The latest issue of the Nordic Journal of International Law (Vol. 76 , no. 1, 2007) is out. Contents include:
Sending diplomatic missions abroad and receiving foreign missions at home is in the political and economic interest of countries. But such missions depend on domestic and foreign political will and they also cost scarce resources. This article demonstrates that the global pattern of diplomatic representation is significantly determined by geographical distance between countries, by the power of both sending and recipient countries and by the degree of their ideological affinity. The pattern of diplomatic representation is both a reflection of and a contributor to the spatially shaped and ideologically divided world of unequal power we live in.
Ryszard Cholewinski (International Organization for Migration), Richard Perruchoud (International Organization for Migration), & Euan MacDonald have published International Migration Law: Developing Paradigms and Key Challenges (T.M.C. Asser Press 2007). Here's the abstract:This book encapsulates the law of international migration, including emerging issues such as the protection of human rights where tension between anti-terrorism legislation and immigration measures increases. The human rights of vulnerable groups of migrants, such as migrant workers, women, victims of trafficking, and stateless persons are also addressed. Forced migration warrants a consideration of the International Migration Law relating to groups such as internally displaced persons, as well as the international community's response to secondary movements of asylum-seekers. Questions of state responsibility concerning, for example, stranded migrants and provision of consular protection and assistance to migrants are also discussed. Moreover, the expansion of regional legal frameworks concerned with migration, such as EU immigration and asylum law and policy and the growing case law on European citizenship, as well as developments in free movement regimes, are added to the analysis of the growing body of international migration law.
The latest issue of the Revue de Droit Militaire et de Droit de la Guerre / Military Law and the Law of War Review (Vol. 45, nos. 1-2, 2006) is out. Contents include:
Hans-Peter Gasser (Freiburg - Law; formerly, ICRC) has published Humanitäres Völkerrecht: Eine Einführung (Schulthess 2007). Here's the abstract:Die Charta der Vereinten Nationen auferlegt den Staaten die Pflicht, allfällige Differenzen mit friedlichen Mitteln beizulegen. Humanitäres Völkerrecht greift dann ein, wenn dieses Friedensgebot den Ausbruch eines bewaffneten Konflikts nicht verhindern kann. Die Genfer Abkommen von 1949 und viele andere internationale Bestimmungen auferlegen allen Konfliktparteien die Pflicht, bei der Kriegführung Schranken zu beachten und Verletzte, Gefangene und namentlich die Zivilbevölkerung zu schonen und zu schützen. Diese Einführung ins humanitäre Völkerrecht richtet sich an alle, die sich für ein nicht einfaches Kapitel des allgemeinen Völkerrechts interessieren. Der Leser findet nicht nur eine systematische Darstellung des Rechtsgebiets, sondern auch eine Auseinandersetzung mit zahlreichen aktuellen Fragen, wie z. B. Krieg gegen den Terror, Rechtsfragen im Zusammenhang mit besetzten Gebieten oder Probleme bei der Durchsetzung des Rechts.
For more than fifty years following the 1949 revision of the Geneva Conventions, legal scholars, government experts, and military practitioners understood the articles that defined when the protections of these treaties came into force - Common Articles 2 and 3 - as the exclusive criteria which triggered the laws of war. From these two articles emerged an “either/or” law-applicability paradigm: inter-state, or international, armed conflicts triggered the full corpus of the laws of war, whereas intra-state, or internal, armed conflicts triggered the limited humanitarian protection reflected in the terms of Common Article 3. Because many military operations during the past two decades did not fit neatly into either of these categories, however, the armed forces of several states, beginning with those of the United States, adopted policies requiring application of the foundational principles of the laws of war to all military operations, regardless of how those operations were characterized as a matter of law. These policies reflected a pragmatic recognition that the regulatory framework provided by these principles was essential for the effective and disciplined execution of military operations.
This policy-based application of the principles of the laws of war proved generally effective in addressing operational and tactical issues during this period. However, the terrorist attacks of September 11, 2001 and the subsequent initiation of largescale extraterritorial military operations against non-state armed entities exposed the gap in legal regulation of armed conflict and challenged the efficacy of this policy-based application of legal principles. With regard to the treatment of captured and detained personnel, the issue of legal regulation came to a head in Hamdan v. Rumsfeld, with the U.S. Supreme Court ultimately rejecting the Bush administration's reliance on this “either/or” law-triggering paradigm as a basis to deny theapplicability of the humane treatment mandate to captured al Qaeda personnel. It was the conflict between Israel and Hezbollah in Lebanon that exploded soon after that opinion, however, that truly exposed the unacceptable consequences of this gap in legal regulation. In response to that conflict, numerous voices from the international community invoked the principles of the laws of war related to the application of combat power as a basis to condemn both parties, with virtually no consideration of the reality that, like the global war on terror, the conflict defied traditional categorization under the Common Article 2/3 paradigm.
This Article asserts that the changing nature of warfare necessitates recognition of a hybrid category of armed conflict for purposes of triggering the foundational principles of the law of war. Called “transnational armed conflict,” this category is based on the de facto existence of armed conflict, regardless of the geographic scope of the conflict. The Article explains how such a de facto trigger for application of the foundational principles of the laws of war - necessity, distinction, discrimination, humane treatment, and the prohibition against inflicting unnecessary suffering - is derived from the history of regulating warfare, the purposes of the Geneva Conventions, and the pragmatic logic that animated application of law of war principles as a matter of national military policy. The Article also explains how this pragmatic logic was reflected in Hamdan but that the impact of that decision is underinclusive because it failed to address principles related to the application of combat power. This Article cites other authorities in support of this hybrid law-triggering category. The Article concludes with a recommendation that the U.S. Department of Defense take the lead in recognizing this category of armed conflict, which could be the first step in a broader recognition.
Andrew Clapham (Graduate Institute of International Studies, Geneva - Law) has published Human Rights: A Very Short Introduction (Oxford Univ. Press 2007). Here's the abstract:Today it is usually not long before a problem gets expressed as a human rights issue. An appeal to human rights in the face of injustice can be a heartfelt and morally justified demand for some, while for others it remains merely an empty slogan.
Taking an international perspective and focusing on highly topical issues such as torture, arbitrary detention, privacy, health and discrimination, this Very Short Introduction will help readers to understand for themselves the controversies and complexities behind this vitally relevant issue. Looking at the philosophical justification for rights, the historical origins of human rights and how they are formed in law, Andrew Clapham explains what our human rights actually are, what they might be, and where the human rights movement is heading.
As we gather around picnic tables and backyard barbecues today, we should pause to consider a forgotten dimension of the occasion - one that is as important now as it was on July 4, 1776.
We all know that the Declaration of Independence announced the United States' freedom from the British Empire. We all remember that it declared certain truths to be self-evident. But what you probably haven't heard is that the declaration also advanced an idea about war. The idea was that war ought to be governed by law.
In late June 1776, as the first detachments of what was to become a sizable British force were landing 90 miles away in New York, Thomas Jefferson and the Continental Congress in Philadelphia drew up charges denouncing King George III to the world. The accusations were to serve as the core of the declaration. The climactic final charges, for which the rest were prologue, indicted the king for war crimes.
Britain's navy, wrote Jefferson and the Congress, had "plundered our Seas," while its armies had "ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People." Jefferson accused the British of employing legions of foreign mercenaries to commit acts of death and desolation "scarcely paralleled in the most barbarous Ages," acts unworthy of civilized nations. He charged British forces with taking Americans hostage and compelling them to bear arms against their own country. He and the Congress concluded their litany of war crimes by condemning the king's two most fiendish offenses against the laws of war: inciting slave insurrections and encouraging attacks by "merciless Indian Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions."
Jefferson's original draft added a further war crime allegation that did not make it into Congress's final version: the "piratical warfare" of the English slave trade, which was a "cruel war against human nature itself." Delegates from Georgia and South Carolina insisted that the passage be removed. But as Jefferson conceived it, the slave trade was akin to piracy, the most treacherous violation of the 18th-century laws of war.
The declaration was the beginning of a remarkable but now little-remembered American tradition in the laws of war. In the 1780s, a treaty with Prussia committed the United States to follow European rules of warfare. During the Civil War, Abraham Lincoln published a code for the Union Army that serves to this day as the foundation for the law of war around the globe.
In the 20th century, Americans took a lead role in establishing the modern law of war. Franklin Roosevelt directed the creation of the Nuremberg tribunal for high-ranking German war criminals, and his aides wrote the U.N. charter's rules for the use of force. In this century we can see traces of Jefferson's charges in the law of naval warfare, in the distinction between combatants and civilians, in international law restricting the use of mercenaries and in the Third Geneva Convention's rules on prisoners of war.
Today, of course, much of the world thinks that the United States has traded places with George III's British Empire. We are the global hegemon, and since Sept. 11, 2001, we have become infamous the world over for eschewing the law of war in the name of patriotic self-defense. At Guantanamo, in shadowy secret CIA prisons, at Abu Ghraib, and elsewhere, leaders in the White House, the Justice Department, and the intelligence agencies have disowned the laws of war as unacceptable constraints on the pursuit of national security.
The tragedy of the post-Sept. 11 American assault on the laws of war is that it seems to have been not only shameful but self-defeating. Disrespect for what the declaration called "the Opinions of Mankind" has fueled anti-American sentiment and spurred terrorist recruitment in North Africa, Europe and the Middle East. Illegal interrogation tactics seem to have produced disappointingly little intelligence. And extraordinary renditions to secret prisons have disrupted the cooperation of many of our most important allies in the war on terrorism, producing arrest warrants against U.S. intelligence agents in Germany and Italy. Patriotism at the expense of the laws of war seems to have gone badly awry.
For the delegates to the Continental Congress in 1776 - as for Lincoln and Roosevelt in subsequent centuries - patriotism and the laws of war went hand in hand. Since the revolution, Americans have helped shape a law of war that advanced the nation's interests. In moments of great crisis, our finest leaders have forged a powerful union between the security of the nation and the laws of war. It's a lesson from the first July 4 that we could sorely use again this year.
Anne-Marie Slaughter (Princeton - Woodrow Wilson School) has published Earning It (ForeignPolicy.com, July 2007). Here it is:
True, the next American president must begin by taking a number of concrete steps. Words alone won’t do it. I recommend five specific initiatives: first, close Guantánamo and work with other nations on a shared understanding of the rules for the interrogation of terrorism suspects; second, commit to specific carbon emissions targets and a cap and trade system; third, ratify the Comprehensive Test Ban Treaty and negotiate with other nuclear states to begin major cuts of nuclear arsenals in the spirit of the Nuclear Non-Proliferation Treaty; fourth, make room at the Security Council table for emerging powers such as India and Brazil, as well as Germany, Japan, two African nations, and at least one major Muslim country at any given point; and finally, bring peace between Israel and Palestine, or at least, in the words of the Clinton administration, “get caught trying.”My friend Theo Sommer, former editor in chief of Germany’s Die Zeit, always says, “Underneath every America-hater is a disappointed America-lover.” The latest Pew polls would appear to bear him out; many of the most negative attitudes toward the United States are in Europe, a continent of liberal democracies committed to the same values of liberty, democracy, equality, justice, and tolerance that the United States professes. And deep down, the virulent antipathy to America in many Muslim countries may have similar roots. In The Looming Tower, Lawrence Wright describes how many young Arabs looked to America in the first half of the 20th century as a beacon of anticolonialism and then felt betrayed by U.S. support for Israel. These feelings of disappointment and betrayal are actually encouraging, for they suggest that scrubbing the tarnish from America’s image is still possible. But winning back the disappointed America-lovers will require more than just polish, or even a change in specific policies. It will demand a much deeper shift in the way America sees itself.
Yet even if the new president were to take all these steps, a substantial part of the current anger at the United States would remain. Not because of who we are, as President Bush likes to claim, but because of who we are not but pretend to be. It is time, once and for all, to renounce the myth of American exceptionalism. Americans should recover their own past and return to their founders’ vision - the vision of the very men who wrote the Declaration of Independence that Americans celebrate today.
But weren’t the founders the ones who originated the idea of American exceptionalism? Not in the way most people use the phrase. Writing to a friend in 1795, during both the French and the Dutch revolutions, Thomas Jefferson proudly predicted that “this ball of liberty . . . is now so well in motion that it will roll round the globe, at least the enlightened part of it, for light & liberty go together. It is our glory that we first put it into motion.”
For Jefferson and his fellow Founding Fathers, America was blessed with a great destiny. But that destiny was to be the first country to enjoy the benefits of representative and rights-regarding government, not the only. America was exceptional then because of the state of the rest of the world. But as other countries followed suit, they would create a community of which America would be proud to be a member. And together all those countries would uphold and spread universal values - the values of liberty, equality, democracy, justice, and tolerance that grew out of Enlightenment notions of a common humanity.
America stands for that possibility. It has shaped the aspirations of countless brave men and women around the world seeking liberty, equality, and self-government. But when America does and says things that make a mockery of those aspirations - such as openly condoning torture, flouting international treaties, and trampling civil liberties in the name of security - it betrays those men and women and strengthens the hand of those who oppose them. Worse still, it betrays the very idea of adherence to a set of values that can offer meaning and purpose beyond pure calculations of self-interest. And when America simultaneously insists that it is a moral beacon and seeks to reshape the world into its own image, the resulting dissonance can ignite a smoldering disappointment into flames of anger and hatred.
The good news, on the American side, is that understanding the American experience as only one dimension of a global experience lightens a largely self-imposed burden. America need not take it upon itself to promote “American values” worldwide; it need only stand with its fellow liberal democracies to demonstrate their success and to find ways to enable as many new countries as possible to join the club. For the world, an America that no longer sees itself as exceptional may once again become a country that can inspire as well as infuriate, a country capable not only of paying a decent respect to the opinions of mankind, but of earning it.
Campbell McLachlan (Victoria Univ., Wellington - Law), Laurence Shore (Herbert Smith), & Matthew Weiniger (Herbert Smith) have published International Investment Arbitration: Substantive Principles (Oxford Univ. Press 2007). Here's the abstract:Arbitration of overseas investment disputes is one of the fastest growing areas of international dispute resolution. The exponential growth of international investment in recent years has led to the signature of over two thousand Bilateral Investment Treaties (BITs) between foreign states, in addition to a wealth of multilateral treaties and other forms of concession agreements. Disputes that have arisen are often resolved through the forum of international arbitration, and typically involve claims by an investor company for compensation when an investment has been illegally expropriated or adversely affected by the state's activities.
The legal principles that have developed in this area are subject to intense debate, and are still in a state of flux. While tribunals routinely state that they are applying principles of public international law to determine disputes, many of the principles applied have only been developed recently in the context of investment treaty arbitrations, and tribunals are often guided more by the approaches taken by other tribunals, than by pre-existing doctrines of public international law. However, the volume of law created, applied and analysed by tribunals is such that it is now possible to begin the necessary process of codification.
International Investment Arbitration: Substantive Principles is an important step in this process. The book provides a detailed analytical survey of the developing substantive principles which are being applied to disputes by international investment tribunals. It considers the key questions that arise, and provides a clear description of the present state of the law as reflected in tribunal practice. Key areas of coverage include: the instruments under which investment disputes arise; the legal basis of treaty arbitration; dispute resolution and parallel proceedings; who is a foreign investor, including nationality issues and foreign control; what is an investment; investors' substantive rights; expropriation; compensation and remedies.
Roy Goode (Oxford - Law), Herbert Kronke (UNIDROIT & Heidelberg - Law), & Ewan McKendrick (Oxford - Law) have published Transnational Commercial Law: Text, Cases and Materials (Oxford Univ. Press 2007). Here's the abstract:Text, Cases and Materials on Transnational Commercial Law, brings together all the major transnational commercial law instruments relating to commercial contracts in a logical and accessible way. The authors provide students with an extensive discussion on the theoretical issues raised by the law. The text examines the emergence of transnational commercial law, its nature and sources and the method by which harmonization is achieved and some of the key problems involved.
The latest issue of the International Community Law Review (Vol. 9, no. 1, April 2007) is out. Contents include:
The latest issue of The Law and Practice of International Courts and Tribunals (Vol. 6, no. 1, 2007) is out. Contents include:
Aldo Chircop (Dalhousie - Law), Scott Coffen-Smout (Dep't of Fisheries and Oceans, Canada), & Moira McConnell (Dalhousie - Law) have published Ocean Yearbook 21 (Martinus Nijhoff 2007). Contents include:
Peter Judson Richards has published Extraordinary Justice: Military Tribunals in Historical and International Context (NYU Press 2007). Here's the abstract:The Al-Qaeda terror attacks of September 11, 2001 aroused a number of extraordinary counter measures in response, including an executive order authorizing the creation of military tribunals or "commissions" for the trial of accused terrorists. The Supreme Court has weighed in on the topic with some controversial and deeply divided decisions, most recently Hamdan v. Rumsfeld.
At this critical moment in time, Extraordinary Justice seeks to fill an important gap in our understanding of what military tribunals are, how they function, and how successful they are in administering justice by placing them in comparative and historical context. Peter Judson Richards examines tribunals in four modern conflicts: the American Civil War, the British experience in the Boer War, the French tribunals of the "Great War," and allied practices during the Second World War.
Richards also examines the larger context of specific political, legal and military concerns, addressing scholarly and policy debates that continually arise in connection with the implementation of these extraordinary measures. He concludes that while the record of the national tribunals has been mixed, enduring elements in the character of warfare, of justice, and the nature of political reality together justify their continued use in certain situations.
The Bush administration is urging the Senate to consent this summer to the Convention on the Law of the Sea, the complex and sprawling treaty that governs shipping, navigation, mining, fishing and other ocean activities. This is a major departure from the administration's usual stance toward international organizations that have the capacity to restrain U.S. sovereignty. And it comes in a surprising context, since the convention has disturbing implications for our fight against terrorists.
Deputy Secretary of State John D. Negroponte and Deputy Defense Secretary Gordon England maintain that the convention will enhance U.S. security. They argued in the Washington Times last month that to meet the "complex array of global and transnational security challenges," the United States must have "unimpeded maritime mobility - the ability of our forces to respond any time, anywhere, if so required."
This is true, but ratifying the convention won't bring this benefit. Instead it would put America's naval counterterrorism efforts under the control of foreign judges. Suppose the United States seizes a vessel it suspects of shipping dual-use items that might be utilized to build weapons of mass destruction or other tools of terrorism. It's not a wild supposition. Under the Proliferation Security Initiative, the United States has since 2003 secured proliferation-related high-seas interdiction agreements with countries such as Belize and Panama, which provide registration for much international shipping. If the United States ratifies the Convention on the Law of the Sea, the legality of such seizures will, depending on the circumstances, be left to the decision of one of two international tribunals.
The first is the International Tribunal for the Law of the Sea, based in Hamburg. Some members of the Hamburg tribunal come from countries naturally suspicious of American power, such as China and Russia. Others are not allied with the United States. Even judges from Europe and South America do not always see things the way U.S. military authorities do.
The second institution is a five-person international arbitration panel. The United States and the flag state of the seized ship would have input into the selection of some of these arbitrators. But the U.N. secretary general or the president of the Hamburg tribunal would select the crucial fifth arbitrator when, as would typically be the case, the state parties cannot agree. They must choose from a list of "experts" to which every state party to the convention - not just China and Russia but other unfriendly nations such as Cuba and Burma - can contribute.
At minimum, these tribunals would pose awkward questions to the United States about the evidence behind a seizure, how we gathered it and who vouches for the information. At worst they would follow the recent example of the International Court of Justice and use a legal dispute to score points against American "unilateralism" and "arrogance" for a global audience keen to humble the United States. In every case, a majority of non-American judges would decide whether the U.S. Navy can seize a ship that it believes is carrying terrorist operatives or supplies for terrorists.
It's true that the convention exempts "military activities" from the tribunals' jurisdiction, but it does not define the term. The executive branch, worried about this ambiguity, has proposed a condition to ratification that would allow the United States to define the exemption for itself. But this condition amounts to a "reservation" disallowed by the treaty. International tribunals would still have the last word on the validity of the U.S. condition and the resulting scope of permissible U.S. naval actions.
Supporters note that many of the treaty's "freedom of the seas" provisions favor U.S. interests. But the United States already receives the benefits of these provisions because, as Negroponte and England acknowledged, they are "already widely accepted in practice." They maintain that ratifying the convention would nonetheless provide "welcome legal certainty." In recent years, however, the United States has not received much legal certainty from international tribunals dominated by non-American judges, and what it has received has not been very welcome. There is little reason to expect different results from these tribunals.
President Bush invokes a different rationale for ratifying the convention, arguing that it would "give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted." What this really means is that American views of the law of the sea, even on issues related to national security, could be outvoted by a majority in an international forum. How can this make us safer?
The latest issue of the Journal of International Criminal Justice (Vol. 5, no. 2, May 2007) is out. Contents include:
The latest issue of the Human Rights Quarterly (Vol. 29, no. 2, May 2007) is out. Contents include:
The latest issue of World Arbitration and Mediation Review (Vol. 1, no. 2, 2007) is out. Contents include:
Marcelo G. Kohen (Graduate Institute of International Studies, Geneva) has published Promoting Justice, Human Rights and Conflict Resolution through International Law / La promotion de la justice, des droits de l’homme et du règlement des conflits par le droit international Liber Amicorum Lucius Caflisch (Martinus Nijhoff 2007). Contents include:
Ole Kristian Fauchald (Oslo - Law), Henning Jakhelln (Oslo - Law), & Aslak Syse (Oslo - Law) have published Dog fred er ej det bedste: festskrift til Carl August Fleischer på hans 70-årsdag 26. august 2006 (Universitetsforlaget 2006). Contents include:
The latest issue of the Georgetown International Environmental Law Review is out. Contents include:
