which was designed to push back against Russian and Chinese proposals for an “International Code of Conduct for Information Security.”  The Russian/Chinese proposal (co-authored with Uzbekistan and Tajikistan) is widely undestood as part of an effort to (1) move Internet governance away from the existing US-dominated public-private partnership to the ITU and (2) develop a global treaty on cybersecurity that will reinforce national sovereignty over all behavior in cyberspace (including speech and communication deemed de-stabilizing as much if not more than the cyberattacks or cyberespionage).

In Clinton’s absence, U.S. Vice President Joe Biden gave a speech via video, which summarized the current U.S. position. Here are a few of the more salient excerpts:

We know that it will take many years and patient and persistent engagement with people around the world to build a consensus around cyberspace, but there are no shortcuts because what citizens do online should not, as some have suggested, be decreed solely by groups of governments making decisions for them somewhere on high.  No citizen of any country should be subject to a repressive global code when they send an email or post a comment to a news article. . . .

Now, there are some who have a different view, as you all know.  They seek an international legal instrument that would lead to exclusive government control over Internet resources, institutions and content and national barriers on the free flow of information online.  But this, in our view, would lead to a fragmented Internet, one that does not connect people but divides them; a stagnant cyberspace, not an innovative one, and ultimately a less secure cyberspace with less trust among nations.

So the United States stands behind the current approach which harnesses the best of governments and private sector and civil society to manage the technical evolution of the Internet in real time.  This public-private collaboration has kept the Internet up and running all over the world. . . .

And this brings me to the second question that I’d like to address today, how to achieve both security and openness in cyberspace.  As we all know, the openness that makes the Internet a force for unprecedented progress can also enable wrongdoing on a vast scale.  Terrorists use the Internet to recruit operatives and plot attacks.  Human traffickers and child pornographers use the Internet to find and exploit victims.  And sensitive information is stolen every day from both governments and businesses by criminal networks, as well as individuals, and even by other nation states.  And we all face the threat that our critical infrastructure will be compromised by a cyberattack. It’s a real threat. . . .

We’re working with other nations to fight transnational crime, including by helping other nations build their law enforcement capacities.  We’ve ratified and we strongly promote the Budapest Cybercrime Convention, which sets out the steps countries must take to reduce cybercrime while still protecting human rights.  And as you might expect, we remain committed to fighting international terrorism and thwarting terrorist attacks that are planned and launched on the Internet.

We can and we must do all of this without resorting to a false solution that rationalizes government takeover of the Internet.  There’s no question in our view that every nation must protect its citizens against crime and attacks online, as well as off.  But we must do it in a manner that’s consistent with our shared values.

And this brings me to the concept that is absolutely fundamental in our view to any conversation about the future of cyberspace:  Existing principles of international law apply online, just as they do offline, in our view.

Yes, the Internet represents and presents new challenges, but to resolve them we don’t need to start from scratch.  International law principles are not suspended in cyberspace.  They apply there with equal force and equal urgency.

Take, for example, the threat of cyberspace conflict between states.  For more than a century, the global communities worked to develop rules that govern conflicts among nations, including concepts of proportionality, and distinction between combatants and civilians.  And we’ve developed diplomatic methods that countries can take together to prevent war, respond to attack and build trust with one another.   So while cyberspace is a new realm, we have many, many years of hard-won understandings to guide us in this new space.

Of course, cyberspace presents challenges that are different from any we’ve faced before, and it raises new questions.  It forces us to come up with new approaches where old ones no longer suffice.  Consider confidence-building measures.  It’s a great deal harder to assess another nation’s cyber-capabilities than to count their tanks, for example.  The technology is dual-use.  Governments don’t have a monopoly on it, and we can’t — you can’t judge the intentions of another country by looking at its force — like by looking at its force posture.  So it’s a challenge to identify effective, confidence-building measures in cyberspace.  We’ve got to find a way.

For example, the United States is working closely with Russia to reach an agreement that would establish links between our computer emergency response teams and our nuclear risk reduction centers to build cooperation and to set up lines of communication in the event of an alarming incident. . . .

The tactic of evoking security as a justification for harsh crackdowns on freedom is not new in the digital age.  But it has new resonance as the Internet has given governments new capacities for tracking and punishing human rights advocates and political dissidents.  In some places, as you all know, bloggers are imprisoned and abused for criticizing the government.  In others, there is widespread censorship of content that government deems politically unacceptable.

Look, folks, again, no surprise, the United States — and I suspect most of you, I hope — stand against these acts and for Internet freedom.  The rights of individuals to express their views and petition their leaders, practice their religion, assemble with their fellow citizens online we believe must be protected.  These rights are universal whether they’re exercised in the town square or on a Twitter stream.  They’re enshrined in the Universal Declaration of Human Rights, which applies to cyberspace just as surely as it does to every corner of every country on Earth.

Over the last year, we’ve hosted a number of discussions centered on immunity issues and how US courts deal with them.  For the most part, however, these discussions focused on individuals claiming immunity from becoming the subject of criminal or civil proceedings.  Last week, however, the 11th Circuit gave us a very different type of immunity case — the sovereign immunity a State has over its naval shipwrecks.  In 2007, Odyssey Marine Exploration, Inc. discovered the remains of a 19th Century Spanish vessel in international waters west of the Straits of Gibraltar.  It instituted admiralty proceedings in Florida to effectuate its claim to the sunken treasure it found there (including thousands of silver coins being transported at the behest of private Spanish interests) and the vessel’s remains. Spain, among others then intervened, claiming the vessel was the Mercedes, part of a Spanish squadron that had met the following fate:

On the morning of October 5, 1804, when the Spanish squadron was only one day’s sail from Cadiz, it was intercepted by a British squadron. Four Royal British Navyships, under the command of Commodore Graham Moore, had been sent by the British Navy Admiralty to intercept Spanish warships transporting treasure back to Spain. The Spanish frigates, having sighted the British frigates headed towards them, assumed a combat formation. A British officer was sent aboard [one of the Spanish vessels] and informed the Spanish that the British King had ordered the British Navy to detain the Spanish squadron and take it to England. The Spanish refused the British order, and what was to become known as the Battle of Cape Saint Mary soon commenced. Only a few minutes after the battle began, the Mercedes exploded. . . Except for fifty sailors, everyone aboard the Mercedes was killed . . . The remaining three Spanish frigates surrendered and were taken by the British squadron to England.  Partly as a consequence of the Battle of Cape Saint Mary, Spain declared war against Great Britain and entered into the Napoleonic Wars as an ally of France.

Based on the wreck’s identity as the Mercedes, Spain asserted sovereign immunity over the res of not only the vessel, but its cargo.  Odyssey objected as to the identity of the ship, the application of sovereign immunity to its cargo, and invoked a commercial activity exception to any immunity findings.  The District Court, however, concluded the res was the Mercedes and that it was entitled to sovereign immunity.

On appeal, the 11th Circuit affirmed the District Court decision that the vessel was the Mercedes and that Spain was entitled to a presumption of immunity under Section 1609 of the Foreign Sovereign Immunities Act:

Section 1609 of the FSIA states: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment[,] arrest[,] and execution except as provided in sections 1610 and 1611 of this chapter.”  28 U.S.C. § 1609.  The Mercedes is Spain’s sovereign property that is within the United States.  While the Mercedes itself is not within the United States, that alone does not defeat the court’s ability to obtain jurisdiction over it.  A court may have either actual or constructive possession over the res . . . A salvor is thus able to bring a shipwreck found in international waters constructively within a court’s territorial jurisdiction by having a portion of the shipwreck within the jurisdiction.  R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943,967-69 (4th Cir. 1999) (concluding a shipwreck found in international waters can “constructively” be considered within the jurisdiction of the district court, although the district court’s sovereignty over the wreck is a “‘shared sovereignty,’ shared with other nations enforcing the same [law of all nations]”).  Odyssey has deposited parts of the Mercedes with the district court, constructively bringing the shipwreck within the court’s territorial jurisdiction.  Because this is an in rem action based on the arrest of sovereign property, § 1609 provides the Mercedes with presumptive immunity from arrest.

Odyssey did not invoke either of the statutory exceptions to Section 1609, but instead invoked the “subject to existing international agreements” language in Section 1609, arguing that the 1958 High Seas Convention’s restrictive approach to immunity should govern the case.  The Court disagreed, finding that, for Spain, “providing protection and safe passage to property of Spanish citizens was a military function of the Spanish Navy, especially in times of war or threatened war.”

All of the foregoing seems pretty sensible with respect to the Spanish vessel, but why give the cargo the same immunity if it hadn’t actually belonged to Spain?  The 11th Circuit invokes a 1902 Treaty as requiring it to do so:

In 1902, the United States and Spain signed a treaty mandating “[i]n cases of shipwreck . . . each party shall afford to the vessels of the other, whether belonging to the state or to individuals, the same assistance and protection and the same immunities which would have been granted to its own vessels in similar cases.” 1902 Treaty of Friendship and General Relations Between the United States of America and Spain, art. X, July 3, 1902, 33 Stat. 2105.  Under this treaty, the United States must afford the Mercedes, as a shipwrecked Spanish warship, the same protection it would give a shipwrecked United States military vessel.  The United States considers the cargo of a shipwrecked U.S. military vessel part of the shipwreck and gives it the same immunities as the shipwreck.  Under the [Sunken Military Craft Act], the rights, title and interest of the United States in any sunken military craft are protected absent an “express divestiture of title.”  § 1401, 118 Stat. at 2094. The definition of a “sunken military craft” includes a sunken warship or other military vessel, as well as “all or any portion of . . . the associated contents of a craft.”  § 1408(3)(C), 118 Stat. at 2098.  “Associated contents” are defined as “the equipment, cargo, and contents of a sunken military craft that are within its debris field . . . [and] the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.”  § 1408(1), 118 Stat. at 2097 (emphasis added).  Thus, under the 1902 treaty, the Mercedes and its cargo are entitled to the same immunities provided by the SMCA.

It’s an interesting opinion, both for the close statutory analysis of the FSIA, but also for giving judicial effect to the 1902 treaty (albeit, I assume, because Section 1609 requires that effect, although its possible I suppose one might alternatively see the 1902 Treaty as self-executing).  I wonder what those readers expert in sovereign immunity issues make of this case?

Last week, we were pleased to host a great discussion of the book International Law in the U.S. Supreme Court.  This week, I’m pleased to announce that one of its editors — Bill Dodge – is taking a leave from his faculty post at Hastings to become the newest Counselor in International Law to the State Department Legal Adviser, Harold Koh.  Bill’s replacing Sarah Cleveland, who returns to Columbia this year.

The Counselor is one of the best positions in the Legal Adviser’s Office (or “L” as it’s widely known).  It grants academics a year or two window into the ways in which international law plays out in practice, while also giving the attorneys in L the (substantial) benefit of working alongside someone who’s spent a great deal of time on international and foreign relations law questions in ways that are, frankly, impossible to replicate within L given the near daily fire-drills that so often drive the workload there.  I think Bill is fantastically suited to the job and wish him all the best in putting out those fires in the coming year.

From its earliest decisions in the 1790s, the U.S. Supreme Court has used international law to help resolve major legal controversies. This book presents a comprehensive account of the Supreme Court’s use of international law from the Court’s inception to the present day. Addressing treaties, the direct application of customary international law and the use of international law as an interpretive tool, the book examines all the cases or lines of cases in which international law has played a material role, showing how the Court’s treatment of international law both changed and remained consistent over the period. Although there was substantial continuity in the Supreme Court’s international law doctrine through the end of the nineteenth century, the past century was a  time of tremendous doctrinal change. Few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago.

I’ve blogged about cyberthreats a lot this week.  But, before we head into the weekend, I wanted to flag a Federalist Society Cyber Security Symposium, which an interested reader called to my attention.  Now, the Symposium itself was held last month at Steptoe & Johnson in D.C., but the Federalist Society has since posted the proceedings in video form on-line.  Readers interested in national secuirty in cyberspace should find the morning line-up of interest, but check out Stewart Baker’s lunchtime talk or the afternoon on economic security as well.