In association with the International Commission of Jurists

Recent Posts

30 Oct

[Prof. Dr. Anne van Aaken is Professor of Law and Economics, Legal Theory, Public International Law and European Law at the University of Sankt Gallen, Switzerland.] I am delighted that Tomer Broude commented on Opinio Juris on the potential and the pitfalls of the use of behavioral economics in international law and am equally happy that I am able to follow up on this. I will do so in two steps: the first part will address the benchmark against which Behavioral International Law and Economics (BIntLE) should be measured in my view. The second mentions some of the applications I suggest in my paper and in an earlier article. Tomer and I are currently planning a book together, bringing together the insights of both of our papers and extending them considerably. In his introduction to the topic, Tomer comments on the relationship of “Behavioral International Law” to rational choice approaches in international law and international relations. Behavioral Economics is an empirically validated theory about human behavior. There are of course competing theories in social science. The psychological research is not free-floating and it is not used as such in the field of international law and international relations. Tomer suggests as a basis from which to depart sociological approaches. Sociology as such does not have a unified behavioral model, thus one would need to clarify which sociological theories are drawn upon (e.g. the homo sociologicus as advanced by Ralf Dahrendorf (micro theory of individual behavior), system theory (macro theory), etc.). I suggest as a benchmark rational choice theory, for two reasons.  First, the psychological insights we use are commonly named behavioral economics, given that this research tests and challenges the rational choice hypothesis to a hitherto unknown extent (and the psychologist Daniel Kahneman won the Nobel prize in economics). But behavioral economics is not yet at a stage where it has a unified behavioral theory replacing rational choice: many heuristics and biases depend on the decision-making context (those have to be studied carefully). Rational choice is still the benchmark against which the insights are measured. Second, the parsimony of rational choice makes it a natural starting point. Since behavioral research adds complexity (something which every academic should try to avoid if a simpler explanation is possible for answering a certain research question), it has to show that it generates better insights and is able to explain phenomena which cannot be explained drawing on the rational choice approach alone. To use a coin minted by Einstein: “Everything should be as simple as it can be, but not simpler.” A rational choice approach might sometimes be too simple. Tomer and I share the belief that behavioral economics is able to generate more and better insights to the functioning of international law and we share also the deliberations on the methodological problems this might generate. Because of the weight I put on parsimony, I shift the burden of proof on BintLE to show that it might generate better insights than a rational choice approach to international law. This has to be done step by step, analyzing different fields of general and special international law. After all, it will be the empirics which will validate (or not) the research hypotheses advanced by any theory: the proof of the pudding is in the eating. Having said that, let me turn to some promising insights, adding to Tomer´s suggestions in his paper and his post.
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29 Oct

Josh Gerstein has this interesting piece at Politico on how the citizenship divide is breaking down as a defensible perimeter in the legal justification of electronic surveillance. It's clear where the old reflex is coming from: lawyers steeped in a constitutional tradition that distinguishes citizens from foreigners (and US territory from foreign territory) in the application of constitutional rights. (The...

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29 Oct

[Christoph Schreuer is a Professor at the Department of European, International Law and Comparative Law, University of Vienna]  Michael Goldhaber’s erudite and well-researched article examines an important aspect of the many-sided relationship between domestic courts and investment tribunals. Other facets of this diverse relationship include the review of arbitral awards by domestic courts, anti-suit injunctions by domestic courts, the need to pursue remedies in domestic courts prior to international arbitration, the division of competences under the label of treaty claims and contract claims, fork in the road provisions, interim measures by domestic courts in support of arbitration and enforcement of awards by domestic courts. This complex relationship of courts and tribunals shows elements of competition, of obstruction, of mutual control and of support. It is startling and paradoxical because it defies any notion of a hierarchy of decision makers. Goldhaber’s excellent analysis concentrates on two issues: antisuit injunctions by arbitral tribunals and denial of justice by domestic courts. But the potential for infringements of the international rules on investor protection by domestic courts is much wider. Practically each of the typical standards of protection contained in BITs can be violated by domestic courts and each of these violations is subject to the scrutiny of investment tribunals. From the perspective of international law, an international review of domestic court decisions is neither new nor unusual. International judicial control over State activity has always included courts. The State’s responsibility for all types of the exercise of public authority is uncontested and is reflected in Article 4 of the ILC’s Articles on State responsibility.[1] There are good reasons for not differentiating between the different branches of government when it comes to State responsibility. This lack of differentiation is not merely designed to prevent states from hiding behind ‛independent’ organs. In real life the courts and other elements of the government interact in a way that defies the application of a separation of powers doctrine to questions of State responsibility. For example, court action to the detriment of foreign investors is often mandated by legislation.[2] Decisions of domestic courts are sometimes prompted by executive insinuations.[3]
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29 Oct

I refer, of course, to the British Navy's use of the music of Britney Spears to scare off Somali pirates: In an excellent case of "here's a sentence you won't read every day", Britney Spears has emerged as an unlikely figurehead in the fight against Somali pirates. According to reports, Britney's hits, including Oops! I Did It Again and Baby One More Time, are being employed by...

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28 Oct

[Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law at the George Washington University Law School. He is a member of the United Nations' International Law Commission.] For the next two weeks, the Sixth Committee of the U.N. General Assembly will be debating the Annual Report of the International Law Commission, covering its 65th session in Geneva held...

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28 Oct

The Sudan Tribune is reporting that the presiding judge in William Ruto's trial has threatened to have Ruto arrested if he continues to comment publicly on his case: October 2013 (THE HAGUE) – Kenya’s Vice President William Ruto was on Friday warned by the presiding judge in his trial at the International Criminal Court (ICC) to desist from making statements about...

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28 Oct

[Michael D. Goldhaber serves as Senior International Correspondent and "The Global Lawyer" columnist for The American Lawyer and the ALM media group. His writes widely on human rights and corporate accountability, international arbitration, and global multiforum disputes. His e-book on Chevron will be published next year by Amazon.] The ongoing media circus surrounding the Chevron v. Donziger trial in New York federal court makes it easy to forget that the arbitration between...

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27 Oct

Events On November 12, the T.M.C. Asser Instituut in The Hague will launch the International Crimes Database (ICD). This platform offers a comprehensive database on international crimes adjudicated by national, international and internationalized courts and will provide access to a range of information not just for lawyers and judges but also for students, academics, families and communities of victims of crimes,...

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27 Oct

[Anupam Chander is Professor of Law at The University of California, Davis]

I am honored to have such a brilliant and prominent set of interlocutors from across the world discussing my book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. I am grateful for the sharp insights each of my commentators brings, and humbled by the praise they offer. Each of the commentators has selected a different aspect of the book to focus on in his or her remarks, and so I will respond to each in seriatim, chronologically.

Professor Michael Birnhack (Tel-Aviv) focuses on glocalization—the conforming of a global service to the local laws of the countries that it serves. Professor Birnhack is familiar with this phenomenon, having studied it himself in connection with the transfiguration of global copyright as it encounters local norms. Both glocalization and and its limiting principle—harmonization—are highly complicated processes. Professor Birnhack wisely observes that glocalization and harmonization are both subject to power variations across the world. This is an important insight—certain countries, industries, corporations, transnational organizations or interests are likely to hold more sway than others in determining any eventual balance between glocalization and harmonization. That would probably be true even if there were a global plebiscite, a possibility that seems quite remote. But Professor Birnhack notes that these shortcomings in the glocalization and harmonization principles I suggest do not render them unwise, as other alternatives are likely to prove worse along the metric he describes.

The University of Bern’s Mira Burri , editor with Professor Thomas Cottier of an important collection of papers on digital trade governance, elegantly describes the major shifts in international trade made possible by the Internet. Her broad perspective makes her an ideal interlocutor. She strikingly observes that “we are faced with a radically ‘messy’ governance landscape with many and overlapping institutions and actors of state and non-state nature, the effects of whose actions transcend national boundaries and cannot be neatly contained and controlled.” She characterizes the principles proposed in The Electronic Silk Road as follows: “The freeing of trade is matched by a batch of principles of regulating trade that are meant to ensure balance, provide for security and trust in cyberspace.”

I proposed that Opinio Juris invite Professor Paul Stephan (Virginia) because I admire his writing and hoped for a critical voice, and he hasn’t disappointed.

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26 Oct

I had the privilege last week of speaking in London at a superb Chatham House/Doughty St. Chambers symposium on the ICTY's recent high-profile acquittals in Perisic, Gotovina, and others. My co-panelists were John Jones, QC, Saif Gaddafi's ICC-appointed lawyer, and Elies van Sliedregt, the Dean of Vrije Universiteit Amsterdam. Chatham House's Elizabeth Wilmshurst was the moderator. I don't believe the symposium...

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