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121. Saving the Scarecrow

Author:
André Nollkaemper
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This brief Comment responds to Jan Klabbers’ recent article, ‘The Transformation of International Organizations Law’. It focuses on three points: the polemical style and disengagement with substance in the article; the question of whether we can do without some form of functionalism; and the further question of what it means to speak of ‘responsibility beyond functionalism’.
Topic:
International Law, International Organization, Law, and Critique
Political Geography:
Europe and Global Focus

122. The Original Sin (and Salvation) of Functionalism

Author:
Guy Fiti Sinclair
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This Comment interrogates the central and determining role accorded to functionalism in Jan Klabbers’ account of international organizations (IOs) law in his recent article, ‘The EJIL Foreword: The Transformation of International Organizations Law’. Specifically, it expresses doubts regarding Klabbers’ designation of functionalism as the dominant, paradigmatic theory of IOs law; questions whether the article’s account of functionalism’s historical origins is persuasive; and argues that the ‘rise and fall’ narrative set forth in the article presents an overly sanitized picture of IOs law, largely free from political struggle. The development of IOs law has been more contested than Klabbers’ narrative suggests; minimizing that contestation carries the danger of closing off possibilities for reimagining IOs law today.
Topic:
International Relations, International Law, International Organization, and Critique
Political Geography:
Europe and Global Focus

123. The Transformation of International Organizations Law: A Rejoinder

Author:
Jan Klabbers
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Jan Klabbers responds to critiques by Laurence Boisson de Chazournes, André Nollkaemper and Guy Fiti Sinclair of his EJIL Foreword.
Topic:
International Relations, International Law, International Organization, and Critique
Political Geography:
Europe and Global Focus

124. Common Article 1 and Duty to "Ensure Respect"

Author:
Zachary Manfredi
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper investigates whether the “to ensure respect” clause of Common Article 1 of the 1949 Geneva Conventions creates third state obligations. Third state obligations could impose both negative and positive duties on states to ensure that other states and some non-state actors comply with the Conventions. This issue has gained salience in light of the imminent publication of new set of commentaries on the Conventions by the International Committee for the Red Cross. The new commentaries will likely suggest that third state obligations under Common Article 1 are robust. This paper assesses the anticipated ICRC position in light of both the drafting history of Common Article 1 and subsequent interpretations by major international tribunals and states. It concludes that Common Article 1 provides for some third state obligations, but that their scope and content remains underspecified and highly contested.
Topic:
International Law, Non State Actors, State, International Humanitarian Law (IHL), Geneva Convention, and ICRC
Political Geography:
Global Focus

125. Proxy wars in cyberspace: The Evolving International Law of Attribution

Author:
Michael N. Schmitt and Liis Vihul
Publication Date:
06-2014
Content Type:
Journal Article
Journal:
Fletcher Security Review
Institution:
The Fletcher School, Tufts University
Abstract:
Cyberspace offers a relative degree of anonymity for states to conduct hostile activities against other states, as the challenges of accurate attribution remain a strong barrier to retaliation for these activities. As international law grapples with how to govern this theater of conflict, what should the international community to do if states increasingly turn to using non-state actors as proxies to further cover their tracks? Schmitt and Vihul examine the current legal landscape for such proxy operations.
Topic:
Security, International Law, Non State Actors, Cybersecurity, Conflict, International Community, and Cyberspace
Political Geography:
Global Focus

126. Conflict trade: regulating illicit flows to and from war

Author:
Mark B. Taylor
Publication Date:
10-2013
Content Type:
Commentary and Analysis
Institution:
Norwegian Centre for Conflict Resolution
Abstract:
This expert analysis note describes an emerging approach to regulating illicit flows of goods to and from conflict zones. The approach, based on norms of national and international law defining business due diligence, is well suited for dilemmas posed by war economies. Due diligence offers the possibility of excluding goods from global flows if they are produced through human rights abuse or used for conflict financing, while at the same time it can limit harm to livelihoods and avoid the wholesale criminalisation of informal economies. To that end, further inter-governmental policy coordination is needed to define conflict financing under international law and to elaborate an effective regulatory strategy.
Topic:
International Law, Law, Regulation, Trade, Armed Conflict, Supply Chains, and Illicit Financial Flows
Political Geography:
Global Focus

127. Government Accountability for Torture and Ill-Treatment in Health Settings

Publication Date:
05-2011
Content Type:
Policy Brief
Institution:
Open Society Foundations
Abstract:
The absolute prohibition under human rights law of all forms of torture and cruel, inhuman, and degrading treatment is commonly applied to prisons and pretrial detention centers. However this prohibition also applies to places such as schools, hospitals, orphanages, and social care institutions—places where coercion, power dynamics, and practices occurring outside the purview of law or justice systems can contribute to the infliction of unjustified and severe pain and suffering on marginalized people. This briefing paper focuses on torture and ill-treatment in health settings, including hospitals, clinics, hospices, people’s homes, or anywhere health care is delivered. It focuses on government accountability for placing health providers and patients in unacceptable situations whereby torture and ill-treatment is neither documented, prevented, punished, nor redressed. People who are perceived as “deviant” by authorities, who pose a “nuisance” to health providers, who lack the power to complain or assert their rights, or who are associated with stigmatized or criminalized behaviors may be especially at risk of torture in health care.
Topic:
Health, Human Rights, International Law, Torture, Law, Health Care Policy, and Marginalization
Political Geography:
Global Focus

128. Treatment or Torture? Applying International Human Rights Standards to Drug Detention Centers

Publication Date:
06-2011
Content Type:
Special Report
Institution:
Open Society Foundations
Abstract:
People identified as drug users in many countries are confined to abusive locked detention centers for months or even years. Such detention centers are supposedly mandated to treat and "rehabilitate" drug users, but the "treatment" they receive in some cases amounts to torture or other cruel, inhuman, and degrading punishment. In Treatment or Torture? Applying International Human Rights Standards to Drug Detention Centers, legal experts review common forms of abuse in drug detention centers and show how these practices in many cases are in violation of basic human rights treaties widely ratified by most nations worldwide. International health and drug-control agencies—including the UN Office on Drugs and Crime, UNAIDS, and the World Health Organization—all endorse comprehensive, evidence-based drug dependence treatment services. Yet drug detention centers rarely provide treatment that meets these standards. Depending on the country, so-called rehabilitation consists of a regime of military drills, forced labor, psychological and moral re-education, and shackling, caning, and beating. Treatment or Torture? comes in advance of the International Day against Drug Abuse and Illicit Trafficking and the International Day in Support of Victims of Torture—both on June 26, 2011. The report was published by the Campaign to Stop Torture in Health Care, a coalition led by the Open Society Foundations, and featured legal analysis by Human Rights Watch, Harm Reduction International, and the Canadian HIV/AIDS Legal Network.
Topic:
Health, Human Rights, International Law, War on Drugs, Health Care Policy, Criminal Justice, Drugs, and Public Health
Political Geography:
Global Focus

129. Savaş Hukukunda Tecavüz ve Yağmayı Yasakla(ma)yan Rejimler Lahey Sözleşmeleri (1899, 1907)

Author:
Tuba İnal
Publication Date:
05-2011
Content Type:
Journal Article
Journal:
Uluslararasi Iliskiler
Institution:
Uluslararasi Iliskiler
Abstract:
Th is article seeks to explain two related theoretical questions by looking at the treatment of two related practices of war, pillage and rape, by international law: How does change, particularly legalized regime change, happen in international relations and what is the role of “gender” as a category in this process of change? The argument here is that three conditions are necessary for the emergence of a legalized prohibition regime: Firstly, states must believe that they can comply with the prohibition because non-compliance is costly. Secondly, a normative context conducive to the idea that the particular practice is abnormal/undesirable is necessary. Thirdly, actors actively propagating these ideas to promote the creation of a particular regime should exist. The 100-year temporal difference between the emergence of the regimes against pillage and rape reveals the role of gender in this process.
Topic:
Gender Issues, International Law, and War Crimes
Political Geography:
Global Focus

130. Soykırım Suçu ve Devletin Sorumluluğu: Uluslararası Adalet Divanı'nın Bosna-Hersek v. Sırbistan-Karadağ Kararı

Author:
Ozan Değer
Publication Date:
09-2009
Content Type:
Journal Article
Journal:
Uluslararasi Iliskiler
Institution:
Uluslararasi Iliskiler
Abstract:
Genocide, as an act and a violation of law, place at the top of the hierarchy of crimes and is qualified as crime of crimes. Essentially, being evaluated within the frame of international law, this crime gradually has been come within the scope of the national law. Either the conception or the crime of genocide was composed because of the massacres executed during the WWII, mainly. The basic legal arrangement about the crime was passed at 9 December 1948 and come into effect at 12 January 1951 named United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Convention is obliged the states on the prevention and the punishment of the crime of genocide. Since international criminal courts/tribunals are restricted by the principle of individual criminal responsibility and the Convention incurs the obligation on states, the violation of the Convention causes the responsibility of states. This article, under the light of the conceptional and legal frame, discusses the obligations and responsibilities incur by the Convention and the dramatic judgment of the ICJ, in short, the place and situation of crime of genocide and state responsibility at the legal texts and international jurisprudences.
Topic:
Genocide and International Law
Political Geography:
Global Focus