Matthew T. Simpson

Canada is uniquely well positioned to reverse its disengagement, leverage its well-established expertise, credibility, and authority, and lead efforts for peace in Sudan.

As President Bashir’s regime continues its campaign of violent repression, succumbing to Darfur fatigue and endorsing a piecemeal approach to peace will save neither Darfur, nor the other marginalized regions of Sudan. The cause of the conflict is, and always has been, in Khartoum – and too many Sudanese have lost their lives and livelihoods while the international community ignored this obvious reality. The time has come for sustained political will and vision to establish a national framework… Show more

As President Bashir’s regime continues its campaign of violent repression, succumbing to Darfur fatigue and endorsing a piecemeal approach to peace will save neither Darfur, nor the other marginalized regions of Sudan. The cause of the conflict is, and always has been, in Khartoum – and too many Sudanese have lost their lives and livelihoods while the international community ignored this obvious reality. The time has come for sustained political will and vision to establish a national framework for peace throughout the country. The time has come to Save Sudan. Show less

In a February 5, 2014 New York Times op-ed, former South African President Thabo Mbeki and Professor Mahmood Mamdani of Columbia University chastised the international community for efforts to bring war criminals in Africa before criminal courts. For those concerned with the peaceful resolution of the conflicts in Darfur, South Kordofan, Blue Nile, and South Sudan, this idea is both dangerous and untimely.

Mbeki and Mamdani argue that prosecuting war crimes impedes efforts to resolve… Show more

In a February 5, 2014 New York Times op-ed, former South African President Thabo Mbeki and Professor Mahmood Mamdani of Columbia University chastised the international community for efforts to bring war criminals in Africa before criminal courts. For those concerned with the peaceful resolution of the conflicts in Darfur, South Kordofan, Blue Nile, and South Sudan, this idea is both dangerous and untimely.

Mbeki and Mamdani argue that prosecuting war crimes impedes efforts to resolve conflicts, ultimately prolonging them. Further, they spin a fiction in which the prosecution of war criminals is mutually exclusive of all other efforts to resolve a conflict. Most disturbingly, they fail to acknowledge the value of justice and the consequences of impunity. Courts and other justice mechanisms serve an essential role in establishing a sustainable peace in post-conflict societies, while impunity perpetuates the status quo and is a disincentive to the peaceful resolution of a conflict. Show less

In the interest of sketching the parameters of a North American Law that defines the way in which firms do business in North America and possibly becomes a framework for harmonizing other sets of laws - from transactions and corporate law through human resources, human rights, and environmental laws - this review of literature will begin with a discussion of those factors that encourage progress toward that goal as well as those factors that impede progress. Part Two will begin with a… Show more

In the interest of sketching the parameters of a North American Law that defines the way in which firms do business in North America and possibly becomes a framework for harmonizing other sets of laws - from transactions and corporate law through human resources, human rights, and environmental laws - this review of literature will begin with a discussion of those factors that encourage progress toward that goal as well as those factors that impede progress. Part Two will begin with a definition of the term harmonization as it is to be used in this context. Part Three discusses historical attempts to harmonize legal regimes in the western hemisphere. Following this, the review in Part Four turns to those factors that act as impediments to the development of North American law, including the civil/common law dichotomy present in the member nations legal traditions, and the role federalism plays in shaping those institutions. Next, Part Five will review those factors that encourage progression towards a North American Law, including the relative success of other regional blocs such as the African Economic Community and the European Union, the role the North American Free Trade Agreement plays in the harmonization of laws amongst the three countries, and finally the role of technology and the rise of transnational legal mobility in elevating international legal awareness and transnational communication. Part Six will then consider several areas of potential legal harmonization in North America and any efforts to achieve such harmonization already in force. Finally literature directly touching on the issue of North American Legal harmonization will be reviewed highlighting any specific North American institutions that are called for in Part Seven. Part Eight will conclude with a centering of the work on North American legal harmonization in the greater context of a movement toward a North American Community, and emphasize the imports of legal harmonization to that end. Show less

In the spring of 2010, in Doha, Qatar, the major parties to the Darfur conflict signed a series of framework and ceasefire agreements. These accords served two principal purposes.

The first was to establish a cessation of hostilities and lay the foundation for the negotiation of a comprehensive peace agreement. Critical to each are provisions relating to Security Sector Reform (SSR) and the Disarmament, Demobilization, and Reintegration (DDR) of combatants. The Doha Agreements, though… Show more

In the spring of 2010, in Doha, Qatar, the major parties to the Darfur conflict signed a series of framework and ceasefire agreements. These accords served two principal purposes.

The first was to establish a cessation of hostilities and lay the foundation for the negotiation of a comprehensive peace agreement. Critical to each are provisions relating to Security Sector Reform (SSR) and the Disarmament, Demobilization, and Reintegration (DDR) of combatants. The Doha Agreements, though including occasional language relating to SSR and DDR, largely missed the opportunity to set the framework for mechanisms that would bind the parties to the sustainable deescalation of the conflict.

The second and less obvious purpose was to create momentum. From the perspective of the international community, the hope was for momentum to salvage a faltering peace process. From the perspective of the Darfurians, the hope was for momentum to construct a final negotiated settlement that would heal the humanitarian scars of the conflict and generate a level of power-sharing consistent with that enjoyed by Southern Sudan under the Comprehensive Peace Agreement. For the government of Sudan, the hope was for momentum to gain the upper hand in the April elections, legitimize the regime of President Omar Al-Bashir, and complete the process of transforming the Darfur conflict into a “humanitarian matter” that would solidify the status quo.

The competing and highly political interests of the three stakeholders affected the nature and quality of the agreements negotiated in Doha. This chapter examines the collective development and impact of the Doha Agreements, seeking to place them in their appropriate political context, analyze the momentum and political slant of the negotiating processes, and consider the missed opportunities of the abbreviated DDR and SSR programs. Show less

With the change of administration in the United States, trade negotiations came to a near standstill in 2009. There was little to no discernable progress in the Doha round of World Trade Organization (WTO) negotiations, and despite Russia's efforts to the contrary, no new members joined the WTO. Dispute settlement activity was also subdued, with a considerable decrease in both the number of initiations and the number of Appellate Body and Panel Reports issued. The controversy over the so-called… Show more

With the change of administration in the United States, trade negotiations came to a near standstill in 2009. There was little to no discernable progress in the Doha round of World Trade Organization (WTO) negotiations, and despite Russia's efforts to the contrary, no new members joined the WTO. Dispute settlement activity was also subdued, with a considerable decrease in both the number of initiations and the number of Appellate Body and Panel Reports issued. The controversy over the so-called “zeroing” methodology continued to represent a large portion of the Dispute Settlement Body's (DSB) agenda in 2009, while the remainder of the DSB's attention was focused almost exclusively on two challenges launched by the United States against China on intellectual property rights and distribution services for reading materials and audiovisual entertainment products. Show less

In 2008, the field of international trade experienced considerable activity in some areas and virtual stagnation in others. The World Trade Organization (WTO) welcomed two new members in 2008: Ukraine and Cape Verde. Progress on Russia’s accession suffered a setback in 2008 due to the Russian-Georgian War in South Ossetia and Abkhazia and other bilateral issues. Additionally, the expiration of Trade Promotion Authority (TPA) in 2007 and the U.S. presidential and congressional elections created… Show more

In 2008, the field of international trade experienced considerable activity in some areas and virtual stagnation in others. The World Trade Organization (WTO) welcomed two new members in 2008: Ukraine and Cape Verde. Progress on Russia’s accession suffered a setback in 2008 due to the Russian-Georgian War in South Ossetia and Abkhazia and other bilateral issues. Additionally, the expiration of Trade Promotion Authority (TPA) in 2007 and the U.S. presidential and congressional elections created uncertainty as to whether the next administration would honor U.S.-negotiated agreements and whether the new Congress would approve them. Thus, despite optimism that a conclusion to the Doha Development Round was possible in 2008, world financial problems and continued disagreement on key issues between developed and developing countries forestalled a global trade deal this year. Negotiations on agriculture and non-agricultural market access (NAMA) modalities also collapsed at the Ministerial meeting in July 2008. Show less

Since the fall of the Saddam Hussein regime in 2003, countless experts have opined on Iraq's future, prognosticating (dare we say even pontificating), in an attempt to set forth with great precision the way forward in Iraq. With the five year anniversary of the overthrow of Saddam Hussein in sight, the American University International Law Review, and the Public International Law and Policy Group ("PILPG") hosted Rethinking the Future: The Next Five Years in Iraq, a symposium that moved beyond… Show more

Since the fall of the Saddam Hussein regime in 2003, countless experts have opined on Iraq's future, prognosticating (dare we say even pontificating), in an attempt to set forth with great precision the way forward in Iraq. With the five year anniversary of the overthrow of Saddam Hussein in sight, the American University International Law Review, and the Public International Law and Policy Group ("PILPG") hosted Rethinking the Future: The Next Five Years in Iraq, a symposium that moved beyond the current rhetoric, and openly debated Iraq's future. The organizers designed a program to question the current direction of Iraq and challenge the participants to rethink the future of Iraq. This volume contains several submissions by symposium participants. This brief introduction is designed to highlight the discussions that occurred over the two day event and act as a primer for the articles that follow. Each subsection below describes an element of the symposium. These elements focused both on the headline grabbing issues of today (war crimes, partition, etc.) as well as those issues lurking on the horizon (water rights, displaced persons, etc.). All summaries below are the interpretation of the authors and are not intended to impute a position upon any panelist or speaker. Show less

A number of prominent American law makers and foreign policy shapers have strongly advocated for the soft, and sometimes hard, partition of Iraq - either through the creation of a loose federal structure based on ethno-sectarian lines, or through its outright partition. These commentators have prophesized that the ethno-sectarian division of Iraq "may soon be all we have left."

In fact, the ethno-sectarian division of Iraq is fraught with logistical infeasibilities and dangers that… Show more

A number of prominent American law makers and foreign policy shapers have strongly advocated for the soft, and sometimes hard, partition of Iraq - either through the creation of a loose federal structure based on ethno-sectarian lines, or through its outright partition. These commentators have prophesized that the ethno-sectarian division of Iraq "may soon be all we have left."

In fact, the ethno-sectarian division of Iraq is fraught with logistical infeasibilities and dangers that threaten to compound the issues facing the people of Iraq instead of solving them. The political solution rests not on a return to failed approaches of division and entrenched conflict, but rather on the construction of a viable modern federal state that promotes unity, political compromise, and consensus building.

To address the question of whether the future of Iraq rests with ethno-sectarian division or with multi-ethnic federalism, this Article first addresses the ideas behind ethno-sectarian division and describes the most prominent plans for the division of Iraq along ethno-sectarian lines. This Article then critiques such a division of Iraq by: (1) identifying the overwhelming lack of popular support for such a division; (2) exposing the practical and political difficulties of dividing a state as diverse and heterogeneous as Iraq; (3) discussing the likelihood that ethno-sectarian division will increase violent conflict; (4) highlighting the lessons of prior ethno-sectarian divisionist attempts; (5) noting insurmountable constitutional hurdles; and (6) setting out the significant signs of recent progress and cooperation in the Iraqi political framework. Show less

As China's economy grows and government controls liberalize, Chinese investors are realizing the value and opportunities associated with investment in post-conflict regions. Given this trend, and the volatility associated with the political and economic environments in post-conflict regions, this article illustrates several mechanisms - bilateral investment treaties, domestic laws regulating foreign direct investment, tax treaties and tax incentive zones, and international investment… Show more

As China's economy grows and government controls liberalize, Chinese investors are realizing the value and opportunities associated with investment in post-conflict regions. Given this trend, and the volatility associated with the political and economic environments in post-conflict regions, this article illustrates several mechanisms - bilateral investment treaties, domestic laws regulating foreign direct investment, tax treaties and tax incentive zones, and international investment organizations - Chinese investors may wish to employ when investing in post-conflict states. Such mechanisms serve to incentivize foreign direct investment by providing lower market entry and operating costs and protecting investments with transparent and robust controls. While none on their own guarantees protection, together, they provide a substantial safety net should the investment environment deteriorate. Show less

With the wave of change moving through the United States Congress many observers warn of the challenges facing legislative initiatives with even the slightest bit of controversy. Near the top of that list is the proposed renewal of the President's Trade Promotion Authority (TPA). TPA, formerly known as Fast Track Authority, is set to expire next summer and with it, as proponents of the legislation argue, the ability of the United States to negotiate and implement free trade agreements… Show more

With the wave of change moving through the United States Congress many observers warn of the challenges facing legislative initiatives with even the slightest bit of controversy. Near the top of that list is the proposed renewal of the President's Trade Promotion Authority (TPA). TPA, formerly known as Fast Track Authority, is set to expire next summer and with it, as proponents of the legislation argue, the ability of the United States to negotiate and implement free trade agreements. Opponents of the legislation, however, see the expiration of TPA as an opportunity to shift the focus of American trade policy and put more power and influence in the hands of Congress and the constituencies they represent. In order to understand the current debate surrounding TPA and the challenges facing its renewal, key arguments on both sides of the debate are presented. Show less

In 2005, the Iraqi Constitutional Committee drafted the Iraqi constitution, replacing the Law of Administration for the State of Iraq for the Transitional Period (TAL), the first governing law in Iraq since the Coalition Provisional Authority took control in 2003. Recognizing the 2005 constitution as a temporary document, the first parliament formed the Constitutional Review Committee (CRC) in September of 2006 to determine whether and how to amend the constitution.

In light of the CRC's… Show more

In 2005, the Iraqi Constitutional Committee drafted the Iraqi constitution, replacing the Law of Administration for the State of Iraq for the Transitional Period (TAL), the first governing law in Iraq since the Coalition Provisional Authority took control in 2003. Recognizing the 2005 constitution as a temporary document, the first parliament formed the Constitutional Review Committee (CRC) in September of 2006 to determine whether and how to amend the constitution.

In light of the CRC's efforts, this article reviews state practice for the sourcing of high court authority, synthesizes the results to identify patterns where possible, and assesses the Iraqi constitution's consistency with state practice. Specifically, this article examines whether states use constitutional provisions or domestic legislation to provide for their high court's powers and functions, independence, authority, structure and administration, and identifies for the CRC those provisions that may be inconsistent. Show less

The Public International Law & Policy Group's (PILPG) Peace Agreement Drafting Guide: Darfur is a comprehensive peace agreement drafting handbook tailored to the upcoming Darfur peace negotiations. The drafting guide presents core elements of relevant topics, outlines the Darfur Peace Agreement (DPA) provisions related to those topics, and provides sample language parties may wish to consider when drafting future provisions.

The Darfur Peace Agreement is divided into six chapters: Power… Show more

The Public International Law & Policy Group's (PILPG) Peace Agreement Drafting Guide: Darfur is a comprehensive peace agreement drafting handbook tailored to the upcoming Darfur peace negotiations. The drafting guide presents core elements of relevant topics, outlines the Darfur Peace Agreement (DPA) provisions related to those topics, and provides sample language parties may wish to consider when drafting future provisions.

The Darfur Peace Agreement is divided into six chapters: Power Sharing, Wealth Sharing, Ceasefire and Final Security Arrangements, Darfur-Darfur Dialogue and Consultation, General Provisions, and Implementation Modalities and Timelines. The Darfur Peace Agreement also includes six annextures detailing previous agreements reached by the parties, including those negotiated in N'JDjamena, Chad; Addis-Ababa, Ethiopia; and Abuja, Nigeria. Show less

On September 12, 2006, the governments of Canada and the United States signed the Softwood Lumber Agreement 2006 (SLA 2006), hoping to end the longstanding dispute between the two countries on the issue of softwood lumber. Fearing liability for measures taken to give effect to the agreement, the Parties included a provision in Article XI(2) of the SLA 2006, limiting the availability of the North American Free Trade Agreement (NAFTA) Chapter 11 dispute resolution.

This comment argues that… Show more

On September 12, 2006, the governments of Canada and the United States signed the Softwood Lumber Agreement 2006 (SLA 2006), hoping to end the longstanding dispute between the two countries on the issue of softwood lumber. Fearing liability for measures taken to give effect to the agreement, the Parties included a provision in Article XI(2) of the SLA 2006, limiting the availability of the North American Free Trade Agreement (NAFTA) Chapter 11 dispute resolution.

This comment argues that in limiting the availability of NAFTA Chapter 11 dispute resolution, Article XI(2) of SLA 2006 effects the application of NAFTA Chapter 11 in a way that is inconsistent with customary international law. Specifically, Article XI(2) impermissibly affects the applicability of NAFTA Chapter 11 in one of two ways: (a) it separates provisions of Chapter 11 that are inseparable, were critical to the consent of Canada and the United States in signing NAFTA, and renders the continued performance of NAFTA unjust; or (b) it modifies Chapter 11 in a prohibited manner that limits the effective execution of the object and purpose of NAFTA.

Regardless of which interpretation of the SLA 2006's effect on NAFTA is more accurate, both are inconsistent with the Vienna Convention on the Law of Treaties (Vienna Convention). In recognition of these inconsistencies, this comment recommends a litigation strategy for Canadian and American lumber producers that challenges the validity of SLA 2006 Article XI(2). This comment also recommends a series of measures for the Canadian and U.S. governments designed to bring the SLA 2006 in line with customary international law, while still insulating them from liability for measures taken to implement the SLA 2006. Show less

This paper to addresses the protectionist actions of the United States in the early 21st century, analyzes their effect on Canadian investors, and reviews the available remedies. It asserts that U.S. protectionism is in direct contravention to the spirit and intent of NAFTA, and that protectionist action should be considered tantamount to expropriation, thereby justifying the use by Canadian investors of NAFTA Chapter 11, as found and as amended, as a method of recourse.

To do this, this… Show more

This paper to addresses the protectionist actions of the United States in the early 21st century, analyzes their effect on Canadian investors, and reviews the available remedies. It asserts that U.S. protectionism is in direct contravention to the spirit and intent of NAFTA, and that protectionist action should be considered tantamount to expropriation, thereby justifying the use by Canadian investors of NAFTA Chapter 11, as found and as amended, as a method of recourse.

To do this, this paper establishes the need for qualified free trade and identifies the importance of a fresh discussion of Canada-U.S. trade. It then highlights recent cases of U.S. protectionist actions with a focus on the U.S. withdrawal from the Kyoto Protocol. Finally, it argues for a more aggressive use of NAFTA Chapter 11 in its present form and with a proposed amendment to include domestic investors. By providing domestic investors the opportunity for compensation for the protectionist action of a NAFTA partner, this amendment will act not only as a mechanism for recourse, protecting those adversely-affected investors, but ultimately, as a deterrent to NAFTA partners from protectionist conduct. Show less