- Chris Oxtoby, Guantanamo — A New Legal Regime?
- Jamil Ddamulira Mujuzi, From Nuremberg to Tokyo through Africa to The Hague: Punishing Torturers before International Criminal Tribunals
- François Bugnion, Customary international humanitarian law
- Dan Kuwali, The Architecture of AU Intervention: Institutions for Implementation of Article 4(h) of the AU Act
- Phebe Mavungu Clément, The "African World War’" and Challenges to the Enforcement of Redress for Victims of Violations of Human Rights and International Humanitarian Law
Saturday, January 23, 2010
Friday, January 22, 2010
La présente publication intervient à un moment crucial où la consolidation de la paix est placée au coeur de l’agenda international. La consolidation de la paix au lendemain d’un conflit représente un défi majeur pour la communauté internationale et pour les sociétés ravagées par la guerre. Elle a pour objectif ambitieux de renforcer les capacités d’une société sortie d’un conflit en vue de favoriser l’établissement d’une paix juste et durable. Par-delà sa dimension strictement opérationnelle, la consolidation de la paix demeure marquée par des ambiguïtés conceptuelles et terminologiques, qui sont des obstacles à la compréhension de ses enjeux et à l’action des décideurs et des praticiens. Ce lexique entend participer à une meilleure compréhension des multiples facettes de la consolidation de la paix, en présentant de manière didactique et analytique le sens et la pertinence de ses principales composantes.
Le lexique est composé à cette fin d’une introduction générale consacrée au concept même de la consolidation de la paix, suivie de l’étude de vingt-six concepts clés (incluant notamment l’état de droit, la justice transitionnelle, la (re)construction de l’Etat ou encore la transformation des conflits). L’étude des différents concepts clés a été confiée à des experts internationaux provenant de diverses disciplines, qu’il s’agisse des sciences politiques et des relations internationales, du droit international, de l’économie ou de la sociologie. Le lexique permet ainsi de multiplier les perspectives de manière à éclairer la grande variété des défis associés à la consolidation de la paix. Par-delà la diversité des thèmes et des approches retenus, chaque concept clé fait l’objet d’une définition générique qui est ensuite commentée autour de trois lignes directrices : le sens et l’origine du concept clé étudié ; son contenu et ses composantes ; sa mise en oeuvre, les difficultés qu’elle suscite et, le cas échéant, les enseignements issus de la pratique.
- Bruce Jones & Shepard Forman, Introduction: 'two worlds' of international security
- Stewart Patrick, 'The mission determines the coalition': the United States and multilateral cooperation after 9/11
- Stephen John Stedman, UN transformation in an era of soft balancing
- David Malone, An evolving UN Security Council
- Richard Gowan & Sara Batmanglich, Too many institutions? European security cooperation after the Cold War
- Mats Berdal & David Ucko, Whither NATO?
- Christine Wing, The evolution of nuclear non-proliferation institutions
- Eric Rosand & Sebastian von Einsiedel, 9/11, the 'war on terror' and the evolution of counter-terrorism institutions
- Fiona Simpson, Evolution and innovation: biological and chemical weapons
- Ian Johnstone, Normative evolution at the UN: impact on operational activities
- Barnett R. Rubin, Constructing sovereignty for security
- Teresa Whitfield, New arrangements for peace negotiation
- Abby Stoddard, International humanitarian cooperation: aiding war's victims in a shifting strategic environment
- Sarjoh Bah, The evolution of regional and sub-regional collective security mechanisms in post-Cold War Africa
- Cesare Romano, International courts and tribunals
- Richard Gowan & Bruce Jones, Conclusion: international institutions and the problems of adaptation
Several important legal features of the contemporary practice of international organizations (IOs) are not easily accommodated in standard approaches to international organizations law. This article argues that Global Administrative Law (GAL) approaches may strengthen analysis of operational issues such as emergency actions by IOs and the human rights implications of IO activities, structural issues such as the involvement of IOs in field missions and in public-private partnerships, and normative issues concerning the production and effects of non-treaty regulatory instruments by IOs (guidelines, best practices, national policy assessments, and other documents rather amorphously analyzed under the ‘soft law’ rubric.) In examining these activities as forms of administration (broadly understood), subject to precepts of good administration and legal standards concerning transparency, participation, reason-giving, review, and accountability, a GAL perspective provides a basis both for critique of problematic practices, and for increasing the effectiveness and legitimacy of some beneficial IO activities which are contentious or currently not undertaken. GAL also responds to the proliferation and differentiation of IOs and other entities in global governance through bringing to their interactions a principled ‘inter-public’ approach to the legal relations among global public entities. GAL provides a valuable, and thus far overly neglected, addition to the field of international institutional law.
- Peter B. Rutledge, Introduction: The Constitutional Law of International Commercial Arbitration
- Gary B. Born, Keynote Address: Arbitration and the Freedom to Associate
- Linda Silberman, The New York Convention After Fifty Years: Some Reflections on the Role of National Law
- Andreas F. Lowenfeld, The ICSID Convention: Origins and Transformation
- Christopher M. Ryan, Discerning the Compliance Calculus: Why States Comply with International Investment Law
- Maureen A. Weston, Simply a Dress Rehearsal? U.S. Olympic Sports Arbitration and De Novo Review at the Court of Arbitration for Sport
Thursday, January 21, 2010
Robinson & Haque: Justice & Deterrence in International Law: Improper Limitations on Responses to Unlawful Aggression
Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.
There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its rules are perceived as obviously unjust. This common sense perspective is supported by social science research showing the importance of law's moral credibility in gaining assistance and compliance, in reducing resistance and subversion, and in helping to shape shared norms. The current practice of victim states' ignoring the legal limitations, with studied indifference to such "violations" by the international community, only legitimizes and habituates law-breaking, further undermining international law's moral credibility.
Interpretations of international law can be constructed that would narrow the gap between the legal rules and moral intuitions regarding the use of defensive force. Such revisionist interpretations may be a useful temporary measure, but are not a solution, because the gap between law and justice can be narrowed but not closed by reinterpretation alone. Ultimately, reform is required of international law's foundational texts, in particular Article 51 of the U.N. Charter.
International law limitations on responses to aggression are also improper for reasons beyond their conflict with the principles of justice instantiated in domestic criminal law. International law and domestic criminal law are importantly different. Most fundamentally, international law lacks an effective law enforcement system. In order to effectively control unlawful aggression, international law needs to have fewer limitations on responses to aggression, not more. A series of examples of such improper limitations are given. They have the unfortunate effect of promoting aggression and instability by undermining effective deterrence. Again, there exist possible reinterpretations of international law that could avoid some of the improper limitations but, ultimately, a reform of international law's foundational texts is required.
Opportunities for reform of international law are rare, but luckily the Assembly of State Parties to the International Criminal Court is currently developing an amendment to the Rome Statute that identifies the crimes over which the Court has jurisdiction. Tragically, rather than taking this opportunity to confront international law's existing problems, the current Draft Amendment compounds those problems by imposing individual criminal liability on leaders of victim states who authorize defensive force against unlawful aggression in violation flawed current law.
- Jonathan Mercer, Emotional Beliefs
- Michael C. Horowitz, Nonstate Actors and the Diffusion of Innovations: The Case of Suicide Terrorism
- Krzysztof J. Pelc, Constraining Coercion? Legitimacy and Its Role in U.S. Trade Policy, 1975–2000
- Asif Efrat, Toward Internationally Regulated Goods: Controlling the Trade in Small Arms and Light Weapons
- Solomon Polachek & Jun Xiang, How Opportunity Costs Decrease the Probability of War in an Incomplete Information Game
On October 21-23, 2010, the American Branch of the International Law Association and the International Law Students Association will present the annual International Law Weekend (“ILW”) in New York, in conjunction with the 89th annual meeting of the American Branch. ILW 2010 will bring together hundreds of practitioners, professors, members of the governmental and non-governmental sectors and students. It will feature numerous panels, distinguished speakers, receptions, and the Branch’s annual meeting.
ILW 2010 will take place at the Association of the Bar of the City of New York on October 21, 2010, and at Fordham University School of Law on October 22 and 23. The overall theme of ILW 2010 is “International Law and Institutions: Advancing Justice, Security and Prosperity.”
The global strategic and financial turmoil of the last several years has created unprecedented challenges and opportunities for international law and institutions. ILW 2010 will address the role of international law and institutions in reducing conflict, promoting security, fostering human rights, protecting the environment, facilitating trade and investment, and resolving public and private international disputes. Panels will examine subjects such as the extent to which treaties currently under negotiation or consideration would further these objectives, and the operation and effect of international organizations, international courts, and arbitral institutions on the global legal order.
The Co-Chairs of ILW 20010 are Professor Elizabeth Burleson of the University of South Dakota Law School, Elizabeth.Burleson@usd.edu, Hanna Dreifeldt Lainé of the United Nations Office of Legal Affairs, firstname.lastname@example.org, Vincent J. Vitkowsky, Partner, Edwards Angell Palmer & Dodge LLP, email@example.com, and Jill Schmieder Hereau, Program Coordinator at the International Law Students Association, firstname.lastname@example.org.
The Co-Chairs invite proposals for panels for ILW 2010.
Please submit proposals by email to each of the Co-Chairs no later than Friday, April 9, 2010. The proposals should be structured for 90-minute panels, and should include a formal title, a brief description of the subjects to be covered (no more than 75 words), and the names, titles, and affiliations of the panel chair and three or four likely speakers. The proposals should also describe the format envisaged (point-counterpoint, roundtable, or other).
One of the objectives of ILW 2010 is to promote a dialogue among scholars and practitioners from across the legal spectrum, so whenever possible, panels should include presentations of divergent views.
Wednesday, January 20, 2010
INTERNATIONAL CONFERENCE ON
"THE POLITICAL ECONOMY OF LIBERALIZING TRADE IN SERVICES"
June 14-15, 2010
DEADLINE FOR SUBMISSION OF PROPOSALS: FEBRUARY 21, 2010.
Trade in services is central to many of the new issues on the trade policy agenda. Policy on trade in services exists in the space between traditional trade negotiations and, among other things, a range of relatively new investment-related measures and labor migration policy. Inadequate conceptualization appears, however, to limit the chances for policy breakthroughs at the multilateral, regional, and bilateral contexts.
In addition, there is a need to better understand the ways in which power structures of states, institutions, lobby groups, and individuals jointly shape markets and systems of economic interaction in the services sectors, and how these affect political processes and structures.
While extensive literature address international trade in services from various angles, much less has been written from an international relations/ political economy perspective.
The goal of the conference is to theoretically and empirically explore whether existing international political economy theories apply to services trade liberalization and how they might be revised. Possible questions which can be examined at the conference:
1. What are the domestic and international political economy determinants for and against services trade liberalization? How do they vary across sectors and modes of supply?
2. How do the partisan and pluralist theories apply to services trade negotiations? What are the different coalitions and alliances? How do they operate in the domestic and international spheres?
3. Can a single analytical framework account for the diversity and variation of services sectors, modes of supply and providers?
4. What is the theoretical distinction, if any, between the liberalization of private and public services trade?
5. What are the similarities and differences between the political economies of goods and services trade? Do multi-level games have similar trajectories in the goods and services sectors? Why do critical provisions in trade liberalization agreements differ between services and goods (e.g. safeguards and enforcement mechanisms)?
6. What can be learned from the international political economy of services trade for (the design of) international cooperation and regimes? What impact does this political economy have on both multilateral and preferential trade negotiations?
7. Does the political economy of services trade liberalization differ between developing and developed economies? In what ways? What are the implications of these differences for multilateral and preferential negotiations and liberalization?
Mr. Alejandro Jara, Deputy Director-General of the World Trade Organization
Dr. Tomer Broude, Senior Lecturer, Faculty of Law and Department of International Relations
Prof. Michel Kostecki, University of Neuchâtel
Prof. Kalypso Nicolaïdis, Oxford University
Prof. Louis Pauly, Director of the Centre for International Studies, University of Toronto and Editor of International Organization
Prof. Alfred Tovias, Director of the Leonard Davis Institute for International Relations, Hebrew University of Jerusalem
DEADLINE FOR SUBMISSION OF PROPOSALS: FEB. 21, 2010
Paper proposals should include a title, a short 250 word abstract of paper, and name and affiliation of author(s).
Panel proposals should contain a title, a short 250 words abstract of the theme, 2-3 paper proposals (see above), name and affiliation of the chair and optionally a discussant (discussants will otherwise be determined by the conference academic committee). \
All submission(s) should be sent to: email@example.com
The Participants will be informed by email of the acceptance of panels and papers by March 16, 2010.
Conference fee is 40 Euros (20 Euros for students and non-OECD country participants). The fee covers participation as well as lunch and refreshments during the conference.
An optional one-day tour of Israel will be offered to participants, the day before the conference, on June 13.
For further information, please visit the website: http://davis.huji.ac.il/eng/activity.asp?cat=128&in=0
Daniela Persin: firstname.lastname@example.org
Lior Herman: email@example.com
Can trade liberalization serve the cause of political liberalization in authoritarian states? In this short essay, I suggest that trade law might bolster political freedoms by liberalizing Internet trade. Trade law puts pressure on state repression of information through two principal mechanisms.
First, GATS transparency obligations require what is often absent in authoritarian states – a set of public rules that governs both citizens and governmental authorities. WTO member states must publish regulations governing services and establish inquiry points where foreign service providers can obtain information about such regulations. A publication requirement written for the benefit of foreigners may prove even more useful for local citizens, who will be given the opportunity to understand the rules that bind them – and the opportunity therefore to challenge those rules or their interpretation.
Second, the market access and national treatment commitments provide opportunities for foreign information service providers to disseminate information that local information service providers might eschew. While censorship by itself may not necessarily constitute either a market access or a national treatment violation, it might do so if it is operationalized in ways that effectively discriminate against foreign service providers.
Letters of credit have retained their role as an instrumentality for the financing of foreign trade. An understanding of the law and practice in point is imperative for lawyers advising business people and bank clients, as well as for the banking and trading communities. The book examines the topic on the basis of the common law system, primarily UK law, and adopts an approach that is analytical and not merely descriptive. Letter of credit transactions are, by their nature, international and most nations have adopted the Uniform Customs and Practices ("UCP") originally promulgated by the International Chamber of Commerce (ICC) in 1933 and updated from time to time. Today, the UCP constitutes a code of internationally accepted rules governing letter of credit transactions. The authors have therefore selectively incorporated some comparative discussion, for instance, of the position in the USA and Europe. The book will be an essential work of reference for commercial lawyers in all the major financial centres of Europe, America and Asia.
- Carolyn B. Lamm, Eckhard P. Hellbeck, & Joseph R. Brubaker, Anti-Suit Injunctions in Aid of International Arbitration: The American Approach
- Mark Robertson, Cross-Border Insolvency and International Commercial Arbitration: Characterisation and Choice of Law Issues in Light of Elektrim S.A v Vivendi S.A and Analysis of the European Insolvency Regulation
- Emanuele Cusa, The Company as Institutional Arbitrator in Italian Law—Setting an International Trend?
- Matthew Amey, Funding International Arbitrations
- Fei Lanfang, Multi-Party Disputes and Referral to Arbitration Under Chinese Law
- Lukas F. Wyss, How to Protect Business Secrets in International Commercial Arbitration
- James T. Eamon & Geoffrey D. Holub, See You in Court! Respondents' Failure to Pay the Advance on Arbitration Costs
The Annual Conference of the British Branch of the International Law Association will be hosted this year by Oxford Brookes University on 15th and 16th April 2010. Please note that, unusually, this year's conference is on Thursday and Friday (not Saturday). The theme for this year’s conference is compliance. The normative evolution, acceptance and development of international law continues, yet so too does the phenomenon of non-compliance. Papers are invited on the practical and theoretical issues raised by questions of compliance understood broadly, across all areas of international law.
Practitioners, academics and doctoral students are invited to submit paper proposals within the conference theme. Institutional affiliation, seniority, nationality or gender will be immaterial to the selection process. Abstracts of no more than 500 words should be submitted by Friday 12th February 2010. Submissions should include the author’s name and contact details (including email address) and be sent, preferably by email to firstname.lastname@example.org, or by post to Dr Dawn Sedman, Department of Law, Headington Hill Hall, Oxford Brookes University, Oxford OX3 0BP. Applicants will be notified of the results of the selection process around 22nd February 2010. At that stage full details of the conference will be sent out, including registration and accommodation information.
Vaughan Lowe (Univ. of Oxford - Law) will give a talk today at the UCL Faculty of Laws and International Law Association (British Branch) International Law Seminar on "Rescuing Piracy from the Antiquarians."
Tuesday, January 19, 2010
- Jeff Waincymer, The Trade and Human Rights Debate: Introduction to an Interdisciplinary Analysis
- Robert Howse & Ruti G. Teitel, Beyond the Divide: The International Covenant on Economic, Social and Political Rights and the World Trade Organization
- Ernst-Ulrich Petersmann, International Trade Law, Human Rights and the Customary International Law Rules on Treaty Interpretation
- Pranab Bardhan, Globalisation and Human Rights: An Economist’s Perspective
- Kenneth C. Shadlen, Resources, Rules and International Political Economy: The Politics of Development in the WTO
- Patrick Emerton, International Economic Justice: Is a Principled Liberalism Possible?
- Andrew T.F. Lang, Inter-regime Encounters
- Hélène Ruiz Fabri, Games within Fragmentation: The Convention on the Protection and Promotion of the Diversity of Cultural Expressions
- David Kinley, Hai Nguyen, & Odette Murray, Viet Nam, Human Rights and Trade: Implications of Viet Nam’s Accession to the WTO
- Chantal Thomas, The WTO and Labor Rights: Strategies of Linkage
- Caroline E. Foster, Public Opinion and the Interpretation of the World Trade Organisation’s Agreement on Sanitary and Phytosanitary Measures
- Sarah Joseph, Democratic Deficit, Participation and the WTO
- Graciela Chichilnisky, Energy Security, Economic Development and Climate Change: Carbon Markets and the WTO
- Shervin Majlessi, From Realpolitik of International Trade to the Geneva Consensus
From an international criminal law perspective the question of torture has two aspects. The first is substantive: is the use of torture in all situations, even in the most extreme ones, where torture is applied to save the life of innocents (“preventive torture”), unlawful and must the torturer always be punished? I have tried to find a differentiated answer to this question elsewhere. The second aspect is a procedural one: can evidence obtained by means of torture (“torture evidence”) be used in criminal trials? In states governed by the rule of law and fair trial, the answer is a simple and clear “no” if torture was applied by national authorities and the torture evidence is meant to be used in a subsequent criminal trial. In this situation, of “direct use of torture evidence,” national procedural norms provide explicit prohibitions. These national prohibitions are based on human rights law, in particular Article 15 of the UN Convention Against Torture (CAT).
A more complex question also analyzed in this Article is whether such prohibitions also apply to the transnational use of torture evidence, i.e. situations in which torture evidence obtained in one country and is used in another. One may distinguish between two situations: in the first situation, state A, which has a clear prohibition against the use of torture evidence, sends a suspect to state B, known for its torture practices, to obtain such evidence. In the second situation, state A, in a joint investigation with and inside state B, obtains torture evidence and uses this evidence in a domestic criminal trial in its own territory. The difference between these cases is obvious: in the first case, state B’s torture practice is intentionally and consciously used to circumvent state A’s national torture prohibitions. In the second case, the prohibiting state A obtains torture evidence accidentally, without having intentionally used state B’s torture practices. Transnational use of torture evidence must also be distinguished from the supranational use of such evidence, i.e. its use before international criminal tribunals. After a short explanation of the theoretical point of departure with regard to the use of illegally obtained evidence, we will begin with the supranational level, since it may produce some important findings with a view to the transnational use of torture evidence before national tribunals.
- Interview with William Lacy Swing
- Jakob Kellenberger, The ICRC's response to internal displacement: strengths, challenges and constraints
- Nina M. Birkeland, Internal displacement: global trends in conflict-induced displacement
- Agnès de Geoffroy, Fleeing war and relocating to the urban fringe – issues and actors: the cases of Khartoum and Bogotá
- Angela Consuelo Carrillo, Internal displacement in Colombia: humanitarian, economic and social consequences in urban settings and current challenges
- Jan Willms, Without order, anything goes? The prohibition of forced displacement in non-international armed conflict
- Thomas Linde, Humanitarian assistance to migrants irrespective of their status – towards a non-categorical approach
- Didier Bigo, Immigration controls and free movement in Europe
- Ilias Bantekas, The Proper Law of the Arbitration Clause: A Challenge to the Prevailing Orthodoxy
- Ricardo Ugarte & Thomas Bevilacqua, Ensuring Party Equality in the Process of Designating Arbitrators in Multiparty Arbitration: An Update on the Governing Provisions
- Sameer Sattar, National Courts and International Arbitration: A Double-edged Sword?
- Saloni Kantaria, The Challenges of Enforcing an Arbitral Award Against a Foreign State in the United States
- Simon Chapman, Multi-tiered Dispute Resolution Clauses: Enforcing Obligations to Negotiate in Good Faith
Victor Tadros (Univ. of Warwick - Law) will give a talk today at the Oxford Institute for Ethics, Law and Armed Conflict on "Proportionality in War and Punishment."
Monday, January 18, 2010
- Christian Tomuschat, La protection internationale des droits des victimes
- Theo Van Boven, The right to a remedy as contained in international instruments: access to justice and reparation in treaties and the new United Nations principles
- Dinah Shelton, The jurisprudence of human rights tribunals on remedies for human rights violations
- Hervé Ascensio, Les droits des victimes devant les juridictions pénales internationals
- Monica Pinto, Dealing with the past – democracies and victims’ struggle to deal with gross human rights violations
- Damien Vandermeersch, Violations graves des droits de l’homme (crimes internationaux) et competence pénale universelle
- Michael Hamilton, Transitional justice in an age of legal pluralism
- Pierre d’Argent, Les réparations pour violations historiques
- Salvatore Zappalá, The rights of victims of terrorism: the teachings of international law
- Jean-François Flauss, Les droits des victimes selon l’Alien Tort Claims Act: observations sur la competence civile universelle
This paper seeks to apply the Pure Theory of Law to some of the current problems of international law and thus to endow that theory with a new usefulness that Kelsen is not usually accorded by current international legal scholarship. Another goal of this paper is to get away from a gut-reaction against Kelsen and to avoid the stigma that is associated with his name in legal theory. This can be achieved by re-engaging with the Pure Theory without placing undue emphasis on polemic defence or attack and by thoroughly ‘modernising’ the topics discussed.The Pure Theory of Law will be applied a-contextually and a-historically to problems of practice.The focus will lie in how the Pure Theory of Law - as theoretical approach connected with, but not restricted to, Hans Kelsen’s writings - can be used for some of today’s theoretical challenges.
- Interview with Khaled Abu Awwad and Roni Hirshenson
- Daniel Bar-Tal, Lily Chernyak-Hai, Noa Schori & Ayelet Gundar, A sense of self-perceived collective victimhood in intractable conflicts
- Valerie M. Meredith, Victim identity and respect for human dignity: a terminological analysis
- Toni Pfanner, Various mechanisms and approaches for implementing international humanitarian law and protecting and assisting war victims
- Robin Coupland & Dominique Loye, International assistance for victims of use of nuclear, radiological, biological and chemical weapons: time for a reality check?
- Anna Petrig, The war dead and their gravesites
- Rebecca Barber, Facilitating humanitarian assistance in international humanitarian and human rights law
This article challenges the prevailing view that U.S. “exceptionalism” provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions. The United States chose not to adopt the Protocol in the face of intensive international criticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework. The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable and inappropriate. In effect, the U.S. concluded that key provisions of Protocol I actually undermine the core values that spawned the entire corpus of humanitarian law. Whether or not the U.S. position was completely accurate, it was far more than rejectionist unilateralism because it provided the impetus for subsequent reservations by other NATO allies. More than two decades after the debates regarding Protocol I, the U.S. position provided the normative benchmark for the subsequent rejection of efforts by some states to shield terrorists from criminal accountability mechanisms required by multilateral terrorism treaties. This article demonstrates that the U.S. policy stance regarding Protocol I helped to prevent the commingling of the laws and customs of war in the context of the multilateral framework for responding to transnational terrorist acts in the aftermath of September 11. In hindsight, the “exceptional” U.S. position was emulated by other nations as they reacted to reservations designed to blur the distinctions between terrorists and privileged combatants. U.S. “exceptionalism” in actuality paved the way for sustained engagement that substantially shaped the international response to terrorist acts. This article suggests that reservations provide an important mechanism for states to engage in second-order dialogue over the true meaning and import of treaties, which in turn fosters the clarity and enforceability of the text.
The articulation of crimes against humanity in positive international law is better understood when situated against the broader transformation of the laws of war into humanitarian law. This re-naming of the laws of war does not take place until the late 1970s with the Additional Protocols to the Geneva Conventions. However, this re-naming is made possible by the prior emergence, in the nineteenth century codification of the laws of war, of the principle of humanity as the ground of the laws of war.
Two twin transformations make possible the emergence of humanity as the ground of the laws of war. First, charity, the love of God, is transformed into the sentiment of humanity, the love of man. Aquinas and the scholastics discussed war under the heading of charity. With Grotius and Pufendorf, charity slides into humanity. The transformation is complete with Rousseau. Second, pain is transformed from a potential spiritual good that could bring one closer to God into something unintelligible and unacceptable. For Rousseau, humanity is pity writ large and sympathy, suffering-with, is the “first sentiment of humanity.” Rousseau appears as one of the fathers of the modern laws of war, of humanitarian law. Humanitarian law thus belongs to modern humanitarianism, to what Nietzsche calls “the religion of human suffering.”
Whereas the nineteenth century codification of the laws of war used the twin language of humanity and civilization, the transformation of civilization into a dirty word in the twentieth century made it that much easier for humanity to emerge as the ground of the laws of war, and for the laws of war to become “humanitarian.”
Sunday, January 17, 2010
Sloane: Human Rights for Hedgehogs? Global Value Pluralism, International Law and Some Reservations of the Fox
This essay, a contribution to the Boston University Law Review’s symposium on Ronald Dworkin’s forthcoming book, Justice for Hedgehogs, critiques the manuscript’s account of international human rights on five grounds. First, it is vague: it fails to offer much if any guidance relative to many of the most difficult concrete issues that arise in the field of international human rights law and policy - precisely the circumstances in which international lawyers might benefit from the guidance that moral foundations supposedly promise. It is also troubling, and puzzling given Dworkin’s well-known commitment to the right-answer thesis, that his account of human rights renders answers to hard questions about those rights necessarily indeterminate, not only in practice (because of epistemic limits, for example) but conceptually. Second, every account of human rights based on avowedly objective moral foundations is inherently controversial and therefore often divisive. Dworkin’s is no exception in this regard, and in part for that reason, would be ill suited to a global order characterized, empirically at least, by pluralism at multiple levels: cultural, political, legal, and moral. Third, I believe it is a methodological mistake in general to seek to derive international human rights, as Hedgehogs does, from an antecedent conception of human dignity - rather than vice versa. Fourth, in the realm of international human rights, Dworkin’s value monism is neither persuasive nor practicable. Finally, inasmuch as Hedgehogs aspires to show that all values, properly defined, fit together in a coherent, reconcilable, unified whole, it is incongruous and anachronistic for the manuscript to describe sovereignty as a concept in conflict with human rights, such that human rights, at times, must “trump” sovereignty. Many international lawyers would argue to the contrary that the best conception of sovereignty in the modern era is not opposed to, but rather deeply rooted in, respect for international human rights. As an alternative to the account in Hedgehogs, I briefly suggest the basic contours of and justification for a more functionalist account of international human rights, which I have defended at length in a prior work. In short, it is more plausible and constructive, as Michael Igantieff has written, “to build support for human rights on the basis of what such rights actually do for human beings.”