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50491. Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia

Author:
Tullio Treves
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
Attacks against ships off the coast of Somalia have brought piracy to the forefront of international attention, including that of the Security Council. SC Resolution 1816 of 2008 and others broaden the scope of the existing narrow international law rules on piracy, especially authorizing certain states to enter the Somali territorial waters in a manner consistent with action permitted on the high seas. SC resolutions are framed very cautiously and, in particular, note that they 'shall not be considered as establishing customary law'. They are adopted on the basis of the Somali Transitional Government's (TFG) authorization. Although such authorization seems unnecessary for resolutions adopted under Chapter VII, there are various reasons for this, among which to avoid discussions concerning the width of the Somali territorial sea. Seizing states are reluctant to exercise the powers on captured pirates granted by UNCLOS and SC resolutions. Their main concern is the human rights of the captured individuals. Agreements with Kenya by the USA, the UK, and the EC seek to ensure respect for the human rights of these individuals surrendered to Kenya for prosecution. Action against pirates in many cases involves the use of force. Practice shows that the navies involved limit such use to self-defence. Use of force against pirates off the coast of Somalia seems authorized as an exception to the exclusive rights of the flag state, with the limitation that it be reasonable and necessary and that the human rights of the persons involved are safeguarded.
Topic:
Security, Development, Government, and Human Rights
Political Geography:
Kenya, United States, United Kingdom, and Somalia

50492. Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation

Author:
Janine Natalya Clark
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
To date, 20 defendants at the International Criminal Tribunal for the former Yugoslavia (ICTY) have pleaded guilty. Such guilty pleas have generally been accepted by the Trial Chambers as mitigating circumstances on the grounds, inter alia, that they can facilitate reconciliation in the former Yugoslavia. Yet as these guilty pleas are frequently induced through plea bargains, in which important concessions are accorded to defendants, this necessarily raises fundamental questions about whether guilty pleas can and do in fact foster reconciliation. The purpose of this article, therefore, is to explore this posited link between guilty pleas and reconciliation which, in turn, is one dimension of the broader linkage that the Tribunal makes between its work and reconciliation. It will focus on two particular claims made by the Tribunal - that guilty pleas aid reconciliation by helping to establish the truth and that when defendants acknowledge responsibility for their crimes, this may help to provide victims with closure. It will seek to demonstrate that both of these assertions are flawed, and will conclude by addressing some of the broader issues and questions raised by the ICTY's use of plea bargains, in particular the critical relationship between plea bargains and outreach work.
Political Geography:
Yugoslavia

50493. Incomplete Internalization and Compliance with Human Rights Law: A Reply to Ryan Goodman and Derek Jinks

Author:
Roda Mushkat
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
In a series of influential articles, Ryan Goodman and Derek Jinks, professors at Harvard Law School and University of Texas Law School respectively, have proposed a distinctly sociological approach to analysing compliance with human rights law. The conceptual framework which they have constructed for this purpose is grounded in the notion of acculturation, a well-established social process whose dynamics in the international legal context has been examined by the two authors in a multi-step fashion, featuring a progression from general model-building to elaborate responses to specific issues raised by critics. Their latest contribution on the subject falls predominantly into the latter category. It is entitled ' Incomplete Internationalization and Compliance with Human Rights Law ' and has been recently published in the European Journal of International Law .
Topic:
Human Rights and International Affairs
Political Geography:
Europe and Texas

50494. Incomplete Internalization and Compliance with Human Rights Law: A Rejoinder to Roda Mushkat

Author:
Ryan Goodman and Derek Jinks
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
In previous work, we have urged elaboration of theoretical models of how and when international human rights law influences state practice. More specifically, we have argued that acculturation is a distinct mechanism by which international human rights law influences states and that the distinctive features of acculturation might inform legal regime design in a variety of ways. In this brief essay, we have the pleasure of responding to Professor Roda Mushkat's thoughtful reflections on our work. Her critical remarks, in our view, provide a valuable springboard for explicitly clarifying some important aspects of our theoretical position. And, more importantly, her remarks illustrate the importance of developing an integrated theory of human right regime design – one that accounts for the full range of mechanisms by which international law influences states. More specifically, her remarks prompt us to underscore three important points.
Topic:
Human Rights

50495. 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

50496. 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

50497. Trafficking in Human Beings: Modern Slavery

Author:
Jean Allain
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
Trafficking in Human Beings: Modern Slavery is a PhD thesis defended within the Faculty of Political Science of the Sant'Anna School of Advanced Study, an institution associated with the University of Pisa, Italy; Silvia Scarpa is now Lecturer in International Law at Tuscia University of Viterbo and Research Fellow at the Sant'Anna School.

50498. The United Nations Convention Against Torture. A Commentary • Commentary on the Rome Statute of the International Criminal Court. Observers' Notes, Article by Article

Author:
Alexander Orakhelashvili
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
It is indisputable that the fight against impunity for the perpetrators of serious international crimes is a fundamental policy of the international community. As the International Court of Justice emphasized in the Arrest Warrant case, the functionally and temporarily limited immunity of the foreign minister of the Congo was not the same as according impunity to that official, because the number of ways of prosecuting him remained intact ( Arrest Warrant of 11 April 2000, Merits, General List No. 121, 14 February 2002, paras 60 – 61). The efforts to combat impunity for the perpetrators of serious crimes are conducted by two methods. The first method relates to establishing international tribunals, which has been the case since the Nuremberg and Tokyo Tribunals in the aftermath of World War II. This method is limited, because international tribunals necessarily have limited jurisdiction. They cannot address the problems of impunity in general, but only those aspects of it which are covered by their mandate as specified in their statutes. Even if this mandate is quite general, as is the case with the International Criminal Court (ICC), the actual extent to which impunity will be combatted still depends on the voluntary decision of states to become party to the Statute. The second method reflects the limited nature of international criminal tribunals. The remaining problems of impunity are addressed through the exercise of jurisdiction by national courts. This is reflected in the fact that the multiplication of international criminal tribunals over the past 15 years has not caused any decline in the activities of national courts in this field. Quite the contrary; the growth of international criminal jurisdiction has been accompanied by the equally remarkable growth of national criminal jurisdiction to address international crimes, including those committed extraterritorially.
Topic:
United Nations and War
Political Geography:
Democratic Republic of the Congo and Tokyo

50499. International Institutional Veil in Public International Law. International Organisations the Law of Treaties

Author:
Kirsten Schmalenbach
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
The monograph at hand is based upon the author's PhD thesis, successfully defended before the University of Amsterdam in 2005. Although it is not indicated by the main title, International Institutional Veil in Public International Law, the book deals mainly with the many different aspects of the law of treaties concluded between, or with, international organizations. The choice of the title is a result of the author presenting the topic with a broad foundation, in the context of which she thoroughly scrutinizes the specific nature of international organizations and their independence in dependence.
Topic:
International Organization and International Affairs

50500. 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