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352. "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
353. 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
354. 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
355. 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
356. 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
357. 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
358. 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
359. 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
360. 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
361. 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
362. Categorizing Groups, Categorizing States: Theorizing Minority Rights in a World of Deep Diversity
- Author:
- Will Kymlicka
- Publication Date:
- 12-2009
- Content Type:
- Journal Article
- Abstract:
- Since 1989 we have witnessed a proliferation of efforts to develop international norms of the rights of ethnocultural minorities, such as the UN's 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the Council of Europe's 1995 Framework Convention for the Protection of National Minorities, and the Organization of American States' 1997 draft Declaration on the Rights of Indigenous Peoples. This activity at the level of international law is reflected in a comparable explosion of interest in minority rights among normative political theorists. In the same twenty-year period we have seen a proliferation of attempts at formulating a normative theory of minority rights and examining how minority rights relate to broader political values (such as freedom, equality, democracy, and citizenship) and broader normative frameworks (such as liberalism, communitarianism, and republicanism). Key works here include those by Charles Taylor, Jim Tully, Iris Young, Jeff Spinner-Halev, Bhikhu Parekh, Yael Tamir, Joseph Carens, Susan Okin, and Anne Phillips—a rich literature that has informed and inspired my own work in the field.
- Topic:
- International Law
- Political Geography:
- United States, America, and Europe
363. Justice and the Convention on Biological Diversity
- Author:
- Doris Schroeder and Thomas Pogge
- Publication Date:
- 09-2009
- Content Type:
- Journal Article
- Abstract:
- Benefit sharing as envisaged by the 1992 Convention on Biological Diversity (CBD) is a relatively new idea in international law. Within the context of non-human biological resources, it aims to guarantee the conservation of biodiversity and its sustainable use by ensuring that its custodians are adequately rewarded for its preservation. Prior to the adoption of the CBD, access to biological resources was frequently regarded as a free-for-all. Bioprospectors were able to take resources out of their natural habitat and develop commercial products without sharing benefits with states or local communities. This paper asks how CBD-style benefit-sharing fits into debates of justice. It is argued that the CBD is an example of a set of social rules designed to increase social utility. It is also argued that a common heritage of humankind principle with inbuilt benefit-sharing mechanisms would be preferable to assigning bureaucratic property rights to non-human biological resources. However, as long as the international economic order is characterized by serious distributive injustices, as reflected in the enormous poverty-related death toll in developing countries, any morally acceptable means toward redressing the balance in favor of the disadvantaged has to be welcomed. By legislating for a system of justice-in-exchange covering nonhuman biological resources in preference to a free-for-all situation, the CBD provides a small step forward in redressing the distributive justice balance. It therefore presents just legislation sensitive to the international relations context in the 21st century.
- Topic:
- Economics and International Law
364. The Myth of "Torture Lite"
- Author:
- Jessica Wolfendale
- Publication Date:
- 03-2009
- Content Type:
- Journal Article
- Abstract:
- Although the term "torture lite" is frequently used to distinguish between physically mutilating torture and certain interrogation methods that are supposedly less severe, the distinction is not recognized in international law.
- Topic:
- International Law
- Political Geography:
- United States
365. Non-Military Organizations Should Lead on "Nation Building"
- Author:
- Courtney N. Meyers
- Publication Date:
- 01-2009
- Content Type:
- Journal Article
- Journal:
- European Affairs
- Institution:
- The European Institute
- Abstract:
- Timed for the Obama administration's Pentagon, this RAND study says government leaders should take more account of the lessons learned from people "on the ground" in recent successful (and unsuccessful) ventures in state-rebuilding. Best practice means strong local command (involving the military under civilian leadership) which is heeded in national capitals.
- Topic:
- International Law and United Nations
- Political Geography:
- United States and America
366. Implications of Kosovo, Abkhazia and South Ossetia for International Law: The Conduct of the Community of States in Current Secession Conflicts
- Author:
- Heiko Krueger
- Publication Date:
- 04-2009
- Content Type:
- Journal Article
- Journal:
- The Caucasian Review of International Affairs
- Institution:
- The Caucasian Review of International Affairs
- Abstract:
- The objective of this article is to examine whether the current conduct of the community of states in the cases of Kosovo, Abkhazia and South Ossetia has any implications on international law. This question arises particularly in the case of Kosovo, since many states have recognised its separation from Serbia. Can the conduct of the community of states be used as a legal precedent by other groups seeking separation, e.g. in Azerbaijan, China, Georgia, Moldova, Spain or Ukraine? What if more states were to recognise Kosovo in the future? The focus of this paper will be to consider the implications of the conduct of the community of states on the interpretation of international treaties and customary international law. In this respect, the conduct of states in the cases of Abkhazia and South Ossetia in August 2008 will also be taken into account.
- Topic:
- International Law
- Political Geography:
- China, Ukraine, Moldova, Kosovo, Azerbaijan, Serbia, Georgia, Spain, South Ossetia, and Abkhazia
367. "Handbook of International Humanitarian Law"
- Author:
- Pierre-Emmanuel Dupont
- Publication Date:
- 04-2009
- Content Type:
- Journal Article
- Journal:
- The Caucasian Review of International Affairs
- Institution:
- The Caucasian Review of International Affairs
- Abstract:
- In the Handbook\'s Introduction, Dieter Fleck mentions that the first edition, published in German in 19941, was built upon the German Armed Forces\'s (Bundeswehr) Manual of international humanitarian law (IHL), an account of Germany\'s long-standing involvement in the implementation of IHL2. Yet the present edition, \'no longer connected to a single national manual, […] aims at offering a best practice manual to assist scholars and practitioners worldwide\' (p. xiv).
- Topic:
- International Law
- Political Geography:
- Germany
368. 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
369. 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
370. 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
371. 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
372. 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
373. 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
374. Alexander Orakhelashvili. The Interpretation of Acts and Rules in Public International Law
- Author:
- Jörg Kammerhofer
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- Dr Orakhelashvili, currently lecturer in law at the University of Birmingham Law School, is a prodigious writer as well as a very conscientious and thorough scholar. His latest book on interpretation in international law shows precision in scholarship and a comprehensive grasp of the subject. It comes at a time when the process of interpretation is little understood, yet often talked about by scholars, practitioners, and tribunals alike. Despite the large amount of literature already published on the topic – the bibliography printed in Orakhelashvili\'s book (at 585–591) is just the tip of the iceberg – and regardless of the countless dicta of various international tribunals, a new and fresh look at this central nexus between international legal practice and theory is highly welcome.
- Topic:
- International Law
375. The Use of Force against Terrorists
- Author:
- Christian J. Tams
- Publication Date:
- 04-2009
- Content Type:
- Journal Article
- Abstract:
- Whether states can use force against terrorists based in another country is much discussed. The relevant provisions of the UN Charter do not provide a conclusive answer, but have to be interpreted. The present article suggests that in the course of the last two decades, the Charter regime has been re-adjusted, so as to permit forcible responses to terrorism under more lenient conditions. In order to illustrate developments, it juxtaposes international law as of 1989 to the present state of the law. It argues that the restrictive approach to anti-terrorist force obtaining 20 years ago has come under strain. As far as collective responses are concerned, it is no longer disputed that the Security Council could authorize the use of force against terrorists; however, it has so far refrained from doing so. More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.
- Topic:
- Security, Development, International Law, Terrorism, and United Nations
376. Passions et ambivalences. Le colonialisme, le nationalisme et le droit international
- Author:
- Barbara Delcourt
- Publication Date:
- 04-2009
- Content Type:
- Journal Article
- Abstract:
- This book is the second of a new collection called 'doctrine(s)', edited by Emmanuelle Jouannet (Professor of International Law at Paris I and Deputy Director of the Centre d'étude et de recherche en droit international/ CERDIN). The first one was dedicated to Martti Koskenniemi's works. This second volume brings together seminal articles, by Nathaniel Berman and translated from English, which deserve, without a doubt, to be presented to a French speaking public under this label 'doctrine'. All articles are underpinned by a consistent line of thought which is epitomized in Emmanuelle Jouannet's presentation. Far from being a mere description of the content of Berman's articles, or a kind of hagiographic introduction, her presentation contains elements of explanation, be they personal or more linked to the academic or political environment, which prove to be very useful in order fully to grasp the richness and the complexity of his analyses. Indeed, Nathaniel Berman can hardly be classified into ready-made categories of legal doctrines. Being inspired by different disciplines, among others history and psychoanalysis, he offers a truly original perspective on colonialism and nationalism which sheds light on international law and, more precisely, on the conditions under which these political phenomena have been tackled by case law, diplomats, and legal scholars.
- Topic:
- International Law
377. Targeted Killing in International Law
- Author:
- William Abresch
- Publication Date:
- 04-2009
- Content Type:
- Journal Article
- Abstract:
- Studies of targeted killing are often situated within the politically fraught debate over Hellfi re missile attacks on suspected terrorists. The scope of Melzer's analysis is, then, refreshingly broad, covering equally sniper shots used to end hostage stand-offs, poison letters sent to insurgent commanders, and commando raids launched with orders to liquidate opponents. These diverse practices are marked off from other uses of lethal force by states, such as soldiers shooting in a firefight, with a precise and intuitively satisfying definition. Melzer defines targeted killing as a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that 'the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims').
- Topic:
- International Law
378. Culture and International Law
- Author:
- Stephan Sberro
- Publication Date:
- 04-2009
- Content Type:
- Journal Article
- Abstract:
- Although not often explicitly mentioned, culture is always at the centre of law and politics. Furthermore, it is certainly a study area which is steadily growing in international relations too. Thus any book which aims to help academics and practitioners to clarify the meaning, importance, and implications of culture in social sciences should be welcomed. Paul Meerts' Culture and International Law, based on the annual Conference of the Hague Academic Coalition held on 16 and 17 April 2007 in The Hague, is such a book.
- Topic:
- International Relations, International Law, and Politics
379. Principles of International Investment Law
- Author:
- Stephan W. Schill
- Publication Date:
- 04-2009
- Content Type:
- Journal Article
- Abstract:
- International investment law is one of the fastest-growing areas of international law today. Only a decade ago, the current surge in investor – state arbitrations, having cumulated in approximately 300 investment treaty disputes, was beyond imagination. At the same time, investment treaties enshrine principles of international investment law, rather than hard and fast rules. Almost unavoidably, international investment law therefore became coined more by the dispute settlement activities of arbitral tribunals which entertain claims between foreign investors and host states brought under investment treaties rather than by diplomatic exchange, intergovernmental negotiation, and inter-state treaty-making. Similarly, international investment law transpires and develops more in view of arbitral precedent and case law than on the basis of traditional textual approaches to treaty interpretation. Nonetheless, applying investment treaties in practice as well as studying and understanding the field not only requires knowledge about the jurisprudential developments but also demands awareness of the historic, economic, and customary international law context of foreign investment activities.
- Topic:
- International Law
380. National Courts, Domestic Democracy, and the Evolution of International Law
- Author:
- Eyal Benvenisti and George W. Downs
- Publication Date:
- 02-2009
- Content Type:
- Journal Article
- Abstract:
- National courts are gradually abandoning their traditional policy of deference to their executive branches in the fi eld of foreign policy and beginning more aggressively to engage in the interpretation and application of international law. This change has been precipitated by the recognition of courts in democratic states that continued passivity in the face of a rapidly expanding international regulatory apparatus raises constitutionally-related concerns about excessive executive power and risks further erosion in the effective scope of judicial review. To avoid this, national courts have begun to exploit the expanding scope and fragmented character of international regulation to create opportunities to act collectively by engaging in a loose form of inter-judicial co-ordination. Such collective action increases their ability to resist external pressures on their respective governments, and reduces the likelihood that any particular court or country that it represents will be singled out and punished as an outlier by either domestic or foreign actors. Should this strategy continue to be refi ned and developed, it holds out the promise of enabling national courts not only to safeguard their role domestically but to function as full partners with international courts in creating a more coherent international regulatory apparatus.
- Topic:
- Foreign Policy and International Law
381. No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary
- Author:
- Yuval Shany
- Publication Date:
- 02-2009
- Content Type:
- Journal Article
- Abstract:
- The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international dispute settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and nonstate parties, and the growing inclination of national courts to apply international law. Arguably, these developments point to the emergence of a new judiciary the operation of which is governed by a new ethos (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution). The article then moves on to discuss some of the 'blind spots' of the present judicial institutional landscape, which includes a consideration of the remaining difficulties associated with addressing politically-charged conflicts before international courts (especially those relating to war and terror), and problems relating to the enforcement of judicial orders and judgments. While national courts can, in theory, fill some of these remaining gaps, their actual ability to do so remains unclear. In addition, the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: co-ordination problems, and concerns relating to the effectiveness and legitimacy of international adjudication.
- Topic:
- International Law
- Political Geography:
- Middle East
382. La jurisprudence de la Cour Internationale de Justice
- Author:
- Karin Oellers-Frahm
- Publication Date:
- 02-2009
- Content Type:
- Journal Article
- Abstract:
- The jurisprudence of the International Court of Justice gains more and more importance, in particular because not only are so-called 'secondary' cases, that is cases of alleged secondary importance such as delimitation of land or maritime boundaries cases, brought before it, but also rather sensitive and highly political cases involving questions of use of force and self-defence. Furthermore, the Court is seised of cases involving states of all parts of the world, which also marks a positive development compared to its early times. Therefore, the jurisprudence of the ICJ plays a predominant role in all domains of international law and is of concern not only to those involved in international law, international relations, or international organizations, but also to national lawyers and politicians. The idea, therefore, of providing the international community with a publication that gives an overview of the jurisprudence of the ICJ (and thus allows easy access to its case law) is to be welcomed.
- Topic:
- International Relations, International Law, and International Organization
383. Moving Beyond Markets and Minimalism: Democracy in the Era of Globalization
- Author:
- Richard Burchill
- Publication Date:
- 01-2008
- Content Type:
- Journal Article
- Journal:
- Human Rights and Human Welfare - Review Essays
- Institution:
- Josef Korbel Graduate School of International Studies, University of Denver
- Abstract:
- When the term globalization comes up in general conversation, the press or academic writing, it is given a range of meanings and is either loathed or celebrated. Globalization is subject to a variety of interpretations and descriptions. Debates about its merits or shortcomings are often muddled, as it is never clear if the antagonists are talking about the same thing at the same time. Globalization, in a broad sense, refers to “the expanding scale, growing magnitude, speeding up and deepening impact of transcontinental flows and patterns of social interaction” (Held and McGrew 2002: 1). While globalization describes a whole range of human activity, its main thrust and orientation has come to be associated with global economic activity that is in turn heavily influenced by, if not synonymous with, neoliberal ideology.
- Topic:
- Democratization, Globalization, International Law, and Markets
384. The Crime of Genocide in Internatioanal Law and Underlying Social Structures of the Crime: Rwanda Case
- Author:
- Ebru Çoban
- Publication Date:
- 03-2008
- Content Type:
- Journal Article
- Institution:
- Uluslararasi Iliskiler
- Abstract:
- Genocide is a crime which is defined under internatioanal law in the twentieth century and could not come about without the ideological, bureaucratic power of a modern state with is sanctions and modern discources on identities and modern classifications. With a non-modern Picture but with modern techniques of governing Rwanda was a place that genocidal killings occured and is a place of a breaking case for modern theories. Rwanda has modern state characteristics in terms of monopoly of use of violence, giving orders and providing obidience of its people, surveillance, classification and registration of its people, and keeping discourses. Morever, Rwandan culture that gives great importance to obidence and Rwandan geography that is so suitable to surveillance become additional factors. In that sense, Rwandan government could influence to daily life of the people even to the smallest details of anyone. All factors provided a suitable bas efor the crime of genocide.
- Topic:
- Genocide, Government, and International Law
- Political Geography:
- Africa and Rwanda
385. Fugitive Serbian War Criminals and the West
- Author:
- François Clemenceau
- Publication Date:
- 01-2008
- Content Type:
- Journal Article
- Journal:
- European Affairs
- Institution:
- The European Institute
- Abstract:
- The two main Serbian war criminals have been protected by the diplomatic goals of the main powers, which were courting Serbia. Europeans wanted to see Belgrade join the EU; Russia wanted to preserve a Slavic bloc; the U.S. deferred to Moscow. Justice lost out, according to this book, yet to be translated into English.
- Topic:
- International Law, International Organization, War, and International Security
- Political Geography:
- Russia, United States, Europe, Moscow, and Serbia
386. The Concept of Appeal in International Dispute Settlement
- Author:
- Noemi Gal-Or
- Publication Date:
- 02-2008
- Content Type:
- Journal Article
- Abstract:
- The WTO Appellate Body represents an innovation in international law in that an international adjudication authority now operates as a final instance to hear appeals arising from international arbitral (panel) procedures. It is thereby strongly emulating domestic appellate courts without, however, possessing the characteristics that make appellate courts the institutions of justice that they are. Following this trend in a cutting-edge fashion are several other inter-governmental arrangements that had been either concluded (Central America Free Trade Agreement (CAFTA), the Olivos Protocol in the Southern Common Market (Mercosur)) or proposed (the US Congresses' 2002 Trade Promotion Authority Act, the ICSID Discussion Paper of 22 October 2004, the third draft Free Trade Area for the Americas). They embrace the concept of a permanent international instance for appeal from arbitral awards, particularly regarding investment agreements including also disputes arising between the state (public) and the individual legal person (private).
- Topic:
- International Law and World Trade Organization
- Political Geography:
- America
387. The History of International Legal Theory in Russia: a Civilizational Dialogue with Europe
- Author:
- Lauri Mälksoo
- Publication Date:
- 02-2008
- Content Type:
- Journal Article
- Abstract:
- This review essay examines the main breaks and continuities in the history of international legal theory in Russia. In particular, it draws on works by leading Russian international law scholars: Peter Pavlovich Shafirov (1670-1739), Fyodor Fyodorovich Martens (1845-1909), Baron Mikhail Taube (1869-1956), Vladimir Emmanuilovich Hrabar (1865-1956), Fyodor Ivanovich Kozhevnikov (1893-1998) and Grigori Ivanovich Tunkin (1906-1993). The reception of these theoreticians' works in today's Russia is also examined. The history of the discipline in Russia opens itself up as a civilizational dialogue with (Western) Europe. The main questions have been: Is international law universal or fragmented; what is the progressive force in international law? The Russian theory of international law has moved from proving that 'we too are civilized/European' in the early 18th century to an aspiration towards Western European civilization in the 18th and 19th centuries to the break with the West and an affirmation of Russia's own distinctiveness and primacy in the 20th century. Those who hurriedly celebrated Russia's reunion with Europe (and Western liberal theory of international law) following the end of the Cold War should not lose sight of the longer historical perspective and especially the experiment of the 'civilizing'/Europeanizing/liberalizing project in 19th century Russian and Baltic German international law scholarship.
- Topic:
- Cold War and International Law
- Political Geography:
- Russia and Europe
388. The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity – Elements of a Beautiful Friendship
- Author:
- Armin Von Bogdandy
- Publication Date:
- 04-2008
- Content Type:
- Journal Article
- Abstract:
- Cultural diversity is an important political and legal topos in the European Union. At the same time, the concern for cultural diversity gives reason for grave reservations towards the Union. This article intends to assist, on the basis of international law, in distinguishing appearance and reality. The Union will be analysed first as a situation of the application of the international law of cultural diversity, secondly as the regional executive of this international law, and thirdly as its global promoter. It shows that international law and Union law reinforce each other. The former conveys to the Union instruments to pursue European unification which at the same time serve its own implementation. Furthermore, it does not set limits to European unity since it protects only cultural pluralism but not state-supporting distinctiveness. A prerequisite for this consonance is that the Union's constitutional law allows for political unity without cultural unity and that international law remains mute about important questions on European unification. The international law perspective thus does not fully exhaust the problem: conformity with international law alone cannot dissipate concern for the future of cultural diversity in the Union.
- Topic:
- International Law and Culture
- Political Geography:
- Europe
389. The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System
- Author:
- Moshe Hirsch
- Publication Date:
- 04-2008
- Content Type:
- Journal Article
- Abstract:
- International economic law (IEL) is influenced by diverse theoretical approaches. This article emphasizes that international economic activity is a social phenomenon and international trade should also be conceived as a specific type of social interaction. The scarcity of sociological analysis in contemporary IEL literature does not diminish the influence of social factors that are active in the under-explored layer of the international economic arena. Sociological analysis may recast well-known dilemmas in a different manner and generate insights regarding better legal mechanisms for coping with modern challenges faced by IEL. These properties of sociological analysis are illustrated in this article, which addresses one of the most challenging dilemmas in current IEL literature: the relationship between the World Trade Organization (WTO) and regional trade agreements (RTAs). The underlying argument of this article is that the economic dimension of RTAs is overlaid with a sociological dimension. Consequently, the global/regional debate is analysed with new conceptual tools: sociological theories, mainly the structural-functional perspective, the symbolic-interactionist approach, and the social conflict perspective. The core sociological theories lead to different conceptions of IEL and different interpretations of existing WTO legal provisions regarding RTAs. This article argues that while each of the above sociological approaches underscores certain significant aspects of the global/regional debate, the symbolic-interactionist perspective should generally serve as a point of departure for law- and policy-making in this sphere. This approach suggests that the relevant WTO legal rules should be interpreted in a liberal manner.
- Topic:
- Economics, International Law, and World Trade Organization
390. Carving up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface
- Author:
- Thomas Schultz
- Publication Date:
- 09-2008
- Content Type:
- Journal Article
- Abstract:
- The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.
- Topic:
- International Law
391. Healing the Enlightenment Rift: Rationality, Spirituality and Shared Waters
- Author:
- Aaron T. Wolf
- Publication Date:
- 10-2008
- Content Type:
- Journal Article
- Journal:
- Journal of International Affairs
- Institution:
- School of International and Public Affairs, Columbia University
- Abstract:
- Water management, by definition, is conflict management. Water, unlike other scarce, consumable resources, is used to fuel all facets of society, from biologies to economies to aesthetics to spiritual practice. Moreover, it fluctuates wildly in space and time, its management is usually fragmented and it is often subject to vague, arcane and/or contradictory legal principles. As such, there is no such thing as managing water for a single purpose—all water management is multi-objective and based on navigating competing interests. Within a nation, these interests include domestic users, agriculturalists, hydropower generators, recreators and environmentalists. Any two of the interests are regularly at odds, and the complexity of finding mutually acceptable solutions increases exponentially as more stakeholders are involved. Add international boundaries, and the difficulty grows substantially yet again.
- Topic:
- Health and International Law
- Political Geography:
- Pakistan, India, and Israel
392. The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law
- Author:
- Jochen von Bernstorff
- Publication Date:
- 11-2008
- Content Type:
- Journal Article
- Abstract:
- The article explores the genesis of the Universal Declaration of Human Rights and the turn to rights in international law. To this end, it focuses on how international lawyers have received the Declaration in their contemporary doctrinal and political contexts. The fact that the political and moral importance of the Declaration from the very beginning outweighed its concrete legal significance invited intriguing scholarly reflections on the symbolic dimension of the document. Despite early sceptical voices about its legal and moral value, international lawyers welcomed and reaffirmed its significance during the 1960s and 1970s. While attention turned to human rights treaty law in the 1980s, the Declaration embodied the hope for a new era of human rights protection after the end of the Cold War. Throughout the 1990s a new scholarly defence of the universal character of the Declaration could be observed, later being accompanied by new insecurity and soul-searching in the face of institutional limitations. In general, the Declaration became synonymous with the turn to individual rights in international law, and whenever there was a sense of crisis because of institutional blockades or challenged foundations, the Declaration received new and increased attention. It symbolized unity in an increasingly fragmented and contentious institutional and political environment for international human rights protection. The story of its scholarly reception is therefore also a story of the failed and perhaps unattainable attempt fully to institutionalize international human rights in a cosmopolitan legal order.
- Topic:
- Cold War, Environment, Human Rights, and International Law
393. Softness in International Law: A Self-Serving Quest for New Legal Materials
- Author:
- Jean d'Aspremont
- Publication Date:
- 11-2008
- Content Type:
- Journal Article
- Abstract:
- The concept of soft law which rests on the idea that the binary nature of law is ill suited to accommodate the growing complexity of contemporary international relations has been endorsed by a large number of scholars. It has however remained under the attack of those who are commonly portrayed as positivists. Although it does not seek to rehabilitate positivism as a whole, this article will try to offer a refreshed and modernized account of the positivist objection to soft law. It will accordingly distinguish several types of softness. Such a dichotomy will help to unravel the underlying agenda of some of the staunchest supporters of the concept of soft law. The article will ultimately expound on the proneness of international legal scholars to stretch the limit of their object of study by constantly seizing materials outside the realm of international law in order to alleviate the strain inherent in the contemporary proliferation of international legal thinking.
- Topic:
- International Law
394. Immunità e crimini internazionali. L'esercizio della giurisdizione penale e civile nei confronti degli organi statali sospettati di gravi crimini internazionali
- Author:
- Chiara Ragni
- Publication Date:
- 11-2008
- Content Type:
- Journal Article
- Abstract:
- This book offers a thorough and detailed analysis of the doctrinal debate on the controversial question whether state organs are entitled to invoke any kind of immunity, before either international or national tribunals, when accused of committing or ordering the commission of international crimes, such as war crimes, crimes against humanity, and genocide. The problem is not merely a theoretical one, given that, since the end of the Second World War and in particular since the Pinochet Affair 1 (decided in 1999 by the British House of Lords), national judges from all over the world have been required to determine whether all state organs can benefit from immunity from jurisdiction and, if so, whether this can cover all the possible violations of international law, including the most serious ones. Initially, and as long as the courts could properly cope with the question of the immunity of former military officers, no problem seemed to emerge with regard to the possibility of judging the latter for crimes committed during a war; however, the choice seemed to be more controversial when the accused were high-ranking representatives of the state and the acts in question were performed in times of peace. The leading case in this regard was the above-mentioned Pinochet case, since it made clear the differing attitudes of judges according to the accused's rank in the state hierarchy and, as the author notes, according to whether or not the person in question was still in office. The debate which ensued with regard to those issues and to the controversial practice which had developed on the subject makes the book reviewed here particularly interesting. First, it has the merit of taking into account the different points of view expressed by scholars dealing with the topic and comparing them with the practice – described in a historical perspective – of international and especially of national courts and tribunals. Secondly, even though the literature on the subject of immunities is quite broad, this work stands out thanks to the author's original approach to the subject and to the accuracy of the analysis conducted.
- Topic:
- Crime and International Law
395. List of Books Available for Review
- Publication Date:
- 11-2008
- Content Type:
- Journal Article
- Journal:
- African Journal of Legal Studies
- Institution:
- The Africa Law Institute
- Abstract:
- The African Journal of Legal Studies is pleased to present the following books relating to human rights in Africa received from two major publishers:. Antje du Bois-Pedain, Transitional Amnesty in South Africa (Cambridge: Cambridge University Press, 2007) 418 pages, hardback. . Obiora Chinedu Okafor, The African Human Rights System, Activist Forces and International Institutions (Cambridge: Cambridge University Press, 2007) 350 pages, hardback . John Hagan and Wenona Rymond-Richmond, Darfur and the Crime of Genocide (Cambridge: Cambridge University Press, 2008) 296 pages, paperback.. Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007) 673 pages, hardback.
- Topic:
- Human Rights and International Law
- Political Geography:
- Africa
396. Review: Falk and Friel: Israel Palestine on Record and Dunsky: Pens and Swords
- Author:
- Cheryl Rubenberg
- Publication Date:
- 06-2008
- Content Type:
- Journal Article
- Journal:
- Journal of Palestine Studies
- Institution:
- Institute for Palestine Studies
- Abstract:
- Israel-Palestine on Record: How the New York Times Misreports Conflict in the Middle East and Pens and Swords: How the American Mainstream Media Report the Israeli-Palestinian Conflict are two tour-de-force works devoted to an analysis of the U.S. media as it reports on the Israeli-Palestinian conflict. Both present devastating critiques of the media in its pro-Israel bias, and both are extensively documented, reflecting analytical scholarship in the finest tradition.
- Topic:
- Human Rights and International Law
- Political Geography:
- Middle East, Israel, and Palestine
397. A Case Study in Declining American Hegemony: Flawed Policy Concerning the ICC
- Author:
- Eric K. Leonard
- Publication Date:
- 01-2007
- Content Type:
- Journal Article
- Journal:
- The Journal of Diplomacy and International Relations
- Institution:
- School of Diplomacy and International Relations, Seton Hall University
- Abstract:
- The primary question that this article engages is whether the Bush administration’s opposition to the Rome Statute is in the national interest of the United States. More broadly speaking, does the Bush administration’s opposition to the ICC serve as an example of how a hegemon, founded upon a particular ideology, may undermine its own hegemonic status? The international community established the ICC to prosecute individuals accused of committing the most heinous international crimes—genocide, war crimes, and crimes against humanity.6 Given the fact that traditional American allies and every member state of the European Union, with the exception of the Czech Republic, support this Court, is active opposition to the ICC’s existence a prudent position, or will such a position simply ostracize the United States from the rest of the international community and undermine its ability to maintain America’s hegemonic position? In order to address these questions, this article begins with an examination of the concept of hegemony, along with its contested definition. It then proceeds to an analysis of American hegemony, including the basis for its continued preeminence. This article then returns to the ICC and examines this institution within the framework of the hegemonic discourse. Finally, it provides policy recommendations concerning the United States’ position towards the ICC and draws upon this case as a starting point for policy recommendations concerning other liberal international institutions.
- Topic:
- International Law, Hegemony, International Criminal Court (ICC), Rome Statute, and International Institutions
- Political Geography:
- North America and United States of America
398. Crime and Punishment: Holding States Accountable
- Author:
- Anthony F. Lang, Jr.
- Publication Date:
- 06-2007
- Content Type:
- Journal Article
- Abstract:
- Should states be held responsible and punished for violations of international law? The recent ruling by the International Court of Justice that Serbia cannot be held responsible for genocide in Bosnia reflects the predominant international legal position. But, such a position leaves open the possibility that states or non-state agents can never be held responsible for international crimes. This article argues that they can and should be. While most international ethicists and legal theorists reject the punishment of corporate entities such as states, this article argues that certain types of international violations can only be undertaken by states, and, as a result, states must be bear the responsibility for them. Drawing on some neglected strands in international law and political theory, the article sketches a potential institutional framework for the punishment of state crimes, particularly genocide and aggression.
- Topic:
- International Law
- Political Geography:
- Bosnia and Serbia
399. People without Borders for Borders without People: Land, Demography, and Peacemaking under Security Council Resolution 242
- Author:
- Jamil Dakwar
- Publication Date:
- 09-2007
- Content Type:
- Journal Article
- Journal:
- Journal of Palestine Studies
- Institution:
- Institute for Palestine Studies
- Abstract:
- UN Security Council Resolution 242, drafted to deal with the consequences of the 1967 war, left the outstanding issues of 1948 unresolved. For the first time, new Israeli conflict-resolution proposals that are in principle based on 242 directly involve Palestinian citizens of Israel. This essay explores these proposals, which reflect Israel's preoccupation with maintaining a significant Jewish majority and center on population and territorial exchanges between Israeli settlements in the West Bank and heavily populated Arab areas inside the green line. After tracing the genesis of the proposals, the essay assesses them from the standpoint of international law.
- Topic:
- Security and International Law
- Political Geography:
- New York, America, Middle East, and Israel
400. Germany's Involvement in Extraordinary Renditions and Its Responsibility under International Law
- Author:
- Laura Tate Kagel
- Publication Date:
- 12-2007
- Content Type:
- Journal Article
- Journal:
- German Politics and Society
- Institution:
- German Politics and Society Journal
- Abstract:
- As investigative journalists and nongovernmental organizations (NGOs) increasingly uncover the nature and scope of a U.S. government program known for transferring terrorist suspects outside of normal legal and administrative channels, the role of European states has come under scrutiny. To a large degree, these states have erected a “wall of fog,” as a report from the German Institute of Human Rights describes it, blocking access to information that would allow for independent assessments of the human rights implications of the counterterrorism practice known as “extraordinary rendition.”
- Topic:
- International Law and Terrorism
- Political Geography:
- United States, Europe, Germany, and Egypt