In 2005, the International Criminal Court (“ICC”) issued warrants for the arrest of Joseph Kony, the leader of Uganda’s murderous Lord’s Resistance Army (LRA), as well as four other high-level LRA suspects. The warrants proved controversial when the fate of promising peace negotiations appeared to hinge on the ICC’s willingness to defer to Ugandan efforts to address LRA atrocities through alternative proceedings emphasizing truth-telling, forgiveness, and reconciliation over prison time. The episode presents a familiar dilemma of transitional justice that simultaneously exposes deep uncertainties in the ICC’s mandate. The Rome Statute’s imbalance is especially problematic because it undermines the rationale that has most powerfully justified the establishment of the ICC in the first instance: the argument that prosecution of international crimes is a fundamentally legal matter that must be entrusted to legal professionals and shielded from undue political interference.
This Article takes up this problem through a focused analysis of the ICC’s response to the Ugandan peace process. Its three principal claims are as follows. First, the ICC's Statute does not, in fact, provide meaningful guidance to the Court as it navigates the particular dilemmas of transitional justice in Uganda. Second, the development of ex ante guidelines to cabin prosecutorial discretion - a potential source of legitimation that others scholars have found attractive - is unlikely to adequately remedy the underlying legitimacy deficit and has failed to do so thus far. Third, and finally, legitimation of prosecutorial policy in Uganda may ironically rest in the hands of another actor - the UN Security Council - whose power the treaty creating the ICC sought to diminish.
Saturday, November 7, 2009
Greenawalt: Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court
Friday, November 6, 2009
- Agora: Kosovo (Part 3)
- Cedric Ryngaert & Christine Griffioen, The Relevance of the Right to Self-determination in the Kosovo Matter: In Partial Response to the Agora Papers
- Alexander Orakhelashvili, Kosovo and the Pitfalls of Over-theorizing International Law: Observations on Hilpold's Rejoinder
- Duncan French, Global Justice and the (Ir)relevance of Indeterminacy
- Brief Comments, Essays and Notes
- Fei Lanfang, Enforcement of Arbitral Awards between Hong Kong and Mainland China: A Successful Model?
- Allan Verman Yap Ong, Issues in the Application of Dépeçage in Chinese Private International Law
- Ticy V. Thomas, The Proliferation Security Initiative: Towards Relegation of Navigational Freedoms in UNCLOS? An Indian Perspective
- Courts and Tribunals
- Sienho Yee, Notes on the International Court of Justice (Part 3): Rule-making at the Court—Integration, Uniformization, Keeping Existing Article Numbers and Giving Public Notice
- Development and History
- Sergei Yu. Marochkin, On the Recent Development of International Law: Some Russian Perspectives
In the aftermath of the terrorist attacks of September 11, 2001, Professors Jack Goldsmith and Eric Posner published The Limits of International Law, a potentially revolutionary book that employs rational choice theory to argue that international law is really just “politics” and does not render a “compliance pull” on State decisionmakers. Critics have pointed out that Goldsmith and Posner’s identification of the role of international law in each of their case studies is largely conjectural, and that what is needed is qualitative empirical data that identifies the international law-based arguments that were actually made and the policy-makers’ responses to such arguments. In an effort to fill this gap, with the support of a Carnegie Corporation grant, the author convened a series of meetings and exchanges with the ten living former State Department Legal Advisers to discuss the influence of international law in the formulation of foreign policy during times of crisis. This Article reviews the scholarly debate about the nature of international legal obligation, presents the results of the Legal Advisers’ meetings, and provides an in depth examination of a modern case study involving the treatment of detainees in the war on terror which highlights the importance of these findings.
SFDI: La soumission des organisations internationales aux normes internationales relatives aux droits de l'homme
Les contributions à cette journée questionnent les décisions engagées par le droit international et sa jurisprudence et leur adéquation aux normes internationales des droits de l'homme.
Thursday, November 5, 2009
This book analyzes how the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) deal with general international law. In the light of the concerns of various authors about the fragmentation of international law and the “human rightist” aspirations of human rights law, the question arises whether these human rights courts put the unity of general international law into danger.
The main idea of this study is that the ECtHR and the IACtHR may in principle only “elaborate” and not “depart” from or “contradict” general international law. A departure is only acceptable if a clear lex specialis has been established for human rights law.
The author researches whether or not the sometimes different case law of both human rights courts fits into this assumption. Almost all topics of general international law that have been dealt with by the ECtHR and IACtHR are analyzed: reservations, application of treaties ratione temporis, ratione loci and ratione personae, interpretation rules, the theory of the sources of international law, jus cogens, modification and withdrawal from treaties, diplomatic protection, exhaustion of local remedies, State responsibility (including the law of reparations), foreign State immunity and State succession.
This volume is of interest not only to human rights lawyers, but to all international lawyers. It explains how certain traditional concepts of general international law appear to function, and how other concepts need to be refined in order to create a more effective international order. This analysis may be a source of inspiration for other subsystems of international law like environmental law, WTO law, maritime law, space law, etc.
- Edgar Tabaro, Patent Law Reform in Uganda: Addressing Priorities and Strategies
- Robin Wright, The "Three-Step Test" and the Wider Public Interest: Towards a More Inclusive Interpretation
- Adriano Profeta, Richard Balling, Volker Schoene, & Alexander Wirsig, The Protection of Origins for Agricultural Products and Foods in Europe: Status Quo, Problems and Policy Recommendations for the Green Book
- Kiernan A. Murphy, The Precautionary Principle in Patent Law: A View from Canada
Johnson: Issues of International Law Interest before the 64th Session of the United Nations General Assembly
Nigel White (Univ. of Nottingham - Law) will give a talk today at the Oxford Public International Law Discussion Group on "The Security Council, The Security Imperative, and International Law."
Wednesday, November 4, 2009
The New York Convention at 50, comprises the proceedings of the ICCA Conference held in Dublin in 2008 on the fiftieth anniversary of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. One of the highlights of the Conference was a Plenary Session in which the world’s leading arbitration experts debated the need to revise the New York Convention. This discussion, along with the text of a preliminary draft of the revised Convention presented during the Conference, is reported in this volume.
Further Reports and Commentary explore the two main themes of the Conference: Investment Treaty Arbitration/Treaty Arbitration, with contributions on: The Impact of Investment Treaty Arbitration: Identifying the Expectations, Testing the Assumptions; Investment Treaty Arbitration and Commercial Arbitration: Are They Different Ball Games?; Remedies in Investment Treaty Arbitration: The Bottom Line; and The Enforcement of Investment Treaty Awards, and Rules-Based Solutions to Procedural Issues, with contributions on: Multi-party Disputes; Consolidation of Claims; Summary Disposition; and Provisional Measures.
The volume also includes transcripts of the Round Table Session assessing the revisions to the UNCITRAL Rules on International Commercial Arbitration and of an Open Discussion on Recent Developments in International Arbitration.
Throughout the history of Western political thought, the creation of a world community has been seen as a way of overcoming discord between political communities without imposing sovereign authority from above. Jens Bartelson argues that a paradox lies at the centre of discussions of world community. The very same division of mankind into distinct peoples living in different places which makes the idea of a world community morally compelling has also been the main obstacle to its successful realization. His book offers a philosophical and historical analysis of the idea of world community by exploring the relationship between theories of world community and changing cosmological beliefs from the late Middle Ages to the present.
Debates about the construction of postnational law and global governance are usually dominated by a constitutionalist prism, by the hope to establish order through principled hierarchies on a domestic model. Yet what we see emerging is quite different: it is a pluralist order in which the different parts (of domestic, regional, and global origin) are not linked by overarching legal rules, but interact in a largely political fashion. This paper traces the structure of pluralism in a central area of global governance, the regime complex around trade, food safety and the environment, using the example of the dispute over trade with genetically modified organisms (GMOs). It analyses the different institutions and their modes of interaction in this area, and it shows how their competing authority claims relate to broader claims by various collectives striving for control in the construction of global governance. The paper also seeks to shed light on the common charge that pluralist orders create instability. The analysis of the GMO dispute does not confirm this view; it reveals limits to what global risk regulation can achieve in the face of highly politicised conflict, but it also shows significant cooperation successes. Moreover, it suggests that the limits of cooperation are due less to institutional than to societal structures and that a pluralist order, by leaving issues of principle open, may provide a safety valve for issues of high salience, thus avoiding frictions a constitutionalist order might produce.
- Gabriella Blum (Harvard Univ. - Law), Equal Rights, Different Standards: Compliance with the Laws of War
- Comment: Curtis Bradley (Duke Univ. - Law)
- Erik Voeten (Georgetown Univ. - School of Foreign Service), Borrowing and Non-Borrowing Among International Courts
- Comment: Laurence Helfer (Duke Univ. - Law)
- Andrew Lang (LSE - Law), Legal Regimes and Regimes of Knowledge: Governing Global Services Trade
- Comment: Andrew Mitchell (Univ. of Melbourne - Law)
- Pierre-Hugues Verdier (Univ. of Virginia - Law), Mutual Recognition: The New Bilateralism in International Finance
- Comment: David Fontana (George Washington Univ. - Law)
- Graham Mayeda (Univ. of Ottawa - Law), Pushing the Boundaries of International Law: Rethinking International Law in Light of Cosmopolitan Obligations to Developing Countries
- Comment: Annecoos Wiersema (Ohio State Univ. - Law)
- Leslie Johns (Univ. of California, Los Angeles - Political Science), Strengthening International Courts and the Early Settlement of Disputes
- Comment: Erik Voeten (Georgetown Univ. - School of Foreign Service)
- Darren Hawkins (Brigham Young Univ. - Political Science), Partial Compliance: A Comparison of the European and Inter-American American Courts for Human Rights
- Comment: Samantha Besson (Univ. of Fribourg - Law)
- Yuval Shany (Hebrew Univ. - Law), Assessing Effectiveness of International Courts: Can the Unquantifiable Be Quantified?
- Comment: Timothy Waters (Indiana Univ., Bloomington - Law)
Tuesday, November 3, 2009
The overarching theme of the conference reflects the question whether in today’s international society international law can still be seen as mainly inter-State law, or whether in this age of globalisation, international law has become truly humanity’s law (“De iure humanitatis”), protecting people(s) alongside the interests of States. With this theme the organisers hope to create a common focus that will allow discussion of core issues of international law by public and private international lawyers. Today’s legal science and legal practice have reached such high levels of specialisation that it is almost impossible to be an expert in more than one field only. Reality, however, requires an understanding of common principles, of the sources of inspiration behind positive international law (“what do we do it for?”, in the end), and of how to combine views from several branches of international law in a way that contributes to an interlinked way of considering issues that cry for international (legal) action.
- Karen J. Alter & Sophie Meunier, The Politics of International Regime Complexity
- Christina L. Davis, Overlapping Institutions in Trade Policy
- Emilie M. Hafner-Burton, The Power Politics of Regime Complexity: Human Rights Trade Conditionality in Europe
- Laurence R. Helfer, Regime Shifting in the International Intellectual Property System
- Stephanie C. Hofmann, Overlapping Institutions in the Realm of International Security: The Case of NATO and ESDP
- Alexander Betts, Institutional Proliferation and the Global Refugee Regime
- Judith Kelley, The More the Merrier? The Effects of Having Multiple International Election Monitoring Organizations
- Daniel W. Drezner, The Power and Peril of International Regime Complexity
- S. Grundmann, La structure du DCFR - Quelle forme pour un droit européen des contrats?
- A. Jakab, Le droit constitutionnel allemand et la doctrine de l'état d'urgence: modèles et dilemme d'un discours juridique allemand traditionnel
- A. Foko, L'essor de l'expertise de gestion dans l'espace OHADA
- Myam A. Gehri, Anerkennung ausländischer Insolvenzentscheide in der Schweiz-ein neuer Réduit National?
- Daniela Demko, Die von der Genozidkonvention geschützten "Gruppen" als Regelungsgegenstand des "Specific Intent"
Monday, November 2, 2009
Globalisierung ist in erster Linie eine Erscheinung der Tatsachenwelt. Die große Herausforderung der Gegenwart lautet, das umfassende Netzwerk tatsächlicher Verknüpfungen in eine gerechte Weltordnung umzuwandeln, die durch ihre Stabilität Frieden und Sicherheit zu verbürgen vermag. Völkerrechtliche Mechanismen allein können wegen ihrer Verwurzelung im einzelstaatlichen Souveränitätsprinzip diese Aufgabe nicht leisten. Auch die Verfahren der Vereinten Nationen sichern lediglich einen äußeren Ordnungsrahmen. Echte Legitimität für ein Weltordnungssystem lässt sich nur erzeugen, wenn die aus dem Verfassungsprozess der Nationalstaaten bekannten Konzepte auch auf die internationale Ebene übertragen werden. Zu diesen Leitgedanken gehören in erster Linie Demokratie, Selbstbestimmung, Freiheit und Solidarität.
Der Herausgeber hat sich seit langem mit dem Begriff der internationalen Gemeinschaft befasst, die normativ bereits feste Wurzeln geschlagen hat, deren praktische Durchsetzung indes weit hinter den Idealvorstellungen zurückbleibt. Der Sammelband versucht, durch die Überwindung der klassischen Trennung zwischen staatlichem Recht und Völkerrecht hier neue Denkanstöße zu geben.
Allen: The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International Legal Project in the Indigenous Context
Many prominent indigenous representatives and sympathetic international lawyers/scholars have embraced the UN Declaration on the Rights of Indigenous Peoples (DRIP) on behalf of the international legal project, despite it being a non-binding international instrument. This essay questions the techniques used by some members of these constituencies to promote the significance of the DRIP for international law. In particular, it demonstrates the shortcomings of the version of the international legal project favoured by some indigenous rights advocates and the weaknesses in their legal arguments and rights theorising. Instead, this essay argues that the DRIP’s significance stems from the political legitimacy it embodies rather than its claimed international legal character. It suggests that the DRIP should be viewed as a highly persuasive tool to be utilised in the political contests that determine municipal laws and policies within the arena of the State. Indigenous peoples must seize this internationally sponsored opportunity to (re)engage in national political processes in order to make their particular cases for comprehensive municipal legal rights. The essay argues that political engagement at a national level is more likely to generate the political will needed to operationalise indigenous rights (thereby closing the existing ‘implementation gap’) than the currently preferred route of trying to impose international standards on ambivalent States, a process which typically leads to the creation of paper rights that do little to protect indigenous peoples in national settings.
- Reza Afshari, A Historic Moment in Iran
- Robert K. Goldman, History and Action: The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights
- Barbara Ann Rieffer-Flanagan, Is Neutral Humanitarianism Dead? Red Cross Neutrality: Walking the Tightrope of Neutral Humanitarianism
- Charlotte Nunes, In the Name of National Security: Torture and Imperialist Ideology in Sheridan’s In the Name of the Father and Jordan’s Breakfast on Pluto
- Bonnie Docherty, Breaking New Ground: The Convention on Cluster Munitions and the Evolution of International Humanitarian Law
- Katie Zoglin, Morocco’s Family Code: Improving Equality for Women
- Lauri R. Tanner, Interview with Judge Antônio A. Cançado Trindade, Inter-American Court of Human Rights
- Susan L. Kang, The Unsettled Relationship of Economic and Social Rights and the West: A Response to Whelan and Donnelly
- Daniel J. Whelan & Jack Donnelly, The Reality of Western Support for Economic and Social Rights: A Reply to Susan L. Kang
- Fionnuala Ní Aoláin, Women, Security, and the Patriarchy of Internationalized Transitional Justice
The involvement of health professionals in human rights and humanitarian law violations has again become a live issue as a consequence of the U.S. prosecution of conflicts with al Qaeda, the Taliban, and Iraq. Health professionals-including MDs trained in psychiatry and PhDs trained in behavioral psychology-have reportedly advised and assisted in coercive interrogation. Health professionals have also been involved in forced feedings. Such practices would not be unique to the United States nor the most extreme forms of abuse in the world. The direct involvement of medical professionals in torture, covering up extrajudicial killings, and other extreme conduct is a phenomenon common to many societies and periods of national crisis. Indeed, the widespread and repeated nature of this problem has led to the development of important legal and ethical codes on the subject. Those codes, however, are notoriously insufficient in many cases. A reexamination of the international norms, as developed in human rights law, humanitarian law, and professional ethics can shed light on these issues. However, in addition to those instruments, the struggle to end such violations requires understanding human behavior and the role of formal and informal institutional pressures. In this volume, a wide range of prominent practitioners and scholars explore these issues. Their insights provide significant potential for reforming institutions to assist health professionals maintain their legal and ethical obligations in times of national crisis.
The proliferation of international law and institutions over the past two decades has produced both excitement and anxiety. Cooperation and coordination - formal and informal - has allowed states and other international actors to get at global and regional problems and facilitate international exchange much more so than in the past. The heightened activities of international organizations and national governments have pertained both to traditional areas, as well as those, such as environmental law, that had hitherto been almost exclusively within the domain of domestic politics and law. Such developments have worried those who believe that decisions taken at the international level are insufficiently reflective of and constrained by democratic politics and basic principles of due process, and unfairly give preferences to powerful states over less powerful ones.
In their article “National Courts, Domestic Democracy, and the Evolution of International Law,” 20 European Journal of International Law 59 (2009), Eyal Benvenisti and George W. Downs argue that national courts are the best device for the control of powerful executive branches and the facilitation of popular participation in international affairs. In this short response, I counter that national courts are unlikely to be as effective as the authors hope and desire. There are considerable doubts that national courts are strong enough to take on these difficult tasks. And there are serious reasons to be suspicious that national courts are to be counted on to do so. My aim, though, is not to dismiss national courts entirely. My point here is simply that the reliance placed by Benvenisti and Downs on domestic judiciaries is too great, even for the best of them. Indeed, those concerned with the transfer of decisionmaking to the international level are, quite strategically, not putting all their eggs in the judicial basket. Instead, we are seeing a complex and contentious constitutive process of adaptation of supervisory techniques.
Sunday, November 1, 2009
This contribution focuses on the role of morality in international legal discourse. International lawyers endorse distinct methods and embrace particular concerns. Their arguments are oftentimes closely intertwined with the analysis and assessment of the practical consequences of the actual use of political leverage that builds on moral convictions or appeal. We distinguish three broad approaches: 1) Skepticism - morality is disguise and domination. 2) Foundation - universal morality provides the foundation of international law. 3) Process - law and morality stand in a constitutive relationship - morality is viewed as a possibility. The contribution argues that diverging conceptions, approaches and methods respond to distinct sensibilities and priorities of concerns that arise from diverging views on the existence and accessibility of a morality as well as on the reality of international law. Under the surface of distinct theoretical approaches to morality and international law loom diverging political judgments of the status quo of the current international legal order, of its history, its achievements and of its future.