Saturday, August 21, 2010
Friday, August 20, 2010
- Laia Balcells, Rivalry and Revenge: Violence against Civilians in Conventional Civil Wars
- Michelle L. Dion & Vicki Birchfield, Economic Development, Income Inequality, and Preferences for Redistribution
- Abel Escribà-Folch & Joseph Wright, Dealing with Tyranny: International Sanctions and the Survival of Authoritarian Rulers
- David J. Brulé & Wonjae Hwang, Diverting the Legislature: Executive–Legislative Relations, the Economy, and US Uses of Force
- Mary McEvoy Manjikian, From Global Village to Virtual Battlespace: The Colonizing of the Internet and the Extension of Realpolitik
- Stefanie Walter, Globalization and the Welfare State: Testing the Microfoundations of the Compensation Hypothesis
- Elena V. McLean & Taehee Whang, Friends or Foes? Major Trading Partners and the Success of Economic Sanctions
- Ben Holland, Sovereignty as Dominium? Reconstructing the Constructivist Roman Law Thesis
- Todd S. Sechser & Elizabeth N. Saunders, The Army You Have: The Determinants of Military Mechanization, 1979–2001
This essay tracks the concept of militant democracy in the jurisprudence of the European Court of Human Rights, where it has migrated from a principle that authorizes a state to act in a militant manner to preserve democratic processes to one that entitles a state to establish perimeters and guard against threats of a different kind. Militant democracy now authorizes a state to assume a militant stance toward the exercise of religious freedom that threatens substantive conceptions of democracy instantiated in its constitutional order. The essay identifies four substantive conceptions of democracy – liberal democracy, secular democracy, republican democracy, and conservative democracy – to which militant democracy has migrated in recent years. It argues that militant democracy’s migration signals an ominous shift in the way in which the European Court of Human Rights comprehends the relationship between religion and state power.
- James C. Simeon, Introduction: the research workshop on critical issues in international refugee law and strategies towards interpretative harmony
- Albie Sachs, From refugee to judge: on refugee law
- Jane McAdam, Individual risk, armed conflict and the standard of proof in complementary protection claims: the European Union and Canada
- Geoff Gilbert, Running scared since 9/11: refugees, UNHCR and the purposive approach to treaty interpretation
- Elspeth Guild, Asymmetrical sovereignty and the refugee: diplomatic assurances and the failure of due process, Agiza v. Sweden and Alzery v. Sweden
- Kate Jastram, Economic harm as a basis for refugee status and the application of human rights law to the interpretation of economic persecution
- Nergis Canefe, The fragmented nature of the international refugee regime and its consequences: a comparative analysis of the applications of the 1951 Convention
Nine years, one Supreme Court decision, two statutes, and a veritable mountain of popular and academic discourse after President Bush's November 2001 Executive Order creating military commissions to try non-citizen terrorism suspects, we have made shockingly little progress in resolving the myriad constitutional questions that such tribunals raise. What’s more, these questions have only become that much more pressing over time, (1) as Congress has stepped in to provide the authorization that the Supreme Court in Hamdan found to be lacking (thereby squarely raising some of the underlying constitutional questions); (2) as the debate over whether civilian courts or military tribunals are a more appropriate forum for trying the so-called “9/11 defendants” has raged both in public circles and behind the scenes within the current Administration; (3) as the nominal defendants before the military commissions have languished in various states of legal limbo; and (4) most recently, as the Supreme Court has upheld Congress’s power to broadly prohibit the provision of “material support” to designated foreign terrorist organizations, an offense that Congress has also made triable before a military commission.
To put it succinctly, it is impossible to have a meaningful debate over whether civilian courts or military commissions are a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders. And yet, although a number of defendants have attempted to challenge the jurisdiction of the military commissions - especially under the MCA - none of these cases have managed to produce a decision on the merits from any court higher than the Court for Military Commission Review (CMCR). Instead, the federal courts have generally relied on “abstention” doctrine, holding that challenges to the commissions, including to their jurisdiction, can - and should - be resolved on post-conviction appeal. That’s not to say that the Article III courts won’t have the last word; they may well, yet. But in the interim, the time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.
This article attempts to provide a thorough introduction to - and analysis of - the constitutional limits on the jurisdiction of military commissions. By “jurisdiction,” I mean two distinct types of authority: Jurisdiction over the offense, and jurisdiction over the offender. The former goes to whether the military court has the authority to try the charged offense; the latter goes to whether the military court has the authority to try the charged defendant. And whereas there are some precedents on the scope of these two species of jurisdiction in the context of military commissions, the law is far better settled in the closely analogous context of courts-martial, where similar issues routinely arise.
Drawing on the court-martial decisions for support, this article concludes that the Constitution does meaningfully constrain the ability of Congress to subject particular offenders and offenses to trial by military commission. In particular, under the Supreme Court's own jurisprudence, the Constitution only authorizes the exercise of military jurisdiction over servicemembers or "offenses committed by enemy belligerents against the law of war." And although Congress is entitled to some latitude in giving content to the laws of war, there is simply no question that the constitutionality of the Military Commissions Acts of 2006 and 2009 is not settled by Congress’s self-serving ipse dixit in each statute that all of the offenses are war crimes. Even if Article I tolerates such a naked arrogation of power, the jury-trial protections of Article III and the Fifth and Sixth Amendments do not - and never have.
Human rights offer a vision of international justice that today’s idealistic millions hold dear. Yet the very concept on which the movement is based became familiar only a few decades ago when it profoundly reshaped our hopes for an improved humanity. In this pioneering book, Samuel Moyn elevates that extraordinary transformation to center stage and asks what it reveals about the ideal’s troubled present and uncertain future.
For some, human rights stretch back to the dawn of Western civilization, the age of the American and French Revolutions, or the post–World War II moment when the Universal Declaration of Human Rights was framed. Revisiting these episodes in a dramatic tour of humanity’s moral history, The Last Utopia shows that it was in the decade after 1968 that human rights began to make sense to broad communities of people as the proper cause of justice. Across eastern and western Europe, as well as throughout the United States and Latin America, human rights crystallized in a few short years as social activism and political rhetoric moved it from the hallways of the United Nations to the global forefront.
It was on the ruins of earlier political utopias, Moyn argues, that human rights achieved contemporary prominence. The morality of individual rights substituted for the soiled political dreams of revolutionary communism and nationalism as international law became an alternative to popular struggle and bloody violence. But as the ideal of human rights enters into rival political agendas, it requires more vigilance and scrutiny than when it became the watchword of our hopes.
Thursday, August 19, 2010
The topic of this international conference is the impact of legal developments at local, domestic and regional levels on international human rights law. The conference will focus particularly on the impact of non-Western legal systems on the international human rights regime.
Three angles are explored:
1. the impact of constitutional and other domestic courts on the development and interpretation of international human rights law;
2. the degree to which the acceptance of pluralism within international human rights law can serve as a response to dealing with diversity within and among societies;
3. the extent to which human rights claims formulated by social movements and other local groups contributes to the interpretation and further development of international human rights law.
- István Pogány, International Human Rights Law, Reparatory Justice and the Re-Ordering of Memory in Central and Eastern Europe
- Alison Stuart, Freedom of Religion and Gender Equality: Inclusive or Exclusive?
- Ian Cram, Beyond Lockean Majoritarianism?—Emergency, Institutional Failure and the UK Constitution
- Recent Developments
- Lorna McGregor, Are Declaratory Orders Appropriate for Continuing Human Rights Violations? The Case of Khadr v Canada
- Yuval Ginbar, Human Rights in ASEAN—Setting Sail or Treading Water?
- Alastair Mowbray, The Interlaken Declaration—The Beginning of a New Era for the European Court of Human Rights?
- Tobias Lock, Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights
- Jean Allain, Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery
- Claire Garbett, Localising Criminal Justice: An Overview of National Prosecutions at the War Crimes Chamber of the Court of Bosnia and Herzegovina
- Mehrdad Payandeh, Taking International Human Rights Seriously?—The Decision of Serra v Lappin from the US Court of Appeals for the Ninth Circuit
Ambos: The Colombian Peace Process and the Principle of Complementarity of the International Criminal Court: An Inductive, Situation-based Approach
Striking a balance between peace and justice has long been debated by scholars and practitioners. There has been definite progress in a world in which blanket amnesties were at times granted with little hesitation. There is a growing understanding that accountability has both pragmatic and principled arguments in its favor. Practical arguments as much as shifts in norms have created a situation in which the choice is increasingly seen as "which forms of accountability" rather than a stark one between peace and justice. The Colombian Justice and Peace Law 975 and its implementation offer an interesting and unique approach to dealing with the international crimes committed in Colombia’s decades-long armed conflict. Yet, will this approach suffice with regard to Colombia’s obligations under international law to investigate and prosecute international crimes? Does it meet the standards of the ICC, which has been monitoring the Colombian situation for some time now? In particular, does it pass the complementarity test laid out in the ICC statute or will the ICC have to intervene in Colombia to enforce international criminal law?
Wednesday, August 18, 2010
- Latin America and International Criminal Law
- Kai Ambos, Latin America and International Criminal Law: Introduction and General Overview
- Elizabeth Santalla Vargas, An Overview of the Crime of Genocide in Latin American Jurisdictions
- Ramiro García Falconí, The Codification of Crimes against Humanity in the Domestic Legislation of Latin American States
- Salvador Herencia Carrasco, Implementation of War Crimes in Latin America: An Assessment of the Impact of the Rome Statute of the International Criminal Court
- Juan Luis Modolell González, The Crime of Forced Disappearance of Persons According to the Decisions of the Inter-American Court of Human Rights
- Pablo F. Parenti, The Prosecution of International Crimes in Argentina
- Fabíola Girão Monteconrado, Marcos Zilli, & Maria Ereza Rocha de Assis Moura, International Criminal Law and Transitional Justice in Brazil
- José Luis Guzmán Dalbora, The Treatment of International Crimes in Chilean Jurisprudence: A Janus Face
- Alejandro Aponte Cardona, Criminal Prosecution of International Crimes: The Colombian Case
- Javier Dondé Matute, International Criminal Law before the Supreme Court of Mexico
- Dino Carlos Caro Coria, Prosecuting International Crimes in Peru
- Pablo Galain Palermo, The Prosecution of International Crimes in Uruguay
- Paul Beaumont and Emma Johnston, Can Exequatur Be Abolished in Brussels I whilst Retaining a Public Policy Defence?
- Patrizio Santomauro, Sense and Sensibility: Reviewing West Tankers and Dealing with its Implications in the Wake of the Reform of EC Regulation 44/2001
- Irit Mevorach, Jurisdiction in Insolvency: A Study of European Courts’ Decisions
- Mihail Danov, The Brussels I Regulation: Cross-Border Collective Redress Proceedings and Judgments
- Stefania Bariatti, The Law Applicable to Security Interests in Intellectual Property Rights
- Lisa Spagnolo, Green Eggs and Ham: The CISG, Path Dependence, and the Behavioural Economics of Lawyers’ Choices of Law in International Sales Contracts
- Lutz-Christian Wolff, Hong Kong’s Conflict of Contract Laws: Quo Vadis?
- Thalia Kruger, Civil Jurisdiction and the Issue of Legislating for the EU
- In Focus – Global Policies and Law
- Giuliana Ziccardi Capaldo, Global Law and Policies. A Legal Approach to Political Changes
- Richard W. Mansbach, The Great Globalization Debate
- George Modelski, From Leadership to Organization: The Evolution of Global Politics
- Ramesh Thakur & Thomas G. Weiss, Framing Global Governance, Five Gaps
- Antonio Tizzano, The Protection of Fundamental Rights: The ECJ Key Contribution to EU Constitutional Developments
- Robert Uerpmann-Wittzack, International Regulation by International Regulatory Organisations - A Model for ICANN?
- José B. Acosta Estévez, El Principio de Legalidad Penal en el Derecho Internacional
- Barbara Kwiatkowska, The 2007 Nicaragua v. Colombia Territorial and Maritime Dispute (Preliminary Objections) Judgment: A Landmark in the Sound Administration of International Justice
- Kelly L. Razzouk, The Special Tribunal for Lebanon: Implications for International Law
- Notes and Comments
- Joakim Dungel & Vincent Sautenet, Recent Clarifications of Superior Responsibility by International Criminal Tribunals
- Mary D. Fan, Home, Community, Property: Crimes of Displacement and the Evolution in Focus from Sovereign Interests to Victim Rights-Holder
- Pablo Antonio Fernández Sánchez, La Necesidad de Cambios Jurídicos Estratégicos para los Nuevos Escenarios Mundiales
- Joanna Gomula, Precedential Effect of WTO Decisions. Note on the Zeroing Cases
- Hans Köchler, Can the Exercise of Universal Jurisdiction Be Regionalized?
- Hans Köchler, Global Security in the Absence of a Balance of Power: The Importance of Inter-regional Co-operation
- Robert Kolb, Reflexions sur l’Efficacité du Droit International
- Panayotis Voyatzis, Protocol No. 14, Present Challenges and Perspectives for the European Court of Human Rights
Owen: The Clash of Ideas in World Politics: Transnational Networks, States, and Regime Change, 1510-2010
Some blame the violence and unrest in the Muslim world on Islam itself, arguing that the religion and its history is inherently bloody. Others blame the United States, arguing that American attempts to spread democracy by force have destabilized the region, and that these efforts are somehow radical or unique. Challenging these views, The Clash of Ideas in World Politics reveals how the Muslim world is in the throes of an ideological struggle that extends far beyond the Middle East, and how struggles like it have been a recurring feature of international relations since the dawn of the modern European state.
John Owen examines more than two hundred cases of forcible regime promotion over the past five centuries, offering the first systematic study of this common state practice. He looks at conflicts between Catholicism and Protestantism between 1520 and the 1680s; republicanism and monarchy between 1770 and 1850; and communism, fascism, and liberal democracy from 1917 until the late 1980s. He shows how regime promotion can follow regime unrest in the eventual target state or a war involving a great power, and how this can provoke elites across states to polarize according to ideology. Owen traces how conflicts arise and ultimately fade as one ideology wins favor with more elites in more countries, and he demonstrates how the struggle between secularism and Islamism in Muslim countries today reflects broader transnational trends in world history.
Tuesday, August 17, 2010
- Ronán Long, The Role of Regional Advisory Councils in the European Common Fisheries Policy: Legal Constraints and Future Options
- Richard Hildreth & Alison Torbitt, International Treaties and U.S. Laws as Tools to Regulate the Greenhouse Gas Emissions from Ships and Ports
- Jasmine Coppens & Eduard Somers, Towards New Rules on Disembarkation of Persons Rescued at Sea?
- M. Shah Alam & Abdullah Al Faruque, The Problem of Delimitation of Bangladesh's Maritime Boundaries with India and Myanmar: Prospects for a Solution
- Jinyuan Su & Yiwei Lu, People's Republic of China: The Law of the People's Republic of China on Island Protection 2009
- Douglas Guilfoyle, European Court of Human Rights: Mevedyev and Others v. France, European Court of Human Rights
- Mary George & Azhar Hussin, South East Asia: The Coral Triangle Initiative on Coral Reefs, Fisheries and Food Security
Investment treaty arbitration is often promoted as a fair, rules-based system that advances the rule of law. The system falls short of this expectation, however, due to its unique combination of arbitration and public law, its asymmetrical claims structure, its reliance on executive officials to make case-by-case appointments, and its attenuation of judicial oversight. The focus of concern is not actual bias on the part of individual arbitrators but, more appropriately, institutional and procedural aspects of the adjudicative process that raise suspicions of bias.
The twenty-first century will witness conflicts which may destabilize the international order. These conflicts are likely to arise between emerging Asian States such as China and India whose material power is growing, and the Western nations who wield significant ideational power. A West-centric international society will change to a multi-polar and multi-civilizational global society. This structural change includes, and further needs, changes of understandings and perceptions of the world, including of international law. The perspectives from which we see, understand, appreciate and assess international law must change. We need to interpret international law not only from a prevalent Statecentric international perspective and West-centric transnational perspective. Onuma argues that we must grasp international law from what he calls a trans-civilizational perspective as well. By adopting such three-layered perspectives, international law is shown to be functioning as a tool of politics yet constrained by cultural and civilizational factors. Such complex subjects as global history of international law, concepts of general and customary international law, and human rights could be appreciated in a more nuanced and subtle manner.
- Klint W. Alexander & Bryan J. Soukup, Obama's First Trade War: The US-Mexico Cross-Border Trucking Dispute and the Implications of Strategic Cross-Sector Retaliation on US Compliance Under NAFTA
- Arturo J. Carrillo & Jason S. Palmer, Transnational Mass Claim Processes (TMCPs) in International Law and Practice
- Jayanth K. Krishnan, The Joint Law Venture: A Pilot Study
- Megan J. Ballard, Post-Conflict Property Restitution: Flawed Legal and Theoretical Foundations
- David D. Caron & Leah D. Harhay, A Call to Action: Turning the Golden State into a Golden Opportunity for International Arbitration
- The Alien Tort Statute: Comments on Current Issues
- Richard M. Buxbaun & David D. Caron, The Alien Tort Statute: An Overview of the Current Issues
- Kathleen Jaeger, Jurisdiction and Justiciability Environmental Claims under the Alien Tort Statute
- Amy Endicott, The Judicial Answer? Treatment of the Political Question Doctrine in Alien Tort Claims
- Regina Waugh, Immunity and Notable Preliminary Issues Exhaustion of Remedies and the Alien Tort Statute
- Michele Potestà, State Immunity and Jus Cogens Violations: The Alien Tort Statute Against the Backdrop of the Latest Developments in the ‘Law of Nations’
- Charles Ainscough, Theories of Liability for Non-State Actors Choice of Law and Accomplice Liability under the Alien Tort Statute
- Ryan S. Lincoln, To Proceed with Caution? Aiding and Abetting Liability under the Alien Tort Statute
- Anna Sanders, New Frontiers in the ATS: Conspiracy and Joint Criminal Enterprise Liability After Sosa
- Ekaterina Apostolova, The Relationship of the ATS to Other Statutes: The Relationship Between the Alien Tort Statute and the Torture Victim Protection Act
The articles explores the potential and the limits of the principle of complementarity under the Rome Statute.
Monday, August 16, 2010
- Danutė Jočienė, The Subsidiary Character of the System of the European Convention on Human Rights with Reference to Cases against Lithuania
- Vygantė Milašiūtė, History of the Communist Regime in the European Court of Human Rights Cases
- Katrīna Inkuša, Mass Deportations of 1949 in Latvia as a Crime Against Humanity – A Fair Legal Reality for Social and Political Groups in the Context of the Genocide Convention?
- Ineta Ziemele, The State Border between Latvia and Russia and the Doctrine of Continuity of the Republic of Latvia. International and Constitutional Law in Interaction
- Erki Kodar, Computer Network Attacks in the Grey Areas of Jus ad Bellum and Jus in Bello
- Ramesh Thakur, Law, Legitimacy and United Nations
- Nicolas Croquet, Implied External Limitations upon the Right to Cross-Examine Prosecution Witnesses: The Tension between a Means Test and a Balancing Test in the Appraisal of Anonymity Requests
- Robert Dubler, The International Law Aspects of the Case of the Balibo Five
- Steven Freeland, Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?
- Joost Pauwelyn, Squaring Free Trade in Culture with Chinese Censorship: The WTO Appellate Body Report on China — Audiovisuals
- Douglas Guilfoyle, The Laws of War and the Fight against Somali Piracy: Combatants or Criminals?
- Fleur Johns, Ben Saul, Philip Hirsch, Tim Stephens, & Ben Boer, Law and the Mekong River Basin: A Socio-Legal Research Agenda on the Role of Hard and Soft Law in Regulating Transboundary Water Resources
- Interview with Mary Robinson
- Irène Herrmann & Daniel Palmieri, Between Amazons and Sabines: a historical approach to women and war
- Helen Durham & Katie O'Byrne, The dialogue of difference: gender perspectives on international humanitarian law
- Laura Sjoberg, Women fighters and the ‘beautiful soul’ narrative
- Nicole Hogg, Women's participation in the Rwandan genocide: mothers or monsters?
- Medina Haeri & Nadine Puechguirbal, From helplessness to agency: examining the plurality of women's experiences in armed conflict
- Julie Ashdown & Mel James, Women in detention
- Laura J. Shepherd, Women, armed conflict and language – Gender, violence and discourse
- Carolyn Nordstrom, Women, economy, war
- Evelyne Josse, ‘They came with two guns’: the consequences of sexual violence for the mental health of women in armed conflicts
- Alain-Guy Tachou-Sipowo, The Security Council on women in war: between peacebuilding and humanitarian protection
- Amy Barrow, UN Security Council Resolutions 1325 and 1820: constructing gender in armed conflict and international humanitarian law
- Samantha T. Godec, Between rhetoric and reality: exploring the impact of military humanitarian intervention upon sexual violence – post-conflict sex trafficking in Kosovo
- Sandesh Sivakumaran, Lost in translation: UN responses to sexual violence against men and boys in situations of armed conflict
Call for Papers: ASIL International Organizations Interest Group Works-in-Progress Workshop (Reminder)
Call for Papers
ASIL International Organizations Interest Group
The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on October 29, 2010, at the headquarters of the Organization of American States, Washington, DC.
If you are interested in presenting a paper at the workshop, please submit an abstract to Kristen Boon (Kristen.Boon[at]shu.edu), Jacob Cogan (jacob.cogan[at]uc.edu), and Lorena Perez (LPerez[at]oas.org) by the end of the day on August 27. Abstracts should be a couple of paragraphs long, but no more than one page. Papers should relate to the subject “international organizations.”
Papers selected for presentation are due no later than October 18. Papers should not yet be in print; ideally, authors will have time to make revisions based on the comments from the workshop.
The workshop’s format will be as follows. Each paper will be introduced by a commentator for about ten minutes. The author will have the opportunity to respond, if he or she wishes to do so. The floor will then be opened up for a little more than an hour of comments, reactions, and discussion from the group as a whole. The workshop is conducted on the assumption that everyone has read all of the papers in advance. After we have selected papers, we will ask for volunteers to serve as commentators. One need not present a paper or comment on a paper to participate.
Please do not hesitate to contact us should you have any questions at all about the workshop or paper submissions.
Jacob Katz Cogan
Sunday, August 15, 2010
- Special Issue: Issues in the South China Sea
- Nien-Tsu Alfred Hu, South China Sea: Troubled Waters or a Sea of Opportunity?
- Robert W. Smith, Maritime Delimitation in the South China Sea: Potentiality and Challenges
- Kuan-Hsiung Wang, The ROC's Maritime Claims and Practices with Special Reference to the South China Sea
- Yann-Huei Song, The South China Sea Workshop Process and Taiwan's Participation
- John W. McManus, Kwang-Tsao Shao, & Szu-Yin Lin, Toward Establishing a Spratly Islands International Marine Peace Park: Ecological Importance and Supportive Collaborative Activities with an Emphasis on the Role of Taiwan
- Nien-Tsu Alfred Hu, Semi-enclosed Troubled Waters: A New Thinking on the Application of the 1982 UNCLOS Article 123 to the South China Sea