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Begin New Search Topic International Law Content Type Journal Article

351. 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

352. 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

353. 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

354. 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

355. 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

356. 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

357. 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

358. 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

359. 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

360. 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

361. 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

362. 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

363. 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

364. 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

365. "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

366. 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

367. 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

368. 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

369. 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

370. 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

371. 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

372. 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

373. 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

374. 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

375. 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

376. 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

377. 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

378. 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

379. 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

380. Twentieth Century Internationalism in Law

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

381. 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

382. 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

383. 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

384. 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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