The latest issue of the American Journal of International Law (Vol. 103, no. 4, October 2009) is out. Contents include:
Frederik Naert (Legal Service of the Council of the European Union) has published International Law Aspects of the EU’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict (Intersentia 2010). Here's the abstract:This book combines an insight into the legal aspects of operations conducted as part of the European Security and Defence Policy (ESDP) of the EU with an analysis of the status and obligations of international organizations under international law and applies the findings thereof to the law of armed conflict and human rights in relation to ESDP operations.
Part I describes and analyses the ESDP, including all 22 military and civilian crisis management operations launched up to 31 August 2009 as well as developments under the Lisbon Treaty, and briefly discusses the international law issues raised, offering a unique insight into ESDP practice and its legal aspects. Part II examines this practice in the framework of the status and obligations of international organizations under international law: it looks at the legal status and personality of international organizations and of the EU as well as how international organizations, including the EU, are bound by international obligations. Part III extensively addresses the international law applicable to the conduct of ESDP operations, in particular the law of armed conflict and international human rights law, filling a gap in the literature.
Michael P. Scharf (Case Western Reserve Univ. - Law) & Paul R. Williams (American Univ. - Law) have published Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser (Cambridge Univ. Press 2010). Here's the abstract:Shaping Foreign Policy in Times of Crisis grew out of a series of meetings that the authors convened with all ten of the living former U.S. State Department legal advisers (from the Carter administration to that of George W. Bush). Based on their insider accounts of the role that international law actually played during the major crises on their watch, the book explores whether international law is real law or just a form of politics that policymakers are free to ignore whenever they perceive it to be in their interest to do so. Written in a style that will appeal to the casual reader and serious scholar alike, the book includes a foreword by the Obama administration’s State Department legal adviser, Harold Koh; background on the theoretical underpinnings of the compliance debate; an in-depth case study of the treatment of detainees in the war on terror; and a comprehensive glossary of the terms, names, places, and events that are discussed in the book.
One of the most powerful methods of inducing changes in outcomes governed by international humanitarian law is to add human rights rules and arguments into the equation. This, indeed, is precisely the point of the whole project of linking these two branches of international law. This article explores the relationship between the two bodies of law, and makes several broad propositions. First, that there is a need for a change in perspective, from examining the relationship of the two regimes as such, to the interaction of particular norms that regulate specific situations. Second, that this interaction will frequently result in a norm conflict, and that we have numerous tools at our disposal for either avoiding or resolving these conflicts. Third, that lex specialis is at best a fairly limited tool of norm conflict avoidance, and that it most certainly cannot be used to describe the relationship between human rights and humanitarian law as a whole. Finally, that there are situations where all of our tools will fail us, where a norm conflict will be both unavoidable and unresolvable due to a fundamental incompatibility in the text, object and purpose, and values protected by the interacting norms, and where the only possible solution to the conflict will be a political one. The article identifies three such possible situations of unresolvable antinomy - targeted killings, preventive security detention, and positive obligations during occupation, and addresses recent cases with a norm conflict component, such as Al-Jedda, Behrami, and Al-Saadoon. Though in most cases harmony between human rights and humanitarian law is possible, and indeed desirable, we should not underestimate the practical and political relevance of situations of true norm conflict, which no amount of academic exposition will be able to fix.
Note: Pre-print of an expanded version of an article which will first appear as 'A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law' in the Journal of Conflict & Security Law, Vol. 14, 2009, also published by Oxford University Press.
This is a review-essay of historian Paul Kennedy's recent history of the UN and global governance, The Parliament of Man. It offers a critical look at Kennedy's account of the development of the UN as the gradual, if fitful, progress of the United Nations towards global governance under an order of liberal internationalism - the slow triumph of international institutions and law over the the anarchy of international power politics among sovereign states.
The essay argues that what Kennedy views as the gradual movement toward global governance by the UN, or international institutions of any kind, in the truly crucial matters of international security is actually an artifact of US hegemony, which offers the world a set of global public goods and minimal order. The extra-UN provision of these global public goods by the United States provides the otherwise missing exit from the classic problem of collective security - insincere promising, defection, and free-riding. The essay argues that Kennedy is essentially a "Whig historian" - positing a progress to history based around notions of global governance. It urges that the embrace of democratic sovereignty, with robust multilateralism among sovereigns, as an ideal political position, over internationalist global governance premised upon an indefinitely receding future in which universal, utopian, international organizations and law will overcome and replace sovereignty.
Meanwhile, the "decline of the US" thesis and rise of multipolarity, celebrated by many as leading to a more just global order, should in fact give great pause, because a multipolar world is a more competitive, not more cooperative world. And the "universal" values of human rights might turn out, in retrospect, to have been far less a condition of international organizations and law and far more a benefit of US hegemony.
The inaugural volume of the Yearbook of Polar Law (Vol. 1, 2009) is out. Contents include:
Ian Henderson (Royal Australian Air Force & Asia-Pacific Centre for Military Law) has published The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I (Martinus Nijhoff Publishers 2009). Here's the abstract:Armed conflict is about using force to achieve goals. As international humanitarian law regulates the means and methods that a belligerent may adopt to achieve its goals, there will inevitably be disagreements over the interpretation of that law. As for the rules that regulate targeting, the main difficulties arise over what is a lawful target and what is proportional collateral damage. This book provides a detailed analysis of those issues. Also, a chapter is dedicated to considering how United Nations Security Council sanctioning of participation in an armed conflict might affect the range of lawful targets available to a belligerent. Finally, a process is described by which legal responsibility for targeting decisions can be assessed in a complex decision-making environment.
W. Michael Reisman (Yale Univ. - Law) & Kristen Eichensehr have published Stopping Wars and Making Peace: Studies in International Intervention (Martinus Nijhoff Publishers 2009). Here's the abstract:During most of human history, war was a basic instrument of statecraft, considered, for the most part, a lawful, honorable, ennobling, and even romantic pursuit. By contrast, peacemaking remained a marginal and indeed incongruous interstate activity. A war would end when the belligerents ended it. The experience of the twentieth century’s two world wars has changed, at least, the official view. The introduction of ever more destructive weapons, the drastic escalation of civilian deaths, and the economic and environmental devastation that modern war brought combined to forge an international legal impulse to stop, if not prevent, wars, resolve ongoing conflicts, and build peace. Yet stopping a war, though a useful, if not indispensable, step toward making peace, does not lead ineluctably to peace. Nor does the international community’s interposition of “peacekeepers”; their title notwithstanding, peacekeepers only try to keep a stopped war stopped. Making peace is a separate operation, often applying some parts of the same armamentarium but in very different ways. International efforts at stopping wars and making peace, in the era in which such initiatives have become lawful and virtuous, have proved remarkably unsuccessful. Yet the proliferation of ever more destructive weapons, the growing sense of insecurity and expectation of violence, the increasing difficulty of containing wars within a single arena, the threat of breakdown of order, with the prospect of epidemics and mass migration, all work to intensify the demand to stop wars and to make peace. This volume explores these issues by analyzing the theoretical literature on stopping wars and making peace and its application to a number of concrete cases, including the Falklands, Nagorno Karabakh, Rwanda, Malaya, Thailand, and Mozambique. Each case examines one conflict and the efforts undertaken to stop it and transform it into a peace system. The case studies draw general lessons from the incidents studied, extracting guidelines and principles that might serve those called upon to stop wars and make peace and offering a number of instructive points.Contents include:
International maritime law is far from inert, everyday international affairs constantly test existing law and, in many occasions, require its development. Serving the Rule of International Maritime Law is thus not limited to a description of the current state of the law, but contains innovative studies on current issues and events that are testing the present state of international maritime law.
The book is intended as a Liber Amicorum to Professor David Joseph Attard. It celebrates his career in international law; he played a crucial role in establishing the IMO International Maritime Law Institute in 1988, the main purpose of which is to train lawyers in private and public international maritime law. Over the last twenty years he has continued to teach at the Institute and has played an important role in contributing to the work of international fora concerned with the development of international law.
The International Criminal Law Review invites submissions for its 2010 special issue entitled "Women and International Criminal Law," to be guest-edited by IntLawGrrls Diane Marie Amann, University of California, Davis, School of Law; Jaya Ramji-Nogales, Temple University Beasley School of Law; and Beth Van Schaack, University of Santa Clara School of Law (bios below). This is the second event on international criminal law co-sponsored by IntLawGrrls, the first being the IHL Dialogue at Chautauqua last fall.
The Special Issue is dedicated to Judge Patricia M. Wald, a pathbreaker in international criminal law who has served as Chief Judge for the U.S. Court of Appeals for the District of Columbia Circuit, a Judge on the International Criminal Tribunal for the Former Yugoslavia, a member of the Iraq Intelligence Commission, Co-Chair of the American Society of International Law Task Force on the International Criminal Court, and Chair of the Board of Directors of the Open Society Justice Initiative. (Bios of Judge Wald, an IntLawGrrls guest/alumna, are available here and here. All IntLawGrrls posts by and about her are here.)
This special issue is devoted to the topic of women and international criminal law. The majority of the articles have been solicited from prominent academics and practitioners in the field of international criminal law and feminist jurisprudence, such as Justice Ruth Bader Ginsburg, Prof. Jenny Martinez, Dean Martha Minow, Prof. David Luban, Prof. Naomi Cahn, Prof. Leila Nadya Sadat, and Lucy Reed. The editors have also reserved several slots for submissions in response to this call to papers. Submissions should be inspired by this theme statement:
Special Issue Theme: Women & International Criminal Law
The law, it has been noted, “has not always served women well.” The critique extends readily to international law. Until very recently, women were absent from the processes of international law formation and enforcement, and invisible within substantive law reflective of the male experience. Mirroring the public/private divide running through much of law and society, the law, and those with the power to use it, tended to treat all forms of gender violence as opportunistic, peripheral, or private crimes reflecting personal motives and desires unconnected to issues of international importance. Thanks to the tireless work of committed advocates, jurists, and diplomats, international criminal law now treats many forms of gender violence as prosecutable offences against the physical and mental integrity of the victim. With the promulgation of the Statute of the International Criminal Court and the voluminous jurisprudence of the ad hoc criminal tribunals, the law now sanctions the prosecution of gender crimes as war crimes, crimes against humanity, torture, and the predicate acts of genocide.
Women have stood front and center to push these developments. Other international institutions often are dominated by men. Yet women have served in top posts in all of the modern tribunals, as Presidents (Gabrielle Kirk McDonald, Navanethem Pillay, and Renate Winter), Registrar (Dorothée de Sampayo Garrido-Nijgh), Chief Prosecutors (Louise Arbour and Carla Del Ponte), Deputy Prosecutors (Fatou Bensouda), Gender Advisors (Patricia Viseur Sellers and Catharine MacKinnon), Chefs de Cabinet (Susan Lamb), and in many other judicial, prosecution, defense, and administrative capacities.
The tribunals are approaching gender parity in staffing, although women remain concentrated in the lower professional grades. International criminal law is thus one area of international law in which women have made headway in terms of substantive law and institutional access; still, significant obstacles remain to ensure a robust system of gender justice in the face of continued violations.
The field of international criminal law nears a watershed moment, as ad hoc tribunals wind down and the International Criminal Court becomes fully operational. This opportune time invites reflection on whether international criminal law should be considered a feminist project. Accordingly, this volume offers sustained study of how international criminal law affects women and how women have affected international criminal law.
We welcome submissions on the following topics:
- Can, and has, international criminal law improved the material conditions of women’s lives and promoted the dignity of women?
- Is participation in international criminal justice liberating and transformative, or alienating and regressive?
- What legal reforms, procedural devices, advocacy strategies, and institutional arrangements can be employed to ensure that women experience the former and not the latter?
- Does fixation on criminal penalties constrain imagination and implementation of other ways to respond to the needs, demands, and aspirations of women in situations of armed conflict, mass violence, abuse, and repression?
- How have women – as activists, victims, lawyers, and perpetrators – changed the field?
- How has the gender jurisprudence advanced, or impeded, the development of international criminal law?
- Has international criminal law changed the way we think about violence against women?
This volume looks beyond sex crimes to consider multiple ways that women experience war and repression, as agents of change, peacemakers, as victims, and as perpetrators. The study adopts critical perspectives to challenge conceptual boundaries – between and within public international law, international criminal law, international humanitarian law, and international human rights – that tend to eclipse the intersectionalities of women’s identities and to fragment women’s experiences with violence, based upon whether violence occurs in a time of war or peace, whether it occurs at home or in a detention center, or whether the perpetrator is a state actor or a private person.
Our hope is that the new perspectives presented in this collection will advance our thinking about gender and international law across a number of disciplines. We welcome your participation in this historic effort to examine the impact of international criminal law on women, and vice versa.
Special Issue Logistics
The volume will be published in spring 2011. Judge Wald and other contributors will present their works at a roundtable hosted at the American Society of International Law’s Tillar House in Washington, D.C., on October 29, 2010 – days before the tenth anniversary of the first U.N. Security Council resolution (1325) on Women, Peace and Security.
To ensure anonymity in the selection phase, please submit a solid draft essay or article, in the range of 5,000 to 10,000 words, with all identifying information redacted, to Kathleen A. Doty, by way of an e-mail attachment in Word format (kadoty@ucdavis.edu), by April 15, 2010. Please note the paper’s title (which should match exactly the title of the redacted paper) and your name and contact information in the body of the e-mail.
Once papers have been selected, they will be subject to a full edit and peer review in advance of the October roundtable. The final draft of the paper will be due no later than March 1, 2011, and should adhere to the International Criminal Law Review style sheet, which is available here.
Diane Marie Amann is Professor of Law and Director of the California International Law Center at King Hall, University of California, Davis, School of Law; a founding contributor to the IntLawGrrls blog; and a Vice President of the American Society of International Law. Her scholarship examines the interaction of national and international legal regimes in efforts to combat atrocity and cross-border crime.
Jaya Ramji-Nogales is Assistant Professor of Law at Temple University's Beasley School of Law; a regular contributor to IntLawGrrls blog; and a member of the Board of Legal Advisors to the Documentation Center of Cambodia. Her scholarship examines transitional justice mechanisms, and includes the volume Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts (2005), co-edited with Beth Van Schaack.
Beth Van Schaack is Associate Professor of Law at Santa Clara University School of Law and Visiting Scholar (2009-2010) at the Center on Democracy, Development & The Rule of Law, Stanford University, as well as a regular contributor to IntLawGrrls blog. Prior to joining the law faculty, she was Acting Executive Director and Staff Attorney with The Center for Justice & Accountability, San Francisco, and a law clerk with the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia. Her scholarship is in the area of international criminal law, and she is the co-author with Ron Slye of a leading casebook and hornbook on the topic.
The latest issue of the Journal of World Intellectual Property (Vol. 13, no. 1, January 2010) is out. Contents include:
This chapter focuses on the role of Antonio Cassese in the development of the customary law of non-international armed conflicts. Analyzing the situation before the decision of the Appeals Chamber of the ICTY in Tadić, the author submits that there was no general acceptance of a body of customary norms applicable to internal conflicts but the existence of such rules received widespread recognition after the ruling. The central thesis of this paper is that this judgment was opportunistically used by Cassese as a vehicle to ‘humanize’ humanitarian law, i.e. to extend the regulatory framework of international armed conflict to non-international armed conflicts. Following an examination of the process of successful completion of this project, this chapter concludes with the examination of the potential merits and pitfalls of such an endeavour.
Today, Opinio Juris will host a one-day discussion of Mark A. Pollack & Gregory C. Shaffer's When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford Univ. Press 2009). Rebecca Bratspies and Sungjoon Cho will provide commentary. Check it out!
The latest issue of Archiv des Völkerrechts (Vol. 47, no. 4, December 2009) is out. Contents include:
This new volume provides the first thorough examination of the involvement of peace enforcement soldiers in the detention of indicted war criminals.
The book firstly addresses why peace enforcement missions need to be involved in detaining indicted war criminals. This discussion includes an analysis of how the securing of justice and transitional justice is incorporated into the UN’s approach to peace-building. It also explores IFOR’s, SFOR’s and KFOR’s activities aimed at detaining indicted war criminals, before turning to an analysis of how the detaining of indicted war criminals is incorporated into peace enforcement doctrines, mandates and rules of engagement. The book then outlines the mechanisms that need to be established in order to enable peace enforcers to effectively arrest war criminals in the areas where they are deployed. It concludes with a discussion of the prospects for the involvement of peace enforcement soldiers in the detention of indicted war criminals, and of what lessons future peace enforcement missions can learn from the experience of IFOR, SFOR and KFOR.
Philip O'Neill (Edwards, Angell, Palmer, and Dodge) has published Verification in an Age of Insecurity: The Future of Arms Control Compliance (Oxford Univ. Press 2010). Here's the abstract:Verification in an Age of Insecurity takes the reader into some of the most urgent arms control issues facing the world community, including the nuclear activities of rogue states and threats from sophisticated non-state actors. In the book, national security expert Philip D. O'Neill, Jr. identifies and addresses issues from the resuscitated disarmament agenda, from the comprehensive test ban to fissile material and biological weapons. O'Neill examines the need for shifts in verification standards and policy suitable for our volatile era and beyond it. He surveys recent history to show how established verification procedures fail to produce the certainty necessary to meet today's threats. Verification in an Age of Insecurity goes beyond a discussion of rogue states like North Korea to offer suggestions on how best to bring compliance policy up to date with modern threats.
