Saturday, January 12, 2013
Benvenisti & Cohen: War is Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective
What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality, and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side's answers withstand close scrutiny. In this Article we develop an alternative explanation which is based on the principal-agent model of domestic governance. We pry open the black box of "the state," and examine the complex interaction between the civilian and military apparatuses seething beneath the veil of sovereignty. Our point of departure is that military conflicts raise significant intra-state conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nations' interests are likely to prefer that warfare be regulated by international norms. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that, as a practical matter, international law enhances the ability of states to amass huge armies, because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run it strengthens the state against its enemies.
Friday, January 11, 2013
Often we speak as if international courts were a form of enforcement: we assume that once a legal regime acquires a court, it has teeth. Both within national and international legal systems, however, implementation of adjudicated decisions is itself an enforcement problem. Compliance is not always a straightforward or likely outcome. It is the product of an uncertain and at times lengthy process shaped by political and social dynamics. All the more so in the international realm, wherein courts still lack purse and sword, but are more loosely linked to the executive branches and other actors on which they ultimately depend for the efficacy of their judgments. This chapter explores when and how the rulings of international adjudicative bodies receive compliance. What do recent studies in social science and law reveal about when and how international courts achieve compliance, and what impact, in turn, does compliance " or its absence " have on international courts?
Kammerhofer: The Pure Theory of Law and Its 'Modern' Positivism: International Legal Uses for Scholarship
In this speech at the Annual Meeting of the ASIL, Hans Kelsen's Pure Theory of Law - the most fitting among the ‘modern’ positivist approaches - will be used to answer the question put to the panellists: ‘What use is modern positivism’? The first part focuses on Kelsen's Pure Theory of Law as a decidedly Modernist legal theory wishing to 'purify' legal scholarship. The scholarly ethos that the Pure Theory envisages for a legal science involves the cognition of law as norms without intermixing this cognition with sociological, psychological or other empirical elements. The Pure Theory of Law is a theoretical approach that wishes to instil a humbleness amongst legal scholars.
The second part tests the Pure Theory of Law with respect to a topic in international law-making that it has always had difficulties with. How does Kelsen's positivism - hinged as it is upon the existence of a real act of will as necessary condition for the positivity of norms - fare with respect to the 'obviously' un-willed General Principles of Law (GPL) in Article 38(1)(c)?
Two arguments are key for the Kelsenian take on GPL. (1) One is the fact that Article 38 is only the formulation of the lex arbitri for the ICJ, not an in any sense authoritative statement (or even rule) on the formal sources of international law. The role of a lex arbitri is fundamentally different to the meta-meta-source for all international law. (2) The key to a possible solution is the word ‘recognized’ in Article 38(1)(c). This could be understood to mean a specific recognition that principles common to the legal systems of the ‘civilized nations’ are explicitly recognised and thus created as international legal norms and not merely recognised as principle in domestic law. Here we would have acts of will creating positive international law; principles would thus be a sort of customary international law without the custom.
International lawyers typically start with the legal. What is a legal as opposed to a political question? How should international law adapt to the unforeseen? These are the routes by which international lawyers typically reason. This book begins, instead, with the non-legal. In a series of case studies, Fleur Johns examines what international lawyers cast outside or against law – as extra-legal, illegal, pre-legal or otherwise non-legal – and how this comes to shape political possibility. Non-legality is not merely the remainder of regulatory action. It is a key structuring device of contemporary global order. Constructions of non-legality are pivotal to debate in areas ranging from torture to foreign investment and from climate change to natural disaster relief. Understandings of non-legality inform what international lawyers today do and what they refrain from doing. Tracing and potentially reimagining the non-legal in international legal work is, accordingly, both vital and pressing.
- January 25, 2013: Julie C. Suk (Yeshiva Univ. - Law), Quotas and the Global Future of Equal Protection
- February 8, 2013: William A. Schabas (Middlesex Univ. - Law), The Drafting and Significance of the Universal Declaration of Human Rights
- February 15, 2013: Anthea Roberts (London School of Economics - Law), The Other Side of the Coin: State-to-State Arbitration under Investment Treaties
- February 22, 2013: James Thuo Gathii (Loyola Univ. Chicago - Law), Strength in Intellectual Property Protection and Foreign Direct Investment Flows in Least Developed Countries
- March 1, 2013: Joost Pauwelyn (Graduate Institute of International and Development Studies - Law), The Stagnation of International Law
- March 29, 2013: Leila Nadya Sadat (Washington Univ., St. Louis - Law), Crimes Against Humanity in the Modern Age
- April 12, 2013: Laurie Blank (Emory Univ. - Law), Extending Positive Identification from People to Places: Terrorism, Armed Conflict, and the Identification of Military Objectives
- April 19, 2013: Jaya Ramji-Nogales (Temple Univ. - Law), Long Live Sovereignty? The Human Rights of Undocumented Migrants
Thursday, January 10, 2013
Ostasien ist das wirtschaftliche Gravitationszentrum des 21. Jahrhunderts. Die Entwicklung des „East Asian-Powerhouse“ wird allerdings erst seit Kurzem von der Schaffung politischer Institutionen und rechtlicher Strukturen begleitet. Erst 2002 wurde mit dem Japan-Singapore Economic Partnership Agreement das erste Freihandelsabkommen zwischen zwei Staaten Ostasiens abgeschlossen.
Das Werk versucht zunächst, wirtschaftliche Integration als rechtliches Phänomen zu begreifen und entwickelt Normkategorien zur rechtlichen Systematisierung und Erfassung wirtschaftlicher Integration. Anschließend setzt es sich mit den Spannungen von Präferenzialismus und Multilateralismus im Recht der WTO auseinander und ordnet die der wirtschaftlichen Integration in Ostasien zu Grunde liegenden politischen Entwicklungen ein. Vor diesem Hintergrund werden japanische Freihandelsabkommen in Ostasien hinsichtlich ihres Beitrags zu wirtschaftlicher Integration und ihrer Übereinstimmung mit dem WTO-Recht untersucht.
Gaja: The 'Co-Respondent Mechanisms' According to the Draft Agreement for the Accession of the EU to the ECHR
Huneeus: International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts
Scholarship on the international prosecution of genocide, war crimes and crimes against humanity has typically focused on two types of international courts, the criminal tribunals and the hybrid tribunals. This article proposes that there is an alternative international mechanism of accountability that has been overlooked: the jurisdiction exercised by international human rights bodies of ordering and supervising national prosecutions. Original empirical research reveals that the regional rights bodies have forged a quasi-criminal practice that strives towards the very same outcomes as the international and hybrid criminal tribunals: punishment and deterrence, restorative justice, processes of societal reconciliation, and justice system reform. Further, this form of jurisdiction has unique attributes: it promotes prosecutions that are local and paid for by the state (rather than the international community), even as its process is responsive to victims' needs. The Inter-American Court of Human Rights in particular has made national prosecution of gross state-sponsored crimes a center-piece of its regional agenda. And, like the international and hybrid tribunals, it has achieved some success. The article concludes that the quasi-criminal jurisdiction of the human rights courts should be considered as a complement and, in certain situations, an alternative to the work of the current international and hybrid criminal tribunals.
This article examines whether the ICTR was doomed from the start to be a court of ‘victor’s justice.’ I explore the issue by re-examining the politics of the ICTR’s creation. Hundreds of declassified diplomatic telegrams (‘cables’) and intelligence reports of the US Department of State shed new light on this process. My analysis concentrates on the strategy of the RPF vis-à-vis the international community and the responses of the United Nations and United States. In a previous publication, I claim that US leadership is a necessary (but not a sufficient) condition for successful international prosecutions. Building on that research, I argue that understanding the evolution of the relation between Washington and Kigali – from an early, almost accidental support of the RPF to nearly unconditional backing – can help explain RPF impunity. I do not suggest that Washington planned to shield Kagame from international prosecution, or that the US was the only Security Council member to embrace him. However, once Washington entered into a partnership with the ‘new’ Rwanda, it was committed to moving forward – and this implied burying the past and oftentimes also ignoring the present. The result was victor’s justice in Arusha – and seemingly endless war in neighboring Congo.
Wednesday, January 9, 2013
- January 31, 2013: Meg Kinnear (Secretary-General, International Centre for Settlement of Investment Disputes), The Present and Future Challenges of ICSID
- February 14, 2013: Jean E. Kalicki (Arnold & Porter LLP), Counterclaims by States in Investment Arbitration
- February 28, 2013: Andrea Menaker (White & Case LLP), The Fair and Equitable Treatment Debate: More Theoretical Than Practical?
- March 7, 2013: Jason Yackee (Univ. of Wisconsin - Law), Determining the Impact of Investment Treaties on Foreign Investment: Promises, Pitfalls, Possibilities
- March 14, 2013: Rudolf Dolzer (Univ. of Bonn - Law), Legitimate Expectations Revisited: a Discussion of the Case Law
- March 28, 2013: Christoph Schreuer (Wolf Theiss), Paradoxes in International Investment Law
- April 4, 2013: James Crawford (Univ. of Cambridge - Law), Maintaining Standards in International Investment Arbitration
The present chapter considers various areas of intersection between treaties and armed conflict. Section 2 addresses the role of armed conflict in the termination, withdrawal or suspension of treaties. Subsequent sections consider aspects in the relationship between armed conflict and treaties that are premised on the continuing existence of treaties. Section 3 focuses on armed conflict as a normative phenomenon, and considers the relationship between the laws of armed conflict and norm-setting treaty regimes. This section notes not only the effect of armed conflict on treaties, but also the converse, namely the effect of certain treaty regimes on the laws of armed conflict. Section 4 concerns the effect of armed conflict on the content of treaty obligations. Section 5 considers the effect of international armed conflict on the territorial scope of application, an issue that has arisen specifically with respect to human rights treaties.
- January 18, 2013: General Custom in a Complex and Diverse Legal System - An ILC Panel Discussion, with Concepcion Escobar Hernandez, Georg Nolte, Sam Wordsworth, and Michael Wood
- January 25, 2013: Rory Brown (9 Stone Buildings, London), Amnity, Enmity and Identity
- February 1, 2013: Karim Khan & Rodney Dixon (Temple Garden Chambers), The ICC's Role in Promoting International Justice - A Comparison of the Sudan, Kenya and Libya Situations
- Veronika Fikfak (Univ. of Cambridge - Law), International Law in Domestic Courts - Beyond the Term "Part"
- February 15, 2013: Mary Footer (Univ. of Nottingham - Law), Credit Rating Agencies: Using Indicators to Measure Transnational Governance Responses to the Global Financial Crisis
- March 1, 2013: Philippe Sands (Univ. College London - Law), Hersch Lauterpacht Lectures Q & A Session
- March 8, 2013: Philip Allott (Univ. of Cambridge - Law), The True Nature of International Law
- March 15, 2013: Hazel Fox (Formerly, Director, British Institute of International and Comparative Law), Some Aspects of State Immunity Post 2012
Call for papers – consequences of the responsibility of non-state actors in international law
International Conference, Kwantlen Polytechnic University, Richmond Campus (Greater Regional District of Vancouver), British Columbia, Canada, June 2013
The Committee of Non-State Actors of the International Law Association (ILA), The Institute for Transborder Studies (ITS) at Kwantlen Polytechnic University, the Leuven Centre for Global Governance Studies, Oxford Brookes University, in collaboration with the ILA-Canada, the Flemish Scientific Research Fund (FWO, ‘the network’), and the Canadian Bar Association – British Columbia Branch invite papers on the responsibilities of non-state actors in international law for a conference in Vancouver on 27-28 June 2013.
The above-mentioned network has recently completed its research on participation of non-state actors in international law and international institutional arrangements (the report can be downloaded here. It will now concentrate on issues relating to responsibilities and obligations of non-state actors, with a view to understanding the complexity of non-state actors’ international legal personality.
In particular, the network welcomes theoretical and empirical papers on the consequences of responsibility. These consequences can be either substantive (reparations, cessation, guarantee of non-repetition) or instrumental (countermeasures). Prospective presenters may want to examine whether the existing responsibility regime – with respect to states and international organizations – for each of these consequences of responsibility can be transposed to the responsibility of non-state actors, and, specifically, whether there has been any sort of practice in this respect. The conveners also welcome papers on issues of attribution of responsibility to non-state actors.
Note that for research purposes we focus on the following five categories of non-state actors: non-governmental organizations (NGOs), multinational/transnational corporations (MNCs), certain organized armed opposition groups, sui generis entities such the International Committee of the Red Cross (ICRC) and the Holy See, and organised indigenous peoples’ groups. Intergovernmental organizations are not included in our research agenda.
A paper abstract should be submitted by 10 February 2013. The organizers will get back to the author by 28 February 2013. Draft papers (5000 – 6000 words) should be submitted by 1 June 2013.
Selected papers may feed into a publication (anthology and/or special journal issue). Note that the organizers are unable to provide financial assistance. To defray meals’ costs, we charge CA$ 140 for conference participation and an optional CA$ 60 for conference dinner.
The organizing committee consists of Prof. Noemi Gal-Or (Kwantlen Polytechnic University, local organizer), Prof. Math Noortmann (Oxford Brookes University, Chair of the ILA Committee), Prof. Jean d’Aspremont (University of Manchester and University of Amsterdam, co-rapporteur of the ILA Committee), Prof. Cedric Ryngaert (Leuven University and Utrecht University, co-rapporteur of the ILA Committee and convener of the FWO research network).
Abstracts should be sent to: Noemi.Gal-Or@kwantlen.ca; email@example.com; firstname.lastname@example.org; email@example.com. Messages should indicate as subject: NSA Vancouver 2013.
Tuesday, January 8, 2013
- Sirko Harder, Enforcing Foreign Arbitral Awards in Australia Against Non-Signatories of the Arbitration Agreement
- Jitheesh Thilak, Extension of Jurisdiction of DIFC Courts and its Impact on Arbitration in the Middle East
- Ayush Sharma, Setting Aside Arbitral Awards — Conflicting Time Limits in India
- Ben Giaretta, Duties of Arbitrators and Emergency Arbitrators under the SIAC Rules
- Michael Dunmore, Interim Measures by Arbitral Tribunals: The Enforceability Conundrum
This paper explores two themes. The first one addresses the legal nature of arbitral awards and an attempt is made to offer a legal definition also by looking at the legal nature of arbitration and related theories. The conclusion is that awards are de facto and de jure functional equivalents of court judgments. In this regards the paper also looks at the 'value' of arbitral awards. The second theme is whether the interference of judicial or other state authorities with the enforcement of a foreign arbitral award may be the trigger for investment protection (for treatment short of fair and equitable treatment or even expropriation) in investment treaty arbitration; this may be on the basis of a bilateral investment treaty and/or the ICISD Convention. It is well established that states parties to the 1958 New York Convention have a public international law obligation to enforce a foreign arbitral award unless they find that one of the limited grounds to resist enforcement exists. A number of recent cases rely on investment treaties to establish jurisdiction against states which aggressively and arbitrarily or negligently and willfully refuse to enforce an award with a foreign party beneficiary. While a trend emerges there are also cases which reject such applications for lack of jurisdiction under investment treaties. The paper provides guidance as to which state conduct in relation to enforcement of arbitral awards may warrant investment arbitration.
Sorel: Quelques Remarques à Propos de la Problématique de L’Intégration Dans le Cadre des Organisations Internationales à Vocation Universelle ou Régionale: Contre la Dictature de la Ligne Droite
Aborder les questions du régionalisme, de l’organisation internationale et de l’intégration amène immanquablement à s’interroger sur les rapports entre organisation internationale et organisation régionale, tout comme sur les rapports entre universalisme et intégration. De la même manière, il est alors courant de considérer les expériences d’intégration, notamment régionales, comme plus favorables à la stabilité économique, à la paix ou à la rencontre des cultures, le cadre de l’Union européenne étant souvent cité. Outre que l’actuelle crise européenne permet de remettre en cause ce modèle positif, cela permet aussi de s’interroger sur les fondements de l’intégration en relation avec les organisations internationales. En clair, faut-il toujours et systématiquement considérer l’intégration comme étant positive ? A l’aide de quelques binômes oppositionnels, nous tenterons de nous interroger sur cette question. Plus qu’un questionnement sur le droit positif, c’est une interrogation épistémologique qui surgit sous cet angle.
It is commonly thought that integration, in particular at the regional level, is beneficial to economic stability, peace and cultural encounters, and the European Union is often cited as a case in point. The recent European crisis brings this "positive" image of integration into question. It also leads one to question the foundations of integration in relation to international organisations. The present paper asks: is integration always a good thing? It answers the question using a series of binary oppositions. More than a analysis of positive law, this paper engages in an epistemological questioning of integration. Note: Downloadable document is in French.
Villalpando: L’Évolution des Relations Entre les Nations Unies et les Organisations Régionales de la Charte à nos Jours
La présente contribution a pour objectif de faire le point sur le cadre institutionnel dans lequel se placent les relations entre les Nations Unies et les organisations régionales. Si cette question se trouve en amont des thèmes de fond traités par d’autres panels de ce colloque, elle n’en reste pas moins essentielle pour appréhender les succès et les défis du régionalisme en droit international. La coopération entre organisations internationales est en effet la cheville ouvrière de l’interaction entre l’universel et le régional dans des domaines aussi variés que la coopération économique, le maintien de la paix et de la sécurité internationales, la protection de l’environnement ou la promotion des droits de l’homme.
This paper examines the institutional framework within which the relationship between the UN and regional organisations is taking place. Though in a sense preliminary to the more substantive issues addressed in other panels, this question is essential to our understanding of the successes and failures of regionalism in international law. The coooperation between international organisations represents the cornerstone of the interaction between universalism and regionalism in areas such as economic integration, international peace and security, environmental protection or human rights. Note: Downloadable document is in French.
- Ingrid Wuerth, Pinochet's Legacy Reassessed
- Notes and Comments
- Daniel Bethlehem, Self-Defense Against an Imminent or Actual Armed Attached by Nonstate Actors
- Current Developments
- Adelle Blackett, The Decent Work for Domestic Workers Convention and Recommendation, 2011
- Steven R. Ratner, Accountability and the Sri Lankan Civil War
Monday, January 7, 2013
Call for Submissions to UNSW Law Journal Issue 36(2):
‘The Use of Force in International Law’
The Editors of the UNSW Law Journal are currently welcoming submissions for Issue 36(2). The issue will comprise both a thematic component and a general component with articles on a variety of topics. The question posed by the thematic component is:
What significance do recent developments in the international sphere have with respect to the law governing the use of force?
Submissions can address any issue relating to the use of force in international law, including purely doctrinal questions. Authors may wish to consider (but are not limited to) the international law implications of contemporary issues such as:
• The Arab Spring, including the conflict in Syria and the intervention in Libya, and its significance for humanitarian intervention or the responsibility to protect.
• The prospect of a US or Israeli strike on Iranian nuclear facilities to inhibit its presumed development of nuclear weapons.
• Counterterrorism-related controversies raised by the Osama bin Laden raid into Pakistan; drone strikes crossing national borders; the Afghanistan war; and operations resulting in extrajudicial killings (including of a state’s own citizens).
• The use or threat of use of force in circumstances of secession, for example the war in Georgia in 2008, or the People’s Republic of China’s ‘anti-secession’ law, by which it may attack Taiwan in the event of a declaration of independence.
• The rise of cyber-warfare, evidenced by the Flame and Stuxnet worms.
• Security and self-defence issues involving the Israeli-Palestinian conflict.
• Recent discussions about the definition of the crime of aggression, and the criminalisation of the use of force as an individual crime.
The Journal is one of Australia’s leading scholarly journals. Currently in its 36th year, the Journal enjoys a diverse and influential readership, and is one of the most widely cited legal reviews in Australia. Submissions for publication are received from local and international academics, judges, and legal professionals from a wide range of practice areas.
The Journal publishes three issues per year, each with a thematic and a general component. The submission deadline for the thematic component of Issue 36(2) is 30 April 2013. Publication is set for the second half of 2013. In addition to submissions exploring the matters of the thematic, authors are welcome to submit on any topic for the general components of this year’s issues, the deadlines for which will be indicated on the website at http://www.unswlawjournal.unsw.edu.au/.
We are accepting articles of between 7,000 and 12,000 words in length (excluding footnotes). The style guide for the Journal is the third edition of the Australian Guide to Legal Citation, available online at http://mulr.law.unimelb.edu.au/go/AGLC3, along with the Journal’s ‘Additions’, available on our website at http://www.unswlawjournal.unsw.edu.au/pdfs/UNSWLJ %20AGLC3%20Additions.pdf.
The Journal is an independent, peer reviewed publication. Although all submissions received are subject to rigorous peer review, decisions as to publication remain at the discretion of the Editor, in council with the Executive Committee of the Journal. Please also note that the Journal does not accept articles that have been or will be published elsewhere, either in identical or substantially similar form.
If you are interested in submitting an article for Issue 36(2), please contact the Journal at firstname.lastname@example.org. It would be appreciated if you could give some early indication of your proposed topic or area of research. If you know of a colleague producing original research in this field, please pass on this invitation.
- M. Cherif Bassiouni, Friedmann Memorial Award Address
- Margaret M. deGuzman, How Serious Are International Crimes? The Gravity Problem in International Criminal Law
- Stephan Landsman, The Eichmann Case and the Invention of the Witness-Driven Atrocity Trial
This paper was presented at a workshop on reparations before the ICC organized by the Université de Montréal. It discusses the challenge of awarding individual or collective reparations. It finds a certain bias so far in practices and commentary in favor of individual awards, which it argues reflects an individual bias in international criminal justice more generally. It makes the case that collective reparations will in many cases be superior not only on pragmatic grounds but also because they make most sense from the point of view of transitional justice. Most importantly, collective reparations are the most faithful to a construction of most international crimes as crimes that target groups (e.g.: the Genocide Convention groups) or categories (e.g.: civilians) rather than individuals as such.
Chircop, Letalik, McDorman, & Rolston: The Regulation of International Shipping: International and Comparative Perspectives: Essays in Honor of Edgar Gold
“Marine transport, and the law and policy within which it operates, must be seen as very similar to other international undertakings operating on a transnational scale.” These concluding words in Edgar Gold’s Maritime Transport (Lexington, 1981) aptly capture the past, present and future of the regulation of international shipping. The Regulation of International Shipping: International and Comparative Perspectives in Honor of Edgar Gold pays tribute to a mariner, legal practitioner and university teacher with a unique understanding of shipping and maritime trade.
With diverse disciplinary backgrounds and perspectives, the distinguished contributors to this tribute examine the public law and policy framework for international navigation, the complex relationship between shipping and the marine environment, the imperative of better protection of seafarers, and ultimately, responsible ocean use. This book includes biographical and bibliographic notes on Edgar Gold.
The role of the international prosecutor is uniquely challenging. Unlike domestic prosecutors, who normally have the material resources to prosecute all of the serious crimes committed within their jurisdiction, international prosecutors are never able to prosecute more than a small fraction of the suspects who have committed an international crime. International prosecutors thus enjoy much greater discretion than their domestic counterparts. At the same time, international prosecutors operate in much more normatively complicated situations than domestic prosecutors: whereas most domestic crimes are generally perceived as deviant and unacceptable, international crimes are nearly always committed for ideological reasons that make their prosecution profoundly controversial. International prosecutors thus also tend to face far more intense political pressures – from states, the United Nations, NGOs, etc. – than their domestic counterparts.
Because international prosecution is both highly discretionary and politically charged, the legitimacy of international criminal justice depends, in large part, on the ability of tribunals to strike an appropriate balance between independence and accountability. This chapter explores the tension between the two. Section I addresses the Prosecutor's structural independence - her independence from external political actors and other organs of the tribunal. Section II examines the Prosecutor’s functional independence – her practical ability to exercise her discretion free from undue limitation.
The ever-increasing exchange of goods and ideas among nations, as well as cross-border pollution, global warming, and international crime, pose urgent questions for international law. Here, two respected scholars provide an intellectual framework for assessing these pressing legal problems from a rational choice perspective.
The approach assumes that states are rational, forward-looking agents which use international law to address the actions of other states that may have consequences for their own citizens, and to obtain the benefits of international cooperation. It further assumes that in the absence of a central enforcement agency—that is, a world government—international law must be self-enforcing. States must believe that if they violate international agreements, other states will retaliate.
Consequently, Eric A. Posner and Alan O. Sykes devote considerable attention to the challenges of enforcing international law, which begin with the difficulties of determining what it is. In the absence of an international constitution, the sources for international law are vague. Lawyers must rely on statements contained in all manner of official documents and on simple observation of states’ behavior. This looseness leads international institutions such as the United Nations to deliver conflicting interpretations of the law’s most basic principles. The authors describe the conditions under which international law succeeds or fails, across a wide range of issues, including war crimes, human rights, international criminal law, principles of state responsibility, law of the sea, international trade regulation, and international investment law.
Sunday, January 6, 2013
The paper will consider the common claim that human rights are based on human dignity as a foundational value. I will make some criticisms of that idea, arguing instead that dignity is a status that comprises fundamental human rights rather than being a value that functions as a major premise of rights claims.