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31. From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference

Author:
Vijay Padmanabhan and Benjamin N. Cardozo
Publication Date:
04-2010
Content Type:
Working Paper
Institution:
Council on Foreign Relations
Abstract:
For the foreseeable future the United States is unlikely to become a member of the International Criminal Court (ICC), the international tribunal in The Hague responsible for prosecuting human rights atrocities and war crimes. From the time the Rome Statute of the International Criminal Court (the “Rome Statute”)—the treaty that established the ICC—was negotiated in 1998, the United States has voiced strong concerns about the ICC exercising jurisdiction over nationals of nonparties and the ICC prosecutor's authority to investigate and prosecute suspects without the approval of the UN Security Council. Those concerns have not been alleviated, and the Obama administration has said that it will not seek U.S. Senate approval of the Rome Statute in the near future. Even if the treaty were submitted to the Senate, the Senate would not approve it in its current form. Moreover, U.S. concerns could be exacerbated by modifications to the Rome Statute ICC members may make in the coming months.
Topic:
Crime, Human Rights, and International Law
Political Geography:
United States

32. Preventive Detention and the "War on Terror": Keeping the Response to Terrorism within the Law

Publication Date:
09-2010
Content Type:
Working Paper
Institution:
Atlantic Council
Abstract:
During what the U.S. government formerly called the “war on terror”, both U.S. and European governments resorted to preventive detention. But holding individuals deemed to be a security risk indefinitely and without charge is a controversial strategy. Not only have there been miscarriages of justice, but detention may actually fuel the terrorist cause and attract more recruits. Yet, without recourse to preventive detention, military and security forces may be tempted to resort to more extreme, and perhaps prohibited, measures against an individual suspected of being a terrorist threat. If, therefore, U.S. and European governments are to employ preventive detention as a tool in fighting international terrorism, particularly in overseas operations, it must be done in a way that reinforces the legitimacy of their efforts and is in keeping with international law.
Topic:
International Law, Terrorism, and International Security
Political Geography:
United States and Europe

33. How International Law Standards Pervade Discourse on the Use of Armed Force: Insights into European and US Newspaper Debates between 1990 and 2005

Author:
Swantje Renfordt
Publication Date:
05-2010
Content Type:
Working Paper
Institution:
The Kolleg-Forschergruppe (KFG)
Abstract:
For almost a decade, 'public legitimacy' has remained largely unaddressed in empirical international relations (IR) analyses of international legalization. Yet, this concept has behavioral consequences. IR scholars for long assume that a belief in the legitimacy of a norm may be one reason for a 'compliance pull' on the international stage. The present study addresses this gap. It suggests a sociological conception of legalization observable in mass media debates and encompassing law's 'public legitimacy', understood as the congruence between legal regulations and discursive practices to that effect that these rules are also accepted by the larger public. This conception is illustrated in European and US newspaper reporting about military interventions in the post-Cold War era (1990-2005). Based on a large-n media analysis, the study not only concludes that an 'international rule of law' frame is heavily diffused across the communicative practices of European and US public spheres. It also shows that two legal norms in particular – human rights and United Nations (UN) multilateralism – generate a shared sense of 'public legitimacy' across the six countries analyzed.
Topic:
International Law and Mass Media
Political Geography:
United States, Europe, and United Nations

34. "Genocide: A Normative Account" by Larry May

Author:
Roger Smith
Publication Date:
10-2010
Content Type:
Journal Article
Institution:
Carnegie Council
Abstract:
This new book from Larry May is not a study of genocide, but rather an attempt to draw attention to the conceptual and practical difficulties and ''puzzles'' of conceptualizing and prosecuting genocide under international law. May also argues for expanding the list of groups that are protected under international law against genocide to include gender, culture, and language in addition to race, ethnicity, religion, and national origin. The book's central thesis, however, is that genocide is not ''the crime of crimes,'' and that it differs little from various crimes against humanity. May reminds us that under international law genocide does not necessarily even involve killing, and he goes on to ask why it should be regarded as worse than other crimes committed systematically against civilians. Since genocide is about the destruction of groups, not individuals, what is special about groups, and what is the ''unique harm'' that genocide involves as a result of the destruction of a group?
Topic:
International Law
Political Geography:
United States and America

35. A Bright Future for International Law?

Author:
Steven Haines
Publication Date:
06-2010
Content Type:
Policy Brief
Institution:
The Geneva Centre for Security Policy
Abstract:
During the period of the Bush presidency, from 2001-2009, there was much concern expressed, both domestically within the United States and internationally, about Washington's apparently cavalier attitude towards international law. 1 Much of this – though by no means all – was prompted by the US reaction to the 2001 attacks on New York and Washington (the so-called 'global war on terrorism'), and the decision in 2002/3 to opt for regime change in Iraq. For many commentators it seemed as though US policy in that period provided solid evidence that law within the international system was of little influence in the face of determined power. This perception reflects realist assumptions about the pre-eminence of national interest and power as determinants of policy. Of particular moment is the power of those states that fall within the category of 'great power' – and 'superpower' has a special quality all its own.
Topic:
Economics, International Law, International Affairs, and Power Politics
Political Geography:
United States

36. On Holism, Pluralism, and Democracy: Approaches to Constitutionalism beyond the State

Author:
Thomas Kleinlein
Publication Date:
11-2010
Content Type:
Journal Article
Abstract:
The idea of a 'constitutionalization' of international law and international institutions owes much to a long tradition of idealistic international law scholarship. It gained momentum with the end of the Cold War, only to be frustrated some years later. US hegemonic tendencies after 9/11, the unauthorized invasion of Iraq in 2003, and the impasse of the Doha Development Round in the WTO are only some of the factors demonstrating that the dissolution of the Eastern Bloc had not signalled the end of history. These setbacks, however, did not render the academic discourse on 'constitutionalization' of global governance silent, and there is now a burgeoning literature on the subject. Recently, three books have stimulated the discussion: Ruling the World?, edited by Jeffery L. Dunoff and Joel P. Trachtman, and the two books under review.
Topic:
Cold War and International Law
Political Geography:
United States

37. Private Military and Security Companies: A Framework for Regulation

Author:
James Cockayne and Emily Speers Mears
Publication Date:
03-2009
Content Type:
Working Paper
Institution:
International Peace Institute
Abstract:
In late 2008, seventeen states, including the US, UK, China, Iraq, and Afghanistan, endorsed the Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict. This provides important guidance to states in regulating Private Military and Security Companies (PMSCs). But there is a need to do more, to provide increased guidance to industry and ensure standards are enforced.
Topic:
Security, International Law, Privatization, Treaties and Agreements, and War
Political Geography:
Afghanistan, United States, China, Iraq, and United Kingdom

38. The National Interest and the Law of the Sea

Author:
Scott G. Borgerson
Publication Date:
05-2009
Content Type:
Working Paper
Institution:
Council on Foreign Relations
Abstract:
The 1982 Convention on the Law of the Sea—the instrument that created the overarching governance framework for nearly three-quarters of the earth's surface and what lies above and beneath it—has been signed and ratified by 156 countries and the European Community, but not by the United States. The Law of the Sea Convention, with annexes (hereafter in this report referred to as the “convention”), and the 1994 agreement on its implementation have been in force for more than a decade, but while the United States treats most parts of the convention as customary international law, it remains among only a handful of countries—and one of an even smaller number with coastlines, including Syria, North Korea, and Iran—to have signed but not yet acceded to the treaty.
Topic:
Economics, Globalization, International Law, International Trade and Finance, International Affairs, and Maritime Commerce
Political Geography:
United States, North Korea, and Syria

39. The Alien Tort Statute of 1789: Time for a Fresh Look

Author:
Gary Clyde Hufbauer
Publication Date:
05-2009
Content Type:
Policy Brief
Institution:
Peterson Institute for International Economics
Abstract:
In 2007 the Second Circuit Court of Appeals held that US companies that had done business with apartheid South Africa could be found liable for monetary damages under the Alien Tort Statute (ATS) of 1789 (Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254 [2d Cir. 2007]). Liability arises, the Second Circuit declared, from their possible connections with human rights violations committed by South Africa during the apartheid era. Firms named in the suit include Bank of America, IBM, Coca-Cola, and General Motors. The governments of the United Kingdom, Germany, and Switzerland all opposed the lawsuit, as did the government of South Africa, which argued that the suit ran counter to its policy of reconciliation. The Bush administration also opposed the suit, but the Second Circuit rejected the argument that the cases could be dismissed for foreign policy reasons.
Topic:
Apartheid, Human Rights, International Law, and International Trade and Finance
Political Geography:
Africa, United States, United Kingdom, America, South Africa, and Germany

40. The Responsibility to Contain: Protecting Sovereignty Under International Law

Author:
Michael Chertoff
Publication Date:
01-2009
Content Type:
Journal Article
Journal:
Foreign Affairs
Institution:
Council on Foreign Relations
Abstract:
International law must find a way to combat modern threats, but it cannot diminish U.S. sovereignty in doing so.
Topic:
International Law
Political Geography:
United States