According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct. The purported independence of the two domains – the ‘separation principle’ – remains unstable despite its historic pedigree. This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello. International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare. One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. These efforts – whether intended or not – risk suppressing ‘desirable wars’ and inspiring ‘undesirable wars.’ These recent developments also undercut humanitarian protections by undermining the mechanisms for compliance with legal norms on the battlefield.
Saturday, August 28, 2010
Goodman: Controlling the Recourse to War by Modifying Jus in Bello
Friday, August 27, 2010
Ngambi: La preuve dans le règlement des différends de l’Organisation Mondiale du Commerce
Qu’est-ce que le thème de la preuve apprend sur le fonctionnement du mécanisme de règlement des différends (MRD) de l’OMC? Pour répondre à cette question, l’ouvrage adopte une approche classique basée sur l’analyse de la charge et de l’administration de la preuve.
Concernant la charge de la preuve, elle est attribuée aux parties, qui doivent convaincre le juge, des faits qu’elles allèguent. En effet, quiconque allègue un fait doit le prouver. Si l’attribution de la charge de la preuve renseigne, dès lors, sur qui doit perdre en cas de doute, elle n’épuise pas les enjeux de la question. La réalité de cette charge n’est pas moins importante. Elle pose le double problème de l’objet de la preuve, et de la lourdeur de la charge mise sur les parties. A ce propos, la thèse démontre, que si la preuve porte sur les faits, son poids peut néanmoins s’avérer très lourd. Sans doute le plaignant est-il dans une situation plus confortable, n’ayant à établir qu’une présomption de violation. En revanche, la charge qui pèse sur le défendeur est plus lourde. S’il conteste les faits allégués, il devra réfuter la présomption de violation établie. S’il invoque un moyen de défense affirmatif (exception), il devra prouver la nécessité de sa mesure, et le fait que son application ne débouche ni sur une discrimination arbitraire et injustifiable, ni sur une restriction déguisée au commerce.
Quant à l’administration de la preuve, elle s’effectue sous le contrôle des groupes spéciaux, dotés à cet effet d’importants pouvoirs procéduraux, dont l’influence sur la configuration de la procédure est indéniable. En atteste la manière dont se déroule l’acquisition des preuves, qui peut être spontanée ou « forcée » selon la qualité de la collaboration des parties. Qui plus est, le juge admet de manière discrétionnaire, les preuves venant de sources extérieures, et est libre de les prendre en compte. En atteste également l’évaluation des preuves, le MRD ayant incorporé le principe de la libre appréciation des preuves, par l’adoption d’un critère d’examen permissif –l’évaluation objective des faits–, et l’affranchissement du juge de règles trop techniques d’évaluation. Ce principe s’accommode néanmoins, sans être remis en cause, d’un contrôle restreint de l’Organe d’appel, sur le caractère objectif de l’évaluation des preuves, au titre de question de droit.
New Issue: Chicago Journal of International Law
- M. Cherif Bassiouni, Legal Status of US Forces in Iraq from 2003-2008
- Richard D. Cudahy, From Socialism to Capitalism: A Winding Road
- Daniel J. Gervais, Reinventing Lisbon: The Case for a Protocol to the Lisbon Agreement (Geographical Indications)
- Joel P. Trachtman, International Law and Domestic Political Coalitions: The Grand Theory of Compliance with International Law
- Natasha Affolder, The Market for Treaties
- Yvonne M. Dutton, Bringing Pirates to Justice: A Case for Including Piracy within the Jurisdiction of the International Criminal Court
- Eric J. Pan, Challenge of International Cooperation and International Design in Financial Supervision: Beyond Governmental Networks
Thursday, August 26, 2010
Conference: The Certain Conventional Weapons Convention at 30
On 10 October 1980, States assembled in Geneva adopted the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW). The CCW is a manifestation of several general principles of the law of armed conflict: the protection of the civilian population against the effects of hostilities, the limitation of belligerents in their choice of methods and means of warfare, and the prohibition of the employment of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Simultaneously, the CCW is also an instrument of weapons control. Since the adoption of the Mines and Explosive Remnants of War Protocols, the CCW has also begun to take on regulation of the post-conflict phase.
The CCW and its Protocols are instruments which are firmly embedded in the broader context of military-technological developments and the laws regulating them. As for technological developments, the advent of cyber warfare, unmanned and nanotechnological weapons systems, and non-lethal weapons demonstrate some of the new challenges concerning the legal regulation of weapon systems and warfare. Some examples of the legal context can be seen in Article 36 of the First Additional Protocol of 1977 to the Geneva Conventions of 1949 on the review of the legality of new weapons, or treaties such as the Ottawa Convention and the recent Convention on Cluster Munitions.
The 30th anniversary of the adoption of the CCW is an appropriate moment to take stock of the treaty and its Protocols in its broader context of the law of armed conflict, the law of arms control and of post-conflict reconstruction, to consider the challenges that new weapons and weapons systems pose to international legal regulation and the prospects for the law of conventional weaponry, and to consider possible themes for the 2011 Review Conference.
Bennoune: Remembering the Other's Others: Theorizing the Approach of International Law to Muslim Fundamentalism
Muslim fundamentalist movements pose major challenges to international law. Yet, the field of international law has failed to offer a significant response. Seeking to provide simple counter-narratives to the admittedly problematic narratives of some governments in the context of the "war on terror", international lawyers have often omitted discussion of Muslim fundamentalism altogether. While Edward Said's notion of Orientalism may manifest in stereotypical approaches to fundamentalism, it may also surface in the refusal to address the question at all because it is deemed to be embedded in Muslim culture.
The silences of international law with regard to Muslim fundamentalism speak volumes about the discipline. There are a number of explanations for such lacunae. These include decreasing confidence in universality, the misapplication of legitimate concerns about discrimination, and narrow discourses about victimhood. Whatever their causes, the result of these silences is that international legal scholarship and the human rights policy it informs may misrepresent significant global controversies. For example, the admittedly flawed "war on terror" becomes solely a misguided assault on an undifferentiated Muslim population (which it sometimes has been, sometimes not), while the existence of an organized jihadist international, the "other" side of the "war on terror," is disappeared. Such narratives undercut opponents of fundamentalists in Muslim populations.
Why does any of this matter? Consequently, the very governments that international lawyers seek to constrain may cease to take us seriously. Potential allies among anti-fundamentalists of Muslim heritage (whose projects are critical to the success of international law) may be further disempowered. Worse still, international law may be misused to the benefit of social movements antithetical to its goals. To better respond to the challenges posed by Muslim fundamentalism, international lawyers must apply their discipline's universalist principles with scrupulous consistency. Moreover, they need to confront the complexity of international law and construct a non-discriminatory, yet unashamedly critical, human rights account of Muslim fundamentalism.
Ultimately, international lawyers need to reconceptualize international law's world. They must cease opposing Samuel Huntington's problematic paradigm of the "clash of civilizations" with what is simply a post-colonial inversion of this same construct. By accepting his basic binary dividing "the West" and "Islam," even in the name of "difference," this approach actually rectifies Huntington's notion of immutable inter-cultural fault lines that delimit the contemporary moment. The only way to refute Huntington is to recognize that the clashes about international law and human rights within civilizations, such as those between fundamentalists and their opponents, are as determinative as those between civilizations.
Gill & Fleck: The Handbook of the International Law of Military Operations
The past decades have seen a remarkable development of military operations both within the United Nations collective security system and in other international settings. While traditional forms of military operations have been maintained and further developed, there have also been substantive developments, responding to new challenges for international security, the specific requirements of international and multinational cooperation, and legal regulation.
Treaty law, customary law, and best practice relevant for military operations derive from various branches of international law which have to be applied in context. Cooperation between States and International Organizations has brought about a progressive development of applicable rules, and a requirement for legal control both at the national and international level. At the same time, the correct application of legal rules and best practice has become one of the benchmarks for the assessment of military operations and failure to meet appropriate standards can have significant military and political, as well as legal, implications. This makes the identification and correct application of these rules of crucial importance in the planning and conduct of all types of military operations. The absence of an all-encompassing set of regulations and the need to find specific solutions for tasks characterized by an interdependence of efforts have made a reassessment of this important part of international law both a timely and topical task. Renowned international lawyers have joined together in this project to offer their insight in the relevant principles and provisions. They address important rules for enforcement, peace enforcement, and peace operations, as well as for other military operations conducted within the context of self-defence and other possible legal bases for the use of force.
New Issue: Mealey's International Arbitration Report
Sornarajah & Wang: China, India and the International Economic Order
- Muthucumaraswamy Sornarajah & Jiangyu Wang, Introduction and overview: China, India, and the International Economic Order
- Joel P. Trachtman, China, India and the Doha Development Round
- Jianfu Chen, China, India and developing countries in the WTO: towards a pro-active strategy
- An Chen & Huiping Chen, China-India cooperation, south-south coalition, and international economic law-making
- Muthucumaraswamy Sornarajah, India, China and foreign investment
- Julia Ya Qin, China, India, and the law of the World Trade Organization
- Bhupinder S. Chimni, The interpretation of WTO agreements: evaluating divergent approaches from the perspective of developing countries
- Locknie Hsu, China, India and dispute settlement in the WTO and RTAs
- Dora S. Neo, China, India and global outsourcing of services under GATS
- Kong Qingjiang, International dispute settlement: implications of the Chinese approach and practice
- Jiangyu Wang, The role of China and India in Asian regionalism
- Michael Ewing-Chow, The Asian economic community: ASEAN – a building or stumbling block for China and India economic cooperation?
- Chin Leng Lim, The 'China-ASEAN tariff acceleration precedent'
- Douglas W. Arner, Wei Wang & Paul Lejot, Financial cooperation and integration in East Asia
- Randall Peerenboom, Law and development in China and India
- Nicholas C. Howson & Vikramaditya S. Khanna, The development of modern corporate governance in China and India
- Zhang Xian-Chu, An institutional race: a comparative study of competition law regime in India and China
Wednesday, August 25, 2010
Conference: Third International Four Societies Conference (Reminder)
Traditionally “Lawfare” was defined as “a strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.” But lately, commentators and governments have applied the concept to International Criminal Tribunals, the defense counsel’s tactics challenging the detention of al Qaeda suspects in Guantanamo Bay and to the controversial Goldstone Commission Report. This Conference and Experts Meeting, featuring two-dozen leading academics, practitioners, and former government officials from all sides of the political spectrum, will examine the usefulness and appropriate application of the “Lawfare” concept.
Haque: Criminal Law and Morality at War
The purpose of this chapter is to identify the moral norms applicable to killing in armed conflict and determine whether and to what extent the law of armed conflict (LOAC) and international criminal law (ICL) track these moral norms, justifiably depart from them, or unjustifiably depart from them. Part I explores the moral and legal norms governing the killing of civilians not directly participating in hostilities, both as an intended means and as a foreseen side-effect, and defends one account of these norms against important philosophical challenges by Thomas Scanlon, Victor Tadros, Frances Kamm, and Jeff McMahan. I argue that these moral norms are best understood and defended using the distinctions drawn in criminal law theory between wrongdoing, justifiability, and justification. The LOAC tracks these moral norms quite closely. By contrast, ICL departs from these moral norms in ways that are difficult to defend, in part because ICL seems to mistakenly assign intention a wrong-making rather than a wrong-justifying function.
The balance of the chapter examines the moral and legal norms governing the killing of civilians directly participating in hostilities as well as of members of armed forces and organized armed groups. Part II attempts to identify the conditions under which individuals lose their moral immunity from direct attack, partly by critically examining an analogy drawn by Jeff McMahan between these conditions and the legal doctrine of criminal complicity. Both the LOAC and ICL generally track these conditions fairly closely, but both should be revised to prohibit direct attacks on members of armed forces whom the attacker knows are not directly participating in hostilities and have not assumed a ‘continuous combat function’. Finally, Part III argues that moral constraints of necessity and proportionality limit the use of force even against individuals who are morally liable to direct attack. Several arguments to the effect that the LOAC and ICL may justifiably fail to enforce these moral constraints are examined and found unpersuasive.
Conti: Learning to Dispute: Repeat Participation, Expertise, and Reputation at the World Trade Organization
This mixed-method analysis examines the effects of repeat participation on disputing at the World Trade Organization (WTO). Differences between disputants in terms of their experience with WTO disputing processes affect the likelihood of a dispute transitioning to a panel review in distinct ways, depending upon the configuration of the parties. More experienced complainants tend to achieve settlements, while more experienced respondents tend to refuse conciliation. Strategies of experienced respondents are derived from the expertise generated from repeated direct participation and the normalcy of disputing for repeat players as well as the benefits accruing from a reputation for being unlikely to settle. Repeat players also seek to avoid disputes expected to produce unfavorable jurisprudence but do not actively try to create new case law through the selection of disputes. This research demonstrates a dynamic learning process in how parties use international legal forums and thus extends sociolegal scholarship beyond the nation-state.
Tuesday, August 24, 2010
Conference: Indicators as a Technology of Global Governance
The conference will examine (i) the genealogy of indicators and other quantitative techniques of governance, (ii) the relationships between the producers, users, subjects, and audiences of indicators, and (iii) creation, use and effects of indicators as forms of knowledge and as mechanisms of making and implementing decisions in global governance and connected local practices. Although the conference will consider how (and by whom) indicators are produced, the focus will not be on improving the process of indicator construction. Rather, using insights from case studies, empirical work and theoretical approaches from several disciplines the conference aims to identify legal, policy, and normative implications of the use of indicators as a technology of global governance.
Conference: Canadian Council on International Law 2010 Annual Conference (Update)
This year's CCIL conference theme is Northern and Arctic issues. In exploring that theme, the conference will cover a broad variety of topics. Among other topics we are planning panels dealing with climate change and the arctic, boundary issues, resource exploitation (notably energy), northern peoples, international arctic shipping, geopolitics of the Arctic, human rights, and the (de)militarization of the Arctic.
Haque: International Crime: In Context and in Contrast
The topic of this chapter is the structure of international crimes, which differs from the structure of national crimes in two important respects. First, international crimes typically include – in addition to their conduct, result, and attendant circumstance elements – a contextual element that national crimes rarely contain. For example, the killing of a civilian will be considered a war crime if “[t]he conduct took place in the context of and was associated with” an armed conflict; a crime against humanity if “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack;” or an act of genocide if “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The first task of this chapter is to explain how this unfamiliar structure relates the values at stake in international crimes to one another. More specifically, the task will be to determine whether the contextual element of each international crime contributes to the moral wrongfulness of the offense or to the justification for subjecting the offense to the jurisdiction of international criminal tribunals.
In addition, to the extent that international crimes and national crimes display parallel structures, the parallel structures they display organize similar values in dissimilar ways. For example, international crimes such as attacking civilians are defined in terms of conduct; national crimes that implicate similar values such as murder are typically defined in terms of result. International crimes such as causing excessive civilian death include justificatory concepts in the definition of the offense; national crimes typically exclude such concepts, which instead appear in the definition of affirmative defenses. The second task of the chapter is to determine whether these international crimes place the relevant values in their proper orientation toward one another, or whether they should be restructured along the lines of national criminal law. In particular, it must be determined whether these international crimes reflect a viable alternative structure according to which crimes are constituted by or related to either an attack or an endangerment.
Bhuta: New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation
This article examines the difficulties and dilemmas of the idea of a jus post bellum of constitutional transformation in territories under foreign or international administration. It begins with an argument that, at present, international law contains no such rules and that the law of self-determination provides no guidance. But should international law develop such rules? The balance of the article argues that international law should not prescribe rules or standards for constitution making in such circumstances. En route to this conclusion, it is argued that contractarian understandings of the problem of state making and constitution making are fallacious and that to properly understand the problem of founding new political orders we must conceive of that founding as an aleatory, contingency-riven process of concentrating forms of social and political power within particular territory. Thus, no special premium can be placed on democratic modes of legitimation, and international rules or standards prescribing specific modes of legitimation are likely to be either irrelevant or counter-productive. It is argued, finally, that one of the virtues of international law in these situations is its (relative) agnosticism with respect to different modes of legitimation. It is contended that international law is usefully understood as 'inter-public law.' In light of this theory, the structural situation of international law is analogous to the structural position of public law in newly founded domestic political orders. That is, international law is preoccupied with crafting relationships of order across diverse kinds of social and political legitimacy, and its normativity and efficacy are finely balanced between accommodating power and restraining it.
New Issue: International Journal of Human Rights
- Ulf Johansson Dahre, There are no such things as universal human rights-on the predicament of indigenous peoples, for example
- Ariadna Estévez López, Taking the human rights of migrants seriously: towards a decolonised global justice
- Nicola Colbran, Realities and challenges in realising freedom of religion or belief in Indonesia
- Andrea Nicholson, Reflections on Siliadin v. France: slavery and legal definition
- Dia Anagnostou, Does European human rights law matter? Implementation and domestic impact of Strasbourg Court judgments on minority-related policies
- Andreas Schüller, Fundamental standards of humanity-still a useful attempt or an expired concept?
- Eika Tai, Local and global efforts for human rights education: a case from the Osaka Human Rights Museum
- Lawrence J. LeBlanc, Ada Huibregtse, & Timothy Meister, Compliance with the reporting requirements of human rights conventions
Monday, August 23, 2010
Langer: The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crime
Defenders of universal jurisdiction claim that it is a crucial tool to bring justice to victims, to deter State or quasi-state officials from committing international crimes, and to establish a minimum international rule of law by substantially closing the “impunity gap” regarding international crimes. Critics of the regime argue that universal jurisdiction disrupts international relations, provokes judicial chaos, and interferes with political solutions to mass atrocities. One of the issues missing in this debate is the role of the political branches, specifically the executive and the legislature. By identifying the main incentives for political branches in universal jurisdiction cases and explaining the relationship among these incentives, this article articulates a theoretical framework that (1) accounts for the current state of universal jurisdiction, (2) predicts how universal jurisdiction is likely to evolve in the future, and (3) provides what should be a starting point for any non-ideal-world normative assessment of universal jurisdiction as well as for the institutional design of the universal jurisdiction regime.
This article shows two ways in which political branches of individual States have acted consistently with the incentive structure this article identifies. First, relying on the results of a first-of-its-kind survey carried out for this project that aims at covering all universal jurisdiction cases brought since Eichmann, this article will show that universal jurisdiction defendants who have gone to trial are primarily Nazis, former Yugoslavs, and Rwandans. In other words, they are the type of defendants that the international community has most clearly agreed should be prosecuted and punished and that their own States of nationality have not defended - actors that make more likely that the political benefits of universal jurisdiction trials outweigh the costs. Those who fall outside these three categories have been nationals of States that have not exercised their leverage to defend their nationals abroad, or that have been too weak to stop trials from occurring. Second, relying on statutes, judicial decisions, and other materials in their original language, this article will show how these incentives explain State behavior through analysis of case-studies from five States - Germany, England, France, Belgium, and Spain.
This article also explores some of the more significant normative and institutional design implications of its theoretical framework and empirical findings. Key among these is the fact that universal jurisdiction will never establish a minimum international rule of law - that is, it will never substantially close the “impunity gap” regarding international crimes - given that high-cost, most mid-cost, and many low-cost defendants are beyond the reach of the universal jurisdiction enforcement regime. This article’s findings also suggest that a number of common criticisms of universal jurisdiction are unfounded, given that States have incentives to concentrate on defendants against whom there is broad agreement in the international community and whose own States of nationality are not willing to defend. For these reasons, universal jurisdiction is unlikely to lead to unmanageable international tensions, to judicial chaos, or to interference with political solutions to mass atrocities.
New Issue: International Journal of Human Rights
- Eric Heinze & Rosa Freedman, Public awareness of human rights: distortions in the mass media
- Amedeo Postiglione, Human rights and the environment
- Michael Clarke, Widening the net: China's anti-terror laws and human rights in the Xinjiang Uyghur Autonomous Region
- Margaret Hagan, The human rights repertoire: its strategic logic, expectations and tactics
- Juliet Chevalier-Watts, Has human rights law become lex specialis for the European Court of Human Rights in right to life cases arising from internal armed conflicts?
- Alexius Amtaika, Crime prevention programmes at the lower level of government in South Africa
- Nwudego Nkemakonam Chinwuba, Cohabitation: human dignity and one aspect of gender insensitivity
New Issue: Revue québécoise de droit international
- Laurence Boisson de Chazournes & Makane Moïse Mbengue, À propos des convergences entre le Protocole de Cartagena et les accords de l'OMC
- Charles De Bock, Israël, été 2006: «Légitime défense disproportionnee» oú « représailles »? Analyse d'un glissement de langage
- Alexandre Devillard, L'obligation de faire respecter le droit international humanitaire : l'article 1 commun aux Conventions de Genève et à leur premier Protocole additionnel, fondement d'un droit international humanitaire de coopération?
- Sylvestre-José-Tidiane Manga, Copenhague 2009 et Nagoya 2010: vers une organisation mondiale de l'environnement pour la cause du développement durable?
- Nanette Neuwahl, L'Union européenne et les résolutions du Consell de sécurité des Nations unies — controle de la légalité en vertu des droits de l'hommé et autonomie de l'Organisation des Nations unies
- Gabrielle Dion, Maude Martin-Chantal, & Marlene Yahya Haage, La double attribution de la responsabilité en matière de génocide
New Issue: Indian Journal of International Law
- Manimuthu Gandhi, National Security and Maritime Law: Emergence of Unilateralism and other Forms of Challenges to Universal International Law
- Md. Saiful Karim, US Led Informal Multilateral Political Arrangements: Whither International Law and Institutions?
- Rajat Rana, Could Domestic Courts Enforce International Human Rights Norms? An Empirical Study of the Enforcement of Human Rights Norms by the Indian Supreme Court Since 1997
- Abdulrahim P. Vijapur, The UN Sub-Commission on the Promotion and the Protection of Human Rights, 1947-2007: Role, Achievements and Legacy
- Anwar Sadat, The Copenhagen Climate Change Conference- An Assessment
Sunday, August 22, 2010
New Issue: Journal of Conflict & Security Law
- Shane Darcy & John Reynolds, ‘Otherwise Occupied’: The Status of the Gaza Strip from the Perspective of International Humanitarian Law
- Claus Kreß, Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts
- Trina Ng, Safeguarding Peace and Security in our Warming World: A Role for the Security Council
- Jack I. Garvey, Nuclear Containment for the Twenty-First Century: A Mandatory International Nuclear Forensics Data Bank
- Marco Odello, Tackling Criminal Acts in Peacekeeping Operations: The Accountability of Peacekeepers