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202. Determining the Relationship Between International and Domestic Laws Within an Internationalized Court: An Example From the Cambodian Extraordinary Chambers’ Jurisdiction Over International and Domestic Crimes
- Author:
- Melanie Vianney-Liaud
- Publication Date:
- 08-2015
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Internationalized criminal tribunals such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) differ from traditional international criminal tribunals by a lesser degree of internationality. The ECCC emerged through an international agreement but their mixed composition and operating rules are also defined in Cambodian Law. The relationship between the ECCC’s Agreement and Law has not been clearly stated, which generates questions since both texts are not always consistent. This paper proposes, through the study of the provisions of the ECCC Law relating to the ECCC’s subject-matter jurisdiction, to determine the impact of such discrepancies on the activity of the Chambers. The decisions of their judicial bodies on the application of Articles 3, 4 and 5 which provide for the ECCC’s jurisdiction over crimes against humanity, genocide and certain domestic crimes have allowed to cope with the uncertainty generated by those differences. However, a bigger issue remains which is due to the ECCC’s particular hybrid structure. Composed of national judges in the majority, ECCC’s decisions may only be taken if the required qualified majority is reached, which implies the need for an agreement with their international counterparts.
- Topic:
- International Law, Sovereignty, Legal Theory, and Jurisdiction
- Political Geography:
- Asia and Cambodia
203. Reservations to Treaties: An Introduction
- Author:
- Marko Milanovic and Linos-Alexander Sicilianos
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- This Symposium examines the International Law Commission's work on reservations, specifically its recently completed Guide to Practice on Reservations to Treaties. The topic is very technical and the Guide itself gigantic, standing, together with its commentaries, at over 600 pages. The topic of reservations to treaties has been on the ILC's agenda since 1993; its Special Rapporteur, Professor Alain Pellet, produced 17 reports with many addenda and annexes. The ILC's work was so seemingly endless that it inspired (gentle and good-natured) parody. But now it has indeed come to an end. It needs to be assessed, and the purpose of this Symposium is to initiate that debate.
- Topic:
- International Law
204. The ILC Guide to Practice on Reservations to Treaties: A General Presentation by the Special Rapporteur
- Author:
- Alain Pellet
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- The purpose of this article is to revisit the long saga of the ILC Guide to Practice on Reservations to Treaties, as the Special Rapporteur has lived it for nearly 18 years and 16 reports. In its first part, the article recounts the elaboration procedure, pointing in particular to the elements of innovation and flexibility introduced in the process. The main one is the very type of instrument adopted, namely a Guide to Practice, and not a set of draft Articles that would eventually become a convention. In the second part, the main issues having retained the attention of the ILC, as well as of the other international bodies and of the academic community, are briefly recalled: the question of the unity or diversity of regimes, the permissibility of reservation and the status of the author of an impermissible reservation were among the most debated issues. Finally, the article explains the structure of the Guide to Practice.
- Topic:
- International Law
205. Institutional Aspects of the Guide to Practice on Reservations
- Author:
- Michael Wood
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- The aim of the Guide to Practice on Reservations to Treaties is to assist practitioners of international law, who are often faced with sensitive problems concerning, in particular, the validity and effects of reservations to treaties, and interpretative declarations. The chief interest in the Guide will be in the light it shines on the many difficult substantive and procedural issues concerning reservations and declarations left open by the Vienna Conventions. But the institutional aspects are also of considerable practical interest. The present contribution considers some of the institutional or cooperative bodies that may assist practitioners: depositaries; treaty monitoring bodies; the reservations dialogue; and 'mechanisms of assistance'. The first two are well-established. The third and fourth are innovative, and it remains to be seen whether they will be adopted by states and, if so, how useful they will be. In any event, the Special Rapporteur has shown considerable foresight in proposing what became the annex to the Guide to Practice on the reservations dialogue, as well as the Commission's resolution on 'mechanisms of assistance'.
- Topic:
- International Law
206. Reservations and Time: Is There Only One Right Moment to Formulate and to React to Reservations?
- Author:
- Daniel Muller
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Time is an important element in the process of reservations to treaties and, consequently, in the legal regime established by the Vienna Conventions for reservations and reactions thereto. The very definition of reservations, embodied in Article 2(1)(d) of the 1969 and 1986 Vienna Conventions, as well as in Article 2(1)(j) of the 1978 Vienna Convention, and incorporated in the definition adopted by the International Law Commission in its Guide to Practice, includes precise indications and limits concerning the moment in time for a reservation to be formulated. In practice, however, reservations have been made before and after this peculiar moment. The work of the International Law Commission has shown that these are still reservations, even if they are not contemplated by the Vienna regime. But they can nevertheless deploy their purported effects under some additional conditions. The same holds true with regard to objections to reservations which can be formulated prematurely or late. They are still objections even if their concrete legal effects may be affected. Whereas time is important for the legal consequences attached to reservations and reactions thereto, it plays a less important role in the overall process of reservations dialogue.
- Topic:
- International Law
- Political Geography:
- Vienna
207. Reservations to Human Rights Treaties: From Draft Guideline 3.1.12 to Guideline 3.1.5.6
- Author:
- Ineta Ziemele and Lasma Liede
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- This article addresses the issue of reservations to human rights treaties in the light of the work done by the International Law Commission and its Special Rapporteur, Mr Alain Pellet. Section 1 gives a short historical background for the topic. Section 2 provides a concise overview of the variety of arguments that have been raised in the debate on the character of human rights treaties and the permissibility of reservations to those treaties, as well as their relationship with the reservations regime established under the Vienna Convention on the Law of Treaties. Section 3 gives a number of specific examples of reservations permitted under the human rights treaties and describes the approach taken by some human rights treaty bodies in that respect. It also depicts the manner in which some of these bodies have dealt with the intricate issue of the consequences of impermissible reservations. Section 4 analyses the guidelines adopted by the ILC and offers some reflection on their contribution to the development of international treaty law on this topic. Section 5 concludes by praising the comprehensive work of the ILC on the subject.
- Topic:
- Human Rights and International Law
- Political Geography:
- Vienna
208. Globalization and Sovereignty. Rethinking Legality, Legitimacy and Constitutionalism
- Author:
- Gráinne de Búrca
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- The intersection of constitutional ideas and international law has been the subject of a significant wave of scholarship in recent years. This monograph, written not by a lawyer but by a political theorist at Columbia University, addresses these themes in an engaging and rigorous way. And although it is a deeply scholarly work, it is also very much a politically engaged book, grappling with many fundamental questions of international law and governance today while trying to argue for 'realistic-utopian' reform.
- Topic:
- International Law
209. Sari Kuovo and Zoe Pearson (eds). Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? Gina Heathcote. The Law on the Use of Force: A Feminist Analysis
- Author:
- Loveday Hodson
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Her normative prescriptions, in other words, by insisting on a framework of constitutional pluralism and rejecting other forms of legal pluralism, leave aside the many other powerful global institutions and bodies that generate rules and norms, other than the UN Security Council or other UN bodies on which the book concentrates. While it is clear that the UN is the predominant global security organization, and the one with military power at its service, there are also many other organizations and bodies which have morphed or are morphing, as Cohen puts it in the book, into global governance institutions. Yet the book's focus on the need for political communities which participate in an overarching 'political community of communities' seems to leave many of these other important sites of legal and political authority out of the picture, and to reject as inadequate some of the more modest but perhaps also more currently feasible legal reform proposals which have been made.
- Topic:
- Human Rights and International Law
210. Pastor Paulo vs. Doctor Carlos: Professional Titles as Voting Heuristics in Brazil
- Author:
- Taylor Chase Boas
- Publication Date:
- 09-2014
- Content Type:
- Journal Article
- Institution:
- German Institute of Global and Area Studies
- Abstract:
- In low-information elections, voters are likely to rely on heuristics when choosing candidates. Based on survey experiments conducted prior to Brazil's 2012 municipal elections, I examine the effect of candidates' professional titles, such as “doctor” and “pastor,” on voting behavior. Using the “pastor” title in one's electoral name tends to decrease vote intention, although evangelical Christians respond positively while members of other religious groups are repelled. The broader at-mosphere of political competition between Brazilian evangelicals and Catholics helps explain the presence of both out-group and in-group cueing effects. The “doctor” title has a positive effect on vote intention that appears to be mediated by the positive stereotypes, such as intelligence and competence, associated with members of this profession.
- Topic:
- International Law
- Political Geography:
- Brazil
211. Contradiction in International Law
- Author:
- Angela Bunch
- Publication Date:
- 03-2014
- Content Type:
- Journal Article
- Journal:
- Americas Quarterly
- Institution:
- Council of the Americas
- Abstract:
- Indigenous peoples' control over natural resources continues to be one of the most controversial issues in international law. Numerous international human rights treaties recognize Indigenous communities' right to be consulted over the use of resources on or beneath their communal lands. But international law tends to consider third parties' exploitation of natural resources on Indigenous land to be legal—as long as Indigenous rights to consultation, participation and redress, among other rights, are met.
- Topic:
- International Law and Natural Resources
212. The Worlds of European Constitutionalism, Gráinne de Búrca and J.H.H. Weile
- Author:
- Bertil Emrah Oder
- Publication Date:
- 10-2014
- Content Type:
- Journal Article
- Journal:
- Insight Turkey
- Institution:
- SETA Foundation for Political, Economic and Social Research
- Abstract:
- This edited volume on European constitutionalism is a compendium of essays with different interpretations on the constitutional authority and nature of the European Union (EU). This issue has faced various challenges in the last decade not only by national courts and referenda, but also vis-à-vis other international and regional actors, such as United Nations (UN) and European Court of Human Rights (ECHR).
- Topic:
- Human Rights, International Law, and United Nations
- Political Geography:
- Europe
213. The End of Geography: The Changing Nature of the International System and the Challenge to International Law
- Author:
- Daniel Bethlehem
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- This lecture, inaugurating a lecture series in honour of Sir Elihu Lauterpacht, looks at the changing place of geography in the international system and the challenges that this poses to international law, from the central place of geography in the Westphalian legal order to its less certain place in the rapidly globalizing and diffuse international society of the present day. Examining these issues through the contrasting prisms of the principal political organs of the United Nations in New York, on the one hand, and the UN Specialized Agencies centred in Geneva, on the other, the lecture also explores these issues by reference to Thomas Friedman's thesis that The World Is Flat. The lecture concludes by identifying a number of areas of international law, and the international legal system, that will require creative thinking in the period to come to reflect the diminishing importance of geography.
- Topic:
- International Law
- Political Geography:
- New York
214. The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem
- Author:
- David S. Koller
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- This article responds to Daniel Bethlehem's assertions that globalization is diminishing the importance of geography, and thereby challenging the Westphalian order on which international law is constructed. It contends that international law does not take geography as it is but actively creates and sustains a state-based geography. It argues that the challenges Bethlehem identifies are not new but are inherent in international law's efforts to impose a state-based order on a global world. The question is not whether international lawyers will respond to these challenges, but how they will respond. Will they follow Bethlehem in reinforcing a statist order, or will they place sovereignty of states in the service of the global human community?
- Topic:
- Globalization and International Law
- Political Geography:
- New York and Europe
215. The Ever-Ending Geography of International Law: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem
- Author:
- Carl Landauer
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Daniel Bethlehem makes a convincing case in 'The End of Geography' that the growing challenges of our contemporary world require a move from our state-centred international legal system. This reply places Bethlehem's voice among a growing list of those who either describe or prescribe a move from the traditional Westphalian state system. It argues, however, that the challenges have always been transboundary and that the Westphalian state system has never been as strong or as long-lived as envisaged by its critics.
- Topic:
- International Law
- Political Geography:
- New York and Europe
216. A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours
- Author:
- Maria Artistodemou
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- This article is a radical rethinking of public international law through the use of Lacanian psychoanalysis. Its central thesis is that while contemporary scholarship addresses what Lacan calls the symbolic and imaginary registers including law, politics, and ideology, it continues to ignore and repress the dimension of the real. The article illustrates this with a clinical example examined by Kris and discussed by Lacan. Imagining public international law as an indefatigable neurotic in search of 'fresh brains', the article shows why meeting her in the domains of law and politics is not enough to satiate her appetite. What continues to resist is the 'extimate', the inhuman element within the human that the subject hides so well from herself that it is excluded in the interior. A major instance of the extimate is the 'caffeinated neighbour', that is, the neighbour who is not in our image because her disturbing core has not been subtracted. The article argues that unless international law comes to terms with this inevitably ugly and obscene core, in oneself as well as in the neighbour, it cannot hope to achieve any meaningful changes. That the need to recognize the extimate is the ethical demand facing international law now; unless we address it, our symptoms will continue to grow and we will continue to crave fresh brains.
- Topic:
- International Law
- Political Geography:
- New York
217. The Beneficiaries of TRIPs: Some Questions of Rights, Ressortissants and International Locus Standi
- Author:
- Christopher Wadlow
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- The rights and remedies of private parties under the three principal global treaties for the protection of intellectual property are restricted to persons having the status of ressortissants under the relevant treaty, and by the general law of diplomatic protection. Two largely neglected issues arise in relation to ressortissants, which the treaties do not expressly resolve. The first concerns whether the obligations which state A assumes towards the nationals of state B can be enforced by states other than B. The second is whether the obligations assumed by a state under one of these treaties extend to that state's own nationals. It is suggested that the Bananas III and Havana Club decisions have effectively resulted in unlimited locus standi for WTO members to complain of breaches of TRIPs, including the incorporated provisions of the Paris and Berne conventions. The answer to the second question is more tentative, but it is suggested that there may be greater opportunities for arguing that the provisions of TRIPs are binding on states in relation to their own nationals, including incorporated Paris and Berne Articles, than there were under either of those earlier treaties on their own.
- Topic:
- International Law
- Political Geography:
- Europe and Paris
218. The Duality of Direct Effect of International Law
- Author:
- André Nollkaemper
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- This article assesses how, 50 years after the ECJ delivered its judgment in Van Gend en Loos (VGL), the doctrine of direct effect of international law has fared outside the European Union. While obviously the core of VGL (that is, that it is EU law, not national law, which requires direct effect) is not replicated anywhere else in the world, the courts of a considerable number of states have been able to give direct effect to international law. Against the background of an exceedingly heterogeneous practice, this article argues that the concept of direct effect is characterized by a fundamental duality. Direct effect may function as a powerful sword that courts can use to pierce the boundary of the national legal order and protect individual rights where national law falls short. But more often than not, the conditions of direct effect legitimize the non-application of international law and shield the national legal order from international law. International law provides support for both functions. But above all, it defers the choice between these functions to national courts. The practice of direct effect of international law exposes how national courts play a critical political function at the intersection of legal orders.
- Topic:
- International Law
- Political Geography:
- Europe
219. Direct Effect of International Agreements of the European Union
- Author:
- Francesca Martines
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- The Van Gend en Loos (VGL) decision established the conceptual premises of a crucial issue to shape the relationships between the European Union and international law: the function of direct effect as a powerful instrument to guarantee that the rules of one system are complied with in another legal order. However, if compared with direct effect of EU legal rules, the issue of the effects of EU international agreements is made more complicated by the combination of the more traditional question of the self-executing character of international agreement provisions and the narrow meaning of direct effect. The former issue, strongly affected by the technique of incorporation and the rank of international law obligations within the incorporating legal order, goes to the heart of the constitutional architecture of the EU legal order where a balance is to be found between the obligation to comply with international law and the integrity of the EU legal order. The latter notion concerns instead the relationship between the private person and the legal rule and defines the special character of the EU which distinguishes it from international law. Since such a quality of EU rules cannot be automatically applied to international law rules incorporated in the EU legal order it must be verified case by case. This is the reason why, for the present author, the double test approach, first applied by the ECJ in VGL, is the right test to determine direct effect of EU international agreements, but cannot be applied to verify the self-executing effect of international law in the traditional (broader) meaning.
- Topic:
- International Law
- Political Geography:
- Europe
220. Is There a Case – Legally and Politically – for Direct Effect of WTO Obligations?
- Author:
- Hélène Ruiz Fabri
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- WTO law does not require its direct effect in domestic legal orders. Whilst the stances taken in these are diverse, showing that direct effect is not denied on the whole to WTO law, all the major trading members of the WTO deny it. The fact that, in a case where a WTO member does not comply and is targeted by trade sanctions, the economic actors who in practice bear the burden of these sanctions are deprived of any recourse, may be considered unfair enough to question again the denial of direct effect. The analysis focuses notably on the EU where the debate has expanded more than anywhere else and concludes that direct effect should, even in the name of fairness or justice, be handled with caution.
- Topic:
- International Law
- Political Geography:
- Europe
221. Is Global Constitutionalism Meaningful or Desirable?
- Author:
- Michel Rosenfeld
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Upon conceiving constitutionalism on the scale of the nation-state as transparent and unproblematic, one may think global constitutionalism to be a mere utopia. On closer analysis, however, legitimation of nation-state constitutionalism turns out to be much more complex and contested than initially apparent, as becomes evident based on the contrast between liberal and illiberal constitutionalism. Upon the realization that nation-state liberal constitutionalism can only be legitimated counterfactually, the social contract metaphor emerges as a privileged heuristic tool in the quest for a proper balance between identity and difference. Four different theories offer plausible social contract justifications of nation-state liberal constitutionalism: a deontological theory, such as those of Rawls and Habermas, which privileges identity above difference; a critical theory that leads to relativism; a thick national identity based one that makes legitimacy purely contingent; and a dialectical one that portrays the social contract as permanently in the making without any definitive resolution. Endorsing this last theory, I argue that differences between national and transnational constitutionalism are of degree rather than of kind. Accordingly, it may be best to cast certain transnational regimes as constitutional rather than as administrative or international ones.
- Topic:
- International Law
- Political Geography:
- France and Netherlands
222. Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter
- Author:
- Alina Mungiu-Pippidi and Dia Anagnostou
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Over the past couple of years, international law and international relations scholarship has shifted its focus from the question of whether human rights treaties bring any state-level improvements at all to investigations in the domestic context of the factors and dynamics influencing state compliance. In this direction, and focusing on the European Court of Human Rights, this study inquires into the factors that account for variable patterns of state compliance with its judgments. Why do national authorities in some states adopt a more prompt and responsive attitude in implementing these judgments, in contrast to other states that procrastinate or respond reluctantly? On the basis of a large-N study of the Strasbourg Court's judgments and a comparison across nine states, this article argues that variation in state implementation performance is closely linked to the overall legal infrastructure capacity and government effectiveness of a state. When such capacity and effectiveness are high and diffused, the adverse judgments of the Strasbourg Court are unlikely to be obstructed or ignored, even when the government, political elites, or other actors are reluctant and not in favour of substantive remedies.
- Topic:
- International Relations and International Law
- Political Geography:
- Europe
223. An International Lawyer in Democracy and Dictatorship – Re-Introducing Herbert Kraus
- Author:
- Heiko Meiertöns
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Herbert Kraus (1884–1965) is among the forgotten international lawyers of the 20th century. Kraus took part in a number of developments of great importance for the shaping of modern international law: he participated in the drafting process of the Versailles Peace Treaty and the Treaty on the European Coal and Steel Community and acted as defence counsel at Nuremberg. The founding director of the Institute for International Law at the University of Göttingen was forced to retire between 1937 and 1945 due to his criticism of National Socialism. The post-war perception of his work was coined by his forced retirement. However, his work between 1933 and 1937 sheds light on the dilemma of choosing between opposition and adjustment that Kraus was faced with during that period. This article re-introduces Kraus – a complex German character of international law – and the main features of his work.
- Topic:
- International Law
- Political Geography:
- New York
224. Towards a Global History of International Law? Editor's Note
- Author:
- Alexandra Kemmerer
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- As usual, international law comes in late. It was already in the golden years of new world orders and geopolitical shifts after the end of the Cold War that historiography began its global turn. Of course, there had been pioneers and path-breakers before, but it was only in the 1990s that an ambiance of globalization and trans-nationalization triggered new approaches on a larger scale. An actual experience of political, economic and cultural interconnectedness put historiographical emphasis on transfers, networks, connections and cooperation, on transformation and translation.Historical analysis was called to overcome not only the boundaries of the nation-state, but also the limitations of material and epistemic Eurocentrism in its various forms. During the past decade, there has been a growing interest in global histories in many parts of the world.
- Topic:
- International Law
- Political Geography:
- Africa and Europe
225. The Spectre of Sources
- Author:
- Rose Parfitt
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- The editors of this impressive and timely volume, Anne Peters and Bardo Fassbender, begin their Introduction (at 2) with the following statement of purpose: [W]e, the editors and authors, [have] tried to depart from ... the 'well-worn paths' of how the history of international law has been written so far — that is, as a history of rules developed in the European state system since the 16th century which then spread to other continents and eventually the entire globe.
- Topic:
- International Law
- Political Geography:
- Europe
226. Sleepy Side Alleys, Dead Ends, and the Perpetuation of Eurocentrism
- Author:
- Stefan B. Kirmse
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- My reading of The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters, has undoubtedly been framed by my own field of research. This field is not international law, but the historical anthropology of Russia and Eurasia and includes changing legal practice in a context of increasing global connectedness. My review is therefore not intended to relate the Oxford Handbook to the wider historiography of international law, which I leave to other contributions in this symposium; it is meant to offer an external perspective on the question of Eurocentric analysis. The editors of the Handbook have identified Eurocentrism as one of the key challenges to overcome in the study of international law.
- Topic:
- International Law
- Political Geography:
- Russia and Persia
227. Is there a Role for Islamic International Law in the History of International Law?
- Author:
- Nahed Samour
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Overcoming Eurocentrism is one of the self-proclaimed aims of the editors of The Oxford Handbook of the History of International Law. In the following, I shall offer a critique of the Handbook from a largely Islamic international law perspective as (but) one example of a supranational non-European legal system. The depth of the volume covering a variety of times, spaces, and themes provides us with a much awaited tool against the 'gaps' and the 'forgetfulness' of how today's doctrines and practices of international law came about, not shying away from the voices that question the narrative of international law serving peace and justice. The Handbook is therefore laudable for a number of things.
- Topic:
- International Law and Islam
- Political Geography:
- Europe
228. Statelessness: An Invisible Theme in the History of International Law
- Author:
- Will Hanley
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- The Oxford Handbook is a welcome and necessary intervention in the history of international law. In the introduction, the editors signal their reformist programme: out with the progressive, triumphalist narrative; in with the dark side of international law and its side tracks outside the European experience. In addition to this programme, the project displays two further signs of its serious intent to change the field. First, the authors embarked on a truly collective project, including a week of face-to-face consultation, in a rare effort to define a reasonably unified agenda. Scholarly redirection is a social as well as an intellectual undertaking, and the community built around this volume marks its purposefulness. Secondly, the book's scope is massive: more than five dozen chapters, more than three dozen authors, and more than 1,000 pages of text provide the bulk necessary to accomplish the paradigm shift that the editors intend. The extensive range of the book, especially in its 'Regions' section, does what is necessary to transform globalizing intent into actuality. It is a foundational volume, and any scholarly edifice building upon it will have a broader footprint than was previously possible.
- Topic:
- International Law
- Political Geography:
- Europe
229. Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law
- Author:
- Anne-Charlotte Martineau
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Last Spring, the Rechtskulturen programme, an initiative of the Wissenschaftskolleg zu Berlin at the Transregionale Studien Forum, invited me to participate in a symposium on the Oxford Handbook of the History of International Law – a robust book of 1250 pages. I was asked to 'critically assess' the Handbook's 'global history' approach, that is, to assess whether it was a successful step in 'overcoming Eurocentrism' in the history of international law. The symposium turned out to be a wonderful event, a gathering of historians, anthropologists, political scientists, and lawyers, where I became very conscious of my own professional language but where I also experienced a willingnesss to transcend disciplinary boundaries and biases. The following remarks should be interpreted as a continuation of that discussion. Before looking at some of the contributions in the Handbook that did depart from 'well-worn paths' (to use the editors' expression) (3), I would like to say few words about the 'global history' approach (1) and the unfortunate resilience of Eurocentric voices in the Handbook (2).
- Topic:
- International Law
- Political Geography:
- Europe
230. Prospects and Limits of a Global History of International Law: A Brief Rejoinder
- Author:
- Anne Peters and Bardo Fassbender
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- As we remarked in the Introduction to our Handbook, it is exciting but also risky to leave a well-worn path (at 2). It means meeting unforeseen obstacles. We were quite aware of the fact that if we wanted to shed light on historical developments in international law which so far had remained in darkness or obscurity, we had to be prepared to encounter the unexpected and not so readily understood – that is, accounts and narratives which call into question conventional wisdom and which, at least initially, pose additional problems rather than providing easy answers. We knew that new research on issues which had rarely been examined before would not be perfect or 'complete'. In other words, we expected, and in fact expressly invited, criticism of a work which tried to break new ground.
- Topic:
- International Law
- Political Geography:
- Europe
231. Michael Byers. International Law and the Arctic
- Author:
- Timo Kolvurova
- Publication Date:
- 02-2014
- Content Type:
- Journal Article
- Abstract:
- Those who follow the newspapers and media in general are led to believe that the stakes are getting higher in the Arctic. Climate change is melting the sea ice and opening up new economic opportunities: oil, gas, moving fish stocks, and shorter navigational routes are among the benefits to be had by those who are bold enough to make a move. According to the media, China and other emerging economies are claiming their own piece of the Arctic. In the scramble among states for the riches of the Arctic, we sense a scenario that may even drive states to the point of military conflict. Yet, this scramble does not take place in a legal vacuum – there are plenty of legal rules that govern the behaviour of states and other actors in the region. Indeed, this is one of the salient points that Michael Byers makes in his book.
- Topic:
- Environment, International Law, and Oil
- Political Geography:
- China
232. Principles of Islamic International Criminal Law: A Comparative Search Farhad Malekian
- Author:
- Aysegul Cimen
- Publication Date:
- 04-2014
- Content Type:
- Journal Article
- Journal:
- Insight Turkey
- Institution:
- SETA Foundation for Political, Economic and Social Research
- Abstract:
- Principles of Islamic International Criminal Law: A Comparative Search As one of the major components of the Islamic state, Islamic law has drawn considerable attention from different scholars both in the East and West. Particularly, comparative studies on the historical evolution of Islamic law and its application in modern legal systems are some of the major topics in the last two decades. Peters' Crime and Punishment in Islamic Law: Theory and Practice from Sixteenth to Twenty-First Century, Millers' Legislating Authority: Sin to Crime in the Ottoman Empire and Turkey, Hallaq's Shari'a: Theory, Practice, Transformations, and Naim's Islam and the Secular State: Negotiating the Future of Shari'a are some of the prominent books in the field.
- Topic:
- International Relations, International Law, Islam, and Law
- Political Geography:
- Turkey
233. Contradiction in International Law
- Author:
- Angela Bunch
- Publication Date:
- 04-2014
- Content Type:
- Journal Article
- Journal:
- Americas Quarterly
- Institution:
- Council of the Americas
- Abstract:
- Indigenous peoples' control over natural resources continues to be one of the most controversial issues in international law. Numerous international human rights treaties recognize Indigenous communities' right to be consulted over the use of resources on or beneath their communal lands. But international law tends to consider third parties' exploitation of natural resources on Indigenous land to be legal—as long as Indigenous rights to consultation, participation and redress, among other rights, are met.
- Topic:
- International Law
- Political Geography:
- United Nations
234. Table of Contents, Volume 28.2 (Summer 2014)
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- This issue features essays by Roger Berkowitz on "Drones and the Question of 'The Human'" and Alan Sussman on the philosophical foundations of human rights; a special centennial roundtable on "The Future of Human Rights," featuring Beth A. Simmons, Philip Alston, James W. Nickel, Jack Donnelly, and Andrew Gilmour; a review essay by Jens Bartelson on empire and sovereignty; and book reviews by Dale Jamieson, Tom Bailey, and Simon Cotton.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
235. Why Human Rights Are Called Human Rights
- Author:
- Alan Sussman
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- The title of this essay is rather ambitious and the space available is hardly sufficient to examine two words of almost limitless expanse—“human rights”—whether standing alone or in tandem. This requires that I begin with (and remained disciplined by) what a teacher of mine, Leo Strauss, called “low facts.” My low facts are these: We call ourselves humans because we have certain characteristics that define our nature. We are social and political animals, as Aristotle noted, and possess attributes not shared by other animals. The ancients noted this, of course, when they defined our principal behavioral and cognitive distinction from the rest of the natural world as the faculty of speech. The Greek word for this, logos, means much more than speech, as it connotes word and reason and, in the more common understanding, talking and writing, praising and criticizing, persuading and reading. While other animals communicate by making sounds of attraction or warning, leaving smells, and so on, none read newspapers, make speeches, publish their memoirs, or write poetry.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
236. "Climate Matters: Ethics in a Warming World"
- Author:
- Dale Jamieson
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- This is the inaugural volume in the Amnesty International Global Ethics Series, edited by Kwame Anthony Appiah. John Broome, the author of this volume, is a trained economist, distinguished philosopher, and a lead author of the 2014 Intergovernmental Panel on Climate Change report. He is very well suited to fulfill the mandate of the series, which is to "broaden the set of issues taken up by the human rights community." It is thus surprising that the book does not discuss human rights (or rights at all), nor locate itself in relation to much of the relevant literature. Nevertheless, this is an excellent book, displaying the author's characteristic virtues of clarity, concision, precision, and intellectual honesty.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
237. "Global Justice and Avant-Garde Political Agency"
- Author:
- Tom Bailey
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- In Global Justice and Avant-Garde Political Agency , Lea Ypi proposes a novel approach to political theory in relation to the issue of global equality. She fiercely criticizes the tendency to abstract from the realities of political agency in "ideal" theorizing, since, she insists, such abstraction renders the conclusions drawn practically irrelevant and indeterminate. But she also refuses to treat current political practices and norms as given constraints in the manner of "nonideal" theorizing, on the grounds that the selection of relevant practices and norms is always morally loaded and their analysis inevitably conservative. Instead, Ypi proposes that theory begin with a specific political conflict, diagnose the failure of existing practices and norms to resolve it, and, in this light, develop better practices and norms. She calls this approach "dialectical" insofar as it considers political practices and norms to develop progressively in resolving emerging political problems, and "activist" or "avant-garde" in its responding and contributing to political change through appropriate political agents.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
238. "Fairness in Practice: A Social Contract for a Global Economy"
- Author:
- Simon Cotton
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- We are all familiar with the claim that the rules of the World Trade Organization (WTO) are unjust or otherwise objectionable. Yet this claim faces substantial hurdles in motivating corrective action. Most significantly, wealthy states face political pressures against moderating their bargaining positions. But this is not the only problem. First, there remains the suspicion that these rules are not, in fact, objectionable, or that they are only mildly so—perhaps "bad" but not "unjust." After all, no country is forced to be subject to them; the WTO is a voluntary institution. Second, we still have to determine what rules would be just. Is it really the job of the WTO to compensate for inherent inequalities between countries? In this book, the first philosophical work devoted exclusively to "fair trade," Aaron James seeks to combat the second of these challenges directly. In doing so, he also combats the first.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
239. Drones and the Question of "The Human"
- Author:
- Roger Berkowitz
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- Domino's Pizza is testing "Domicopter" drones to deliver pizzas, which will compete with Taco Bell's "Tacocopter" drones. Not to be outdone, Amazon is working on an army of delivery drones that will cut out the postal service. In Denmark, farmers use drones to inspect fields for the appearance of harmful weeds, which reduces herbicide use as the drones directly apply pesticides only where it is needed. Environmentalists send drones into glacial caves or into deep waters, gathering data that would be too dangerous or expensive for human scientists to procure. Federal Express dreams of pilotless aerial and terrestrial drones that will transport goods more cheaply, reliably, and safely than vehicles operated by humans. Human rights activists deploy drones over conflict zones, intelligently searching for and documenting abuses for both rhetorical and legal purposes. Aid agencies send unmanned drones to villages deep in jungles or behind enemy lines, maneuvering hazardous terrain to bring food and supplies to endangered populations. Medical researchers are experimenting with injecting drone blood cells into humans that can mimic good cholesterol carriers or identify and neutralize cancerous cells. Parents in Vermont are using flying drones to accompany children to school, giving a whole new meaning to helicopter parenting. And Pilobolus, a New York dance company, has choreographed a dance in which drones and humans engage each other in the most human of acts: the creation of art.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
- Political Geography:
- Denmark
240. The Future of the Human Rights Movement
- Author:
- Beth A. Simmons
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- The modern human rights movement is at a critical juncture in its history. It has been nearly seventy years since the creation of the Universal Declaration of Human Rights, and some of the oldest and most active human rights organizations have been operating around the world for about forty years. More than twenty years have passed since the end of the cold war, and the time when people spoke in triumphal terms of the global success of Western values is now a fading memory. International human rights are ensconced as firmly as ever in international law and institutions, but what about the future of the "human rights movement"?
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
241. Against a World Court for Human Rights
- Author:
- Philip Alston
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- Too much of the debate about how respect for human rights can be advanced on a global basis currently revolves around crisis situations involving so-called mass atrocity crimes and the possibility of addressing abuse through the use of military force. This preoccupation, as understandable as it is, serves to mask much harder questions of how to deal with what might be termed silent and continuous atrocities, such as gross forms of gender or ethnic discrimination or systemic police violence, in ways that are achievable, effective, and sustainable. This more prosaic but ultimately more important quest is often left to, or perhaps expropriated by, international lawyers. Where the politician often finds solace in the deployment of military force, the international lawyer turns instinctively to the creation of a new mechanism of some sort. Those of modest inclination might opt for a committee or perhaps an inquiry procedure. The more ambitious, however, might advocate the establishment of a whole new court. And surely the most "visionary" of such proposals is one calling for the creation of a World Court of Human Rights. A version of this idea was put forward in the 1940s, but garnered no support. The idea has now been revived, in great detail, and with untrammeled ambition, under the auspices of an eminent group of international human rights law specialists.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
242. What Future for Human Rights?
- Author:
- James W. Nickel
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- Like people born shortly after World War II, the international human rights movement recently had its sixty-fifth birthday. This could mean that retirement is at hand and that death will come in a few decades. After all, the formulations of human rights that activists, lawyers, and politicians use today mostly derive from the UN Universal Declaration of Human Rights, and the world in 1948 was very different from our world today: the cold war was about to break out, communism was a strong and optimistic political force in an expansionist phase, and Western Europe was still recovering from the war. The struggle against entrenched racism and sexism had only just begun, decolonization was in its early stages, and Asia was still poor (Japan was under military reconstruction, and Mao's heavy-handed revolution in China was still in the future). Labor unions were strong in the industrialized world, and the movement of women into work outside the home and farm was in its early stages. Farming was less technological and usually on a smaller scale, the environmental movement had not yet flowered, and human-caused climate change was present but unrecognized. Personal computers and social networking were decades away, and Earth's human population was well under three billion.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
- Political Geography:
- United States, Japan, China, Europe, Asia, and United Nations
243. State Sovereignty and International Human Rights
- Author:
- Jack Donnelly
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- I am skeptical of our ability to predict, or even forecast, the future—of human rights or any other important social practice. Nonetheless, an understanding of the paths that have brought us to where we are today can facilitate thinking about the future. Thus, I approach the topic by examining the reshaping of international ideas and practices of state sovereignty and human rights since the end of World War II. I argue that in the initial decades after the war, international society constructed an absolutist conception of exclusive territorial jurisdiction that was fundamentally antagonistic to international human rights. At the same time, though, human rights were for the first time included among the fundamental norms of international society. And over the past two decades, dominant understandings of sovereignty have become less absolutist and more human rights–friendly, a trend that I suggest is likely to continue to develop, modestly, in the coming years.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
244. The Future of Human Rights: A View from the United Nations
- Author:
- Andrew Gilmour
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- Ever since the Charter of the United Nations was signed in 1945, human rights have constituted one of its three pillars, along with peace and development. As noted in a dictum coined during the World Summit of 2005: "There can be no peace without development, no development without peace, and neither without respect for human rights." But while progress has been made in all three domains, it is with respect to human rights that the organization's performance has experienced some of its greatest shortcomings. Not coincidentally, the human rights pillar receives only a fraction of the resources enjoyed by the other two—a mere 3 percent of the general budget.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
- Political Geography:
- Europe and United Nations
245. From Empire to Sovereignty — and Back?
- Author:
- Jens Bartelson
- Publication Date:
- 08-2014
- Content Type:
- Journal Article
- Abstract:
- Sovereignty apparently never ceases to attract scholarly attention. Long gone are the days when its meaning was uncontested and its essential attributes could be safely taken for granted by international theorists. During the past decades international relations scholars have increasingly emphasized the historical contingency of sovereignty and the mutability of its corresponding institutions and practices, yet these accounts have been limited to the changing meaning and function of sovereignty within the international system. This focus has served to reinforce some of the most persistent myths about the origin of sovereignty, and has obscured questions about the diffusion of sovereignty outside the European context.
- Topic:
- Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
- Political Geography:
- Europe
246. Challenging 'evil': Continuity and change in the drug prohibition regime
- Author:
- Christopher Hobson
- Publication Date:
- 07-2014
- Content Type:
- Journal Article
- Journal:
- International Politics
- Institution:
- Palgrave Macmillan
- Abstract:
- The 1961 Single Convention on Narcotic Drugs is unique among UN conventions for the appearance of the term 'evil' in the document. Among all the possible wrongdoing and bad things that exist in the world, it is slightly counterintuitive that drugs are the only one to be labelled as 'evil' in international law. Adopting a 'conceptual politics' approach, the article will examine how drugs came to be identified in this manner, with a specific focus on the drafting of the 1961 Single Convention. The latter part of the article focuses on the contemporary relevance of this framing, considering how it contributes towards a much more restrictive environment in which serious change to the drug prohibition regime has proven to be a very difficult task. For those seeking reform it is not enough to demonstrate that the system does not work, they also must successfully challenge the idea of drugs as something evil and a threat to humanity. In concluding it is suggested that by returning to the Single Convention, one finds not only the language of 'evil', but also a more flexible position that allowed for revising the way drugs are dealt with. To bring about change in drugs prohibition regime, reformers will need to recover this more open and balanced approach to understanding drugs.
- Topic:
- Environment, International Law, Politics, and United Nations
247. Scientific Reason and the Discipline of International Law
- Author:
- Anne Orford
- Publication Date:
- 05-2014
- Content Type:
- Journal Article
- Abstract:
- International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today's highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.
- Topic:
- International Law
- Political Geography:
- Europe
248. How is Progress Constructed in International Legal Scholarship?
- Author:
- Tilmann Altwicker and Oliver Diggelman
- Publication Date:
- 05-2014
- Content Type:
- Journal Article
- Abstract:
- There is a tendency in international legal discourse to tell the story of international law as a story of progress. 'Progress' is a concept which is tied to the process of secularization and Western 18th and 19th century philosophy. It still inspires the debate on international law – despite all setbacks in 'real history'. This article argues that progress narratives in the inter-national legal discourse are constructed by – more or less subtle – argumentative techniques. It highlights four such techniques – four 'bundles of arguments' – which play a key role: ascending periodization, proving increasing value-orientation of international law, detection of positive trends, and paradigm shift-talk. The article offers an explanation of why the pro-gress argument often succeeds in international legal discourse.
- Topic:
- International Law and Weapons of Mass Destruction
249. Petitioning the International: A 'Pre-history' of Self-determination
- Author:
- Arnulf Becker Lorca
- Publication Date:
- 05-2014
- Content Type:
- Journal Article
- Abstract:
- Conventionally, self-determination is understood to have evolved in a linear progression from a political principle during World War I into an international right after World War II. The history of the right to self-determination before 1945 is thus part of 'pre-history'. This article explores that 'pre-history' and finds the conventional linear narrative unconvincing. During the first three decades of the 20th century and in particular during the interwar period, non-Western lawyers, politicians, and activists articulated international law claims to support the demand for self-government. In this process, they appropriated and transformed the international law discourse. Removing the legal obstacles that prevented self-government beyond the West – that is, by eliminating the standard of civilization – interwar semi-peripherals made possible the emergence of a right to self-determination later, when the international political context changed after the second post-war reconstruction of international law.
- Topic:
- International Law and War
250. Conceptual Confusion and Methodological Deficiencies: Some Ways that Theories on Customary International Law Fail
- Author:
- Laszlo Blutman
- Publication Date:
- 05-2014
- Content Type:
- Journal Article
- Abstract:
- Andrew Guzman declares that customary international law is in trouble. I disagree. It is those who seek to explain it who are in trouble. Theoretical efforts are plagued with descriptive insufficiencies (for example, the formation of various customary norms takes place within a heterogeneous, opaque process that resists any general and meaningful description in specific cases), systemic uncertainties (for example, locating the source of rules that govern the formation of customary norms), semantic problems (such as what exactly is general practice) and the divergence of conceptions articulated within international practice. These difficulties, which hamper a better understanding of international law itself, originate from the conceptual level. This article will therefore focus on certain symptomatic conceptual and methodological problems. Nine of them are outlined, and three will be analysed in greater detail, namely the relationship between opinio juris and acceptance, the characteristics of the concept 'general practice' and the failure of attempts to describe customary international law by dichotomies. As a conclusion, the author identifies seven requirements of, and assumptions about, a possible, workable theory of customary international law.
- Topic:
- International Law