American Journal of International Law
VOLUME 98 2004
Published by The American Society of International Law BOARD OF EDITORS Editors in Chief LORI FlSLER DAMROSCH BERNARD H. OXMAN Columbia University School of Law University of Miami School of Law
JOSE E. ALVAREZ MICHAEL J. MATHESON Columbia University School of Law George Washington Univ. Law School DAVID J. BEDERMAN SEAN D. MURPHY Emory University School of Law George Washington Univ. Law School DANIEL BODANSKY STEVEN R. RATNER University of Georgia School of Law University of Michigan Law School DAVID D. CARON DINAH L. SHELTON Univ. of California (Berkeley) School of Law George Washington Univ. Law School HILARY CHARLESWORTH BETH A. SIMMONS Australian National University Harvard University STEVE CHARNOVITZ RICHARD H. STEINBERG George Washington Univ. Law School Univ. of California (LA) School of Law CHRISTINE M. CHINKIN JANE E. STROMSETH London School of Economics Georgetown University Law Center JAMES R. CRAWFORD JOEL P. TRACHTMAN University of Cambridge Fletcher School of Law and Diplomacy JOHN R. CROOK RUTH WEDGWOOD Potomac, Maryland Johns Hopkins University JACK L. GOLDSMITH Harvard Law School EDITH BROWN WEISS Georgetown University Law Center BENEDICT KINGSBURY New York University School of Law DIANE P. WOOD DAVID A. MARTIN Chicago, Illinois University of Virginia School of Law
JAMES H. CARTER ex officio CHARLOTTE KU Honorary Editors GEORGE H. ALDRICH ANDREAS F. LOWENFELD The Hague, the Netherlands New York University School of Law RICHARD B. BILDER THEODORMERON University of Wisconsin Law School The Hague, the Netherlands CHARLES N. BROWER JOHN NORTON MOORE The Hague, the Netherlands University of Virginia School of Law THOMAS BUERGENTHAL COVEY T.OLIVER The Hague, the Netherlands Easton, Maryland RICHARD A. FALK W. MICHAEL REISMAN University of California at Santa Barbara Yale Law School TOM J. FARER STEPHEN M. SCHWEBEL University of Denver THOMAS M. FRANCK Washington, D.C. New York University School of Law LOUIS B. SOHN LOUIS HENKIN George Washington Univ. Law School Columbia University School of Law ERIC STEIN ROSALYN HlGGINS University of Michigan Law School The Hague, the Netherlands DETLEV F. VAGTS JOHN H. JACKSON Harvard Law School Georgetown University Law Center BURNS H. WESTON FREDERIC L. KIRGIS University of Iowa College of Law Washington and Lee Univ. School of Law
Senior Associate Editor Associate Editor ANNAASCHER Managing Editor STEPHEN SCHER CARA M. SMITH
JOSEPH V.MCGRATH Assistant Editors DOREEN G.YAMAMOTO ORDERS AND INQUIRIES
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Filed October 2004, American Journal of International Law (issued quarterly, January, April, July, October), Cadmus Professional Communications, 3575 Hempland Rd., Lancaster, PA 17604-3657. Published by The American Society of International Law, 2223 Massachusetts Avenue, NW, Washington, DC 20008-2864. Editors in Chief, Lori Fisler Damrosch, Columbia University School of Law, 435 West 116th Street, New York, NY 10027, and Bernard H. Oxman, University of Miami School of Law, 1311 Miller Drive, Coral Gables, FL 33146. Owner, The American Society of International law. Average number of copies per issue, last 12 months: total printed 7562; mail subscriptions, 6431; total paid circulation, 6431; free distribution, 40; total free dis tribution, 340. For single issue nearest to filing date: total printed, 7562; mail subscriptions, 6431; total paid circulation, 6431; free distribution, 40; total distribution, 340.
Copyright © 2004 by The American Society of International Law Printed by Cadmus Professional Communications, Linthicum, MD 21090 AMERICAN JOURNAL OF INTERNATIONAL LAW
VOLUME 98 CONTENTS 2004
[No. 1, January 2004, pp. 1-246; No. 2, April 2004, pp. 247-406; No. 3, July 2004, pp. 407-640; No. 4, October 2004, pp. 641-903.] PAGE
Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict Kenneth Watkin 1 Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints Richard H. Steinberg 247 Common but Differentiated Responsibilities in International Law Christopher D. Stone 276 International Law Immunities and the International Criminal Court Dapo Akande 407 Compliance with Final Judgments of the International Court of Justice Since 1987 Colter Paulson 434 Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health? Michael J. Dennis and David P. Stewart 462 Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life Sabrina Safrin 641 The Manley O. Hudson Lecture: Why Regime Change Is (Almost Always) a Bad Idea W. Michael Reisman 516 Oscar Schachter (1915-2003) Lori Fisler Damrosch 35 Agora: The United States Constitution and International Law Editors' Introduction Lori Fisler Damrosch and Bernard H. Oxman 42 International Law as Part of Our Law Harold Hongju Koh 43 Misusing International Sources to Interpret the Constitution Roger P. Alford 57 International Materials and Domestic Rights: Reflections on Atkins and Lawrence Michael D. Ramsey 69 The Uses of International Law in Constitutional Interpretation Gerald L. Newman 82 International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate T. Alexander Aleinikoff 91 Editorial Comments International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to "Buy Out"? John H.Jackson 109 Sovereign Bankruptcy: In re Germany (1953), In re Iraq (2004) Detlev F. Vagts 302 Criminals, Combatants, or What? An Examination of the Role of Law in Responding to the Threat of Terror Thomas M. Franck 686 Speaking Law to Power: Lawyers and Torture Richard B. Bilder and Detlev F. Vagts 689 Using Framework Statutes to Facilitate U.S. Treaty Making Steve Charnovitz 696
Former Legal Advisers' Letter on Accession to the Law of the Sea Convention 307 Notes and Comments The Challenge to the Mandatory Death Penalty in the Commonwealth Caribbean Joanna Harrington 126 Policing the High Seas: The Proliferation Security Initiative Michael Byers 526 When Is a Final Clause Not a Final Clause? Shabtai Rosenne 546 The Right of the Accused to Self-Representation Before International Criminal Tribunals Nina H. B. j0rgensen 711 Peacekeeping and Prosecutorial Policy: Lessons from Kosovo Gregory L. Naarden and Jeffrey B. Locke 727 Correspondence 743 Current Developments Restrictions on U.S. Attorneys Practicing Before International Criminal Tribunals Jonathan G. Cedarbaum 141 The 2003 Judicial Activity of the International Court of Justice John R. Crook 309 The Fifty-fifth Session of the International Law Commission Michael J. Matheson and Sara Bickler 317 The Security Council's Efforts to Monitor the Implementation of Al Qaeda/Taliban Sanctions Eric Rosand 745 Regulating Antarctic Tourism and the Precautionary Principle Kees Bastmeijer and Ricardo Roura 763 International Decisions Edited by David D. Caron United States—Continued Dumping and Subsidy Offset Act of 2000 (Mark L. Movsesian) 150 Laewen Group, Inc. v. United States, and Mondev International Ltd. v. United States • (William S. Dodge) 155 UNESCO-France Arbitration (Douglas D. Reichert) 163 Prosecutor v. Nahimana, Barayagwiza, &Ngeze (Catharine A. MacKinnon) 325 Access to Information Under Article 9 of the OSPAR Convention (Ireland v. United Kingdom) (Ted L. McDorman) 330 S.D. Myers, Inc. v. Canada, and Attorney General of Canada v. S.D. Myers, Inc. (Charles H. Brower II) 339 Oil Platforms (Iran v. United States) (Pieter H. F. Bekker) 550 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) (Dinah L. Shelton) 559 Commission v. United Kingdom et al. (Frank Hoffmeister) 567 Hingitaq 53, Qajutaq Petersen, and Others v. Prime Minister's Office (Ole Spiermann) 572 Hamdi v. Rumsfeld (Jenny S. Martinez) 782 Rasul v. Bush (David L. Sloss) 788 Sosa v. Alvarez-Machain; United States v. Alvarez-Machain (Brad R. Roth) 798 Prosecutor v. Brdjanin & Talic (Megan A. Fairlie) 805 Bustani v. Organisation for the Prohibition of Chemical Weapons (Ana Stanic) 810 Commission of the European Communities v. Jego-Quere & Cie SA (Cornelia Koch) 814 Contemporary Practice of the United States Relating to International Law Edited by Sean D. Murphy U.S. Immunity from Suit Under FTCA Regarding Security Measures at Nairobi Embassy 169 UN Resolution Demanding That Israel Not Deport or Threaten Palestinian President 171 Protection of UN and Humanitarian Personnel in Conflict Zones 172 Senate Testimony Regarding U.S. Adherence to Law of the Sea Convention 173 Environmental Torts Do Not Violate Customary International Law 175 Ratification of the 1999 Montreal Convention on Aviation Liability 177 WTO Decision Striking Down U.S. Steel Safeguard Measures 179 Canadian Deportation to United States of Death-Penalty Convict 180 Enactment of PROTECT Act Against Sex Tourism 182 Adoption of UN Convention Against Corruption 182 Testimony by U.S. General Before the ICTY 184 Second Circuit Rejection of Presidential Power to Declare U. S. National "Enemy Combatant" 186 Ability of Detainees in Cuba to Obtain Federal Habeas Corpus Review 188 Turmoil in Iraq, Transitional Arrangements, and the Capture of Saddam Hussein 190 U.S. Support for Multinational Intervention in Liberia 193 U. S./UK Negotiations with Libya Regarding Nonproliferation 195 Refusal to Confirm an Arbitral Award Against Nonsignatory Government 197 D.C. Circuit Interpretation of Scope ofFSIA "Flatow Amendment" 349 Adoption of Central American Free Trade Agreement 350 U. S. -Australia Free Trade Agreement 352 Reviews, Release, and Trials of Detainees at Guantdnamo Bay 353 "Proliferation Security Initiative" for Searching Potential WMD Vessels 355 Adoption of Fifth CCW Protocol on Explosive Remnants of War 357 ICJ Advisory Opinion on Israeli Security Fence 361 ICJ Decision Regarding Mexicans on Death Row in United States 364 U.S. Signing of UNCITRAL Convention on Assignment of Receivables 368 Supreme Court's Use of Court Decisions of Treaty Partners 579 Implementation o/Avena Decision by Oklahoma Court 581 Retroactivity of the Foreign Sovereign Immunities Act 584 Replacement of U. S. -Led Force in Haiti with UN Peacekeeping Mission 586 Establishment of U.S. Antiterrorism Maritime Transportation System 588 Report of U.S. Commission on Ocean Policy 590 U.S. Opposition to Measures Condemning Israel 591 U. S. Abuse of Iraqi Detainees at Abu Ghraib Prison 591 Mutual Legal Assistance Treaties with the European Union, Germany, and Japan 596 U.S. Reaction to ICJ Judgment in Iranian Oil Platforms Case 597 Coalition Laws and Transition Arrangements During Occupation of Iraq 601 UN Security Council Resolution on Nonproliferation of WMD 606 Senate Consent to U.S. Ratification of IAEA Additional Protocol 608 Executive Branch Memoranda on Status and Permissible Treatment of Detainees 820 U.S. Efforts to Secure Methyl Bromide Exemption to Ozone Depletion Regime 831 U.S.-Japan Tax Treaty 833 U. S. -Bahrain Free Trade Agreement 835 U.S.-Morocco Free Trade Agreement 835 Proposed New U.S. "Model" Bilateral Investment Treaty 836 Bioterrorism Act's Notice Requirements for Food Imports NAFTA Waste Management Tribunal Finds No Arbitrary Treatment, No Expropriation 837 NAFTA Commission Statement on Amicus Curiae Participation in Arbitrations 838 Amendment of Treaty on Simplification and Harmonization of Customs Procedures 841 Supreme Court's Rejection of "Headquarters Doctrine" Under FTCA 843 Supreme Court Interpretation of Alien Tort Claims Act 844 New U.S./EU and U.S./UKExtradition Treaties 845 Continuance of Extradition Treaty with Czech Republic 848 Suspension of U.S. Aid to Serbia and Montenegro for Noncooperation with ICTY 850 Interpretation of "Rights of Custody" Under Hague Convention on Child Abduction 850 Cape Town Convention on Financing of High-Value, Mobile Equipment 851 852 Recent Books on International Law Edited by Richard B. Bilder 200, 371, 610, 855
International Legal Materials. Contents, Vol. XLII, No. 6 (2003); Vol. XLIII, Nos. 1-5 (2004)
Table of Cases 890 Index 893 Free Trade and the Environment Law, Justice, and Power Mexico, NAFTA, and Beyond Between Reason and Will KEVIN P. GALLAGHER Edited by SINKWAN CHENG "Kevin Gallagher makes an outstanding con This volume provides different disciplinary tribution to the trade-environment debate, and cultural perspectives on the ethical and offering some real breakthroughs in thinking political ramifications of the incommensu about the relationship between trade expan rable yet inextricable relationships among sion and environmental protection." law, justice, and power. —Scott Vaughan, Director of the Unit for $24.95 paper $60.00 cloth Sustainable Development and Environment, Organization Legal Ethics of American States A Comparative Study $16.95 paper $42.50 cloth GEOFFREY C. HAZARD, JR. Controlling Immigration and ANGELO DONDI I YnMteatftta A Global Perspective "Professors Hazard and Dondi have a very Second Edition large understanding of the realities of con temporary law practice throughout the Edited by WAYNE A. CORNELIUS, developed world. Specialists and profes TAKEYUKI TSUDA, PHILIP L. MARTIN, sionals worldwide will find this book stim and JAMES F.HOLLIFIELD ulating and welcome." A systematic, comparative, multidisciplinary —Roger Cramton, Cornell University study of immigration policy and policy out School of Law comes in nine industrialized democracies. $60.00 cloth Published in association with the Center for Comparative Immigration Studies at the University of California, San Diego Univ.r* $27.95 paper $65.00 cloth 800.621.273S
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From Government to Governance The Growing Impact of Non-State Actors on the International and European Legal System
2003 Haguejoint Conference on Contemporary Issues of International Law
edited by Wybo P. Heere
The making, application and enforcement of inter international and/or criminal law. The variety of national law are no longer confined to national opinions made the discussions lively and worth lis States. A rapidly growing number of non-State ac tening to. Together with the introductions by the tors also play a role. These actors are rather hetero speakers, they are included in the present volume. geneous. Their role, representativeness and thus They will challenge the reader to formulate his or legitimacy greatly differ. However, they have in her own opinion and to take part in the ongoing de common that they challenge basic assumptions on bate that should control and steer the march from which international law and international relations Government to Governance. The accessibility of have been based. These challenges include the the contents is greatly enhanced by a Subject Index gradual replacement of traditional diplomatic rela and an Index of Names. tions by networks.of national government officials interacting with one another across borders. These This Sixth Haguejoint Conference was organized government networks are in turn often embedded by "The Haguejoint Conferences on International in larger 'global policy networks* that involve a Law* Foundation, in which the American Society wide variety of non-state actors - NGOs, corpora of International Law, the Netherlands Society of tions, individual experts, and intergovernmental International Law, the Municipality of The Hague organizations. New forms of accountability for and the T.M.C. Asser Institute, The Hague, partic these non-State actors are also emerging. ipate. The Conference was held in The Hague in 'From Government to Governance' was the cen July 2003. tral topic of the 2003 Haguejoint Conference, a Conference attended by many practitioners and www.asserpress.nl/cata/heere03/fra.htm academics not only from the United States and Eu 2004, ISBN 90-6704-177-7 rope, but also from other parts of the globe. The 533 PP-. paperback second main topic was terrorism in its relation to GBP 50.00/uSD 90.00
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The American Society of International Law, P.O. Box 501193, St. Louis, MO 63150-1193 USA, (p) 781-876-8844, (u) www.asil.org New Titles from Transnational Publishers
HUMAN RIGHTS AND THE GLOBAL MARKETPLACE Edited by Jeanne M. Woods and Hope Lewis Intended for use in law school, graduate and undergraduate survey courses as well as seminars on human rights, this book will be useful for teachers using either international or comparative approaches, or both. Early 2005. Approx. 900 pages. ISBN 1-57105-274-7. $145.00/hardcover. Student edition $85.00.
GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE, 4th ed. Edited by Hurst Hannum This revised and updated edition of the standard work in its field continues and advances its original focus on the "nuts and bolts" of international human rights law and practice. 2004. 404 pages. ISBN 1-57105-320-4. $95.00/hardcover. Student edition $25.00/paper.
NEW WARS, NEW LAWS: Applying the Law of War In Twenty-First Century Conflicts Edited by David Wippman This book addresses such questions as: Do the laws of war need revision? Are there limitations to the Geneva Conventions? When should law enforcement efforts yield to war-fighting in the fight against terrorism? In addition it explores the application of humanitarian law; the lawful targeting in the war on terror, and the trial of the accused; as well as the law of occupation. 2004. Approx.290pages. ISBN 1-57105-315-8. $115.00/hardcover.
SEPTEMBER 11,2001: A Turning Point In International and Domestic Law? Edited by Paul Eden and Th6rese O'Donnell Among the important issues addressed in this collection is the human rights repercussions of Septem ber 11, 2001 with particular reference to the civil liberties implications of both international and national law and policy. 2004. Approx. 400 pages. ISBN 1-57105-326-3. $95.00/hardcover.
LAW IN THE WAR AGAINST INTERNATIONAL TERRORISM Edited by VedP. Nanda This book provides a comprehensive and insightful analysis of the pertinent domestic, bilateral, re gional and international legal developments in the war on terrorism, including lawful and unlawful wars against terrorism, nuclear terrorism, the detention of terrorists as unlawful combatants and their trial. 2004. Approx. 400 pages. ISBN 1-57105-319-0. $115.00/hardcover:
THE PROSECUTION AND DEFENSE OF PEACEKEEPERS UNDER INTERNATIONAL CRIMINAL LAW By Geert-Jan Alexander Knoops. This is the first comprehensive study on the international judicial implications of prosecution of interna tional peacekeepers and members of military crisis operations under the principles of International criminal law and especially those of the International Criminal Court. 2004. 416 pages. ISBN 1-57105-154-6, $125.00/hardcover.
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What We Owe Iraq War and the Ethics of Nation Building Noah Feldman Noah Feldman argues that to prevent U.S. "nation building" from turning into a colonialist charade, we urgently need a new approach. Drawing on his personal experiences in Iraq as a constitutional adviser, Feldman offers important insights into the power dynamics between the American occupiers and the Iraqis, and he tackles such vital issues as Iraqi elections, the prospect of successful democratization—and the way home. Cloth $19.95 ISBN 0-691-12179-6 Due November
New in paperback With a new preface by the author The International Law of Occupation Eyal Benvenisti
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The Impact of International law on International Cooperation Theoretical Perspectives Edited by Eyal Benvenisti and Moshe Hirsch $95.00: Hardback: 0-521-83554-2: 330pp
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Employment Policy and the Regulation of Part-time Work in the European Union A Comparative Analysis Edited by Silvana Sciarra, Paul Davies, and Mark Freedland $95.00: Hardback: 0-521-84002-3: 386pp
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us.cambridge.org/law CAMBRIDGE UNIVERSITY PRESS ~M| MARTINUS NjJHOFF PUBLISHERS MAUI IMS M.IIIOI I ITB1 ISIII US 2Ll LBIDEN • BOSTON an imprint of Brill Academic Publishers Diplomatic Handbook Eighth Edition RALPH G. FELTHAM The aim of this book is to provide a concise but comprehensive source of relevant information for those who are embarking on an international and, particularly, a diplomatic career. It is also useful for civil servants who are required to attend multilateral conferences on a wide range of subjects. • December 2004 • Hardback (216 pp.) • ISBN 90 04 14142 1 • List price EUR 50,- / US$ 68,- International Law and Sustainable Development Principles and Practice EDITED BY NICO SCHRIJVER AND FRIEDL WEISS The chapters assembled in this volume illustrate various aspects of efforts of policy makers, and regional and national interest groups to invoke and rely upon international law for the realisation of the objective of sustainable development. They deal in particular with recent examples of the practice of states and of relevant international organisations, especially in such areas as international trade, foreign investment regulation, human rights and natural resources and waste management. Furthermore, some chapters are dedicated to a review of relevant practice at a regional and national level. • In print 2004 • Hardback (xxxviii, 714 pp.) • ISBN 90 04 14173 1 • List price EUR 135,- / US$ 182,- • Developments in International Law, 51 M] MARTINUS NIJHOFF PUBLISHERS I'l 151 ISIIi US Hi LIIDIN • BOSTON an imprint of Brill Academic Publishers Military Training and Children in Armed Conflict Law, Policy and Practice JENNY KUPER
This book aims to address three main questions: what are the obligations of officers of national armed forces in relation to children, either civilians or combatants, whom they or those under their command may encounter while participating in situations of armed conflict? How realistic and achievable are these obligations? How can compliance with them be encouraged, monitored, and/or enforced? • October 2004 • Hardback (330 pp.) • ISBN 90 04 13673 8 • List price EUR 95,- / US$ 128, Facilitating Freedom of Religion or Belief: A Deskbook EDITED BY TORE LINDHOLM, W. COLE DURHAM JR. AND BAHIA G. TAHZIB-LIE. ASSOCIATE EDITORS: ELIZABETH A. SEWELL, LENA LARSEN
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