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Does the Libya Precedent Block a Syria Intervention?

Tod Lindberg of the Weekly Standard worries that the "pristine" legality of the Libya intervention (under international law, at least), is preventing the U.S. from taking similar actions again Syria. As matters stand, intervention in Syria would be anything but a "model." The real question for the Obama administration, however, is whether Libya has set a standard for intervention so pristine...

The Sources of the Modern Transnational Lex Mercatoria

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley] Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under "Related Posts" below. In my last post I said something about the need for and re-emergence of transnational private law in international commerce and finance. This law is immanent in principle, created by the international market place and its participants itself, where necessary supported by treaty law (like the Vienna Convention on the International Sale of Goods), and in practice formed and operating much like public international law with its different sources, as may be shown particularly in its foreign investment law branch. That is the modern lex mercatoria. It is very different therefore from the law of the codification, but similar to what prevailed earlier. It is now in its formation and operation in fact closer to the common law which is not statist per se nor systematic and academic either and less averse to other sources of law. It is more pragmatic and moves from case to case on the basis of practical needs, even if there is now also much legislation and sometimes even a kind of code, especially the uniform commercial code or UCC in the US. Whatever its name, the UCC is not, however, a codification in the European sense. It does not monopolise the field and does not push out other sources of law. Rather in its Section 1-103, the UCC makes it very clear that it promotes not only custom but also the common law, equity and the law merchant besides it. In England, the Sale of Goods Act until its reformulation in 1979 also still referred to the law merchant, even if in England its deletion in 1979 and also the narrowing approach to custom especially if international, shows that commercial law has become much more nationalistic, also in England, unwisely so in my view, but not quite as much as on the European Continent.

What do we mean by the Transnationalization of Private Law?

[Jan H. Dalhuisen is Professor at King’s College in London, the Miranda Chair of Transnational Financial Law at the Catholic University in Lisbon, and is Visiting Professor at UC Berkeley] Professor Dalhuisen is guest-blogging with us this week on the transnationalization of private law. Links to his other posts can be found under "Related Posts" below. Opinio Juris has not so far dealt with matters of private law and its transnationalization, harmonization or unification, especially important at the operational level in international commerce and finance.  If it is true that the international flows in goods, services and money now far exceed the GDP of even the largest countries, then the question must be asked why it is that in the orthodox view, these international flows must still be controlled and covered by a national law, which is then found under the canons of what is called private international law or conflicts of law. It is not logical but it is the consequence of the 19^th Century view that all law was the product of a national culture and that there was no law beyond it. Even common law countries fell for this. In civil law countries this led to the further idea that this law, even private law, would issue from government, hence the codifications. It allowed at the same time an academic systematic approach to dominate and led on the whole to a severe form of legal formalism based on a systemic interpretation of these texts which were considered to be complete by themselves and covering all eventualities. In particular, codification of this nature was suspicious of and left not much room for other sources of law, like custom and practices, general principles (except if underlying these codes) or even party autonomy.  They could only operate by license of these codes. Even fundamental principle or newly established social values were no source of law except when these codes referred to them or expressed them. There were no values or rationality beyond them. This also captured commerce, even when international, and it had to conform to these national legal systems. It followed that international transactions were legally pulled apart.

Introducing Guest-Blogger Jan Dalhuisen

We are pleased and honored this week to host Professor Jan Dalhuisen, Professor of Law at King's College London, a visiting professor at the University of California Berkeley, and the Miranda Chair at Catholic University Lisbon.  Professor Dalhuisen will share some thoughts on a topic we too often ignore here at Opinio Juris: the transnationalization of private law. Professor Dalhuisen graduated...

Weekday News Wrap: Monday, April 2, 2012

A New Hampshire woman will be retried for immigration fraud. She allegedly lied about her involvement in the Rwandan genocide when applying for asylum in the US. US authorities deported a former leader of the Liberian Peace Council who had been living in Rochester since 2006 to the West African country. He is suspected of human rights abuses and war crimes,...

Pluralism v. Harmonization: National Adjudication of International Crimes

The VU University Amsterdam is pleased to announce it will hold a conference on international criminal law titled 'Pluralism v. Harmonization: National Adjudication of International Crimes.' Opinio Juris' own Kevin Jon Heller and recent guest contributors Mark Drumbl and Jens Ohlin are among the impressive line-up of speakers. The event will take place at the KNAW's Trippenhuis in the center of...

Inter-American Court of Human Rights Recognizes Discrimination on Basis of Sexual Orientation

The Inter-American Court of Human Rights for the first time has recognized unlawful discrimination on the basis of sexual orientation, in a decision released two weeks ago, Atala v. Chile (here is the decision, in Spanish).  Congratulations to Macarena Saez, a Chilean lawyer who teaches at my school (Washington College of Law, American University), for leading a team of public...

Weekend Roundup: March 24-30, 2012

This week many of our readers will have attended ASIL’s 106th Annual Meeting. If you weren’t in Washington DC, we brought you Harold Hongju Koh’s statement regarding Syria (with the possibility to comment here). Deborah Pearlstein drew conclusions for further research from the panel on international humanitarian law and international human rights law. Via ASIL Cables, you could also read...

ASIL on the IHL/IHRL Debate

Had the chance to catch at least one panel at yesterday's jam-packed annual meeting of the American Society of International Law. Happy to say, it was a good one, and timely: “International Human Rights Law, International Humanitarian Law, and the Implications for Coalition Warfare.” Ashley Deeks moderated, giving a summary of the ECHR’s latest jurisprudence in the area...

ASIL Cables: Interview with James Crawford

Recent guest-poster, Professor Tai-Heng Cheng, has an interview on ASIL Cables with Professor James Crawford, this year's recipient of the Manley O. Hudson Medal:

Tai-Heng Cheng (THC): Congratulations on receiving the Manley O Hudson medal, Professor Crawford.  Your many accomplishments are well known to our members, and I was wondering what achievements in your career have you found most meaningful? James Crawford (JC): Thank you.  There have been too many moments to mention them all, but perhaps there are a few that stand out.  There was my time on the Australian Law Reform Commission in the 1980s when I worked on indigenous rights, admiralty and state immunity – quite a mixture.  I have a special place in my memory for my first case before the International Court of Justice, Certain Phosphate Lands in Nauru, in which I acted alongside Ian Brownlie representing the Republic of Nauru. Another case before the Court which stands out for me was the Gabčikovo-Nagymaros Project decision, which was my first lead in the Court.  Serving as Special Rapporteur on State Responsibility in the years leading to the adoption of the International Law Commission’s Articles on State Responsibility, was a particular highlight.  Latterly I’ve enjoyed working with terrific teams on cases for Colombia and Costa Rica, among others.  And a recent intense effort was the 8^th edition of Brownlie’s Principles, which comes out in August. THC:  Looking back at the evolution of international law since 1945, what are some of the most significant developments? JC:  The most obvious developments have probably been in connection with the evolving position of the individual under international law – in the fields of international criminal law and international human rights law particularly.  Both of these fields were embryonic in the years following World War II and have since expanded exponentially.  Related to this is the development of investor-state arbitrations, with private entities bringing growing numbers of disputes against foreign states directly under bilateral and multilateral investment treaties, without needing to rely on diplomatic protection.  Our understanding of self-determination under international law has also changed since 1945, when it was primarily associated with decolonisation and the formation of new states, whereas it has since developed into a wider notion encompassing the ongoing guarantee of fundamental human rights and democratic accountability within existing states.  Some see these changes as an erosion of state sovereignty, but I would argue that sovereignty remains very much the foundation of our system of international law, and that the notion of sovereignty is flexible enough to accommodate modifications without collapsing altogether.