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Begin New Search Topic International Law Content Type Journal Article

381. The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System

Author:
Moshe Hirsch
Publication Date:
04-2008
Content Type:
Journal Article
Abstract:
International economic law (IEL) is influenced by diverse theoretical approaches. This article emphasizes that international economic activity is a social phenomenon and international trade should also be conceived as a specific type of social interaction. The scarcity of sociological analysis in contemporary IEL literature does not diminish the influence of social factors that are active in the under-explored layer of the international economic arena. Sociological analysis may recast well-known dilemmas in a different manner and generate insights regarding better legal mechanisms for coping with modern challenges faced by IEL. These properties of sociological analysis are illustrated in this article, which addresses one of the most challenging dilemmas in current IEL literature: the relationship between the World Trade Organization (WTO) and regional trade agreements (RTAs). The underlying argument of this article is that the economic dimension of RTAs is overlaid with a sociological dimension. Consequently, the global/regional debate is analysed with new conceptual tools: sociological theories, mainly the structural-functional perspective, the symbolic-interactionist approach, and the social conflict perspective. The core sociological theories lead to different conceptions of IEL and different interpretations of existing WTO legal provisions regarding RTAs. This article argues that while each of the above sociological approaches underscores certain significant aspects of the global/regional debate, the symbolic-interactionist perspective should generally serve as a point of departure for law- and policy-making in this sphere. This approach suggests that the relevant WTO legal rules should be interpreted in a liberal manner.
Topic:
Economics, International Law, and World Trade Organization

382. Carving up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface

Author:
Thomas Schultz
Publication Date:
09-2008
Content Type:
Journal Article
Abstract:
The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.
Topic:
International Law

383. Healing the Enlightenment Rift: Rationality, Spirituality and Shared Waters

Author:
Aaron T. Wolf
Publication Date:
10-2008
Content Type:
Journal Article
Journal:
Journal of International Affairs
Institution:
School of International and Public Affairs, Columbia University
Abstract:
Water management, by definition, is conflict management. Water, unlike other scarce, consumable resources, is used to fuel all facets of society, from biologies to economies to aesthetics to spiritual practice. Moreover, it fluctuates wildly in space and time, its management is usually fragmented and it is often subject to vague, arcane and/or contradictory legal principles. As such, there is no such thing as managing water for a single purpose—all water management is multi-objective and based on navigating competing interests. Within a nation, these interests include domestic users, agriculturalists, hydropower generators, recreators and environmentalists. Any two of the interests are regularly at odds, and the complexity of finding mutually acceptable solutions increases exponentially as more stakeholders are involved. Add international boundaries, and the difficulty grows substantially yet again.
Topic:
Health and International Law
Political Geography:
Pakistan, India, and Israel

384. The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law

Author:
Jochen von Bernstorff
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
The article explores the genesis of the Universal Declaration of Human Rights and the turn to rights in international law. To this end, it focuses on how international lawyers have received the Declaration in their contemporary doctrinal and political contexts. The fact that the political and moral importance of the Declaration from the very beginning outweighed its concrete legal significance invited intriguing scholarly reflections on the symbolic dimension of the document. Despite early sceptical voices about its legal and moral value, international lawyers welcomed and reaffirmed its significance during the 1960s and 1970s. While attention turned to human rights treaty law in the 1980s, the Declaration embodied the hope for a new era of human rights protection after the end of the Cold War. Throughout the 1990s a new scholarly defence of the universal character of the Declaration could be observed, later being accompanied by new insecurity and soul-searching in the face of institutional limitations. In general, the Declaration became synonymous with the turn to individual rights in international law, and whenever there was a sense of crisis because of institutional blockades or challenged foundations, the Declaration received new and increased attention. It symbolized unity in an increasingly fragmented and contentious institutional and political environment for international human rights protection. The story of its scholarly reception is therefore also a story of the failed and perhaps unattainable attempt fully to institutionalize international human rights in a cosmopolitan legal order.
Topic:
Cold War, Environment, Human Rights, and International Law

385. Softness in International Law: A Self-Serving Quest for New Legal Materials

Author:
Jean d'Aspremont
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
The concept of soft law which rests on the idea that the binary nature of law is ill suited to accommodate the growing complexity of contemporary international relations has been endorsed by a large number of scholars. It has however remained under the attack of those who are commonly portrayed as positivists. Although it does not seek to rehabilitate positivism as a whole, this article will try to offer a refreshed and modernized account of the positivist objection to soft law. It will accordingly distinguish several types of softness. Such a dichotomy will help to unravel the underlying agenda of some of the staunchest supporters of the concept of soft law. The article will ultimately expound on the proneness of international legal scholars to stretch the limit of their object of study by constantly seizing materials outside the realm of international law in order to alleviate the strain inherent in the contemporary proliferation of international legal thinking.
Topic:
International Law

386. Immunità e crimini internazionali. L'esercizio della giurisdizione penale e civile nei confronti degli organi statali sospettati di gravi crimini internazionali

Author:
Chiara Ragni
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
This book offers a thorough and detailed analysis of the doctrinal debate on the controversial question whether state organs are entitled to invoke any kind of immunity, before either international or national tribunals, when accused of committing or ordering the commission of international crimes, such as war crimes, crimes against humanity, and genocide. The problem is not merely a theoretical one, given that, since the end of the Second World War and in particular since the Pinochet Affair 1 (decided in 1999 by the British House of Lords), national judges from all over the world have been required to determine whether all state organs can benefit from immunity from jurisdiction and, if so, whether this can cover all the possible violations of international law, including the most serious ones. Initially, and as long as the courts could properly cope with the question of the immunity of former military officers, no problem seemed to emerge with regard to the possibility of judging the latter for crimes committed during a war; however, the choice seemed to be more controversial when the accused were high-ranking representatives of the state and the acts in question were performed in times of peace. The leading case in this regard was the above-mentioned Pinochet case, since it made clear the differing attitudes of judges according to the accused's rank in the state hierarchy and, as the author notes, according to whether or not the person in question was still in office. The debate which ensued with regard to those issues and to the controversial practice which had developed on the subject makes the book reviewed here particularly interesting. First, it has the merit of taking into account the different points of view expressed by scholars dealing with the topic and comparing them with the practice – described in a historical perspective – of international and especially of national courts and tribunals. Secondly, even though the literature on the subject of immunities is quite broad, this work stands out thanks to the author's original approach to the subject and to the accuracy of the analysis conducted.
Topic:
Crime and International Law

387. Crime and Punishment: Holding States Accountable

Author:
Anthony F. Lang, Jr.
Publication Date:
06-2007
Content Type:
Journal Article
Abstract:
Should states be held responsible and punished for violations of international law? The recent ruling by the International Court of Justice that Serbia cannot be held responsible for genocide in Bosnia reflects the predominant international legal position. But, such a position leaves open the possibility that states or non-state agents can never be held responsible for international crimes. This article argues that they can and should be. While most international ethicists and legal theorists reject the punishment of corporate entities such as states, this article argues that certain types of international violations can only be undertaken by states, and, as a result, states must be bear the responsibility for them. Drawing on some neglected strands in international law and political theory, the article sketches a potential institutional framework for the punishment of state crimes, particularly genocide and aggression.
Topic:
International Law
Political Geography:
Bosnia and Serbia

388. People without Borders for Borders without People: Land, Demography, and Peacemaking under Security Council Resolution 242

Author:
Jamil Dakwar
Publication Date:
09-2007
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
UN Security Council Resolution 242, drafted to deal with the consequences of the 1967 war, left the outstanding issues of 1948 unresolved. For the first time, new Israeli conflict-resolution proposals that are in principle based on 242 directly involve Palestinian citizens of Israel. This essay explores these proposals, which reflect Israel's preoccupation with maintaining a significant Jewish majority and center on population and territorial exchanges between Israeli settlements in the West Bank and heavily populated Arab areas inside the green line. After tracing the genesis of the proposals, the essay assesses them from the standpoint of international law.
Topic:
Security and International Law
Political Geography:
New York, America, Middle East, and Israel

389. Germany's Involvement in Extraordinary Renditions and Its Responsibility under International Law

Author:
Laura Tate Kagel
Publication Date:
12-2007
Content Type:
Journal Article
Journal:
German Politics and Society
Institution:
German Politics and Society Journal
Abstract:
As investigative journalists and nongovernmental organizations (NGOs) increasingly uncover the nature and scope of a U.S. government program known for transferring terrorist suspects outside of normal legal and administrative channels, the role of European states has come under scrutiny. To a large degree, these states have erected a “wall of fog,” as a report from the German Institute of Human Rights describes it, blocking access to information that would allow for independent assessments of the human rights implications of the counterterrorism practice known as “extraordinary rendition.”
Topic:
International Law and Terrorism
Political Geography:
United States, Europe, Germany, and Egypt

390. Twentieth Century Internationalism in Law

Author:
Ole Spiermann
Publication Date:
11-2007
Content Type:
Journal Article
Abstract:
The 20th century saw the transformation of international law into a legal discipline concerned with the practical application of law. It was fuelled by a manifold variety of treaties, procedures and institutions. Still, international lawyers persisted in conceiving and judging their discipline against a background coloured by national legal traditions. International lawyers did not overcome the optimist and evolutionary tradition based on the assumption that international law is but an ever closer approximation of national legal systems; nor did lawyers escape the flip side of this tradition, i.e., doubt and insecurity about international law and its basis. Rather than facilitating international law as a practical discipline, a superficial understanding of internationalism reinforced fetishisms of the discipline's theoretical past, not least the axiom that states only are proper subjects of international law. To a degree, international law has expanded at the price of becoming less separate from national law and national legal traditions.
Topic:
International Law

391. A Case Study in Declining American Hegemony: Flawed Policy Concerning the ICC

Author:
Eric K. Leonard
Publication Date:
01-2007
Content Type:
Journal Article
Journal:
The Journal of Diplomacy and International Relations
Institution:
School of Diplomacy and International Relations, Seton Hall University
Abstract:
The primary question that this article engages is whether the Bush administration’s opposition to the Rome Statute is in the national interest of the United States. More broadly speaking, does the Bush administration’s opposition to the ICC serve as an example of how a hegemon, founded upon a particular ideology, may undermine its own hegemonic status? The international community established the ICC to prosecute individuals accused of committing the most heinous international crimes—genocide, war crimes, and crimes against humanity.6 Given the fact that traditional American allies and every member state of the European Union, with the exception of the Czech Republic, support this Court, is active opposition to the ICC’s existence a prudent position, or will such a position simply ostracize the United States from the rest of the international community and undermine its ability to maintain America’s hegemonic position? In order to address these questions, this article begins with an examination of the concept of hegemony, along with its contested definition. It then proceeds to an analysis of American hegemony, including the basis for its continued preeminence. This article then returns to the ICC and examines this institution within the framework of the hegemonic discourse. Finally, it provides policy recommendations concerning the United States’ position towards the ICC and draws upon this case as a starting point for policy recommendations concerning other liberal international institutions.
Topic:
International Law, Hegemony, International Criminal Court (ICC), Rome Statute, and International Institutions
Political Geography:
North America and United States of America

392. Bridging the Unbridgeable? A Commonlaw View on Judicial Co-operation and Mutual Recognition in an Area of Freedom, Security and Justice

Author:
Maik Martin
Publication Date:
06-2006
Content Type:
Journal Article
Journal:
Cultures & Conflits
Institution:
Cultures & Conflits
Abstract:
La reconnaissance mutuelle des décisions judiciaires constitue la pierre angulaire de la coopération pénale européenne. Philosophie officielle de l'Union européenne, ce principe se trouve à la base des instruments de coopération tels le mandat d'arrêt européen. Les premiers arrêts rendus par les Cours anglaises, irlandaises et allemandes démontrent cependant qu'une absence de confiance en les Etats membres de l'UE au niveau des systèmes pénaux gêne considérablement la mise en pratique de cette philosophie. Cet article évalue la jurisprudence émergente sur cette question, dans l'optique de déterminer à la fois l'efficacité des instruments actuels de reconnaissance mutuelle et de mettre en évidence les difficultés inhérentes à ce principe concernant la protection des droits fondamentaux. L'auteur conclut sur la nécessité d'une certaine harmonisation des droits pénaux des Etats membres pour que la confiance mutuelle puisse être à la base du principe de reconnaissance, ce qui permettra de réaliser « un espace de liberté, la sécurité et la justice ».
Topic:
International Law

393. The Constitutional Protection of Socio-Economic Rights in Selected African Countries: A Comparative Evaluation

Author:
John Cantius Mubangizi
Publication Date:
03-2006
Content Type:
Journal Article
Journal:
African Journal of Legal Studies
Institution:
The Africa Law Institute
Abstract:
This article evaluates the extent to which a few selected African countries have incorporated socio-economic rights in their constitutions, the mechanisms through which such rights are realised, the challenges such realisation entails and the approach taken by the courts and other human rights institutions in those countries towards the realisation and enforcement of those rights. The survey examines South Africa, Namibia, Uganda and Ghana. Apart from the logical geographical spread, all these countries enacted their present constitutions around the same time (1990 to 1996) in an attempt to transform themselves into democratic societies. In a sense, these countries can be seen as transitional societies, emerging as they have done, from long periods of apartheid and foreign domination or autocratic dictatorships. The latter is true for Uganda and Ghana while the former refers to South Africa and Namibia. The article concludes that South Africa has not only made the most advanced constitutional provision for socio-economic rights, it has also taken the lead in the judicial enforcement of such rights, an experience from which the other countries in the survey can learn.
Topic:
Development, Government, and International Law
Political Geography:
Africa

394. Genomics, Insurance and Human Rights: Is there a Place for Regulatory Frameworks in Africa?

Author:
Vincent O. Nmehielle
Publication Date:
03-2006
Content Type:
Journal Article
Journal:
African Journal of Legal Studies
Institution:
The Africa Law Institute
Abstract:
This article examines the human rights dimension of genetic discrimination in Africa, exploring the place of regulatory frameworks while taking into account the disadvantaged position of the average African. This is in response to the tendency of insurance companies toward making health insurance decisions on the basis of individual genetic information, which could result in genetic discrimination or health insurance discrimination based on a person’s genetic profile. The author considers such questions as the intersection between human rights (right to life, health, privacy, human dignity and against genetic discrimination) in relation to the insurance industry, as well as the obligations of state and non-state actors to promote, respect, and protect the enjoyment of these rights. The article argues that African nations should not stand aloof in trying to balance the competing interests (scientific, economic and social) presented by the use of genetic information in the health care context and that ultimately it is the responsibility of states to develop domestic policies to protect their most vulnerable citizens and to prevent entrenched private discrimination based on an individual’s genes.
Topic:
Development, Government, Human Rights, and International Law
Political Geography:
Africa

395. Rules of Procedure and Evidence of the Special Court for Sierra Leone

Publication Date:
03-2006
Content Type:
Journal Article
Journal:
African Journal of Legal Studies
Institution:
The Africa Law Institute
Abstract:
These Rules of Procedure and Evidence as first amended on 7 March 2003, are applicable pursuant to Article 14 of the Statute of the Special Court for Sierra Leone, and entered into force on 12 April 2002.
Topic:
Development, Government, and International Law
Political Geography:
Africa

396. Recoupement des droits de l\'Homme et du droit international humanitaire dans les situations de crises et de conflits

Author:
Jonathan Benthall
Publication Date:
12-2005
Content Type:
Journal Article
Journal:
Cultures & Conflits
Institution:
Cultures & Conflits
Abstract:
Les mécanismes de la mise en oeuvre du droit international humanitaire sont beaucoup moins développés que ceux du droit de l\'Homme. Néanmoins, il existe un certain chevauchement entre ces deux corps du droit. L\'article décrit ce chevauchement et analyse les conséquences du point de vue légal concernant leur mise en oeuvre. L\'application cumulative des droits de l\'Homme et du droit international humanitaire pose inévitablement la question de la relation qu\'ils entretiennent. La Cour internationale de justice a répondu à cette question en reconnaissant la primauté du droit international humanitaire vis-à-vis des droits de l\'Homme dans les conflits armés, caractérisant ainsi le premier comme lex specialis. L\'examination de décisions d\'institutions des droits de l\'Homme, comme la Commission et la Cour inter-américaine des droits de l\'Homme et de la Cour européenne des droits de l\'Homme montre une tendance à privilégier le droit international humanitaire. Bien que la pratique de ces institutions des droits de l\'Homme soit limitée, elle ouvre des possibilités supplémentaires aux moyens internationaux limités pour faire respecter le droit international humanitaire par les parties aux conflits armés. Ceci démontre la convergence pratique et utile entre les droits de l\'Homme et le droit international humanitaire.
Topic:
Human Rights, International Law, and International Organization

397. Resolution of The International Court of Juctice Concerning the Wall Constructed by Israel

Author:
Erdem Denk
Publication Date:
09-2004
Content Type:
Journal Article
Institution:
Uluslararasi Iliskiler
Abstract:
This study the advisory opinion given by the ICJ regarding the wall being constructed by Israel in the occupied territories. The Court has found that the wall, which is, according to Israel, being constructed due to security consideraions regard,ng terrorist attacks of various Palestinian gropus, is contarry to various principles and rules of international law. The basic justification of the decision is the fact that the wall is being constructed on areas which have the status of "occupied territories". The Court, which wasted the opportunity to assess the relationship between law and the struggle against terrorism, has also failed to deal sufficiently with the merits of the case althought it dwelled on every objection of Israel regarding procedural matters. Although it is a quite apt judgement,the rather general and abstract conclıisons regarding the mertis of the case gave those who criticised the judgement some space to base thier arguments. The Court should have given much more importance to its legal reasonnig regarding concrete breaches of Israel.
Topic:
International Law
Political Geography:
Middle East, Israel, and Palestine

398. Too Good to be Legal? Network Centric Warfare and International Law

Author:
Erik Dahl
Publication Date:
05-2004
Content Type:
Journal Article
Journal:
Journal of Public and International Affairs (JPIA)
Institution:
School of Public and International Affairs (SPIA), Princeton University
Abstract:
America’s military today faces new challenges that appear resistant to conventional solutions. The concept known as Network Centric Warfare (NCW) promises to use speed, precision, and information technology to win conflicts more quickly with minimal force. But many of the advantages that look beguiling to a commander can create problems for a military that focuses too much on speed and effects, at the expense of deliberation and law. This article argues that both the U.S. military and the American public will lose if new tools and technologies make war seem too easy. It calls for a reassessment of NCW in light of international law and offers recommendations to help guide that effort.
Topic:
International Law, Science and Technology, War, and Military
Political Geography:
North America and United States of America

399. Corporate Crime in a Globalized Economy: An Examination of the Corporate Legal Conundrum and Positive Prospects for Peace

Author:
Paul Richardson
Publication Date:
05-2004
Content Type:
Journal Article
Journal:
Journal of Public and International Affairs (JPIA)
Institution:
School of Public and International Affairs (SPIA), Princeton University
Abstract:
“This is it. They are going to arrest us all and execute us. All for Shell.” Ken Saro-Wiwa, a leader of the Nigerian Movement for the Survival of the Ogoni People (MOSAP), made this statement two weeks before his arrest in May 1994. Jailed for exposing the company’s role in directing and arming the Nigerian military, Saro-Wiwa’s efforts paved the way for similar campaigns throughout the world, in places as diverse as India, China, Colombia, Chad and Sudan. As the number of such cases has increased over the past decade, so too has the public’s scrutiny. What are the legal and ethical obligations of corporations operating in a conflict zone? How effective is existing international law in ensuring that companies are held accountable for extraterritorial human rights violations? Taking into account existing efforts to address corporate accountability on a global scale, this paper concludes that neither national legislation nor voluntary corporate codes of conduct provide an adequate means to ensure the protection of human rights. Instead, an international system must be created—one with sufficient oversight and monitoring powers to ensure that corporations adopt conflict-sensitive policies that contribute to peace and security
Topic:
Crime, Globalization, International Law, Economy, Peace, and Corporations
Political Geography:
Global Focus