We argue that competitive diffusion is a driver of the trend toward international investment agreements (IIAs) with stricter investment rules, namely defensive moves of developing countries concerned about foreign direct investment (FDI) diversion in favor of competing host countries. Accounting for spatial dependence in the formation of bilateral investment treaties (BITs) and preferential trade agreements (PTAs) that contain investment provisions, we find that the increase in agreements with stricter provisions on investor-state dispute settlement and pre-establishment national treatment is a contagious process. Specifically, a developing country is more likely to sign an agreement with weak investment provisions if other developing countries that compete for FDI from the same developed country have previously signed agreements with similarly weak provisions. Conversely, contagion in agreements with strong provisions exclusively derives from agreements with strong provisions that other FDI-competing developing countries have previously signed with a specific developed source country of FDI.
Saturday, March 28, 2015
Friday, March 27, 2015
Austerity measures in many European countries have led to the violation of social rights and widespread socio-economic malaise. In the case of countries subjected to conditionality imposed by external institutions for the receipt of loans, the resultant harms have highlighted responsibility gaps across a range of international institutions. Two recent legal developments come together to expose these gaps: Greece’s argument in a series of cases under the European Social Charter that it was not responsible for the impact on the right to social security brought about by austerity measures since it was only giving effect to its other international obligations as agreed with the European Commission, the European Central Bank and the International Monetary Fund (the Troika), and the concern to emerge from the Pringle case before the European Court of Justice that European Union institutions could do outside of the EU that which they could not do within the EU – disregard the Charter of Fundamental Rights in the exercise of their tasks. That the Commission and ECB were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study and drawing on EU law, international human rights law, and the law on the international responsibility of states and of international organisations, this article looks to what we can expect in legal terms and as a matter of contemporary societal expectation when it comes to having international institutions respect human rights.
- Stephan W. Schill, Editorial: The Mauritius Convention on Transparency
- Christian Tietje & Clemens Wackernagel, Enforcement of Intra-EU ICSID Awards
- Alessandra Asteriti, Environmental Law in Investment Arbitration: Procedural Means of Incorporation
- Junianto James Losari & Michael Ewing-Chow, A Clash of Treaties: The Lawfulness of Countermeasures in International Trade Law and International Investment Law
- Ximena Fuentes, Proportionality Analysis and Disproportionate Damages: Occidental Petroleum Corporation and Occidental Exploration and Production Company v The Republic of Ecuador
- Ahmad Ghouri, Mohamed Abdulmohsen Al‐Kharafi & Sons Co. v The Government of the State of Libya and others
- Anastasios Gourgourinis, Fair and Equitable Treatment in International Investment Law: The Art of Watching Out for Both the ‘Elephants’ and the ‘Fleas’ in the (Normative) ‘Room’ of Investment Protection
Thursday, March 26, 2015
- Ignacio Basombrío Zender, La OEA y et desarrollo democrático
- Roberto Mac Lean Ugarteche, Testimonio de una defense: mirando más allá del diferendo
- Rosa Garibaldi, La Misión de Manuel Nicolás Corpancho, 1861-1863
- Paul Duclos Parodi, Resultado equitativo conforme a derecho: el caso sobre delimitación territorial y maritime entre Nicaragua y Colombia ante la Corte Internacional de Justicia
This Article argues that the multinational corporation has acquired the power to create primary rules of international law, at stark cost to the state’s regulatory autonomy. It is widely recognized that states have granted private business corporations significant capacities to act on the international stage, including the capacity to bear international legal rights and even to directly enforce their rights through compulsory international adjudication. But what has gone relatively unnoticed is the corporation’s emergent capacity to directly and formally author its international legal rights, by agreement with sovereign states, via an “internationalized” power of contract. This Article explains how this power of contract amounts to something more than a mere commercial power to engage foreign sovereigns in private legal agreements. It represents no less than the capacity to author meaningful and enforceable international legal norms, with priority over the domestic law of the state party – facially limited to the economic sphere, but with dramatic ripples throughout all domains of public life. I argue that this power arises out of the confluence of three seemingly disparate doctrinal shifts in international investment law and human rights jurisprudence, concerning: the legal status of state contracts; the theory of transnational property; and the law of corporate nationality. Finally, I turn a critical eye to these developments, drawing theoretical insights from domestic private law and public international law. I conclude that international legal doctrine has gone too far in empowering multinationals against the state, while remaining too hesitant to demand any form of corporate accountability.
- Dries Lesage & Thijs Van de Graaf, Rising Powers and Multilateral Institutions: Analytical Framework and Findings
- Gregory T. Chin, The State of the Art: Studying the Rising Powers and Multilateral Organizations
- Sven Biscop, Rising Powers, Rising Europe, and the Future of NATO
- Judith Clifton & Daniel Diaz-Fuentes, From 'Club of the Rich' to 'Globalization à la Carte'? Evaluating Reform at the OECD
- Thijs Van de Graaf, The IEA, the New Energy Order, and the Future of Global Energy Governance
- Andreas Nölke, Rising Powers and Transnational Private Governance: The International Accounting Standards Board
- John J. Kirton, Going Global: The G8's Adaptation to Rising Powers
- Madeleine O. Hosli and Thomas Dörfler, The United Nations Security Council: The Challenge of Reform
- Dries Lesage, Peter Debaere, Sacha Dierckx & Mattias Vermeiren, IMF: Rising Powers and IMF Governance Reform
- Robert H. Wade & Jakob Vestergaard, Protecting Power: How Western States Retain Their Dominant Voice in the World Bank's Governance
- James Scott & Rorden Wilkinson, China as a System Preserving Power in the WTO
- Jean-Frédéric Morin & Sara Bannerman, Tigers and Dragons at the World Intellectual Property Organization
- Sander Happaerts, Rising Powers in Global Climate Governance: Negotiating Inside and Outside the UNFCCC
- Amandine Orsini & Rozenn Nakanabo Diallo, Emerging Countries and the Convention on Biological Diversity
- Andrew Cooper, The G20 and Rising Powers: An Innovative But Awkward Form of Multilateralism
Legal globalization has given rise to a number of financial issues in international law in areas as diverse as development financing, investment protection, compensation of human rights victims, and sovereign debt crises. The claims resulting from the proliferation of financial activity are not limited to those primarily involving financial obligations (e.g. loans and grants) but include secondary obligations resulting from the law on international responsibility. Among the many instances of financial obligation covered in this study, the reader will find inter-State financial transactions, inter-State sale of goods, transnational services such as telecommunications and post, the financial operations of multilateral institutions, loans, grants and guarantees provided by the various international financial institutions, certain financial relations between non-State actors (including natural persons) and States, intergovernmental organizations or other international legal actors, and government loans to international organizations.
Epistemic Forces in International Law presents a comprehensive examination of the methodological choices made by international lawyers and provides a discerning insight into the ways in which lawyers shape their arguments to secure validation within the international legal community.
International law is defined in this book as an argumentative practice, articulated around a set of foundational doctrines and deployed through rhetorical techniques. Taking an original approach, Jean d’Aspremont focuses on five key foundational doctrines of international legal theory and five key techniques deployed in international legal argumentation. He argues that mastering these foundational principles and argumentative procedures shapes the discourse of international lawyers as much as these discourses shape these foundational doctrines and techniques of legal argumentation. This book is a pertinent contribution to the methodology and theory of international law, illustrating the rationale of the choices made by lawyers in the doctrines of statehood, sources, law-making, international organisations and effectivity.
Wednesday, March 25, 2015
Call for Papers
Conference on Hybrid Warfare and Minority Rights
Centre for International Law and Human Rights
University of Lancaster, 26 June 2015
The current conflict in Ukraine has raised the challenge of hybrid warfare in European security. This is a method of combat which combines conventional forces to occupy territory with unconventional means – cyber attacks, mobilisation of irregular forces by intelligence agencies, propaganda of war, and acts of sabotage – conducted through disinformation and deniability. Ethnic minorities have provided the focus for this military doctrine. Their rights and self-determination have provided the pretext, cover and justification for intervention and occupation of state territory. Moreover, the initial stages of these conflicts are intended to blend in with familiar forms of protest that might be seen in disaffected minorities – marches, demonstrations and occupation of public buildings. This thin and blurred line creates the possibility for rapid escalation, either intentionally or unintentionally, posing serious security issues, especially in the Baltic region. It also raises key questions for international law in terms of minority and human rights and threshold for the use of force.
This event will investigate the relationship between hybrid warfare and minority rights from three international law and human rights perspectives:
1. Protection of Minority Rights and Hybrid Warfare
The use of minority rights as a pretext for intervention can be destructive of the rights in question. In the interwar period the use of minority rights by neighbouring kin states was a major factor in the collapse of the minority treaties regimes in the 1930s. In contemporary human rights law, national security can be a legitimate ground for restricting rights. Specific rights of minorities affected by hybrid warfare include cultural rights, assembly and association, expression and economic and social rights.
2. Freedom of Expression in the Media and Cyberspace
Integral elements of hybrid warfare are the use of propaganda, internet trolling and cyberwarfare. This raises questions of freedom of expression in relation to national security, respect for rights of others, ethnic non-discrimination and war propaganda.
3. Hybrid Warfare and the Threshold for Armed Attack and State Responsibility
Cyberwarfare, incursions of unidentified armed groups and activities of intelligence agencies are intended to blur the threshold for an “armed attack” for the purposes of self-defence. They also challenge the concept of “control” in the attribution of state responsibility for the actions of non-state actors.
We welcome abstracts for papers of no more than one page from both established researchers and early career academics. Please send your proposals to Dr. James Summers firstname.lastname@example.org. The deadline for abstracts is 1 May 2015.
The role and concept of scholarship, including its foundations, methods and limits are in transition. This development opens up a wide array of questions and debates that are likely to remain at the forefront of academic thinking and research agendas in the next decade(s). The symposium presents an excellent opportunity to deepen discussion and reflection. It presents an occasion to reflect on the future of legal scholarship from different perspectives from within and beyond the Leiden Journal.
The transformation of the BRIC acronym from an investment term into a household name of international politics and, more recently, into a semi-institutionalized political outfit (called BRICS, with a capital ‘S’), is one of the defining developments in international politics in the past decade. While the concept is now commonly used in the general public debate and international media, there has not yet been a comprehensive and scholarly analysis of the history of the BRICS term. The BRICS and the Future of Global Order offers a definitive reference history of the BRICS as a term and as an institution—a chronological narrative and analytical account of the BRICS concept from its inception in 2001 to the political grouping it is today. In addition, it analyzes what the rise of powers like Brazil, Russia, India, China, and South Africa means for the future of global order. Will the BRICS countries seek to establish a parallel system with its own distinctive set of rules, institutions, and currencies of power, rejecting key tenets of liberal internationalism, are will they seek to embrace the rules and norms that define today’s Western-led order?
- Michal Bobek, The Changing Nature of Selection Procedures to the European Courts
- Henri de Waele, Not Quite the Bed that Procrustes Built: Dissecting the System for Selecting Judges at the Court of Justice of the European Union
- Damian Chalmers, Judicial Performance, Membership, and Design at the Court of Justice
- Jean-Marc Sauvé, Selecting European Union's Judges: The Practice of the Article 255 Panel
- Georges Vandersanden, The Real Test - How to Contribute to a Better Justice: The Experience of the Civil Service Tribunal
- Koen Lemmens, (S)electing Judges for Strasbourg: A (Dis)appointing Process?
- David Kosar, Selecting Strasbourg Judges: A Critique
- Armin von Bogdandy & Christoph Krenn, On the Democratic Legitimacy of Europe's Judges: A Principled and Comparative Reconstruction of the Selection Procedures
- Aida Torres Pérez, Can Judicial Selection Secure Judicial Independence? Constraining State Governments in Selecting International Judges
- Alberto Alemanno, How Transparent is Transparent Enough? Balancing Access to Information versus Privacy in European Judicial Selections
- Bilyana Petkova, Spillovers in Selecting Europe's Judges: Will the Criterion of Gender Equality Make it to Luxembourg?
- Daniel Kelemen, Selection, Appointment, and Legitimacy: A Political Perspective
- Mikael Rask Madsen, The Legitimization Strategies of European Courts: The Case of the European Court of Human Rights
- Michal Bobek, Finding the European Hercules
Tuesday, March 24, 2015
- Robin Churchill, Dispute Settlement in the Law of the Sea: Survey for 2013
- Mincai Yu, China’s Informal Participation in the Annex vii Philippines v. China Arbitral Tribunal’s Proceedings
- Aline Jaeckel, An Environmental Management Strategy for the International Seabed Authority? The Legal Basis
- Irene Dahl, Maritime Delimitation in the Arctic: Implications for Fisheries Jurisdiction and Cooperation in the Barents Sea
- Michaela Young, Building the Blue Economy: The Role of Marine Spatial Planning in Facilitating Offshore Renewable Energy Development
- Donald K. Anton & Rakhyun E. Kim, The Application of the Precautionary and Adaptive Management Approaches in the Seabed Mining Context: Trans-Tasman Resources Ltd Marine Consent Decision under New Zealand’s Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
- Michael Kabai, The Maritime Labour Convention and Open Registries: Hand in Glove or Chalk and Cheese
- Hayley Roberts, Responses to Sovereign Disputes in the South China Sea
- Malcolm Evans, Peter Petkoff & Julian Rivers, Introduction
- Mary Ann Glendon, Religious Freedom in the Secular Age
- Heiner Bielefeldt, Towards a Clear Conceptualization of Freedom of Religion or Belief
- Malcolm Evans, Freedom of Religion or Belief- New Challenges
- Michael Wiener, Thirty Years 1981 Declaration as Reflected in Twenty -Five Years Mandate Practice of the United Nations Special Rapporteur on Freedom of Religion or Belief
- Natan Lerner, Incitement to Hatred and the 1981 UN Declaration on Religion or Belief
- Elizabeth Cassidy & Cathy Cosman, A View from the United States: US Bilateral and Multilateral Promotion of Freedom of Religion or Belief
- Thomas Krapf, Lost Opportunities and Missed Targets: Notes on Freedom of Religion or Belief in the Organization of Security and Co-operation in Europe
- Knox Thames, Old is New: Europe and Freedom of Religion or Belief
- Dennis de Jong, The Contribution of the European Parliment to the Protection of Freedom of Religion or Belief through the External Relations of the European Union
- Cristopher McCrudden, Faith-Based Non-Governmental Organizations in the Public Square
- Peter Petkoff, Translating Across Secular and Religious Legal Cultures and Public International Law
- David Jaeger, The Holy See's Perspective on Religious Freedom
- Gary Wilton, Religion, Human Rights and Foreign Policy
- Cole Durham & Elisabeth Clark, Corporate Religious Freedom
- Ilias Bantekas, Freedom of Religion in Transnational Contract and Commercial Transactions
- Jens David Ohlin, Kevin Govern, & Claire Finkelstein, Introduction
- Jonathan M. Smith & Christopher S. Yoo, Cyberwar: What, Why, How, and Who
- Larry May, The Nature of War and the Idea of Cyberwar
- James Cook, Is There Anything Morally Special about Cyberwar?
- Laurie Blank, The Legal Rhetoric of Cyber-Conflict
- Claire Finkelstein & Kevin Govern, Sovereignty & Cyberwarfare: First through Fifth Dimension Concepts of Persons and States
- Duncan Hollis, A Duty to Hack?
- Jens David Ohlin, Cyber-Causation
- Nicolò Bussolati, Hackers at War: The Role of Civilians in Cyber-Warfare
- Stuart MacDonald, Precursor Offences, Remote Harms, & Cyber-Attacks
- Derek Jinks, Cyber Exceptionalism and the Law of War
- Sean Kanuck, Cyber Insecurity: Technology, Law, and Ethics in a Networked World
- James Cartwright, Strategic Depth in the Fifth Dimension
- María-Teresa Gil-Bazo, Asylum as a General Principle of International Law
- Bríd Ní Ghráinne, The Internal Protection Alternative Inquiry and Human Rights Considerations – Irrelevant or Indispensable?
- Mutaz M Qafisheh, An Ongoing Anomaly: Pre- and Post-Second World War Palestinian Refugees
- James C Simeon, The Application and Interpretation of International Humanitarian Law and International Criminal Law in the Exclusion of those Refugee Claimants who have Committed War Crimes and/or Crimes Against Humanity in Canada
- Lauren Nishimura, ‘Climate Change Migrants’: Impediments to a Protection Framework and the Need to Incorporate Migration into Climate Change Adaptation Strategies
- Anna Lübbe, ‘Systemic Flaws’ and Dublin Transfers: Incompatible Tests before the CJEU and the ECtHR?
- Marko Milanović & Sir Michael Wood, Introduction
- James Ker-Lindsay, Explaining Serbia's Decision to go to the ICJ
- Marko Milanović, Arguing the Kosovo Case
- Oudsi Rasheed & Michael Wood, The Handling of 'Multiparty' Litigation: the Example of the Kosovo Case
- Bernhard Knoll-Tudor, The Settling of a Self-Determination Conflict? Kosovo's Status Process and the 2010 Advisory Opinion of the ICJ
- Vladimir Djerić, Questions of Jurisdiction and the Discretion to Decline a Request for an Advisory Opinion
- Daniel Müller, The Question Question
- Sean Murphy, Reflections on the ICJ Advisory Opinion on Kosovo: Interpreting Security Council Resolution 1244 (1999)
- Mathias Forteau, The UN Secretary-General and the Advisory Opinion
- Marc Weller, The Sounds of Silence: Making Sense of the Supposed Gaps in the Kosovo Opinion
- André Nollkaemper, The Court and its Multiple Constituencies: Three Perspectives on the Kosovo Advisory Opinion
- Tatjana Papić, The Political Aftermath of the ICJ's Kosovo Opinion
- Alain Pellet, Kosovo - The Questions Not Asked: Self-Determination, Secession and Recognition
- James Crawford, Kosovo and the Criteria for Statehood in International Law
- Anne Peters, Has the Advisory Opinion's Finding that Kosovo's Declaration of Independence was not Contrary to International Law Set an Unfortunate Precedent?
- Richard Caplan & Stefan Wolff, Some Implications of the Advisory Opinion for Resolution of the Serbia-Kosovo Conflict
- James Gow, Old Problems, Fresh Frameworks: Kosovo, Serbia and the EU - the Virtue of a 'Free Territory'
- Harold Hongju Koh, Reflections on the Law and Politics of the Kosovo Case
Monday, March 23, 2015
The global business environment has changed rapidly in the past decades, but the human rights and business discourse has often lagged behind. At the international level, hard law regulations still seem decades away. United Nations initiatives such as the Guiding Principles and the UN Working Group on the issue of human rights and transnational corporations and other business enterprises are more than a step in the right direction. However, they alone are insufficient to prevent violations and ensure victims receive justice. This edited book uses a broad and pluralistic understanding of direct human rightsobligations, concentrating on legally enforceable standards. The enforceability can come directly from international law, through national legislation, or through non-state actors. The contributions engage both with the law as it is as well as the law as it needs to be developed. In doing so, the book challenges the current reticence to recognise direct human rights obligations of corporations by highlighting the various tools already available for remedying corporate human rights impacts while pushing for the development of further mechanisms.This book and its contributors have followed pluralistic approaches to human rights and business. The book builds on existing literature, but also off ers a unique contribution by considering the eff ectiveness and availability of current mechanisms as well as discussing gaps in the existing framework for human rights protection. The approach in this book allows for a clearer understanding of the global human rights framework, and the manner in which voluntary and binding initiatives can reinforce one another. By weaving together analysis on the current standards and practices with critical approaches, this book allows scholars and practitioners to capture the complexity of holding businesses accountable fortheir human rights impacts.
A new cosmopolitan world order founded on peace-related diversity of human expressions is likely to strengthen the weaker individual. Such order remains nevertheless meritocratic because it would contribute to materialize enhanced equality between individuals belonging to human groups of different strengths with respect to access to power, wealth or popularity. Therefore, in comparison to existing orders, it would arguably create a better basis for freedom and solidarity as well as for peace between human groups, including states. The originality of this theory rests on three pillars. First and foremost, it is built upon the diversity of human expressions in connection with peace as elements which arguably determine directly or indirectely the contents of all legal, social or moral norms. Secondly, it provides the foundation for a new cosmopolitan system promoting moderation against “groupism” that does not require any decision making by unanimity, majority or diktat, but can be implemented by any individual vis-à-vis any other individuals and human groups without any form of institution. Third, this theory relies on a consistency test between an imaginary situation under a veil of ignorance about group affiliations on the one hand ("Imagined Position") and a situation referring to a specific historical reality on the other hand ("Real Position"). The coherence test is conditioned by the fear of belonging to the weaker human groups which should procure a universal validity to it by relying on average risk aversion of human beings. The comparison between these two positions shall allow for a verification of consistency in relation to peace-related human diversity when it comes to assessing existing legal, social and moral norms or to create and implement new ones.
- Boris Kondoch & Brendan Howe, The Politics, Challenges, and Future of UN Peacekeeping Contributions from the Asia-Pacific
- Brendan Howe & Boris Kondoch, Northeast Asian Perspectives on UN Peacekeeping
- Alistair D.B. Cook, Southeast Asian Perspectives on UN Peacekeeping
- Peter Londey, Australia and Peacekeeping
- Sinclair Dinnen, RAMSI Ten Years On - From Post-Conflict Stabilisation to Development in Solomon Islands?
- Yuji Uesugi, All-Japan Approach to International Peace Operations
- Keokam Kraisoraphong & Brendan Howe, Thailand’s Participation in UN Peacekeeping Missions
- Xenia Avezov, Why Contribute? Understanding Asian Motivations for Troop Contribution to Peace Operations
- Otto Spijkers, Responsibility of the Netherlands for the Genocide in Srebrenica
- Håkan Edström & Dennis Gyllensporre, Observing War — Keeping Peace?
- Alicia Ohlsson, Claes Wallenius & Gerry Larsson, The Comprehensive Approach — Doctrinal Overview and Swedish Leadership Implications at the Operative and Tactical Level
The paper presents a moral judgment-based account of customary international law (MJA), according to which opinio juris embodies a moral judgment, and moral judgment is involved in the interpretative process of of determining whether a customary norm has come into being. The MJA is shown to fit with the service conception of the legitimacy of international law, as opposed to a consent-based view. The second half of the paper considers the implications of the MJA for human rights as both customary norms and as norms of jus cogens.
- Olivier Corten & François Dubuisson, Avant-propos
- Olivier Corten, Droit international et cinéma : quelle méthodologie ?
- Marco Benatar, « Au mépris du danger, reculer l’impossible » : à la recherche d’un ordre juridique intergalactique
- Vincent Chapaux, Les rapports inter-espèces dans les films de science-fiction et dans le droit international terrien
- Franck Latty, Un droit international surréaliste ? La lex sportiva cinématographiée
- Olivier Corten, Mais où est donc passée la Charte des Nations Unies ? Représentations et sous-représentations des règles sur l’usage de la force dans les films d’action
- François Dubuisson, Le conflit israélo-palestinien : une saga cinématographique
- Jacobo Ríos Rodríguez, Jack Bauer, 007 et OSS 117 : quelles représentations du droit international ?
- Xavier Philippe, Les crimes internationaux vus par le cinéma : une mobilisation intuitive du droit international pénal
- Anne Lagerwall, Quand la justice pénale internationale tient le premier rôle 241
- Noémie Turgis, Justice transitionnelle au cinéma, justice transitionnelle par le cinéma
- Martyna M. Fałkowska & Vaios Koutroulis, A la recherche du principe de distinction entre combattants et non-combattants dans les films de guerre
- Michel Tabbal, La mise en scène de la lutte contre le terrorisme : où sont les droits de l’homme ?
- Serge Sur, Présentations et représentations du droit international dans les films et les séries télévisées
Notion complexe à appréhender, la prévention des violations des droits de l’homme n’en demeure pas moins inhérente à l’objectif de toute démarche politique et juridique visant à renforcer la protection effective des droits et des libertés. Comment envisager en effet une seule et unique approche ex-post alors que la finalité d’un instrument conventionnel en matière de protection des droits de l’homme est avant tout d’affirmer ou/et de consolider la prééminence du droit ? Reposant sur un engagement politique et diplomatique ainsi que sur une définition juridique proactive, la notion de prévention s’inscrit dans un cadre technique nécessitant une définition positive des obligations à la charge des Etats et un développement des instruments de surveillance qui se doivent de définir des moyens non limités à la seule démarche attentiste. L’objet du présent ouvrage, qui regroupe les contributions du colloque organisé par le Centre de recherche sur les droits de l’homme et le droit humanitaire de l’Université Panthéon-Assas (Paris II) et l’Institut international des droits de l’homme, est donc de porter la réflexion de la protection internationale des droits de l’homme dans cette perspective qui constitue un préalable indispensable à toute réflexion sur le terrain des droits et des libertés. Partant d’une approche conceptuelle de la notion de prévention, l’ouvrage offre une analyse des mécanismes de prévention instaurés ou développés dans le cadre international et, tout en prolongeant cette ligne dans une perspective diplomatique, porte également la réflexion sur les développements matériels contemporains susceptibles de matérialiser une prévention indirecte des violations des droits de l’homme.
Sunday, March 22, 2015
Mohamed: Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law
The historian Raul Hilberg once observed that we would all be happier if we believed the perpetrators of the Holocaust were crazy. But mass atrocity is never so simple. We may search in Germany, Bosnia, the Congo, or Rwanda for the madman or the deviant, but often we will find instead an ordinary person, one who commits a crime at the barrel of a gun or who succumbs to the awful indirect coercion that pervades entire communities in the throes of transformative violence. In the ashes of atrocity, criminal courts have been created, but many scholars have come to think that the basic structures of criminal law — built to address willful deviance from society’s norms — are inappropriate for dealing with the complex context of mass atrocity crimes.
This Article challenges this critique by making three contributions. First, it presents a novel descriptive account of how courts addressing mass atrocity crimes wrestle with the concept of deviance in criminal responsibility. Second, applying principles of domestic criminal law, the Article proposes a theory of “aspirational expressivism,” which envisions international criminal law as legitimately and positively setting forth aspirations for human behavior, rather than simply drawing a line between normalcy and deviance. Finally, the Article builds on the theory of aspirational expressivism to make the normative claim that courts can be more than forums for condemning the world’s horrors, as their role has been predominantly conceived. Instead, they can be — and should be — sites of storytelling, providing an opportunity for understanding how individuals choose to perpetrate unspeakable crimes, articulating how we hope people will behave in the most demanding of circumstances, and shaping our beliefs about the way we ought to behave under the unflattering light of the way we actually do.