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From
the Editors
Welcome
to the International Law Forum!
The
American Branch of the International Law Association is
pleased to launch this new forum to foster a constructive,
ongoing dialogue on critical issues concerning the development
of international law. The Forum will include original
essays, speeches, op-eds, announcements, and other materials
from ABILA members and international law experts. It will also feature as guest contributors international
law practitioners and professors. If you would like to
participate in the International Law Forum, please contact the
editors.
Video
Documentary Announcement
The
video documentary Envisioning a More Democratic Global
System is now available for streaming online viewing at: www.law.widener.edu/envisioning.
Funded in part by a generous grant from the Rockefeller
Brothers Fund , the documentary is the
story of an important international symposium sponsored in
2006 by the Widener
Law Review and cosponsored by the American
Society of International Law.
Under
the leadership of Professor Andrew
Strauss of the Widener faculty, fifteen
prominent academics and officials from around the
world gathered at Widener
University School of Law to consider whether
democracy can be applied to overcome the difficult challenges
of 21st century global governance. Envisioning a More
Democratic Global System, produced by Paul Martinetz,
offers a first hand view of influential international figures
thinking creatively about how new ideas for democratizing
global governance can be strategically implemented.
The
papers from the Global Democracy Symposium have
been recently published in a special symposium edition of the Widener
Law Review. If you are interested in receiving a
copy of the symposium issue, or a DVD of the documentary,
please contact Law Review secretary Debbe Patrick at WLR@widener.edu.
International
Law Weekend 2008: Call for Panel Proposals
The
American Branch of the International Law Association will
again hold its annual International Law Weekend in New York,
featuring numerous panels, a distinguished speaker,
receptions, and the Branch’s annual meeting. International
Law Weekend 2008 will take place on October 16-18, 2008, at
the Association of the Bar of the City of New York. The
Weekend’s overall theme is “The United States and
International Law: Legal Traditions and Future
Possibilities.” Co-chairs of ILW 2008 are Catherine Amirfar
of Debevoise Plimpton (cmamirfar@debevoise.com), Katarina
Grenfell of the United Nations Office of Legal Affairs (grenfell@un.org),
and John Noyes of California Western School of Law (jnoyes@cwsl.edu).
The co-chairs invite proposals for panels for ILW 2008. Please
submit proposals to the co-chairs no later than Friday, April
25, 2008. Proposals should be geared for 90-minute panels and
should include a formal title, a brief description of the
panel (no more than 75 words), and the names, titles, and
affiliations of the panel chair and three or four possible
speakers.
Book
Reviews by Hon. Vice President Edward Gordon
Alan Boyle and Christine Chinkin. The Making of
International Law (Oxford Univ. Press, 2007). Paperback.
$50.00.
The Making of International Law is an introduction to the
“principal processes and law-making tools through which
contemporary international law is made”. More than that, it
is about “how international law-making responds to the
demands of international relations at the beginning of the
21st century”.
What these phrases signal is that this is not just a
descriptive primer, it is also a determined call to action to
individuals who do not represent governments. Both in order of
presentation and in the urging itself, pride of place is given
to the role played by nonstate actors and, correspondingly, to
“soft law”. Processes internal to states are scarcely
mentioned; traditional processes by which “hard law” is
generated and evolve are relegated to second-class status. By
implication, authenticity belongs to whoever most actively
pursues it - and now is the time to do so.
A short opening section contains a succinct review of theories
of international law-making. Its focus is upon contemporary
theories, especially ones that emphasize the perceived
legitimacy at any given time of contending ways of making
international law—in preference, that is, to older,
positivist, models that emphasize the legitimacy of consensus
among and commitments by states, acting as such. The section
that follows identifies, and explains the role of,
“participants” in international law-making—this term,
too, being a Lasswellian category broad and nonjudgmental
enough to be amenable to portraying nonstate actors and their
strategies as no less legitimate than those of representatives
of states.
Only with this priority established is attention given to the
part played by the UN, other intergovernmental organizations
and diplomatic conferences in international law-making; to
codification (e.g., by the ILC, ICRC and UNIDROIT); and to
treaties and Security Council resolutions. The work and—by
implication at least—the importance of international
tribunals is limned last and least.
In pedagogical terms, emphasizing the role of nonstate actors
has the virtue of making it easy for students to identify with
international law than they can when the subject is presented
solely as the product of state action and attitudes. I am not
certain, though, that this consideration has weighed heavily
in the authors’ game plan. If I infer correctly, their more
imminent motivation is an animus against what they describe as
“claims of American exceptionalism, its unique
constitutional order and of its global responsibilities”
that are raised in such a way as “to weaken the legitimacy
of the international system itself.”
Even those who share this perspective may find themselves
uncomfortable with the authors’ tendency to gloss over the
implications for the legitimacy of the international system of
ascribing so prominent a role to an unelected elite who, in
practice, are every bit as self-serving as governments
are—more so, in fact, since they are not responsible to a
broadly-based political constituency. Even when, as here, this
approach bears the imprimatur of two respected scholars, it
amounts to a preference for old-fashioned lobbying by special
interest groups and for governance by nearly anonymous
activists and organizations who not only lack any democratic
basis for their power, but who, in addition, are seldom
inclined, or well-positioned, to bear responsibility for
implementing the norms they promote.
These objections aside, the authors’ descriptions and
insights are helpful as counterpoints to more conventional
treatments. Without such a balance, however, they are apt to
be mislead persons not already familiar with the subject as to
the law-making regime currently in place.
Vaughan Lowe. International Law (Oxford Univ. Press,
2007). Paperback. $36.00.
Vaughn Lowe’s International Law lays claim to a right of
succession to James T. Brierly’s The Law of Nations. For
over half a century, beginning with its first edition in 1928,
“Brierly” was the most popular English language
introduction to international law. Its popularity owed a great
deal to its style, which made the somewhat other-worldly
subject of international law easy for students to grasp:
clear, precise declarative sentences, unencumbered by
footnotes, personal asides and commentary, as well—or so its
critics contended—so much as a shred of subtlety, self-doubt
or political realism.
In contrast, Lowe’s text is realistic, perhaps excessively
so for a work aimed principally at students, and it is fairly
riddled with his own take on political events and policies.
His style of writing differs from Brierly’s,
too—deliberately so, in that he explicitly rejects a
“lapidary style of literary writing”—that is,
Brierly’s—in favor of “a first-person narrative”
which, truth to tell, is more than a tad self-indulgent,
occasionally even slipping over the unprotected border into
neighboring glib.
Brierly’s order of presentation was conventional for
positivist treatises of its day. International law was
portrayed as a more or less stable feature of international
life and sovereign states were what the system was all about.
Its first main section dealt with the sources—or what others
called evidence – of international law. Almost half the book
was devoted to territorial and other aspects of national
jurisdiction. Dispute settlement was accorded secondary
importance, with legal constraints on national resort to armed
force accorded only a dozen or so pages, even in the 6th
edition, edited by Sir Humphrey Waldock, published in 1963.
The framework of Lowe’s International Law is not altogether
dissimilar. In substance, though, it is from another
universe. After a brief introduction, it sets forth and
assigns priority among certain principles it presents as
fundamental to the international legal order. Prominent among
these are ones that forbid the use of force by states, require
them to cooperate with the rest of the international community
and refrain from intervening in the affairs of other states,
as well as to respect, inter alia, the right of
self-determination of peoples. Subject to these basic norms,
the jurisdiction of states is presented in an order befitting
Brierly, except that state responsibility and the enforcement
of international norms are given conspicuously short shrift.
Concluding chapters are devoted to specific subjects that drew
little attention from Brierly: that is, international
institutions and emerging principles relating to the global
economy and environment, respectively.
The final chapter, which appears to have been an afterthought,
but which perhaps inadvertently reflects misgivings about what
were earlier presented as fundamental norms, deals with the
use of force by states. What catches my eye is Lowe’s
acknowledgement that the use of force represents “one body
of rules among many which regulate relations between
States”. I have no quarrel with this assessment, except to
wonder why it makes its appearance so late in the book and how
one can flatteringly square it with the needlessly sarcastic
observation, early in the book, that “the tendency to
suppose that states only obey rules of international law when
they choose, and that the hard calculations of realpolitik
give little weight to the law” is “particularly widespread
among those whose vision is unsullied by any knowledge or
experience in the matter [and] is hopelessly wrong.”
To me, the most unwelcome departure from Brierly’s style
lies in Lowe’s fondness for editorial asides, which affect
not only the light in which specific state actions are
presented, but also the choice of which actions to mention at
all. Even in Brierly’s third edition, published during
Britain’s do-or-die war with Germany, and its fourth, which
appeared in the late forties just as an iron curtain was
descending over Europe, Brierly kept his own opinions of
certain states to himself. Lowe does not. At very least, I
will be surprised if his views do not strike readers on this
side of the Atlantic as chauvinistic. Britain, suffice to say,
is never, never, never presented in a disagreeable light.
The United States, on the other hand, is. I mean, is it ever.
Not only is the assertiveness of the Bush Administration given
what-for, but even what I had supposed to be the good guys,
like Presidents Truman and Carter, get the back of Lowe’s
hand. In truth, the presentation so one-sided, and its tone so
self-righteous, one could be forgiven for feeling that they
are listening to Mary Poppins after her all-nighter on
Varadero Beach with Che.
Even when I was a graduate student in England in the early
1960s, gratuitous digs at America’s power and influence were
never much farther away than the next raindrop. In those days,
they could be dismissed as leftover resentment of the
twentieth century’s unreasonable realignment of political
power and status. They fell out of fashion for a while, when
Margaret Thatcher gave Oxbridge a good swift kick in the
entitlements. If they are back in vogue, they are yet no more
professionally becoming now than they were then. They’re no
more effective, either: no matter how often it is repeated,
meow is just not that persuasive.
"Teaching
International Intellectual Property Law" by Prof. Peter
Yu
Intellectual
property law was in the backwater only a few decades ago. The
Section on Intellectual Property Law of the Association of
American Law Schools was not even founded until the early
1980s, and the creation of intellectual property specialty
programs has been a recent phenomenon. As senior legal
scholars reminisced, early in their career, they would have
been lucky to find a school that would allow them to teach a
class on intellectual property law. Although intellectual
property law teaching has come of age in the past decade,
international intellectual property law courses remain
nonexistent in more than half of American law schools.
Notwithstanding this limited interest, the momentum has picked
up quickly, and international intellectual property law is
slowly emerging as a staple in the core intellectual property
law curriculum.
As part of the Symposium on Teaching Intellectual Property
Law, this essay reflects on the teaching of international
intellectual property law. It begins by identifying three
different stages in the development of an international
intellectual property law course. Going from the pre-TRIPS era
to the post-TRIPS era, this essay shows how the growing
complexity of the international intellectual property regime
has made teaching the subject increasingly challenging. The
essay then focuses on this challenge and examines why
international intellectual property law is
taught in the first place, what materials teachers can cover,
and how they can effectively present those materials. By
offering both questions and suggestions, this essay
invites readers to evaluate and rethink the design of an
international intellectual property law course. It concludes
with some bonus considerations that may be relevant to both
teachers and administrators.
Forthcoming
from the St. Louis University Law Journal, the
article is available here.
New
Book on Filartiga v. Pena-Irala
by Prof. William
Aceves
In recent years, victims of human rights abuses have filed
civil lawsuits in U.S. courts to seek redress for their
injuries. This litigation provides a voice to victims of human
rights abuses and a court to hear their claims. More broadly,
it seeks to promote accountability for violations of
international law.
The
Anatomy of Torture: A Documentary History of Filartiga v.
Pena-Irala tells the story
of Filartiga v. Pena-Irala, one of the most significant
examples of human rights litigation in the United States. It
presents Filartiga as a documentary history—an
approach to legal scholarship that has become increasingly
popular in recent years. Unlike traditional casebooks and
academic studies, this book emphasizes the dynamic and
iterative nature of law. From the initial complaint to the
final judgment, the actual pleadings and related legal
documents appear with minimal editing. These documents are
supplemented through commentary by various participants in the
litigation—
parties, attorneys, government officials, and judges. Other
documents, including declassified government telegrams and
correspondence, are also provided.
Through
a mixture of archival research and personal interviews, The
Anatomy of Torture brings human rights law to life and
provides new insights on a celebrated case. It also recognizes
the importance of studying law in context and emphasizes the
value of law in the search for justice and accountability.
The
book is published under the Transnational Publishers imprint.
The flyer is available here.
International
Law Weekend—Midwest: Invitations to Join Planning and Host
Committees
Persons
interested in serving on the planning committee or the host
committee for "International Law Weekend Midwest"
are invited to contact Professor Mark E. Wojcik at The John
Marshall Law School in Chicago.
Planning
committee and host committee meetings will be held in Chicago
on Friday, February 15, and on Saturday, February 16, 2008,
during the "Super Midwest Regional" of the Philip C.
Jessup International Law Moot Court Competition, which will be
co-hosted by The John Marshall Law School and the Chicago Bar
Association.
To
volunteer for the planning committee or host committee of the
International Law Weekend Midwest, please send an email
message with your contact information to: Prof. Mark E. Wojcik
at 7wojcik@jmls.edu.
Recent
Publications by ABILA Executive Committee
Books
William J. Aceves, The Anatomy of Torture: A Documentary
History of Filartiga v. Pena-Irala (2007).
David J. Bederman, The Classical Foundations of the American
Constitution: Prevailing Wisdom (2008).
David J. Bederman, Globalization and International Law (2008).
David J. Bederman, International Law in Antiquity (Cambridge
Studies in International and Comparative Law) (2007).
Ronald A. Brand & Paul M. Herrup, The 2005 Hague
Convention on Choice of Courts Agreements: Commentary and
Documents (2008).
Ronald A. Brand & Scott R. Jablonski, Forum Non Conveniens:
History, Global Practice, and Future under the Hague
Convention on Choice of Court Agreements (2007).
Harry M. Flechtner, Ronald A. Brand & Mark S. Walter,
Drafting Contracts Under the CISG (2007).
Thomas M. Franck, Michael J. Glennon & Sean D. Murphy,
Foreign Relations and National Security Law (2007).
John Noyes, Mark Janis, and Laura Dickinson, International Law
Stories (2007).
Michael P. Scharf, Terrorism on Trial (2008).
Peter K. Yu, Intellectual Property and Information Wealth
(2007).
Scholarly
Articles and Book Chapters
William J. Aceves & Vienna Colucci, Amnesty
International USA Fulfilling the Legacy: International Justice
60 Years After Nuremberg: Symposium Introduction, 10 Gonz.
J. Int’l L. 2 (2006-2007).
William J. Aceves, Human Rights Law and the Use of
Incapacitating Biochemical Weapons, in Promise or
Peril? Incapacitating Biochemical Weapons (Alan M. Pearson et
al. eds., 2007).
Jeffrey Atik & Hans Henrik Lidgard, Embracing Price
Discrimination - TRIPS and Parallel Trade in Pharmaceuticals,
28 Univ. Penn. J. Int’l Econ. L. 1043 (2007).
Margaret M. Ayres, Carlos M. Pelayo, Bethany K. Hipp, Davis
Polk & Wardwell, FCPA Considerations in Mergers and
Acquisitions, 1588 PLI/Corp 239 (2007).
David J. Bederman, The Contemporary Contours of Admiralty
Jurisdiction, 31 Tul. Mar. L. J. 291 (2007).
Ronald A. Brand, Judicial Review and United States Supreme
Court Citations to Foreign and International Law, 45 Duq.
L. Rev. 423 (2007).
Lorraine M. Brennan & Heather L. Heindel, High Court
Declines to Address Arbitrator Bias Standard, N.Y. L. J.
(Oct. 1, 2007).
Thomas M. Franck, Constitutional Development: United States,
5 Int’l J. Const. L. 380 (2007).
Thomas Franck, One Man One Vote or One Man One Goat:
Reflections on Democracy in the Global Arena, 13 Widener
L. Rev. 371 (2007).
Thomas Franck, Individual Criminal Liability and Collective
Civil Responsibility: Do They Reinforce or Contradict One
Another? 6 Wash. U. Global Stud. L. Rev. 567 (2007).
Thomas M. Franck, Tribute to Professor Louis B. Sohn,
48 Harv. Int’l L. J. 23 (2007).
Gary Horlick & Judith Coleman, The Compliance Problems
of the WTO, 24 Ariz. J. Int’l & Comp. L. 141 (2007).
Scott Horton, Kriegsraison or Military Necessity? The Bush
Administration's Wilhelmine Attitude Towards the Conduct of
War, 30 Fordham Int’l L. J. 576 (2007).
James A.R. Nafziger, The Principles for Cooperation in the
Mutual Protection and Transfer of Cultural Material, 8
Chi. J. Int’l L. 147 (2007).
Ved P. Nanda, The Landmark 2005 Hague Convention on Choice
of Court Agreements, 42 Tex. Int’l L. J. 773 (2007).
John Noyes, U.S. Policy and the United Nations Convention
on the Law of the Sea, 39 Geo. Wash. U. Int’l L. Rev.
(2007).
John Noyes, Diverse Decision Makers, in
International Law Stories 5 (John E. Noyes et al. eds., 2007).
John Noyes, The Caroline: International Law Limits on
Resort to Force, in International Law Stories 263
(John E. Noyes, Laura A. Dickinson & Mark W. Janis eds.,
2007).
John Noyes, Territorial Sea, in 4 The Oxford
Encyclopedia of Maritime History 125 (John B. Hattendorf ed.,
2007).
Mary T. O'Connor, Lorraine M. Brennan & Christopher J.
Woods, Negotiating the Maze of IP Protection, Nat’l
L. J. (Apr. 9, 2007).
Leila Nadya Sadat, Enemy Combatants after Hamdan v.
Rumsfeld: Extraordinary Rendition, Torture, and Other
Nightmares from the War on Terror, 75 Geo. Wash. L. Rev.
1200 (2007).
Leila Nadya Sadat, Judgment at Nuremberg: Foreword to the
Symposium, 6 Wash. U. Global Stud. L. Rev. 491 (2007).
Michael P. Scharf, Chaos in the Courtroom: Controlling
Disruptive Defendants and Contumacious Counsel in War Crimes
Trials, 39 Case W. Res. J. Int’l L. 155 (2006-2007).
Michael P. Scharf, Lessons from the Saddam Trial, 39
Case W. Res. J. Int’l L. 1 (2006-2007).
Michael P. Scharf, On Terrorism And Whistleblowing, 38
Case W. Res. J. Int’l L. 567 (2006-2007).
Michael P. Scharf, Saddam Hussein on Trial: What Went Awry?
The Iraqi High Tribunal, 5 J. Int’l Crim. Just. 258
(2007).
Susan W. Tiefenbrun, Updating the Domestic and
International Impact of the U.S. Victims of Trafficking
Protection Act of 2000: Does Law Deter Crime? 38 Case W.
Res. J. Int’l Law 249 (2006-2007).
Peter K. Yu, Access to Medicines, BRICS Alliances, and
Collective Action, 34 Am. J.L. & Med. (forthcoming
2008).
Peter K. Yu, A Tale of Two Development Agendas, 34 Ohio
N.U. L. Rev. (forthcoming 2008).
Peter K. Yu, Building Intellectual Property Coalitions for
Development, in Strategies for Implementing
WIPO’s Development Agenda (Jeremy de Beer ed., forthcoming
2008).
Peter K. Yu, Challenges to the Development of a Human
Rights Framework for Intellectual Property, in
Intellectual Property and Human Rights (Paul L.C. Torremans
ed., 2d ed., forthcoming 2008).
Peter K. Yu, Complex Guoqing and Intellectual Property
Reforms in China, in Intellectual Property and
Sustainable Development: Selected Issues (forthcoming 2008).
Peter K. Yu, Five Disharmonizing Trends in the
International Intellectual Property Regime, in 4
Intellectual Property and Information Wealth: Issues and
Practices in the Digital Age 73 (Peter K. Yu ed., 2007).
Peter K. Yu, Intellectual Property, Cultural Relics, and
Intangible Heritage, 81 Temple L. Rev. (forthcoming 2008).
Peter K. Yu, Intellectual Property, Economic Development,
and the China Puzzle, in Intellectual Property,
Trade and Development: Strategies to Optimize Economic
Development in a TRIPS Plus Era 173 (Daniel J. Gervais ed.,
2007).
Peter K. Yu, Intellectual Property, Foreign Direct
Investment and the China Exception, in The Global
Challenge of Intellectual Property Rights (Subhash C. Jain
& Robert C. Bird eds., forthcoming 2008).
Peter K. Yu, The International Enclosure Movement, 82
Ind. L.J. 827 (2007).
Peter K. Yu, International Enclosure, the Regime Complex,
and Intellectual Property Schizophrenia, 2007 Mich. St. L.
Rev. 1.
Peter K. Yu, The Political Economy of Data Protection,
83 Chi.-Kent L. Rev. (forthcoming 2008).
Peter K. Yu, The Sweet and Sour Story of Chinese
Intellectual Property Rights, in Technology,
Progress and Prosperity: A History of Intellectual Property
and Development (Graham Dutfield & Uma Suthersanen eds.,
forthcoming 2008).
Peter K. Yu, Teaching International Intellectual Property
Law, 52 St. Louis U. L.J. 923 (2008).
Peter K. Yu, Ten Common Questions About Intellectual
Property and Human Rights, 23 Ga. St. U. L. Rev. 709
(2007).
Peter K. Yu, Three Questions That Will Make Your Rethink
the U.S.-China Intellectual Property Debate, 7 J. Marshall
Rev. Intel. Prop. L. 412 (2008).
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