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302. Gaius, Vattel, and the New Global Law Paradigm
- Author:
- Rafael Domingo
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- Emer de Vattel (1714–1767), in his influential work The Law of Nations, established a new international statist paradigm which broke with the classical partition of the law into the three realities of 'persons, things and actions' (personae, res, actiones). This new paradigm substituted the state for the person, downgraded the generic concept of 'things' to the obligations among states in their relations, and changed the focus of the concept of 'action' to that of 'war' as a legal remedy to resolve conflicts between and among states. This international paradigm (or statist paradigm) has survived almost up to our time in international praxis. Nonetheless, today the statist paradigm appears to be in every way insufficient, since it does not consider humanity as a genuine political community, nor does it reflect the three-dimensionality of the global law phenomenon. The transformation of the law that governs our international community (international law) into a law that is capable of properly ordering the new global human community (global law) demands the creation of a new paradigm, originating in the following conceptual triad: global human community, global issues, and global rule of law. In the construction of this new global paradigm, cosmopolitan constitutionalism could play a key role.
- Topic:
- International Law
- Political Geography:
- Europe
303. Contribution of the Reims School to the Debate on the Critical Analysis of International Law: Assessment and Limits
- Author:
- Monique Chemillier-Gendreau
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- The changes which have occurred in the world and the failure of the mechanism of collective security oblige lawyers to open a new critical approach to international law. In this context, it is important to come back to the French movement known as Critique du droit, and more especially to the work produced in the Reims Colloquia under Professor Chaumont's authority. This theoretical contribution points out the link between the norms of law and the concrete conditions of their formation. It considers the compulsory nature of norms as a result of a compromise between several contradictions, and by doing so, it opens a new window on the understanding of law. But, today, this theory has to be completed by a deeper analysis of the concept of sovereignty. The consequence of this core concept is the contractual nature of most norms of international law. It is quite impossible to build a universal international law, the emergence of general imperative norms being hitherto too weak. International law, dominated by sovereignty, is inadequate to protect world society.
- Topic:
- International Law
304. The European Tradition in International Law: Walther Schücking
- Author:
- Christian J. Tams
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- In their 'mission statement', the European Journal's founding editors announced the launch of an occasional focus section devoted to the work of international lawyers who stood for particular aspects of the 'European Tradition in International Law', rather boldly set in the singular. Previous focus sections have assessed the continuing relevance of (and typically celebrated) the likes of, for example, George Scelle, Roberto Ago, Alfred Verdross, Hans Kelsen, and Max Huber.
- Topic:
- International Law
- Political Geography:
- Europe
305. Walther Schücking and the Pacifist Traditions of International Law
- Author:
- Mónica García-Salmones
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- In this article I discuss four pacifist traditions in international law in play during the 20th century, in the context of the Symposium on Walther Schücking. The article addresses the fact that these pacifist traditions have contributed to shaping the way in which we view international law today and how we understand our current world. Essentially, we see the globe as an entity legally organized through treaties, international courts for dispute settlement, and international organizations with worldwide jurisdiction. The science of law tries, with difficulty, to grasp all these phenomena in a unitary manner. Moreover, pacifism has influenced our choice of legal techniques. At the core of the pacifist traditions lies the wish of a group of pacifist intellectuals, among them Walther Schücking, to achieve a peaceful transition to what they viewed as an unavoidable state of economic interdependence on a global scale. Their specific purpose was peace – 'peace through law'. Beyond that, it occurred to almost none of them to question the beneficial aspects of their internationalist projects and the economic interdependence behind them. Peace was raised then to the level of the highest good. Who would dare dethrone it? This article suggests that we live in an era of pacifist international law. The article also takes the approach that the very existence of a variety of pacifist traditions shows that political pluralism may coexist with pacifism. Peace is indisputably a common good and pacifism does not necessarily prevent politics from continuing to flourish.
- Topic:
- International Law
306. Professor Walther Schücking at the Permanent Court of International Justice
- Author:
- Ole Spiermann
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- In 1930, it was seen as critical by many to have a German jurist elected to the bench of the Permanent Court of Justice, and this was indeed achieved by the election of Walther Schücking. It may seem a paradox that in the following years where, in many cases, the Permanent Court exercised self-restraint and embraced arguments based on state sovereignty, probably the greatest supporter of notions of international organization and community to be associated with the work of the Permanent Court, namely Walther Schücking, occupied a permanent position on the bench. But then his 'optimism' was simply an extrapolation of the state on to the international level, leaving key values such as state sovereignty essentially unaffected. The interest in Schücking's contributions to the work of the Permanent Court lies not least in the fact that, even today, many lawyers approach international law in manners similar to his.
- Topic:
- International Law and International Organization
- Political Geography:
- Germany
307. Roaming Charges: Moments of Dignity: Polish Youth on Warsaw's Pilsudski Square
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- Roaming Charges, a new feature of EJIL, is aimed at enhancing the 'book experience' – a moment of reflection as well as aesthetic pleasure disconnected from any specific research interest and the usual cerebral activity of reading a learned article. It will feature different locales or scenes from around the world, which, in their way, have something to say – without words – about our present condition. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – the title of this feature was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photographs. Take a moment – enjoy, reflect. If you are online, pause before the next click.
- Topic:
- International Law
308. How Effective is the United Nations Committee Against Torture?
- Author:
- Ronagh McQuigg
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- This article examines the question of how states have responded to the comments of the United Nations Committee against Torture through an analysis of eight Western European states. It is concluded that the Committee's recommendations have had a substantial impact in four of the states surveyed, however only a limited effect in two other states, and little or no impact in the two remaining states. These findings lead to concerns as regards the effectiveness of the Committee against Torture. The article focuses on the Concluding Observations made by the Committee on the reports submitted by the states in question.
- Topic:
- International Law
- Political Geography:
- Europe and United Nations
309. Fighting Maritime Piracy under the European Convention on Human Rights
- Author:
- Stefano Piedimonte Bodini
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court's approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.
- Topic:
- Human Rights and International Law
- Political Geography:
- Europe
310. Immunities of State Officials, International Crimes and Foreign Domestic Courts: A Rejoinder to Alexander Orakhelashvili
- Author:
- Dapo Akande and Sangeeta Shah
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- We are grateful to Alexander Orakhelashvili for engaging with the points we make in our recent EJIL article on immunity and international crimes.1 He has written widely on this issue and his view that international law immunities are not available in judicial proceedings for violations of jus cogens norms is well known. In our article, we disagree with that view and show why that understanding of the relationship between jus cogens norms and international law immunities is untenable. However, it would be wrong to say, as he says, that we 'attack' his views (or indeed those of others who share that same perspective). There is, we believe, a reasonable disagreement of view. As is well known, international law provides two types of immunity for state officials from the jurisdiction of foreign states. The first type are 'status' immunities ('personal' immunities or immunities ratione personae) and the second is an 'official act' immunity ('functional' immunity or immunity ratione materiae). In our view, international law confers two types of 'status' immunity: the first type is limited to foreign heads of state and heads of government; it is absolute and applies even in cases alleging international crimes and even where the individual is abroad on private visit. The second type of immunity ratione personaeapplies only to those abroad on special mission (and therefore in the host state with its consent) and only for the duration of such mission. This special mission immunity is also applicable in cases concerning international crimes. However, we argue that the immunity ratione materiaewhich international law confers on those who perform official acts on behalf of the state will not be avail-able in cases where the act amounts to an international law crime. This is not because international crimes may not be official acts, or indeed because of any conflict with jus cogensnorms, but rather because of a different type of conflict of norms. There will be no immunity in these cases because international law rules and practice confer extra-territorial jurisdiction over such acts of state officials that are co-extensive with the immunity, or, alternatively, the rules conferring jurisdiction contemplate jurisdic-tion over official conduct.
- Topic:
- International Law
311. W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law
- Author:
- Stephan W. Schill
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- Few international legal fields have seen an increase in literature over the past decade as steep as international investment law. This reflects the growing interest in practice and academia in what is probably not only the most dynamic area of international law but also one with significant impact on domestic law and policy-making. What is striking, apart from the sheer enormity of writing, however, is the changes the discourse on international investment law has undergone. Focus, topics, conceptual and methodological approaches, authorship, and audiences of the present literature differ significantly from that of the turn of the millennium. This reflects both an evolution in the law itself and changes in the professional, political, and institutional practices and communities involved. The literature on international investment law thus is a reflection of the sociological dimension of a discipline that until recently was the province of a small group of specialists and now is rapidly moving mainstream.
- Topic:
- International Law and Sociology
312. Stephan W. Schill (ed.). International Investment Law and Comparative Public Law
- Author:
- Dr. Andreas Kulick
- Publication Date:
- 08-2011
- Content Type:
- Journal Article
- Abstract:
- The science of international law can no longer be content with the analogous application of private law categories. It must search the entire body of the 'general principles of law recognized by civilized nations' for proper analogies. With the growing importance of international legal relations between public authorities and private legal subjects, public law will be an increasingly fertile source of international law.
- Topic:
- International Law
313. The Politics of Deformalization in International Law
- Author:
- Jean d'Aspremont
- Publication Date:
- 09-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Confronted with the pluralization of the exercise of public authority at the international level and the retreat of international law as a regulatory instrument, international legal scholars have engaged in two survival strategies. On the one hand, there are international legal scholars who have tried to constitutionalize traditional international law with a view to enhancing its appeal and promoting its use by global actors. On the other hand, there are scholars who, considering any charm offensive to induce global actors to cast their norms under the aegis of classical international a lost battle, have embarked on a deformalization of international law that has led them to loosen the meshed fabric through which they make sense of reality. This deformalization of international law has sometimes materialized in a radical abandonment of theories of sources. The constitutionalist strategy has already been extensively discussed in the literature. The second approach has thrived almost unnoticed. It is this second scholarly strategy to the pluralization of the exercise of public authority that this article seeks to critically evaluate. After describing the most prominent manifestations of deformalization in the theory of international law and examining its agenda, the paper considers some of the hazards of deformalization. This paper simultaneously demonstrates that formalism has not entirely vanished, as it has continued to enjoy some support, albeit in different forms. These variations between deformalization and the persistence of formalism, this paper concludes, are the result of political choices which international legal scholars are not always fully aware of.
- Topic:
- International Law
314. Savaş Hukukunda Tecavüz ve Yağmayı Yasakla(ma)yan Rejimler Lahey Sözleşmeleri (1899, 1907)
- Author:
- Tuba İnal
- Publication Date:
- 05-2011
- Content Type:
- Journal Article
- Journal:
- Uluslararasi Iliskiler
- Institution:
- Uluslararasi Iliskiler
- Abstract:
- Th is article seeks to explain two related theoretical questions by looking at the treatment of two related practices of war, pillage and rape, by international law: How does change, particularly legalized regime change, happen in international relations and what is the role of “gender” as a category in this process of change? The argument here is that three conditions are necessary for the emergence of a legalized prohibition regime: Firstly, states must believe that they can comply with the prohibition because non-compliance is costly. Secondly, a normative context conducive to the idea that the particular practice is abnormal/undesirable is necessary. Thirdly, actors actively propagating these ideas to promote the creation of a particular regime should exist. The 100-year temporal difference between the emergence of the regimes against pillage and rape reveals the role of gender in this process.
- Topic:
- Gender Issues, International Law, and War Crimes
- Political Geography:
- Global Focus
315. (Re)Invigorating the World Health Organization's Governance of Health Rights: Repositing an Evolving Legal Mandate, Challenges and Prospects
- Author:
- William Onzivu
- Publication Date:
- 01-2011
- Content Type:
- Journal Article
- Journal:
- African Journal of Legal Studies
- Institution:
- The Africa Law Institute
- Abstract:
- State centred discourse on international law and human rights often diminishes the obligations of global health institutions in international law to advance health related human rights and as sites for the progressive development and implementation of health rights. The constitution of the World Health Organization (WHO) provides an expansive role for human rights protection and promotion in realizing public health, but WHO has faced hurdles in effectively carrying out this role. Current scholarship continues to underscore the normative challenges facing WHO concerning its limited use of international law including human rights to promote health. This article goes a step further and explores the evolving international legal and institutional basis for WHO's future direction in strengthening the governance of human rights. It revisits WHO's evolving and expanding human rights mandate, challenges and prospects within WHO law, the broader United Nations law, policy and practice as well as general international law. Despite the limitations, WHO has evolving institutional mechanisms rooted in international law that comprise a pivotal site for human rights normative and operational work at the global, regional and domestic levels. The article examines these mechanisms and suggests concrete ways and options in which WHO can advance health rights.
- Topic:
- Human Rights, International Law, United Nations, and World Trade Organization
316. From Sympathy to Reparation for Female Victims of Sexual Violence in Armed Conflicts
- Author:
- Chile Eboe-Osuji
- Publication Date:
- 01-2011
- Content Type:
- Journal Article
- Journal:
- African Journal of Legal Studies
- Institution:
- The Africa Law Institute
- Abstract:
- There is a newfound momentum in international law for reparation for the victims of gross violations of human rights. This momentum has been largely hortative in resonance than actual. The slow progress in translating that desire into tangible, effective reparation programmes is partly attributable to the absence of coherent theoretical bases – especially palatable ones – for reparation in particular cases. It is submitted, however, that in canvassing the theories of reparation, the driving consideration must always remain the interests of victims and not the intellectual satisfaction of knowledgeable and well-meaning experts. The most erudite rationalization of the idea of reparation will be of no consequence if it does not, in practice, assist in improving the lives of the victims. While, it is important always to keep in view the fault-based theories of reparation, it is also advisable to consider the utility of employing the no-fault-based rationale for achieving the aim of reparation when the party at fault is either unavailable or unable to make reparation at all or in full. Hence, guidance might be had to the gratis model of reparation employed in many domestic jurisdictions to make some compensation to victims of violent crimes.
- Topic:
- Human Rights and International Law
317. Empty Promises? Obama's Hesitant Embrace of Human Rights
- Author:
- Kenneth Roth
- Publication Date:
- 03-2010
- Content Type:
- Journal Article
- Journal:
- Foreign Affairs
- Institution:
- Council on Foreign Relations
- Abstract:
- After eight years of the Bush administration, with its torture of suspected terrorists and disregard for international law, Barack Obama's victory in the November 2008 U.S. presidential election seemed a breath of fresh air to human rights activists. Obama took office at a moment when the world desperately needed renewed U.S. leadership. In his inaugural address, Obama immediately signaled that, unlike Bush, he would reject as false "the choice between our safety and our ideals." Obama faces the challenge of restoring the United States' credibility at a time when repressive governments -- emboldened by the increasing influence of authoritarian powers such as China and Russia -- seek to undermine the enforcement of international human rights standards. As he put it when accepting the Nobel Peace Prize, the United States cannot "insist that others follow the rules of the road if we refuse to follow them ourselves." His Nobel speech in Oslo also affirmed the U.S. government's respect for the Geneva Conventions. "Even as we confront a vicious adversary that abides by no rules," Obama argued, "I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength." When it comes to promoting human rights at home and abroad, there has undoubtedly been a marked improvement in presidential rhetoric. However, the translation of those words into deeds remains incomplete. AN INCOMPLETE REVERSAL Obama moved rapidly to reverse the most abusive aspects of the Bush administration's approach to fighting terrorism. Two days after taking office, he insisted that all U.S. interrogators, including those from the CIA, abide by the stringent standards adopted by the U.S. military in the wake of the Abu Ghraib debacle. He also ordered the shuttering of all secret CIA detention facilities, where many suspects "disappeared" and were tortured between 2001 and 2008. Finally, he promised to close the detention center at Guantánamo Bay, Cuba, within a year.
- Topic:
- Human Rights and International Law
- Political Geography:
- Russia, United States, and China
318. Was Kosovo's Split-off Legitimate? Background, Meaning and Implications of the ICJ's Advisory Opinion
- Author:
- Heiko Krueger
- Publication Date:
- 06-2010
- Content Type:
- Journal Article
- Journal:
- The Caucasian Review of International Affairs
- Institution:
- The Caucasian Review of International Affairs
- Abstract:
- On 22 July 2010 the International Court of Justice (ICJ) reached a final decision in one of its most momentous cases: Kosovo. The media response was huge and many headlines were plain in pointing out that “Kosovo's independence is legal”. But what sounds so clear at first sight arguably becomes an erroneous assumption upon closer examination. Indeed, the ICJ explicitly avoided deciding upon the legality of Kosovo's independence. Finally, there are sound reasons to question the legal significance of the Court's findings.
- Topic:
- International Law
- Political Geography:
- Kosovo
319. Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders
- Author:
- Marco Dani
- Publication Date:
- 05-2010
- Content Type:
- Journal Article
- Abstract:
- In FIAMM and Fedon the European Court of Justice has ruled that Community firms hit by US trade sanctions authorized by the WTO Dispute Settlement Body are not entitled to compensation from EC political institutions. The article discusses the cases in the background of current debates on the attitude of the Court of Justice towards international law and, more broadly, on European legal pluralism. From this standpoint, it provides a critical assessment of the legal issues involved in this litigation – internal status of WTO obligations, scope for manoeuvre of EC political institutions in international trade relations, liability for unlawful and lawful conduct – and offers a comparative analysis of its possible solutions, suggesting that a finding of liability for lawful conduct would have been a preferable outcome in both theoretical and substantive terms.
- Topic:
- International Law
- Political Geography:
- United States and Europe
320. The Legal Dimension of the International Community: How Community Interests Are Protected in International Law
- Author:
- Santiago Villalpando
- Publication Date:
- 05-2010
- Content Type:
- Journal Article
- Abstract:
- This article uses the emergence of the protection of community interests in international law as a theoretical framework to explain a number of legal notions and regimes, such as jus cogens, obligations erga omnes, international responsibility towards the international community as a whole, and individual criminal responsibility. With reference to various international conventions, the work of the International Law Commission, and the case law of different international tribunals, it describes how changes in social intercourse at the global level have entailed structural transformations of the international legal order, as well as tensions caused by the concurrent legal protection of community and individual interests. The article further explains how the proposed theoretical framework may be used to address several concrete issues which have arisen in the contemporary legal debate, such as the question of exceptions to the immunity of state officials from foreign criminal jurisdiction, countermeasures by states other than the injured state in international responsibility, the legal regime of jus cogens, etc.
- Topic:
- International Law
321. Symposium: The Human Dimension of International Law: Introduction
- Author:
- Paola Gaeta
- Publication Date:
- 02-2010
- Content Type:
- Journal Article
- Abstract:
- This symposium comprises the contributions presented by five distinguished international lawyers at the European University Institute in Florence in October 2008 on a very special occasion. Antonio Cassese ('Nino' to his friends and colleagues) had recently celebrated his 70th birthday and, as is customary in many European countries, a group of his former students and friends chose this occasion to celebrate his academic and professional career with the publication of a selection of his most important writings on the three branches of public international law he has most influenced – international humanitarian law, international human rights law, and international criminal law. The outcome was a book, The Human Dimension of International Law, published in summer 2008 by Oxford University Press, the intention of which is to shed light on Nino's intellectual approach to these three areas of public international law. The publication of this volume also provided an excellent occasion to convene a small number of friends and colleagues as a token of appreciation and admiration for his many achievements as an international lawyer. As Nino shies away from any personal limelight (indeed, I am certain he will be troubled by these few lines about him), it was decided that this meeting at the …
- Topic:
- International Law
- Political Geography:
- Europe
322. The Position of Individuals in International Law: An ILC Perspective
- Author:
- Giorgio Gaja
- Publication Date:
- 02-2010
- Content Type:
- Journal Article
- Abstract:
- According to the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, any state to which an erga omnes obligation is owed may claim reparation in the interest of an individual who is the victim of an infringement and the beneficiary of the obligation. The ILC Articles on Diplomatic Protection should have specified that also the state of nationality may seek reparation only in the interest of the injured individual when his or her rights have been infringed.
- Topic:
- International Law
323. The Role of the Individual in International Law
- Author:
- Andrew Clapham
- Publication Date:
- 02-2010
- Content Type:
- Journal Article
- Abstract:
- This contribution reminds us that as individuals we play a role in the formation and understanding of international law. After recalling the key steps in the acknowledgement of international rights and obligations for individuals the article goes on to ask if the time has come to acknowledge that individuals can have obligations under international law that go beyond international crimes. In other words might there be international civil law obligations for the individual?
- Topic:
- International Law
324. Some Thoughts about the Optimistic Pessimism of a Good International Lawyer
- Author:
- Luigi Condorelli
- Publication Date:
- 02-2010
- Content Type:
- Journal Article
- Abstract:
- The author presents various critical comments on several developments of international law in fields which have been particularly studied and practised by Antonio Cassese. Some final reflections focus on the question whether international lawyers can realistically cherish feelings of optimism as to the development of international law in a humane direction, or whether instead the study of the past and the present ought not rather to impel one towards disillusioned pessimism.
- Topic:
- Development and International Law
325. Prolegomena to a Class Approach to International Law
- Author:
- B.S. Chimni
- Publication Date:
- 02-2010
- Content Type:
- Journal Article
- Abstract:
- This article offers an introduction to a class approach to international law. It challenges the 'death of class' thesis and argues for the continued relevance of the category of 'class'. Among other things, the contention is that the category of 'class' subsumes without erasing the gender and race divides. Noting the emergence of a global social formation the article claims that a transnational capitalist class is shaping international laws and institutions in the era of globalization. It calls for the linking of the class critique of contemporary laws and institutions with the idea and practices of resistance, and considers in this setting the meaning of internationalism and class struggle today for an emerging transnational oppressed class. The article concludes by schematically outlining the advantages of a class approach to international law.
- Topic:
- Globalization and International Law
326. The Requirement of 'Belonging' under International Humanitarian Law
- Author:
- Katherine Del Mar
- Publication Date:
- 02-2010
- Content Type:
- Journal Article
- Abstract:
- This article argues that the notion of 'belonging to a Party' to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of 'belonging' demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state's behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to 'belong' under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as 'international'. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.
- Topic:
- International Law
- Political Geography:
- Yugoslavia
327. Customary International Law in the 21st Century: Old Challenges and New Debates
- Author:
- Roozbeh (Rudy) B. Baker
- Publication Date:
- 02-2010
- Content Type:
- Journal Article
- Abstract:
- This article will survey the new non-traditional scholarship which has emerged in international law to challenge the two long-established sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer are. The new question, the new debate, will be over what the implications of this shift in the traditional building blocks of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national (domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years the jurisprudence of these international tribunals has, aside from finding its way into customary international law, also begun to seep into the domestic (mainly criminal) law of several countries.
- Topic:
- International Law
328. Conceptualizing the Administration of Territory by International Actors
- Author:
- Lindsey Cameron and Rebecca Everly
- Publication Date:
- 02-2010
- Content Type:
- Journal Article
- Abstract:
- This article reviews five major recent works on the phenomenon of the administration of territory by international actors. Covering both legal and policy elements of the works, it delves into how the scholars treat the purported legitimacy deficit often associated with this activity. It then addresses the authors' approaches to the key international law questions, including the legal status of internationally administered territories, the legal basis for administration, the legal framework governing administrators' acts, and, finally, the accountability of the international actors involved.
- Topic:
- International Law
329. The Interpretation of Treaties – A Re-examination Preface
- Author:
- J.H.H. Weiler
- Publication Date:
- 08-2010
- Content Type:
- Journal Article
- Abstract:
- Several interconnected factors call for a re-examination of treaty interpretation. I will mention only three of many. First is the much noted – and contested – notion of fragmentation of international law. Here the focus is on the emergence of different regimes, self-contained or otherwise, which manage different jurisdictions and confront different materials. One important question which follows is, do they or should they all share a similar hermeneutic?
- Topic:
- International Law
330. A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court
- Author:
- Leena Grover
- Publication Date:
- 08-2010
- Content Type:
- Journal Article
- Abstract:
- This article seeks to initiate a dialogue within international criminal law (ICL) on treaty interpretation. The state of the art is reviewed and three fundamental interpretive dilemmas are identified and analysed. In the author's view, these dilemmas need to be addressed before a method of interpretation for crimes in Articles 6, 7, and 8 of the Rome Statute of the International Criminal Court can be formulated and operationalized. The 'normative dilemma' highlights how the normative tensions underlying ICL might be perpetuated by the interpretive imperatives in Articles 21(3) and 22(2) of the Rome Statute. The 'interpretive aids dilemma' concerns the respective roles of the Elements of Crimes and custom as aids to interpreting crimes in the Rome Statute. The 'inter-temporal dilemma' pertains to whether these crimes are 'frozen' or are to be interpreted in light of relevant and applicable legal developments. Throughout, the aforementioned dilemmas are grafted onto Article 31 of the Vienna Convention on the Law of Treaties to illustrate that they are, at their core, universal problems of interpretation.
- Topic:
- International Law
- Political Geography:
- Vienna
331. Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law
- Author:
- Lucas Lixinski
- Publication Date:
- 08-2010
- Content Type:
- Journal Article
- Abstract:
- The article examines the jurisprudence of the Inter-American Court of Human Rights in several areas of adjudication which initially did not fall under the instrument, such as environmental rights, international humanitarian law, and investors' rights. In all these areas, the Court has used instruments 'foreign' to the Inter-American system as a means to expand the content of rights in the American Convention. As a result, the umbrella of protection of this instrument, and the reach of the Court, is far greater than originally envisaged. After analysing the specific provision on interpretation of the American Convention on Human Rights as compared to the equivalent mechanisms in the Vienna Convention on the Law of Treaties, the article analyses several case studies of expansionism in the case law of the Court, asking throughout the analysis the question whether this helps the unity or the fragmentation of international law. The article argues that this exercise in expansionism, albeit imperfect, eventually contributes to the unity of international law. In this sense, this expansionism happens within controlled boundaries, and the use of external instruments is more of a validation of findings the Court could make based solely on the Inter-American instruments, rarely creating new rights.
- Topic:
- Human Rights and International Law
- Political Geography:
- America and Vienna
332. Litigating against the European Union and Its Member States – Who Responds under the ILC's Draft Articles on International Responsibility of International Organizations?
- Author:
- Frank Hoffmeister
- Publication Date:
- 08-2010
- Content Type:
- Journal Article
- Abstract:
- In its 2009 Draft Articles on international responsibility of international organizations, the International Law Commission advocated a set of rules on attribution of conduct to the organization (Draft Articles 5–8) and additional rules on the organization's responsibility in connection with the Act of a State (Draft Articles 13–18). Moreover, it included a Draft Article 63 on lex specialis. The present article examines whether such a special rule exists for the European Union and its Member States, in particular with respect to the attribution of conduct of EU Member States to the Union where they act in the execution of EU law. It therefore reviews international case law in the field of trade, human rights, investment protection, and the law of the sea as well as the special rules of the European Union itself. The author concludes that such a rule does indeed exist and makes a suggestion for a formulation thereof.
- Topic:
- International Law
333. The Potential Value of the Adoption of an Aristotelian-Centred Communitarian Vocabulary: Facilitating a Character Turn
- Author:
- Casper Hendrik Claassen
- Publication Date:
- 09-2010
- Content Type:
- Journal Article
- Journal:
- Alternatives: Turkish Journal of International Relations
- Institution:
- Center for International Conflict Resolution at Yalova University
- Abstract:
- This article sought to encourage the adoption of novel ethical approaches at the interstice between political and international relations (IR) theory, and character-based approaches in particular. It was argued that though the Fourth Debate has encouraged debate about the ethics of IR theory, surprisingly, character-based approaches have not been discussed, with communitarian and cosmopolitan performative ethics maintaining a conceptual hegemony. The concept of Jus in Bello was nominated for deconstruction since it has traditionally been understood cosmopolitan or communitarian manner based on performative ethic. An Aristotelian vocabulary was adopted in order to deconstruct the concept of Jus in Bello, with Jonathan Haidt's moral psychology, Lawrence Kohlberg's moral development psychology, Immanuel Kant's ethics, and social contract theory all being used to supplement the nominated Aristotelian reading of Jus in Bello. It was concluded that an Aristotelian reading of Jus in Bello is a viable alternative to and hence an Aristotelian vocabulary could be adopted when attempting to understand certain concepts and phenomena at the interstice between political and IR theory.
- Topic:
- International Law
334. "Traditional Gap" in the ICJ's Advisory Opinion on Kosovo
- Author:
- Mushfig Mammadov
- Publication Date:
- 09-2010
- Content Type:
- Journal Article
- Journal:
- The Caucasian Review of International Affairs
- Institution:
- The Caucasian Review of International Affairs
- Abstract:
- On February 17, 2008 Kosovo, hitherto the internationally recognized territory of Serbia, unilaterally declared its independence. Three of the five permanent members of the UN Security Council (the USA, UK and France) immediately recognized the independence of Kosovo, while the other two, Russia and China, sharply criticized Kosovo's step and have thus far refused to recognize Kosovo as an independent state. In October 2008 the UN General Assembly requested the International Court of Justice (ICJ), upon the initiative of Serbia, to render an advisory opinion with regard to whether the unilateral declaration of independence adopted by the provisional institutions of Kosovo was in accordance with international law. In its non-binding advisory opinion, delivered on July 22, 2010 the Court stated that the unilateral declaration of independence of Kosovo did not violate international law. Nonetheless, this conclusion is not so clear and simple as it at first might seem, nor so “dangerous”, as it was described in the media and in some reactions, especially upon a closer reading of the entire text of the advisory opinion.
- Topic:
- International Law
- Political Geography:
- Russia, China, Kosovo, United Nations, and Serbia
335. Kattan: From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949
- Author:
- Diana Buttu
- Publication Date:
- 09-2010
- Content Type:
- Journal Article
- Journal:
- Journal of Palestine Studies
- Institution:
- Institute for Palestine Studies
- Abstract:
- From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Confict, 1891–1949, by Victor Kattan with foreword by Richard Falk. New York and London: Pluto Press, 2009. ix + 261 pages. References to p. 367. Select bibliography to p. 387. List of individuals to p. 395. Glossary to p. 402. Index to p. 416. $54.95 paper; $149.50 cloth.
- Topic:
- International Law
- Political Geography:
- New York and Arabia
336. "Genocide: A Normative Account" by Larry May
- Author:
- Roger Smith
- Publication Date:
- 10-2010
- Content Type:
- Journal Article
- Abstract:
- This new book from Larry May is not a study of genocide, but rather an attempt to draw attention to the conceptual and practical difficulties and ''puzzles'' of conceptualizing and prosecuting genocide under international law. May also argues for expanding the list of groups that are protected under international law against genocide to include gender, culture, and language in addition to race, ethnicity, religion, and national origin. The book's central thesis, however, is that genocide is not ''the crime of crimes,'' and that it differs little from various crimes against humanity. May reminds us that under international law genocide does not necessarily even involve killing, and he goes on to ask why it should be regarded as worse than other crimes committed systematically against civilians. Since genocide is about the destruction of groups, not individuals, what is special about groups, and what is the ''unique harm'' that genocide involves as a result of the destruction of a group?
- Topic:
- International Law
- Political Geography:
- United States and America
337. Defending the Emergence of the Superior Orders Defense in the Contemporary Context
- Author:
- Jessica Liang
- Publication Date:
- 12-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The defense of superior orders is one of the most controversial defenses to be pleaded under criminal law. In effect, it condones ignorance of the law and allows a subordinate to escape criminal liability on a basis other than culpability. It may therefore come as a surprise that sixty years after the Nuremberg and Tokyo trials, the resort to superior orders has re-emerged as a complete defense for certain types of crimes. I argue that this defense is based on sound policy reasons of military necessity, and should be made available on the condition that the order is not 'manifestly illegal'. In contrast to blunt absolutist approaches, the manifest illegality doctrine presents the most workable test for distinguishing between the culpability of conduct committed by soldiers in circumstances of exigency. This 'middle-way' successfully balances the dichotomous ends of legality and military efficiency and should be the preferred test under international law.
- Topic:
- International Law
- Political Geography:
- Tokyo
338. The Post 9/11 Discourse Revisited - Self-Image on the International Legal Scietific Discipline
- Author:
- Ulf Linderfalk
- Publication Date:
- 12-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- A few years ago, the legality of Operation Enduring Freedom (OEF) was a topic much discussed in the international legal literature. This article approaches the problem from a new angle. Rather than investigating the relevant issue of legal substance – whether or not OEF was ever consistent with international law – the article focuses attention on the general scholarly performance in dealing with this issue. Scrutinizing the literature published immediately following upon the events of 11 September 2001, the author suggests that overall, the scholarly debate on the legality of OEF did not live up to the standards normally applied in serious legal analysis, and that hence, the debate should be characterized as poor science. The article presents this criticism in further detail. With said criticism as a basis, in a concluding part of this article, the author takes the investigation one step further. As he suggests, when scholars engaged in the post-9/11 discourse, there was something about the whole situation that greatly constrained them. They were obviously hesitant to conclude that in circumstances like those of 9/11, there would still not be any right of self-defense to exercise. So much did they hesitate that they thought the opposite conclusion worth the prize of far-reaching infringements of the most basic of scientific quality standards. Why this hesitation, the article asks. What force or forces are compelling international legal scientists? As the author suggests, this question bears directly on the particular self-image of the legal scientific discipline and the role it envisages for itself in the international community. He concludes the article by initiating a discussion on this very delicate issue specifically, introducing for this purpose a description of the international legal scientist as archetype.
- Topic:
- International Law
339. Humanitarian Action – A Scope for the Responsibility to Protect: Part II: Responsibility to Protect – A Legal Device Ready for Use?
- Author:
- Marie-José Domestici-Met
- Publication Date:
- 12-2010
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Throughout three issues of the Goettingen Journal of International Law we are trying and answering the same question: with the recognition of responsibility to protect, is humanitarian action at last guaranteed? Will this concept avoid some avoidable deaths and lack of rescue? Our first issue was devoted to the long quest for a legal regime in favor of humanitarian action effective delivery. After a step by step review of the many solutions which have been tried, the paper ended with the “discovery” of physical protection. After mentioning the Kosovo (and Serbia) air strikes and the 3rd millennium UN field missions, the paper ended with a worrying assessment: no device over the past 150 years has succeeded in guarantying neither assistance' provision nor protection. And we raised the issue of responsibility to protect (R to P) as a possible help to solution. Our today's paper goes down this way.
- Topic:
- International Law
- Political Geography:
- Kosovo and Serbia
340. Immunities of State Officials, International Crimes, and Foreign Domestic Courts
- Author:
- Dapo Akande and Sangeeta Shah
- Publication Date:
- 11-2010
- Content Type:
- Journal Article
- Abstract:
- This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.
- Topic:
- Government and International Law
- Political Geography:
- America
341. The Concept of International Law in the Jurisprudence of H.L.A. Hart
- Author:
- Mehrdad Payandeh
- Publication Date:
- 11-2010
- Content Type:
- Journal Article
- Abstract:
- This article analyses H.L.A. Hart's concept of international law from the perspective of anaytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart's view that international law is 'law' but not a 'legal system'. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart's general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart's methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart's analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.
- Topic:
- International Law
342. On Holism, Pluralism, and Democracy: Approaches to Constitutionalism beyond the State
- Author:
- Thomas Kleinlein
- Publication Date:
- 11-2010
- Content Type:
- Journal Article
- Abstract:
- The idea of a 'constitutionalization' of international law and international institutions owes much to a long tradition of idealistic international law scholarship. It gained momentum with the end of the Cold War, only to be frustrated some years later. US hegemonic tendencies after 9/11, the unauthorized invasion of Iraq in 2003, and the impasse of the Doha Development Round in the WTO are only some of the factors demonstrating that the dissolution of the Eastern Bloc had not signalled the end of history. These setbacks, however, did not render the academic discourse on 'constitutionalization' of global governance silent, and there is now a burgeoning literature on the subject. Recently, three books have stimulated the discussion: Ruling the World?, edited by Jeffery L. Dunoff and Joel P. Trachtman, and the two books under review.
- Topic:
- Cold War and International Law
- Political Geography:
- United States
343. Reinforcing the (neo-)Hobbesian representations of international law
- Author:
- Jean d'Aspremont
- Publication Date:
- 03-2010
- Content Type:
- Journal Article
- Journal:
- Journal of International Relations and Development
- Institution:
- Central and East European International Studies Association
- Abstract:
- The question of the foundations of the international legal order has long fuelled controversies. The mainstream international legal scholarship, dominated by liberal and constitutionalist discourses, has advocated an understanding of international law that rests on global values. This article examines the work of a few Eastern European scholars with a view to demonstrating that the mainstream liberal and constitutionalist value-based conceptions of the international legal order have not been uncontested. In doing so, this article draws on the resemblances between Eastern European and Asian legal scholarships in their attempts to question the hegemonic and imperialistic overtones of an ever-growing international law.
- Topic:
- International Law
- Political Geography:
- Eastern Europe and Asia
344. Updating the Commander's Toolbox: New Tools for Operationalizing the Law of Armed Conflict
- Author:
- Laurie R. Blank and Amos N. Guiora
- Publication Date:
- 06-2010
- Content Type:
- Journal Article
- Journal:
- PRISM
- Institution:
- Institute for National Strategic Studies (INSS), National Defense University
- Abstract:
- Gone are the days of soldiers facing off across large battle fields, tanks shelling tanks, and fighter jets engaging in dog fights. Armed conflict now takes place everywhere -in cities, refugee camps, and other historically nonmilitary areas-and involves or impacts nearly everyone in the area. The law of armed conflict (LOAC)-codified in times of more traditional state-state conflicts-must now adapt to these new and in infinitely more complicated conflicts, which we call new warfare . More important, we need to recategorize the ever-expanding variety of individuals who now participate in and are affected by hostilities, posing great challenges to the implementation of LOAC on the ground.
- Topic:
- International Law
- Political Geography:
- Afghanistan
345. Soykırım Suçu ve Devletin Sorumluluğu: Uluslararası Adalet Divanı'nın Bosna-Hersek v. Sırbistan-Karadağ Kararı
- Author:
- Ozan Değer
- Publication Date:
- 09-2009
- Content Type:
- Journal Article
- Journal:
- Uluslararasi Iliskiler
- Institution:
- Uluslararasi Iliskiler
- Abstract:
- Genocide, as an act and a violation of law, place at the top of the hierarchy of crimes and is qualified as crime of crimes. Essentially, being evaluated within the frame of international law, this crime gradually has been come within the scope of the national law. Either the conception or the crime of genocide was composed because of the massacres executed during the WWII, mainly. The basic legal arrangement about the crime was passed at 9 December 1948 and come into effect at 12 January 1951 named United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Convention is obliged the states on the prevention and the punishment of the crime of genocide. Since international criminal courts/tribunals are restricted by the principle of individual criminal responsibility and the Convention incurs the obligation on states, the violation of the Convention causes the responsibility of states. This article, under the light of the conceptional and legal frame, discusses the obligations and responsibilities incur by the Convention and the dramatic judgment of the ICJ, in short, the place and situation of crime of genocide and state responsibility at the legal texts and international jurisprudences.
- Topic:
- Genocide and International Law
- Political Geography:
- Global Focus
346. Second Thoughts on the Crime of Aggression
- Author:
- Andreas Paulus
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
- Topic:
- International Law
347. Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus
- Author:
- Claus Kreß
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
- Topic:
- International Law
348. Aggression, Legitimacy and the International Criminal Court
- Author:
- Sean D. Murphy
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- The late Thomas Franck postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors, notably whether the norm or institutional process was validated through commonly accepted means, whether it was clearly understood by those upon whom it operated, whether it cohered with other norms and institutions, and whether it was well-grounded in secondary rules of international law concerning law formation. This article argues that the proposed draft amendment to the Rome Statute on the crime of aggression does not fare well under these criteria, casting into doubt the long-term prospects for the legitimacy of the definition of the crime and of the institutional structures charged with administering it. Choices made at the ICC Review Conference in 2010 to finalize an amendment to the Rome Statute may help alleviate or aggravate these concerns.
- Topic:
- International Law
349. Raphael Lemkin: A Tribute
- Author:
- Sergey Sayapin
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- This short article honours Professor Raphael Lemkin (1900–1959), author of the term 'genocide' and initiator of the Convention for the Prevention and Punishment of the Crime of Genocide, on the occasion of the 50th anniversary of his death. The article provides a brief overview of his career in international law and highlights Professor Lemkin's key ideas which shaped the Genocide Convention.
- Topic:
- International Law
350. Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law
- Author:
- Ana Filipa Vrdoljak
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- 2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
- Topic:
- International Law and United Nations
- Political Geography:
- Europe