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731. Re-envisaging the International Law of Internal Armed Conflict: A Reply to Sandesh Sivakumaran

Author:
Gabriella Blum
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
The prevailing view of the form which the effort to regulate non-international armed conflicts should take has been summarized by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić interlocutory appeal on jurisdiction: '[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife'.This mirroring approach of emulating the laws applicable in international armed conflicts in the non-international context was subsequently adopted by the drafters of the Rome Statute of the International Criminal Court in 1998; the drafters chose to include a list of war crimes applicable in cases of non-international armed conflicts which resembled (though was still narrower than) the list of crimes applicable in international conflicts. The recent Kampala ICC review conference expanded the non-international crimes list, further narrowing the gap between the 'international' and the 'non-international' lists of crimes.Taking a similar position, the 2005 study on customary international humanitarian law (IHL) published by the International Committee of the Red Cross concluded that all but a handful of the rules identified as customary applied in international and non-international armed conflicts equally.Given the traditional resistance by states to assuming the same degree and range of constraints which apply in international armed conflicts in internal ones, humanitarian advocates have sought to advance the regulation of internal armed conflicts by supplementing IHL with norms borrowed from international criminal law (ICL) and international human rights laws (IHRL). The resulting international law of internal armed conflicts has thus been a patchwork of norms which ostensibly apply to all non-international armed conflicts, drawn from the IHL of international conflicts, ICL, and IHRL, often proving to be incoherent, unworkable, and ineffective. Sandesh Sivakumaran's contribution to this volumetakes a critical view of the path …
Topic:
Development, Government, and International Law

732. Re-envisaging the International Law of Internal Armed Conflict: A Rejoinder to Gabriella Blum

Author:
Sandesh Sivakumaran
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
I am grateful to Professor Gabriella Blum for her thoughtful response to my article. Blum's response invites further consideration of three principal issues. She notes my use of the terminology of 'internal' as opposed to 'non-international' armed conflict and its juxtaposition with 'international' armed conflict and queries whether my 'methodological approach as well as specific suggestions would remain equally compelling in other types of non-international armed conflicts'. The choice of terminology was deliberate. I find the descriptor 'non-international' to be somewhat misleading as it unhelpfully defines the category by what it is not. It suggests that there is but one armed conflict and, if it is not international in character, by default it is non-international. However, in practice, an internal/non-international armed conflict is identified in a rather different manner. For example, in order for an internal/non-international armed conflict to exist, the violence must reach a certain level of intensity; yet, for an international armed conflict to exist one dominant view is that there is no such requirement. The category of internal/non-international armed conflict is thus in no way a default category which serves to catch those conflicts which are excluded from the international category. Yet this is what is suggested through the use of the terminology of 'non-international' armed conflict. What the terminology of 'internal' may suggest is that it is limited to those conflicts which are fought entirely within the territorial boundaries of a state. However, even this may be true only up to a certain point. For example, an internal armed conflict with a certain overspill, such as onto the high seas or into the territory of a third state, is still characterized as an internal …
Topic:
Government, Human Rights, and International Law
Political Geography:
Sri Lanka

733. Danny Nicol. The Constitutional Protection of Capitalism

Author:
Fernando Losada Fraga
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
When the current economic crisis began, political leaders all around the world spread the idea that capitalism needed somehow to be reformed. 1 A couple of years later one might think that not much has been achieved in that direction and blame politicians for their lack of will. However, it is not so clear that reforms – even if the political will existed – would be easy to realize. As Danny Nicol argues, the neoliberal conception of capitalism is constitutionally shielded as a result of the content and the development of different but coexisting legal regimes such as the World Trade Organization (WTO) or the European Union (EU), and of the activism of the European Court of Human Rights (ECtHR). Describing the resulting 'constitutional protection of capitalism' is precisely what this book is about: Nicol tries to determine to what extent national politics are predetermined by the ongoing economic integration. Or, putting it differently, his research aims at explaining how much room for manoeuvre states, and in particular the United Kingdom, maintain now that the international and European economic integration treaties they ratified years ago have evolved in an unexpected way. The author thus identifies two trends 'that have pervaded the evolution of transnational regimes' (at 156), namely their widened scope and their enhanced binding character, and claims that such developments have a special impact on the freedom of Parliament to decide, 2 a freedom which, as we must bear in mind, is at the core of British constitutionalism. Both the title and the cover of this book, in which the symbol of the British Parliament, Big Ben, blurs among the buildings of the City, are very explicit about the national perspective from which this book approaches transnational regimes. The book is structured in five chapters. The first describes the …
Topic:
Development, Economics, and Government

734. Emmanuel Decaux. Les formes contemporaines de l'esclavage

Author:
Jean Allain
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
One would expect no less from this study of contemporary forms of slavery by Emmanuel Decaux than that it identifies the fundamental puzzle at the heart of legal issues surrounding human exploitation, namely, that: there is a permanent contradiction between the successive attempts focused on 'slavery in all its forms' as well as 'the practices and institutions similar to' – which are at the heart of international instruments, and the programmes of action of international organisations and non-governmental organisations –; and the criminal law approach which requires a precise definition to incriminate; either domestically, in the name of the determinacy of the crimes and of the penalty, or internationally to allow for criminal cooperation. 1 It is to this fundamental paradox that Decaux devoted his attention during his lectures at The Hague Academy of International Law in 2008. These lectures were published in The Collected Courses of the Hague Academy series and were also reproduced as part of a pocketbook series. 2 The beauty of considering studies written in another language is to liberate oneself from assumptions – the given starting and end points of argument, and the continuity of well established discourses. If nothing else, surveying works in other languages opens the possibility of new revelations and discoveries – even for the most seasoned expert in an area – which come from narratives forged, in this case, in Paris, as opposed to a London or a Washington. With this in mind, Les formes contemporaines de l'esclavage does not disappoint. More so than in a monograph, the chapters of a study emanating from the Hague Academy stand alone, as each originates in a public lecture and thus must stand on its own merits. In seeking to work beyond the fundamental contradiction related to issues of human exploitation, the approach which …
Topic:
Government, International Law, and Non-Governmental Organization
Political Geography:
Washington and London

735. Filippo Fontanelli, Giuseppe Martinico Paolo Carrozza (eds). Shaping Rule of Law Through Dialogue. International and Supranational Experiences

Author:
Luis Castellvi Laukamp
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
Dialogue, this noble art, which, like many other things, was invented by the Greeks, is always a sort of collaboration, a way of trying to attain the truth. Perhaps this is why Plato used it as a literary vehicle when he wrote his Socratic dialogues, a corpus of pieces in which he laid the foundations of Western philosophy. Deeply impressed by the death of his mentor Socrates, Plato wrote some of the most brilliant and insightful works of all time, perhaps in order to keep on debating with his master after his death. In all likelihood, no-one since has ever had the same great ability to create such architectures of thought. His enjoyable and entertaining dialogues deal with essential topics such as the nature of time, politics, love, and death. Not only is his style concise and meticulous, with a proverbial ability to pose the right questions, but also didactic and kind. His dialogues enable all participants to engage in an inquiry which, despite not always being successful in reaching the desired goal, has at least proved to be a fundamental tool in the development of all expressions of human thought. The book under review is inspired, mutatis mutandis, by this very same philosophy regarding dialogue. As its editors (Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza) point out in their introduction, '[t]he process of fragmentation of the international legal order and the absence of constitutional devices governing the connections between the various legal regimes can be reduced to a rational picture only through the activity of the judges' (at 23). This is why judges play a key role in creating and developing links between the different legal systems which constitute our multi-level judicial environment. The increasingly complex nature of the interaction between national and international judges has often been
Topic:
Development, Government, Politics, and Law
Political Geography:
Greece

736. Overcoming the Past in Sino-Japanese Relations?

Author:
Mingde Wang and Maaike Okano-Heijmans
Publication Date:
03-2011
Content Type:
Journal Article
Journal:
The International Spectator
Institution:
Istituto Affari Internazionali
Abstract:
Historical disputes and nationalism continue to be issues of concern and controversy in the relationship between Japan and China. In 2005, popular nationalist sentiment culminated in nationwide anti-Japanese movements in China. This led to a crucial shift in the way China and Japan deal with history and popular nationalism. An unprecedented dialogue on war memory was initiated in late 2006, and the Sichuan earthquake relief effort in mid-2008 marked a further departure from earlier patterns. The Chinese government shifted away from conventional historiography that largely fed negative images of Japan. While these developments point to new, cooperative attitudes that aim to contain popular nationalist sentiment in manageable proportions, relations are nevertheless increasingly obscured by other tensions in the bilateral relationship.
Topic:
Government, Nationalism, and War
Political Geography:
Japan and China

737. Assessing the Sino-Indian Water Dispite

Author:
Jonathan Holslag
Publication Date:
05-2011
Content Type:
Journal Article
Journal:
Journal of International Affairs
Institution:
School of International and Public Affairs, Columbia University
Abstract:
This paper investigates the threat of a water war between China and India. It argues that Indian suspicion of China has been premature. Beijing has not yet given its approval for major water diversion projects in Tibet, it has taken some limited steps toward easing the concerns of the Indian government and a growing number of Chinese experts have taken an interest in developing institutional frameworks for managing transboundary rivers. However, a definitive settlement or cooperation will be difficult because both countries perceive themselves as the victim of a greedy neighbor. While India complains about China's ravenous exploitation of the Himalayan rivers, it is common in China to accuse India of exaggerating the Chinese threat and being unreasonable in its demands.
Topic:
Government
Political Geography:
China, India, and Beijing

738. India, China: Brothers, Brothers

Author:
Shirish Jain and Yan Shufen
Publication Date:
05-2011
Content Type:
Journal Article
Journal:
Journal of International Affairs
Institution:
School of International and Public Affairs, Columbia University
Abstract:
Despite gloomy predictions about the inevitability of competition between China and India, cooperation between Asia's two emerging powers is possible. It will, however, require a much more concerted effort to bridge the gap in sociocultural understanding that exists between the two countries. While growing economic ties have warmed relations between them, there remains a fundamental lack of appreciation on the part of each country of the underlying cultural and societal norms that define the other—norms that influence each country's perception of its own national interest. We argue that greater appreciation of these elements is critical if China and India are to successfully address issues such as the ongoing border dispute and the mounting trade imbalance. This essay is devoted to exploring avenues for cultural rapprochement and analyzing efforts made thus far. It also explores ways to make the process of engagement more effective, not only at the intergovernmental level but also in terms of person-to-person contact. With the remarkable economic resurgence of Asia, especially that of China and India, we contend that it is urgent for each country to gain a more direct and nuanced understanding of the other.
Topic:
Government
Political Geography:
China, India, and Asia

739. Demystifying the Arab Spring

Author:
Lisa Anderson
Publication Date:
05-2011
Content Type:
Journal Article
Journal:
Foreign Affairs
Institution:
Council on Foreign Relations
Abstract:
In Tunisia, protesters escalated calls for the restoration of the country's suspended constitution. Meanwhile, Egyptians rose in revolt as strikes across the country brought daily life to a halt and toppled the government. In Libya, provincial leaders worked feverishly to strengthen their newly independent republic. It was 1919. That year's events demonstrate that the global diffusion of information and expectations -- so vividly on display in Tahrir Square this past winter -- is not a result of the Internet and social media. The inspirational rhetoric of U.S. President Woodrow Wilson's Fourteen Points speech, which helped spark the 1919 upheavals, made its way around the world by telegraph. The uprisings of 1919 also suggest that the calculated spread of popular movements, seen across the Arab world last winter, is not a new phenomenon. The Egyptian Facebook campaigners are the modern incarnation of Arab nationalist networks whose broadsheets disseminated strategies for civil disobedience throughout the region in the years after World War I. The important story about the 2011 Arab revolts in Tunisia, Egypt, and Libya is not how the globalization of the norms of civic engagement shaped the protesters' aspirations. Nor is it about how activists used technology to share ideas and tactics. Instead, the critical issue is how and why these ambitions and techniques resonated in their various local contexts. The patterns and demographics of the protests varied widely. The demonstrations in Tunisia spiraled toward the capital from the neglected rural areas, finding common cause with a once powerful but much repressed labor movement. In Egypt, by contrast, urbane and cosmopolitan young people in the major cities organized the uprisings. Meanwhile, in Libya, ragtag bands of armed rebels in the eastern provinces ignited the protests, revealing the tribal and regional cleavages that have beset the country for decades. Although they shared a common call for personal dignity and responsive government, the revolutions across these three countries reflected divergent economic grievances and social dynamics -- legacies of their diverse encounters with modern Europe and decades under unique regimes.
Topic:
Government
Political Geography:
United States, Libya, Arabia, Egypt, and Tunisia

740. Getting the Military Out of Pakistani Politics

Author:
Aqil Shah
Publication Date:
05-2011
Content Type:
Journal Article
Journal:
Foreign Affairs
Institution:
Council on Foreign Relations
Abstract:
The United States has a major stake in Pakistan's stability, given the country's central role in the U.S.-led effort to, in U.S. President Barack Obama's words, "disrupt, dismantle, and defeat" al Qaeda; its war-prone rivalry with India over Kashmir; and its nuclear arsenal. As a result, U.S. policy toward Pakistan has been dominated by concerns for its stability -- providing the reasoning for Washington's backing of the Pakistani military's frequent interventions in domestic politics -- at the expense of its democratic institutions. But as the recent eruption of protests in the Middle East against U.S.-backed tyrants has shown, authoritarian stability is not always a winning bet. Despite U.S. efforts to promote it, stability is hardly Pakistan's distinguishing feature. Indeed, many observers fear that Pakistan could become the world's first nuclear-armed failed state. Their worry is not without reason. More than 63 years after independence, Pakistan is faced with a crumbling economy and a pernicious Taliban insurgency radiating from its Federally Administered Tribal Areas (FATA), the semiautonomous seven districts and six smaller regions along its border with Afghanistan. It is still struggling to meet its population's basic needs. More than half its population faces severe poverty, which fuels resentment against the government and feeds political instability. According to the World Bank, the Pakistani state's effectiveness has actually been in steady decline for the last two decades. In 2010, Foreign Policy even ranked Pakistan as number ten on its Failed States Index, placing it in the "critical" category with such other failed or failing states as Afghanistan, the Democratic Republic of the Congo, and Somalia. The consequences of its failure would no doubt be catastrophic, if for no other reason than al Qaeda and its affiliates could possibly get control of the country's atomic weapons. The Pakistani Taliban's dramatic incursions into Pakistan's northwestern Buner District (just 65 miles from the capital) in 2009 raised the specter of such a takeover.
Topic:
Government
Political Geography:
Pakistan, Afghanistan, United States, Washington, Middle East, India, and Kashmir