Proceedings of the Annual Meeting-American Society of International Law

Articles from Vol. 106, Annual

A–R R–W
Alternatives to "Hard" Law in International Financial Regulation: The Experience of the World Bank
INTRODUCTION: LOCATING THE WORLD BANK IN THE INTERNATIONAL STANDARDS SYSTEM The World Bank has become integral to the operation of the system of soft law that is emerging to regulate international finance. It has been enlisted by its members to...
An Introduction: Confronting Complexity
In March 2012, a record number of international lawyers assembled in Washington, DC for the 106th Annual Meeting of the American Society of International Law. We had the privilege of co-chairing the Meeting and chose as our theme, "Confronting Complexity."...
Be Careful What You Wish For: Changing Doctrines, Changing Technologies, and the Lower Cost of War
The collective security structure created by the UN Charter is becoming shakier than ever, and two recent trends pose particular challenges to Charter rules on the use of force. The first trend involves a normative shift in understandings of state...
Beyond the Drone Debate: Autonomy in Tomorrow's Battlespace
Over the last few years, the military landscape has undergone considerable modification. Not only are we witnessing changes with regard to the adversaries that fight one another (consider the rise of what has been labeled "asymmetric warfare"), but...
Business and Human Rights and the Right to Water
On September 30, 2010, the UN Human Rights Council affirmed that the human right to water and sanitation is legally binding. The Council stated that the right to water and sanitation is derived from the right to an adequate standard of living, which...
Celebrating Complexity
I see this roundtable of discontent as providing the opportunity for us to reflect critically on the theme of this year's Annual Meeting, drawing from a number of critical traditions. While discontent is often disparaged, and its proponents dismissed...
Changing Times, Changing Obligations? the Interpretation of Treaties over Time
International treaties often reflect long-term agreements that are difficult to amend. For instance, we see the difficulty associated with amending the United Nations Charter, despite longstanding calls for institutional reform. We also see the stalemate...
Climate Engineering: Challenges to International Law and Potential Responses
Over the past five to ten years, policy debate on climate change has seen a surge of attention, and controversy, over technologies of climate engineering. These are engineered interventions that intentionally manipulate global-scale processes with...
Commentary on the 2012 Grotius Lecture
The theme of today's Grotius Lecture is the importance of law in confronting the complexity of violence, and, more specifically, the role of international humanitarian law in confronting the complexity of armed conflict. In his masterful survey of...
Complexity of Protections and Barriers in the Implementation of the Human Right to Water in the United States
I am grateful to have the opportunity to share with you recent developments in law with regard to the human rights to water and sanitation in the United States. The Unitarian Universalist Service Committee is a nonsectarian human rights and social...
Conceptualizing Climate Change-Related Movement
INTRODUCTION In the media and in policy debates, there has been a considerable, and understandable, degree of alarmism about the havoc that climate change may wreak on human society, to the extent that it may cause waves of "climate refugees" and...
Concluding Remarks by Rosalyn Higgins
Bruno Simma mentioned briefly standard of proof in the ICJ. The Court has not been very good in facing that issue. The Court has set its face against setting a standard of proof of facts which it will determine in any given case. This is because many...
Confronting Complexities in Fact-Finding and the Nature of Investor-State Arbitration
Reverting to the Annual Meeting theme--"Confronting Complexity"--I will focus on fact-finding in investor-state arbitration, especially on the state side. One must recognize that there are overarching complexities in investor-state arbitration. ...
Confronting Complexity and New Technologies: A Need to Return to First Principles of International Law
INTRODUCTION New weapons are constantly being invented. The basic principles of international humanitarian law (IHL) regulating them are not controversial. All states agree that weapons that are inherently indiscriminate or which cause superfluous...
Confronting Complexity: Interpretation or Over-Interpretation?
The interpretation and application of the 1951 Convention Relating to the Status of Refugees demands an approach which is consistent with general international law, whether it involves implementation through domestic legislation or in the judgments...
Confronting Complexity in the Preservation of Cultural Property: Monuments, Art, Antiquities, Archives, and History-What Can Cyprus Teach Us?
In this brief presentation, I will try to provide some useful thoughts on "Confronting Complexity in the Preservation of Cultural Property: Monuments, Art, Antiquities, Archives, and History" based on my almost 25 years of working with the Republic...
Confronting Complexity through Law: The Case for Reason, Vision, and Humanity
It is a great honor for me to have been invited to deliver the fourteenth annual Grotius Lecture at the invitation of the American Society of International Law and the International Legal Studies Program of American University's Washington College...
Contracting for Conservation in the Central Pacific: An Overview of the Phoenix Islands Protected Area
Imagine coming upon an oasis in the middle of the ocean largely untouched by humans--a place where the natural abundance and diversity of biological life and activity can bring thoughts of Eden and Shangri-La to the minds of even seasoned marine scientists....
Cooperation, Immunities, and Article 98 of the Rome Statute: The ICC, Interpretation, and Conflicting Norms
My remarks focus on the two judgments handed down by the ICC Pre-Trial Chamber on December 12-13, 2011, on non-cooperation by Malawi and Chad in the arrest and surrender of Sudan' s President Omar Al Bashir. (1) The Malawi/Chad cases gave the Court...
Criminalizing Humanitarian Relief: Are U.S. Material Support for Terrorism Laws Compatible with International Humanitarian Law?
Following the Supreme Court's decision in Holder v. Humanitarian Law Project (HLP), (1) there has been much discussion about the potentially chilling effect of the so-called "material support" laws on the provision of humanitarian assistance in both...
Different Legal Issues Related to the Protection of Cultural Property in Peacetime and Wartime
The topic of "Confronting Complexity in the Preservation of Cultural Property: Monuments, Art, Antiquities, Archives, and History" is pertinent, because cultural property throughout the world is constantly threatened by a large variety of factors ranging...
Dissecting NCDs Policies: Why International Human Rights Are Relevant in the Current Regulatory State
Contrary to the common belief that health is an individual concern and free from governmental interference, the United Nations recently adopted a Political Declaration on Non-Communicable Diseases (NCDs) (which have become the leading cause of death...
Divergence between Investment and Commercial Arbitration
INTRODUCTION A central question about the emerging system of international arbitration is whether we are likely to witness growing uniformity and convergence or increasing specialization and divergence. In addressing this question, I am going to...
Features of Arbitral Practice That Contribute to System-Building
The development in the practice of international commercial arbitration, it appears, is such that a convergence is emerging in terms of procedural similarities, practice of arbitral tribunals, and judicial approaches in setting aside and enforcing...
Finding Synergies between Agricultural Export-Led Growth and Sustainable Environmental Policies
THE NECESSITY OF INCREASED AGRICULTURAL PRODUCTION My remarks explore what role international trade roles can and should play in ensuring that agricultural-export-led growth is consistent with sustainable environmental policies. This question is...
Foreword
It is a great pleasure to work each year with our Annual Meeting Co-Chairs and the dedicated members of their program committee, to capture the current moment in our collective international law discussion and shoehorn all of those issues, ideas, voices,...
Geographical Expertise in International Boundary Cases
THE IMPORTANCE OF GEOGRAPHY IN BOUNDARY CASES International boundaries may fundamentally be political and legal constructs, but they run through real physical and human landscapes. Effective boundary-making and dispute resolution require an understanding...
Good Faith Recognition and Enforcement of Arbitral Awards as a Criterion for Eligibility under the United States Generalized System of Preferences
As a matter of United States statutory law, a country's good-faith recognition and enforcement of arbitral awards in favor of U.S. persons is a precondition for participation in the Generalized System of Preferences (GSP), the main U.S. program giving...
Human Rights and Migration Management: Of Complexity, Balance, and Nuance
The overarching theme of this Annual Meeting is "Confronting Complexity." In the international law governing migration control, human rights norms have introduced complexity where rather stark simplicity once ruled. This is a welcome development. But...
Indicators as the Working Language for Interaction among Regimes
This panel is based upon the premise that the use of indicators is an important form of power in global governance, which needs to be addressed from, perhaps even regulated by, international law. I agree with this assessment, but want to focus on a...
Insights from the Foreign Direct Investment Regulations Indicators of the World Bank Group
The joint International Finance Corporation (IFC) and World Bank department focusing on Global Indicators & Analysis has developed sophisticated indicators (accessible online (1)), which are recognized and used within the World Bank Group and very...
International Arbitrators as System-Builders
ARBITRATORS AS THE CENTER OF A HETERARCHICAL SYSTEM International arbitration is a particularly good example of confronting complexity in modern international law and dispute settlement. One-off arbitral tribunals, constituted under different arbitral...
International Energy Governance: The Role of the Energy Charter
DIFFERENCE OF ENERGY FROM OTHER GOODS Energy is different from manufactured commodities with which the WTO is used to dealing. In case of hydrocarbons we deal with finite non-renewable resources vital for our life that are distributed highly unevenly...
Internationalization of Law: Diversity, Perplexity, Complexity
It is a real pleasure to visit with old friends like Justice Stephen Breyer--whom I wish to thank for his kind introduction--and to make new friends at this lovely event. It is also a great honor to receive this recognition from WILIG, the Women...
International Law and Its Discontents: Critical Reflections on the War on Drugs or the Role of Law in Creating Complexity
I. Let me first say that I am really excited about this roundtable and think it could offer a counterpoint to the general framework of the Annual Meeting. As I read the Meeting's general statement on "Confronting Complexity," I was struck by at...
International Law and Its Discontents: Rethinking the Global South
I. I have much to agree with in the remarks of Professor Otto and Professor Santos--particularly their focus on the postcolonial and the distinction between Freud and Stiglitz in thinking about discontents. I want to make three interrelated arguments:...
International Law as Discipline and Profession
Oh! Blessed rage for order, pale Ramon, The maker's rage to order words of the sea, Words of the fragrant portals, dimly-starred, And of ourselves and of our origins, In ghostlier demarcations, keener sounds. (1) INTRODUCTION International law...
Introductory Remarks by Barbara Stark
This roundtable explores some of the theoretical questions raised by this year's theme, "Confronting Complexity," from the perspectives of international law's "discontents"--those who situate their malaise in international law itself. Freud's Civilization...
Introductory Remarks by Benedict Kingsbury
Indicators are increasingly important in global governance. They are one element of "governance by information," and one expression of the growing importance of numerically expressed data and statistics in governance. (1) What are indicators, and what...
Introductory Remarks by Bernard Oxman
This year marks the 30th anniversary of the adoption of the United Nations Convention on the Law of the Sea at the conclusion of the Third UN Conference on the Law of the Sea in 1982. In this connection, there are five other years we might also remember....
Introductory Remarks by Celine Levesque
To date, lack of compliance with awards has not been a major issue in investor-state treaty arbitration. States, with few exceptions, have paid the monetary compensation ordered by arbitral tribunals. As a result, discussion as to what can be done...
Introductory Remarks by Dan Bodansky
The theme of this year's Annual Meeting is "complexity," and perhaps nothing could better exemplify this theme than the topic of our panel today, the Chevron-Ecuador dispute. The dispute has become the Jarndyce v. Jarndyce of transnational litigation....
Introductory Remarks by Kristen Boon
Jus post bellum refers to the legal and political framework applicable after war. It can be loosely translated as "justice after war." The name is derived from two related concepts: jus ad bellum, which refers to the law applicable to the resort to...
Introductory Remarks by Lakshman Guruswamy
Writers spanning two centuries, from Herbert Spenser in the 18th century (1) to Leslie White in the 20th century, (2) have asserted that the ability to harness energy is the basis of both social progress and development disparities among societies....
Introductory Remarks by Marcos Orellana
Today we will discuss a topic of increasing international relevance that has been largely outside the radar of international environmental law, namely transnational conservation contracts. Loosely defined, transnational conservation contracts include...
Introductory Remarks by Michael Wood
Our subject is the preparation of cases before international courts and tribunals. We plan to cover the logistics and overall coordination of the case, the organization of the legal and technical teams, general issues of litigation strategy, coordination...
Introductory Remarks by N. Bruce Duthu
Thank you very much. This Closing Plenary is entitled "Indigenous Peoples and International Law," and we're billing it as a conversation between these two very, very distinguished individuals. Normally, when you're in this kind of a setting, it's...
Introductory Remarks by Peter J. Spiro
Everything is complicated, but everything is complicated in different ways. The international law of migration has a ready claim to distinctive complexity along at least two dimensions. First, it is surely the most important area of international...
Introductory Remarks by Rosalyn Higgins
In this panel, we will be talking about fact-finding in inter-state disputes, not fact-finding in the context of international criminal cases nor state-private party arbitrations. But that still leaves a great deal within the field of inter-state disputes....
Introductory Remarks by Scott C. Fulton
Twenty years after the Rio Earth Summit, the 2012 UN Conference on Sustainable Development (Rio+20) offers an important opportunity to consider anew the challenge of sustainable development and to provide guidance and inspiration for the path ahead....
Introductory Remarks by Stephanie Ortoleva
In a groundbreaking effort to "Confront Complexity" (the theme of the 2012 AS IL Annual Meeting), the International Disability Rights Interest Group sponsored an engaging roundtable entitled "Forgotten Sisters: Violence Against Women with Disabilities,...
Introductory Remarks by Stephen C. McCaffrey
It is well known that none of the major human rights instruments explicitly mentions a right to water, something that many lawyers and even laypeople find perplexing. It is also well known that an unacceptable number of people lack access to potable...
Introductory Remarks by Tom Syring
I would like to welcome you all to our panel on "International Norm-Making on Forced Displacement: Challenges and Complexity." While forced displacement continues to be a major humanitarian concern, the further development of international norms in...
Introductory Remarks by William Schabas
When the Rome Statute was being negotiated, many participants in the process viewed the future institution as a body that would be established and controlled in the Global North, but with the function of delivering justice to the Global South. This...
Is There a Need for a New Sources Theory in International Law? A Proposal for an Inclusive Positivist Model
Although a positivist, I take more of an inclusive approach than my fellow panelists, and I apply Jules Coleman's theory of incorporationism in order to propose and explain a conceptual model for the sources of international law. Here, I will explain...
Is There a Need for Sanctions in International Investment Arbitration
The question put to this panel for discussion is whether there is a need for sanctions in investor-state arbitration if parties do not comply with arbitral awards. Before answering this question, it is important to answer another preliminary one: Are...
Killing in the Fog of War
Imagine that you are a soldier, fighting in an irregular armed conflict against a non-uniformed enemy that intermingles with the civilian population. Imagine that your unit is under fire and that you see an individual standing on a nearby roof talking...
Kony 2012, the ICC, and the Problem with the Peace-and-Justice Divide
Spurred by the popular Kony 2012 video that recently went "viral," my comments today will focus on the dangerous slippage between justice and peace. This short film is just a recent example of the tendency to treat justice (popularly seen as the law)...
Legislative Borrowing
Judges, politicians, and academics vigorously debate whether courts should borrow ideas from abroad. (1) In the United States, the debate centers on the concern that referencing foreign law allows judges to impose the views of a minority of liberal...
Looking to Human Rights and Humanitarian Law to Determine Refugee Status
The definition of a refugee in international law is famously vague. Two particularly challenging elements are the nature of "persecution" and the scope of involvement in "a crime against peace, a war crime, or a crime against humanity, as defined in...
Measuring Human Rights: Indicators, Expertise, and Evidence-Based Practice
Recent decades have witnessed an "evidence-based" revolution. From medicine and nursing to education and economics, many fields have embraced this approach to turning knowledge into action. Evidence-based practice is closely related to the empirical...
Measuring, Monitoring, Reporting, and Verifying (MMRV): Negotiating Trust in Transnational Contracts for REDD+
Efforts to mitigate greenhouse gas build-up through quantifying and controlling the world's forests highlight new directions in international transnational conservation contracts. The emerging regime of Measuring, Monitoring, Reporting, and Verifying...
Non-Compliance with Awards: The Remedies of Customary International Law
The binding nature of international arbitral awards is clearly established in international investment law. Most international investment agreements (IIAs) (1)--as well as Articles 53(1) and 54(1) and 27 of the ICSID Convention, Article 34(2) of the...
Norm-Making in International Refugee Law
The year 2011 marked the commemoration of both the 60th anniversary of the Refugee Convention--the cornerstone of the international refugee regime--and the 50th anniversary of the Convention on the Reduction of Statelessness. These important anniversaries...
Opening Remarks by Jozias Van Aartsen
Thank you, Mr. Chairman. Presidents of the courts, ladies and gentlemen, it's June the 25th, 1995, when a young girl in beleaguered Sarajevo is finally able to go outside and play again. Together with her friends, Sidbela Zimic is playing with a skipping...
Opening Welcome and Remarks
CONFRONTING COMPLEXITY, VALUING ELEGANCE Our theme this year is "confronting complexity," and it is the meaning of that theme that I would like to explore with you this morning. One interpretation of what our Program Co-Chairs thought in selecting...
Phoenix Islands Protected Area Conservation Trust Act 2009
In February 2008, the Government promulgated the Phoenix Islands Protected Area Regulations 2008, thereby creating the Phoenix Islands Protected Area (PIPA), the largest marine protected area in the world. In cooperation with Conservation International...
Procedural versus Substantive Coordination in International Financial Market Oversight
SEC staff really first became internationally engaged with global international "networks" in the 1980s. Global connections in the world's capital markets were expanding fast, and borders were becoming an enforcement concern for securities regulators....
Promoting Commodity Exports through Governor-Led Trade Missions: Governors' Constitutionally Permissible (and WTO Permissible) Role of Exporter-in-Chief
U.S. state governors led over 500 trade missions in the ten years prior to the recent economic downturn. (1) While state budgets are under pressure during the economic downturn, governor-led trade missions continue, albeit at a somewhat reduced rate....
Reductionist Legal Positivism in International Law
We international legal scholars perceive the world as being growingly complex and intricate. Much of that perception, of course, can be traced back to the fact that our binary legal categories do not fit the world as we have come to see it. It is this...
Remarks by Akiko Ito
My name is Akiko Ito, and I am Chief of the Secretariat for the Convention on the Rights of Persons with Disabilities at the United Nations Department for Economic and Social Affairs (also known as DESA). DESA works to support the development pillars...
Remarks by ANGELA CICCOLO
I would like to congratulate the International Law Students Association for hosting this panel to discuss issues that arise in the new age of globalized sports, and to thank the other panelists for their informative presentations. We share a common...
Remarks by Antigoni Axenidou
THE REASON FOR THE UNITED NATIONS INTERNAL SYSTEM OF JUSTICE While the United Nations has international legal personality, according to Article 104 of the UN Charter, the organization is immune from suit unless it expressly waives such immunity,...
Remarks by Brian Gorlick
The Office of Staff Legal Assistance (OSLA) was established by the United Nations General Assembly at its sixty-sixth session (2008). (1) On July 1, 2009, OSLA opened its doors and immediately inherited 350 case files from the former United Nations...
Remarks by Brooks Daly
Thank you very much. And thank you to Mayor Van Aartsen and to the American Society for organizing this event. I'm sorry that I only joined the Hague delegation today, detained in the Hague by other responsibilities, but I'm very happy to be here....
Remarks by Dinah Shelton
I wanted Jim to start this discussion precisely because there are UN instruments, and we do not have a specific instrument in the Inter-American system as yet on the rights of indigenous peoples. There has been one in progress for 23 years. We may...
Remarks by Don Anton
My role today is that of critical observer and provocateur. Today I will talk about a disturbing story line in the development of international environmental law and how it is shaping the approaching UN Conference on Sustainable Development in Brazil--appropriately...
Remarks by Fionnuala Ni Aolain
My comments are directed first at the utility of a jus post bellum framework in tackling post-conflict contexts and transitions. My remarks in this regard focus on what may be obscured in the move to using a new conceptual placeholder in contexts where...
Remarks by Frank Berman
A panoptic "view from the bench" would be presumptuous before an audience containing several serving or past judges of the International Court of Justice. These remarks will therefore focus on arbitration, and will be structured round a series of aphorisms....
Remarks by Gregory J. Spak
INTRODUCTION Do export-led agricultural strategies necessarily conflict with international trade rules and the concept of sustainable development? Clearly not. One can easily imagine a situation in which a sovereign nation takes advantage of its...
Remarks by Harold Hongju Koh
It is my honor to speak here again at the Annual Meeting of the American Society of International Law. A year ago, I spoke before this audience about the international legal basis for the United States' military operations in Libya. In that same spirit...
Remarks by Ingrid Wuerth
My remarks will focus on the extraterritorial application of the Alien Tort Statute (ATS). This aspect of the statute is especially controversial as a policy matter, and it is the issue on which the Court ordered additional briefing when it re-listed...
Remarks by James Anaya
Good morning. It's a pleasure to be here. Thank you, Bruce, for chairing this and for the organizers for inviting us to participate in this. I'd like to talk briefly about my mandate for those of you who are not that familiar with the UN system...
Remarks by Jennifer Easterday
WHAT IS JUS POST BELLUM? Jus post bellum is the body of laws, norms, and principles that apply during the transition from war to peace. (1) One of its central goals is the establishment and maintenance of sustainable peace. The jus post bellum framework...
Remarks by Judith Kimerling
I would like to begin with some comments from the field about the application of forum non conveniens by the Aguinda v. Texaco court, and then discuss one of the affected groups, the Huaorani. I have worked in the affected region since 1989, and...
Remarks by Julie Mertus
This panel has concerned itself with various aspects of violence against all different types of women, in different contexts--women with disabilities/women without disabilities, young and old, female and male, rich/poor, educated/ illiterate. The complex...
Remarks by Kenneth Keith
My task is to provide an international law perspective on this case and its related litigation. I will do that by addressing five issues. I would, as a preliminary, like to emphasize that after many years in the law I worry about over-specialization....
Remarks by Lalanath De Silva
During the recent Rio+20 negotiations at the United Nations in New York, words did not match actions. Despite delegates calling for an ambitious, action-oriented, and agenda-setting political document for heads of state and ministers to sign at Rio+20,...
Remarks by Larry May
Jus post bellum is a relatively new term in international law debates, although the term has deep roots in the Just War tradition. Indeed, there were historically three branches of the Just War: jus ad bellum, jus in bello, and jus post bellum, as...
Remarks by Lucinda Low
I would like to speak about the public international law claims and remedies that have been invoked in this case, in particular the second claim filed by Chevron and Texaco under the U.S.-Ecuador Bilateral Investment Treaty (BIT), and the now withdrawn...
Remarks by Maritza Struyvenberg
On July 1, 2009, the United Nations saw the birth of a new system of administration of justice. The old system having been deemed slow, inefficient, and ineffective, the General Assembly decided in Resolution 61/261 of April 4, 2007, to establish a...
Remarks by Meg Kinnear
I have five points to make today. While these points are fundamental, they are worth repeating because they will make case preparation much more effective. First, sometimes the best preparation is to avoid the dispute or settle it in the early stages....
Remarks by Michael O'Flaherty
While we try to avoid suggesting a hierarchy of human rights, it is necessary to acknowledge the exceptional significance of freedom of expression--at once a crucial right in itself and also necessary for the enjoyment of so many other rights, be they...
Remarks by Michael Semple
INTRODUCTION My remarks offer some practitioners' reflections on jus post bellum issues as I encountered them in Afghanistan from 2001 to 2012 in various permutations of my role as a political officer. The broad questions are: How did those involved...
Remarks by Olivia Swaak-Goldman
INTRODUCTION International criminal justice and its components were put to the test during the latest African Union summits. Past African Union decisions, such as the refusal to cooperate with the ICC in the arrest and surrender of Sudanese President...
Remarks by Olufemi Elias
In its well-known judgment in Waite and Kennedy, (1) the European Court of Human Rights ruled that the jurisdictional immunity of international organizations may depend upon the availability of "reasonable alternative means" to protect effectively...
Remarks by Patricia O'Brien
As we are limited by time, I will focus my comments on the concept of the responsibility to protect (R2P) in the context of current work at the United Nations, and its implementation in the situations of Libya and Syria. 2005 WORLD SUMMIT In...
Remarks by Paula Schriefer
In January of this year, a 30-year-old Indonesian civil servant, Alexander Aan, posted the statement "God doesn't exist" on the Facebook page of an atheist group. In response, he was attacked and beaten by an angry mob and then, when a reasonable person...
Remarks by Paul S. Reichler
My subject is the selection and composition of the legal team, and how the choice of lawyers can affect the quality of the written pleadings, the coherence of the oral arguments, and ultimately the outcome of the case. The legal team has two parts,...
Remarks by Peter Tomka
Good afternoon. Thank you very much for the invitation and the introduction. Well, I have to speak about the International Court of Justice, but I think this is the institution which is so well-known to this public that it does not need reintroduction....
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