Author Archives: oneditor

On April 7, 2009, Richard Fentiman delivered the tenth annual Snyder Lecture at the Indiana University Maurer School of Law.

Introduction

In December 2007 the representatives of the EU Member States finally agreed on the text of Regulation 593/2008 concerning the law applicable to contractual obligations. 1 The ‘Rome I’ Regulation contains harmonized rules for choice of law in contract. It applies in all Member States from December 17, 2009, to contracts concluded after that date. This development is significant for three reasons. First, the Regulation replaces the familiar 1980 Rome Convention, 2 which previously governed contract conflicts in EU national courts. Secondly, it departs from the Convention in important ways. 3 Thirdly, being a Regulation and not a Convention, it is true Community legislation, not merely a treaty between the Member States. Rome I is part of what may be described, contentiously, as the federal law of Europe. But agreement was reached on the Regulation only at the last minute, by agreeing to disagree on one of the Regulation’s principal components. The sticking point was a single provision which exposed tensions not simply between Member States, but between different lobbies in Member States and even within national delegations. This provision begged questions of high technicality, and had exceptional practical importance. It was the stuff of choice-of-law theory, yet mobilized the finance ministries of Europe. It concerned the law governing transactions involving the world’s principal traded commodity, of which both the United States and the UK are major producers—debt. Continue reading →

On February 12, 2009, Professor Skene delivered the George P. Smith II Lecture at the Indiana University Maurer School of Law.

“While Americans might decide to limit ‘halfway’ or exotic, sciencefiction inspired technologies, such as artificial hearts or brain transfers into robot bodies, it would appear unlikely they would ever approve limitations on medical research whose focus is to discover technologies, drugs and scientific techniques which not only maintain qualitative existence but extend life.” Professor George P. Smith II. 1

Introduction

In March 2009, President Obama signed an Executive Order reversing President Bush’s Order limiting the types of human embryonic stem cells that can receive federal funding for research. Many people believe this Order signals a new era in this research. However, it is only the first step towards allowing federal funding for American scientists to do the types of embryo research that are allowed in some other countries. Also, science moves at varying speeds and the focus moves quickly from one type of stem cell research to another. At the time of writing, embryonic stem cell research is moving more slowly, due partly to reports of an unregulated stem cell procedure in Moscow [End Page 211] causing a young Israeli boy to develop tumors, and partly to new developments in research deriving stem cells without forming embryos. However, embryonic stem cell research may again advance, especially with the increased funds that are expected to become available for it. This paper suggests that if embryonic stem cell research—or any other aspect of stem cell research—ultimately produces effective treatments for human health care, it will receive broad community support, even if there have been earlier reservations about the research has have led to the new treatments. Continue reading →

Professor Zoller offers several closing thoughts, focusing on the rationales for maintaining NATO in the twenty-first century and the theme of peace through law. She concludes that NATO is vital for European security, and that NATO is here to stay for both legal and factual reasons. Continue reading →

The German Basic Law’s Regime for the use of force is evidence of and an explanation for the deep difference between Germany and the United States on security matters. It also might say something more grand about the power of law to constrain force. Continue reading →

NATO was founded to counter the Soviet Union and the Warsaw Treaty Organization. Both have been gone for over twenty years. So why is NATO still here? Part of the explanation may lie in Americans’ strong belief in the efficacy of military force. NATO remains associated in Americans’ minds with the greatest time of U.S. military power. Yet, the United States also has a strong commitment to the rule of law. The country appears overdue for a return to this other commitment. We should not be surprised to soon see the United States promoting international law again—and that could mean finally shutting down NATO. Continue reading →

Since the end of the Cold War, NATO has been mired in existential crisis. This is not to say that it has become irrelevant: it experienced a dramatic expansion of membership in the 1990s that continues today. In addition, events following the terrorist attacks of September 11, 2001, including the first-ever invocation of NATO’s article 5 collective security mechanism, signaled at least the possibility of meaningful accord. The end of the Bush Administration too carried some promise for NATO’s trans-atlanticism, especially with Barack Obama making hope and dialogue centerpieces of the foreign policy platform that launched his presidency.

Yet NATO continues to struggle to justify itself, as the 60th anniversary summit of last spring demonstrated so clearly. The run-up to that summit revealed some major fault lines. Many American policymakers view NATO as a bureaucratic bog from which Europeans extract their security without having to get their own feet wet. Europeans, on the other hand, are likelier to view NATO as the last vestige of America’s Cold War primacy. Disagreement exists also on the fundamental question of how best to advance geopolitical interests today—as reflected in the observation of one editorialist that “NATO and the United States do hard power, the European Union does soft power.” 1

The run-up to the summit also revealed consensus that Afghanistan is emerging as the test of NATO’s staying power. Continue reading →

On November 1, 2007, Professor Buxbaum delivered the ninth annual Snyder Lecture at the University of Cambridge in the Lauterpacht Centre for International Research.

It is a great honor for me to deliver the ninth Snyder Lecture. I have had the pleasure of attending many of the previous lectures delivered in Bloomington by members of the Cambridge faculty. I have also had the pleasure of hearing from those of my students who were given the opportunity to conduct research at the Lauterpacht Centre as Snyder Fellows. Our faculty is very grateful for Earl Snyder’s generosity in supporting these intellectual exchanges between our schools, and I personally am very grateful for this opportunity to address you.

I will speak today about the exercise of jurisdiction by U.S. courts over global business networks. There are many ways in which the activities of U.S. courts intersect, and have long intersected, with international business activity, and so this topic calls up in part the procedural issues that are the bread and butter of international civil litigation. U.S. courts regularly assert personal jurisdiction over foreign corporations on the basis of their activities in the United States; they apply U.S. law to foreign conduct that is seen to harm certain interests within the United States; they enforce agreements that send cross-border contract disputes over into the transnational arbitration system.

But while some of those practices are mundane and, at least in theory, unobjectionable, others are problematic, and from time to time a specific case or group of cases will trigger a resurgence of attention to the role that U.S. courts play in the international arena. I would point to the Uranium litigation of the mid-1970s 1 and the spate of Alien Tort Claims Act cases that began in the mid- to late 1990s 2 as examples of this. In this first decade of the 21st century, litigation involving international Continue reading →

Much of the attention paid to the growth in the political, economic, and strategic importance of Asia focuses on East and Southeast Asia, with China’s rise featuring most prominently in analyses. However, examination of the possible development of an international order influenced by Asian power and ideas must also include consideration of the other big, emerging Asian power—India. This article explores India’s complex role in the potential dawning and functioning of an Eastphalian international system. First, we look at features of India’s economic and political rise in the past ten to fifteen years in order to give the reader a sense of India’s place in the shift of power and influence in international relations toward Asia. Second, we examine India’s commitment to the Five Principles of Peaceful Coexistence as an ordering framework for India’s worldview and foreign policy. Third, we argue that despite India’s increasing geopolitical prominence, Indian leaders have failed to develop consistent and coherent strategies for India in relation to the shifts taking place in world politics and economics. Fourth, we argue that India’s indecisiveness may combine with massive domestic problems the country faces, such as crippling levels of continuing poverty, to render Indian power and influence increasingly impotent in and irrelevant to the evolution of an Eastphalian world order. Fifth, we explore whether India could carve a path other than irrelevance, a path that would instead make India the indispensable nation in stabilizing the Eastphalian world. By “indispensable” we mean the country that could bridge East and West in the multipolar world this century will experience and, in the process, play a decisive role in melding the lingering promise of democracy with the stubborn imperative of sovereignty. Continue reading →

Despite the growing political and academic interest in health as a foreign policy issue, much of the emerging scholarship has focused on the conceptual overview of the field or particular aspects of the health-foreign policy linkage (e.g., humanitarian action). Little in-depth analysis has been conducted on how major powers engage health as a foreign policy issue. This article attempts to fill that void by examining the dynamics of the health-foreign policy nexus in China. After an overview of the Maoist health diplomacy, it discusses the elevation of health issues in the hierarchy of foreign policy objectives in China’s reform era. Next, the article analyzes China’s SARS diplomacy, which further demonstrates the changing landscape of health and foreign policy in China. Then I analyze the defining features and dilemmas of China’s health-foreign policy interaction. While the emergence of health as an important foreign policy issue in China facilitates the fulfillment of its foreign policy goals and makes important contributions to international health cooperation, I conclude that the tensions and dilemmas inherent in the health-foreign policy mix in China pose risks and challenges to global health governance. Continue reading →

The combination of Asia’s growing material power and its longstanding commitment to principles of sovereignty and noninterference raises questions about the future of post-Cold War concepts of international law and global governance, especially the concept of “human security.” This article analyzes what the emergence of an Eastphalian order might mean for efforts to improve human security. First, it briefly analyzes the concept of human security and its relevance to international law and global governance in the early twenty-first century. Second, I explore why the Asian region might constitute an interesting laboratory for the human security project despite the longstanding commitment of Asian countries to the principles of sovereignty and noninterference. Third, I examine the relevance of Confucian thinking in order to see whether this powerful philosophical heritage of many Asian societies contains insight that will help shape the evolution of Asian perspectives on human security. Fourth, the article briefly considers Japan’s efforts to embrace the human security concept in its foreign policy, especially its development assistance. Finally, it considers whether the emergence of a more Asian-centric international system can develop a distinctive Asian contribution to the problems the concept of human security was developed to address. While some scholars have expressed worry that the rise of Asian countries in world politics may threaten the future of human security as a concept and policy objective, whether such a threat actually emerges depends on how Asian countries perceive human security in light of their philosophical heritage, political principles, and material interests. Predicting the trajectory of human security in an Eastphalian order proves a very complicated task. Continue reading →

The security, political, and economic maps of East Asia have been transformed, and an institutionalized framework for regional cooperation, represented by the “ten-plus-three” process and the East Asia Summit, is emerging. East Asia is surging economically, and this development helps explain why experts perceive that power and influence in international relations are shifting toward Asia. What happens to order in East Asia will significantly affect the role Asia plays in the emergence of any Asia-centric international system. Thus, I begin by providing an overview of order in the East Asian region, emphasizing the importance of economic integration and the pivotal role of Sino-Japanese relations in the formation of a new type of order in East Asia. Then, I examine some new aspects of order formation in the early twenty-first century, which I call power shift, problem shift, and paradigm shift. These developments affect the logic of regional order formation generally and in East Asia specifically. Third, I explore the dynamics of the evolving East Asian order. Fourth, I consider the future of the East Asian order and argue that the key to its further development revolves around the relationship between China and Japan. Finally, I outline a strategic framework for future Sino-Japanese relations based on the convergence and institutionalization of their common interests bilaterally, regionally, and globally. Continue reading →

For at least three decades, it has been quite common in the United States to talk of the coming of the Asian century. Americans have been fascinated with the rise of Japan and then China, and the corresponding reports of the decline of the United States. This psychology may have intensified with the 2008-09 financial crisis and the understanding that China is now playing a central role in assuring global financial, and thereby political, stability. Notwithstanding some Orientalist hyperbole, there is no doubt that Asia has been, and will continue to be, a region of rising power, responsible for an increasing share of world output, innovation, and power, even as the United States declines in relative terms. What will the rise of Asia mean for global governance? Oddly, I believe that any “Eastphalian” world order will mean a return to Westphalia, at least as modern international lawyers understand the term. Drawing its name from the 1648 treaties ending the Thirty Years’ War and the Eighty Years’ War, Westphalia stands for principles of mutual noninterference, an emphasis on sovereignty, and formal equality of states. Eastphalia, should it materialize, will emphasize similar structures, putting an end to the brief interlude of European universalism and global constitutionalism that intensified after the Second World War. Continue reading →

The rise of China and India has transformed the former collective dominance of the United States, Europe, and Japan into a multipolar world. Within this multipolar world, relations between the United States and China will constitute an important bilateral contour for the twenty-first century, as illustrated by the United States-China Strategic and Economic Dialogue that convened in July 2009. In this context, the ideas promoted and practiced by China will have greater weight in influencing and shaping international relations. It is important for other parts of the world to see and understand what differences Chinese power and ideas could make in the evolving, multipolar world and what values China could bring to the new international society. The essay thus focuses on the potential impact of emerging China and discusses ideas practiced and proposed by China concerning international relations. Ideas supported by China are compared with the concepts present in the Westphalian system of international politics. Then, it is questioned whether it is appropriate to see in the rise of China the emergence of an Asian-centric international system. In addition, the essay tries to identify the merits and inadequacies of ideas favored by China. The ultimate purpose is to show that China must integrate other values into its existing ideas if it desires to make a long-lasting impact on world affairs. Continue reading →

In the late eighteenth century, as part of his effort to stop British imperial despoliation of India, Edmund Burke argued that the people and civilization of India were moral equals of Europe, deserving of British respect rather than rapacious exploitation. “I assert,” Burke argued, “that their morality is equal to ours as regards the morality of Governors, fathers, superiors; and I challenge the world to shew, in any modern European book, more true morality and wisdom than is to be found in the writings of Asiatic men in high trusts, and who have been Counsellors to Princes.” 1 Burke further argued that “in Asia as well as in Europe the same Law of Nations applies, the same principles continually resorted to, and the same maxims sacredly held and strenuously maintained” and that “Asia is enlightened in that respect as well as Europe.” 2 Burke’s words fell on deaf ears; British imperialism in India proceeded apace. In the nineteenth century, other Asian cultures and states of ancient origin, especially China and Japan, found their traditional cultural and political practices determined by Western imperial powers to be “uncivilized” 3 and subject to dramatic changes at the hands of European nations and commercial interests. The twentieth century witnessed Asian countries emerge from colonialism into independent, sovereign states, but they often faced political and economic challenges in international affairs from a position of weakness. Not long ago, Asia’s subjugation, exploitation, and vulnerability through its incorporation into the modern international system made the idea that Asian countries would one day reshape international politics from a position of strength a very distant dream. Continue reading →

Fragmentation of public international law (PIL) is perceived as a growing problem and answers to it are proliferating. International courts and tribunals are adjudicating ever more on issues that would be considered—were they not transnational or international in nature—constitutional problems. In national law, countervailing values, or intra-constitutional conflicts, are reconciled through a balancing of those values that is usually embedded in the application of the proportionality principle. A similar mechanism in PIL remains underdeveloped from a methodological point of view. This article aims to develop a methodological proposal for defragmentation through interpretation, drawing on legal theory, to be more precise on a theory of balancing. Continue reading →

In today’s world, nation-states do not operate in isolation. Rather, the myriad global organizations and cross-border treaties evidence that the post-World War II political climate is one of interconnectedness and cooperation between states. Against this backdrop, this Note surveys the tension between the current global world order and a strict adherence to traditional source-based application of Islamic law, Shari’a. The tension begins with the concept of statehood, seemingly absent in traditional Islam, and continues with the Islamic unification of religion and state and its limited role for a political leader. Using Iran as an example, this Note argues that political reality has interfered with the strict application of Shari’a thus enabling the Islamic state to engage in the global society. It is this inherent tension that, despite claims to the contrary, limits an Islamic state’s ability in today’s global society to truly return to “traditional Islam.” Continue reading →