Search

Begin New Search Content Type Journal Article

4101. Apartheid, International Law, and the Occupied Palestinian Territory

Author:
John Dugard and John Reynolds
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
Apartheid is a loaded term; saturated with history and emotion. It conjures up images and memories of discrimination, oppression, and brutality; indulgence, privilege, and pretension; racism, resistance, and, ultimately, emancipation. All of which come to us through the history of apartheid in South Africa. Although prohibited and criminalized by international law in response to the situation in southern Africa, the concept of apartheid was never given enormous attention by international lawyers. Following an awakening of interest in the international legal prohibition of apartheid as a potentially appropriate lens through which to view the situation of the Palestinians, this article examines the merits of such a claim in the context of Israeli law and practice in the occupied Palestinian territory.
Topic:
International Law
Political Geography:
Israel, South Africa, and Palestine

4102. Apartheid, International Law, and the Occupied Palestinian Territory: A Reply to John Dugard and John Reynolds

Author:
Yaffa Zilbershats
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
I accept the authors' premise in their article entitled 'Apartheid, International Law, and the Occupied Palestinian Territory' that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The obligation of a state and its officials to refrain from practising any policy of apartheid is considered a jus cogens norm under international law. Whoever practises apartheid bears international criminal responsibility and may be put on trial for committing that crime, either in any state in the world based on universal jurisdiction or before the International Criminal Court. However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. In this article I expand on two of these errors - the failure to differentiate between the norms governing occupied and sovereign territory, and the authors' complete failure to address Israel's policies in the context of an armed conflict characterized by the Palestinians' use of terror. As I show, once the authors' errors are exposed and considered, it is clear that Israel's actions cannot be considered a basis for the crime of apartheid.
Topic:
International Law
Political Geography:
Israel, South Africa, and Palestine

4103. Roaming Charges: Moments of Dignity: Bar in San Juan

Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
We deal in EJIL with the world we live in – often with its worst and most violent patholo-gies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our schol-arly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photo-graph: people shot up; the ravages of pollution and all other manner of photojournalism. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photo-graphs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring.

4104. Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges

Author:
Ademola Abass
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
The January 2013 Summit of Assembly of the African Union Heads of State, to which its July 2012 predecessor had deferred the matter concerning the conferment on the African Court of international criminal jurisdiction, did not adopt the enabling Protocol. Instead, it requested that the AU Commission 'conduct a more thorough reflection … on the issue of popular uprising … on the appropriate mechanism capable of deciding the legitimacy of such an uprising … and [to] submit a report on the financial and structural implication of [expanding] the jurisdiction of the African Court … to try international crimes'. Whether the AU will ever adopt the draft protocol is uncertain and of less relevance, at the moment, to a discussion of some previously unappreciated rationales behind conferring on an African regional court international criminal jurisdiction and of certain constraints that will prevent the Court from effectively prosecuting international crimes in Africa, even if the protocol ever enters into force.
Political Geography:
Africa

4105. Climate Change and International Law in the Grim Days

Author:
Benoît Mayer
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
The 2009 Copenhagen Conference of the Parties to the UNFCCC epitomizes the stalling of international negotiations on climate change mitigation and adaptation. In the grim days of climate change governance, the literature tends to neglect ethical arguments on the responsibility of polluting states. Rather, it turns to a desperate quest for 'whatever works'. This article addresses the development of a discipline round an emerging regime. It reviews in particular the principled approaches of climate governance, doctrinal analyses on mitigation, the shift from 'enforcement' to 'facilitation' and to 'liability', the fragmented governance of adaptation in the human rights, development and migration regimes, and innovative scholarship on the transnational regime complex concerning climate change.
Topic:
Climate Change, Human Rights, and International Law

4106. Caroline Foster. Science and the Precautionary Principle in International Courts and Tribunals. Expert Evidence, Burden of Proof and Finality

Author:
Oren Perez
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
Caroline Foster's book constitutes an important addition to the literature on international tribunals and the inter-linkage between science and law in the international domain. The book includes a detailed analysis of the place of scientific evidence in international disputes, the role of adjudicators and experts, and the way in which these issues are influenced by the precautionary principle. The book addresses a wide range of disputes and venues, ranging from the World Trade Organization (WTO) to the International Court of Justice and the International Tribunal for the Law of the Sea. The detailed analysis of the different methods through which varied international tribunals deal with scientific evidence (e.g., party-appointed independent experts, cross examination, site visits, court-appointed experts) advances our understanding of the function and dynamics of international tribunals. To give one example, Foster describes the system that was devised by WTO panels for taking expert evidence even though the WTO dispute settlement understanding (DSU) is silent about this issue. One innovative mechanism that was created by the panels is the 'joint meeting'. Joint meetings with experts are generally held between the two substantive meetings between the Panel and the parties, take place over a 1 to 2 day period, and are attended by the panel members, its experts, and the parties and their experts. While these meetings do not constitute a full-blown adversarial process they offer the parties and the panel the opportunity to put the opposing scientific views to deliberative scrutiny.

4107. Equité et environnement. Quel(s) modèle(s) de justice environnementale?

Author:
Armelle Gouritin
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
This book (in French except for the short English contribution by Laura Westra) collects the papers that were presented at the Annual Conference of the French Society for Environmental Law in December 2010. The contributions aim at answering a set of three questions: what is the content of environmental justice as a concept? Is environmental justice endorsed by positive law? What are the perspectives of environmental justice?

4108. War by Contract: Human Rights, Humanitarian Law and Private Contractors

Author:
Rein Müllerson
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
Although the sub-title of the book indicates that the authors are not going to deal with all the legal issues arising in the context of a 'privatization' of warfare, the book, and not only the first chapter by Eugenio Cusumano on the policy prospects of regulating private military and security companies (PMSCs), throws its net wider than the title suggests. And rightly so. The privatization of warfare is a consequence and an element of the post-Cold War triumph of capitalism, and especially its neo-liberal advocates' tendency to privatize and deregulate all and everything. It is not by chance that PMSCs have mushroomed in the heartland of neoliberalism – the USA – faithfully followed by its Anglo-Saxon brethren on this side of the Atlantic. As the book specifies, in 2009 there were approximately 119,706 Department of Defense contractors in Iraq, compared with about 134,571 uniformed personnel. The authors accept the privatization of various functions of the state, including its 'monopoly of violence', to be almost inevitable. Nevertheless, they call for stronger and tighter regulation of the status and functions of PMSCs and control over their activities. They also show that though often new norms may be needed, in many cases existing laws, and their stricter and sometimes more creative application, may serve the purpose. The book concludes that 'many private military and security companies are operating in a “gray zone”, which is not defined at all, or at the very least not clearly defined, by international legal norms'.
Topic:
Human Rights and War
Political Geography:
United States and Iraq

4109. Paul Schiff Berman. Global Legal Pluralism: A Jurisprudence of Law Beyond Borders

Author:
Sujith Xavier
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (GLP) by Paul Schiff Berman is a legal pluralist's contribution to the study of local and global regulation. In a tour de force, Berman articulates clear and concise arguments in support of adopting a pluralist lens (coined as a cosmopolitan pluralist perspective). He magnificently traverses the multiple and complex bodies of literature that seek to understand the various inchoate regulatory regimes, actors, norms, and processes, to simply state that we must harness the benefits of the overlapping legal authorities. The overlapping legal authorities for Berman produce legal hybridity, which is a product of globalization(s).

4110. Jeffrey L. Dunoff and Mark A. Pollack (eds). Interdisciplinary Perspectives on International Law and International Relations: The State of the Art

Author:
Monika Zalnieriute
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
While international law and political science disciplines were quite distant from one another for most of the past century, they have come closer to 'rediscovering' each other numerous times during the last two decades. The growing intersection between the two has been scrutinized, analysed, and promoted by many international law and international relations pioneers. The present collection brings together the leading scholars writing at the crossroads between the two disciplines to consider and reflect on the current state of interdisciplinary international law and international relations scholarship. The result is a book of high calibre that is not only essential, but also very delightful and enriching reading for scholars and students of international law and international relations.
Topic:
International Law