In association with the International Commission of Jurists

General

05 Feb

I am delighted to announce that Jens Ohlin, Associate Professor of Law at Cornell -- and one of my very favorite international criminal law scholars -- will be guest-blogging with us for the next two weeks.  Here is his bio: Professor Ohlin specializes in international law and all aspects of criminal law, including domestic, comparative, and international criminal law....

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02 Feb

The cool place for international law this weekend will be Santa Clara Law School, out in Silicon Valley, whose Santa Clara Journal of International Law is hosting a conference on "Emerging Issues in International Humanitarian Law." The eminent IHL scholar Louise Doswald-Beck will be the keynote speaker, and the panels hit on key issues looking into the future - my...

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01 Feb

I don't know how credible this report is: WikiLeaks may soon take a page from 1960s-era British pirate radio broadcasters and move operations offshore. Financial backers of embattled WikiLeaks founder Julian Assange are reportedly in the market for a boat that would maintain the watchdog site's servers in international waters to avoid U.S. legal authorities, according to FoxNews.com. I also don't know...

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31 Jan

This op-ed from today's NYT reinforces a new orientation towards Mass Atrocity Response Operations (the name of a project founded by Sarah Sewall out of the Kennedy School that is enjoying some traction with the Obama Administration).  Drones can be deployed in reconnaissance efforts to detect and document human rights violations. The twist here: it doesn't have to be governments doing the reconnoitering. Drones...

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31 Jan

Political scientist James Fearon has posted (complete with graphs) the results of his own study of whether nuclear states are more or less likely to engage in war in the years following their acquisition of  nuclear weapons.  Here's his bottom line: [F]or each of the nine states that acquired nuclear capability at some time between 1945 and 2001, their yearly rate...

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26 Jan

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] I want to thank Scott Kennedy for his insightful comments. Kennedy’s work has been instrumental in increasing our understanding of the forces driving the rising use of trade remedies in China and other emerging powers. He is certainly correct to point out that many questions remain unanswered. My hope is that this article will spark others to join in examining this phenomenon and debating the consequences of maintaining the global antidumping regime in its current form. I agree with Kennedy that the methodology for the retaliation analysis is not as robust as one might hope. As I myself note in the discussion of the methodology in the article, my approach presents a real risk of Type I errors. I did try to limit the possibility of Type II errors by examining whether an action may be in response to another protectionist tool besides antidumping sanctions and found little change in my results. But the possibility exists that my approach may be both over- and under-inclusive in what it considers to be retaliation. Proximity in timing is but an indicator of a retaliatory motive, and I agree with Kennedy that further confirmation through case studies would help buttress my retaliation argument. Unfortunately, I found that policymakers involved in deciding antidumping petitions were willing to only go as far as to discuss overall trends, but not specific cases, even when promised anonymity. This reticence limited my ability to rely upon case studies in my methodology. Here’s to hoping that others will find greater success in getting government officials to open up further about specific cases in future studies.
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26 Jan

[Scott Kennedy, associate professor of Political Science and East Asian Languages & Cultures and director of the Research Center for Chinese Politics & Business at Indiana University, responds to Mark Wu, Antidumping in Asia’s Emerging Giants. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] Antidumping: Less Change than Meets the Eye Mark Wu’s article, “Antidumping in Asia’s Emerging Giants,” is an impressive piece of scholarship and deserves widespread attention. He analyzes how an already controversial element of the trading system, the antidumping regime, has become more problematic because of the growing use this tool by India and China. And he does so by assembling a comprehensive data set of antidumping cases at the national, industry, and product level for both countries. Wu is clearly a strong critic of antidumping no matter who uses it. He shows how the standards for initiating and proving antidumping have declined over time, and that rather than ensuring fair trade, antidumping is essentially an illegitimate protectionist tool of those who want to avoid foreign competition. Wu argues that the antidumping regime is becoming a more widely abused tool because India and China have joined traditional users in wielding this weapon. If antidumping reforms are not enacted, the likely consequence will be an explosion of cases by India and China, further distorting international trade patterns and leading to welfare losses. Hence, he encourages the United States and European Union to alter their stance in the Doha Round and embrace reforms before the system they created turns decisively against them.
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26 Jan

[Mark Wu, Assistant Professor of Law at Harvard Law School, describes his recently published article, Antidumping in Asia’s Emerging Giants. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] Over the past decade, China and India have rapidly increased their use of antidumping laws, the world’s most dominant form of trade protectionism, against their trading partners. Yet,...

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25 Jan

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] I appreciate Professor Vázquez’s thoughtful response to my article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. Professor Vázquez is a brilliant scholar whose many writings on self-executing treaties have made a valuable and enduring contribution to the literature. As he acknowledges, he and I agree on many issues related to the self-execution debate. In this brief reply, I will focus on one area of disagreement: the correct interpretation of Chief Justice Marshall’s opinion in Foster v. Neilson, decided in 1829. Marshall stated clearly in Foster that Article 8 of the 1819 treaty with Spain (the “Florida treaty”) required legislative implementation. What was the rationale supporting that conclusion? Professor Vázquez contends that Marshall applied the “intent-based approach” in Foster. Under that approach, the distinction between self-executing and non-self-executing treaties turns entirely on a treaty interpretation analysis. In contrast, I contend that Marshall applied the “two-step approach” in Foster. Marshall’s conclusion rested partly on a treaty interpretation analysis (step one), and partly on an unarticulated assumption about the constitutional allocation of authority to dispose of property belonging to the United States (step two).
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25 Jan

[Carlos Vázquez, Professor of Law, Georgetown Law Center responds to David Sloss, Executing Foster v. Neilson:The Two-Step Approach to Analyzing Self-Executing Treaties. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. I agree with much of it, as I agree with much of Professor Sloss’ other writing on treaties. In particular, I agree that the two-step approach to treaty enforcement that he proposes is generally the right approach, and I agree that the “intent-based” approach to the self-execution issue that he criticizes is highly problematic. But Professor Sloss and I disagree about the source of this problematic approach. I have traced this approach to Chief Justice Marshall’s opinion in Foster v. Neilson. Professor Sloss traces it to courts and scholars (including me) who, in his view, have misread Foster. I shall address our differences on this point below. First, however, I shall explain my general agreement with the two-step approach to treaty enforcement that Professor Sloss defends. The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation. Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do. This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation. This, Professor Sloss argues, is entirely a matter of U.S domestic law, not a matter of treaty interpretation. Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent. Professor Sloss notes that treaties seldom address the question of which domestic officials – legislative, executive, or judicial – are responsible for enforcing the treaty. Instead, treaty parties almost always leave that question to the domestic law of the states-parties.
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