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371. 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

372. Steven Wheatley. The Democratic Legitimacy of International Law

Author:
Ingo Venzke
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
The concept of global governance epitomizes transformations in the structure of political organization and highlights changes in the ways in which public authority is exercised. Times of change invite scholars to contemplate the plausibility of orthodox beliefs and doctrinal concepts. They push them towards innovation and there is indeed a strong sense among international lawyers that the terms of debate about the legitimacy of international law are shifting. A number of contributions over the past years have tried to respond to the challenges which phenomena of global governance pose to international legal scholarship. 1 The mounting wealth of literature now comes to speak in Steven Wheatley's book on The Democratic Legitimacy of International Law in which he calls on the legal profession to engage with questions of first principle, to reflect on the nature of international law, and to consider in closer detail the justification of legal constraints beyond the state. The book's main argument is at the outset rather straightforward. Wheatley observes a proliferation of sites of norm production and argues that the delegation of authority to international or transnational actors inevitably involves a loss for democracy. To remedy this deficit, he suggests restating requirements for democratic legitimacy in terms of the deliberative ideal as it is developed in the work of Jürgen Habermas. The book claims the use of Habermas' thought as its innovative edge, and develops its core argument accordingly. '[T]he legitimate exercise of public authority through law', it claims, 'is conditioned by respect for the cardinal principles of deliberative democracy: equality and public reason' (at 2). The book begins by taking stock of accounts suggesting that state sovereignty has lost its plausibility as an exclusive reference point in normative argument. While the grand variety of approaches under discussion converge in agreement on the facts of what …
Topic:
International Law and Governance

373. 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

374. Andrea Carcano. L'occupazione dell'Iraq nel diritto internazionale

Author:
Mirko Sossai
Publication Date:
02-2011
Content Type:
Journal Article
Abstract:
The renewed interest in the law of belligerent occupation probably reached its peak in 2009, when various monographs were published by distinguished authors as well as by younger scholars. The book under review originated from a doctoral thesis defended by Andrea Carcano at the University of Milan. His investigation focuses on the 2003 occupation of Iraq as the ideal test-case to verify whether the existing legal regime is adequate to address the challenges posed by present-day scenarios, including Afghanistan, Congo, and the Arab–Israeli conflict. The book is divided into three parts. The first one comprises two chapters, which present respectively the legal framework of belligerent occupation and the other applicable norms of international law. Chapter I takes a historical perspective on the legal concept of occupation, which the author considers functional to the subsequent analysis for two main reasons: to investigate the underlying values guiding the development of the law of belligerent occupation; and to compare current theories regarding the role of the law in such a situation with similar arguments upheld in the past (at 13). Carcano identifies three epochs, which modelled different concepts of occupation. The first one is valid until the Modern Age and is influenced by the Roman law tradition: occupation is considered as 'conquest and exploitation of the territory'. The modern notion of occupation, defined as 'administration and effective control', emerged during the 18th century, at the time of the consolidation of sovereign states in Europe. Whereas Vattel had already in theory identified the differentiation between sovereignty and private ownership, it was August Heffter, a century later, who first recognized the legal implications of the distinction between occupatio bellica and debellatio (at 24). Finally, the last model is that of the occupation as 'transformation': Carcano identifies it as 'a military action aimed at the radical …
Topic:
Development and International Law
Political Geography:
Afghanistan, Europe, Israel, Paris, and Arabia

375. The state as citizen: state personhood and ideology

Author:
Jorg Kustermans
Publication Date:
01-2011
Content Type:
Journal Article
Journal:
Journal of International Relations and Development
Institution:
Central and East European International Studies Association
Abstract:
An important debate in International Relations and International Law is whether states are persons. In this article, it is argued that they are. That is, they are real persons-as-status. Furthermore, state personhood is argued to be an ideological category, marked by ideological variety. Roughly, one can tell apart liberal and republican conceptions of state citizenship. In a case study, the conceptual toolkit of state citizenship is put to work to assess the liberal credentials of modern international society. While modern international society rests on firm liberal principles, expressed most clearly in the Charter of the UN, important republican elements can be discerned, not in the least in the constitution of NATO.
Topic:
International Relations, NATO, International Law, and United Nations

376. Reducing demand for illegal timber: Targeting corruption in customs and procurement

Publication Date:
01-2011
Content Type:
Working Paper
Institution:
Transparency International
Abstract:
Corruption and illegal logging are well-known drivers of deforestation. In 2001 it was estimated that major timber exporting countries - Indonesia, Brazil and Cameroon - had an illegal logging rate of at least half of their total timber production. This illegal timber finds its way into the consumer markets, often unchecked or unidentified by timber importing countries and industries. As a result, it has been estimated that 20 per cent of wood-based products entering the EU are likely to be illegally sourced.
Topic:
Corruption, Crime, International Law, and Natural Resources
Political Geography:
Indonesia, Brazil, and Cameroon

377. Justice Beyond The Hague: Supporting the Prosecution of International Crimes in National Courts

Author:
David A. Kaye
Publication Date:
06-2011
Content Type:
Working Paper
Institution:
Council on Foreign Relations
Abstract:
For nearly two decades, the United Nations has created international criminal tribunals to punish those responsible for war crimes, crimes against humanity, and genocide. Since the early 1990s the United States has strongly supported the UN tribunals for Rwanda and the former Yugoslavia and hybrid UN/national courts for Sierra Leone and Cambodia. The era of court-building culminated in the 1998 adoption, over U.S. objections, of a treaty to establish a permanent International Criminal Court (ICC) in The Hague. These international courts have brought dozens of perpetrators to justice, and the UN Security Council's requests that the ICC investigate the situations in Sudan (2005) and Libya (2011) show that policymakers across the spectrum, in the United States and abroad, believe that accountability-that is, bringing individuals to justice for committing atrocities-can be an important tool to combat war crimes, crimes against humanity, and genocide. Yet as important as these courts are, atrocities occur in places beyond their reach, and even where international courts investigate and prosecute, they lack the capacity to try all but a handful of the thousands of perpetrators of the worst international crimes.
Topic:
Crime, Genocide, International Cooperation, and International Law
Political Geography:
United States, Sudan, Libya, Yugoslavia, and Cambodia

378. Easier to walk the plank?

Author:
Melda Malek
Publication Date:
02-2011
Content Type:
Policy Brief
Institution:
Maritime Institute of Malaysia
Abstract:
There has been no effective government in Somalia since the fall of the regime of Mohamed Siad Barre in 1991. Currently, the country has only an interim, provisional government and is undergoing severe economic difficulties exacerbated by decades of factional fighting, floods, drought, and famine. Due to its barely functioning state, unscrupulous parties have taken advantage of the situation by depleting fish stocks in Somali waters by their illegal fishing activities, or worse, dumping drums of toxic wastes into the sea.
Topic:
Security, International Law, Maritime Commerce, and Piracy
Political Geography:
Africa

379. One Foot in the Region; Eyes on the Global Prize

Author:
Matias Spektor
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
Americas Quarterly
Institution:
Council of the Americas
Abstract:
Read any Brazilian foreign policy college textbook and you will be surprised. Global order since 1945 is not described as open, inclusive or rooted in multilateralism. Instead, you learn that big powers impose their will on the weak through force and rules that are strict and often arbitrary. In this world view, international institutions bend over backwards to please their most powerful masters. International law, when it is used by the strong, is less about binding great powers and self-restraint than about strong players controlling weaker ones. After finishing the book, you couldn't be blamed for believing that the liberal international order has never established the just, level playing field for world politics that its supporters claim. This intellectual approach is responsible for the ambiguity at the heart of Brazilian strategic thinking. On one hand, Brazil has benefited enormously from existing patterns of global order. It was transformed from a modest rural economy in the 1940s into an industrial powerhouse less than 50 years later, thanks to the twin forces of capitalism and an alliance system that kept it safe. On the other hand, the world has been a nasty place for Brazil. Today, it is one of the most unequal societies in the world. Millions still live in poverty and violence abounds. In 2009, there were more violent civilian deaths in the state of Rio de Janeiro alone than in the whole of Iraq. No doubt a fair share of the blame belongs to successive generations of Brazilian politicians and policymakers. But some of it is a function of the many inequities and distortions that recur when you are on the “periphery” of a very unequal international system. The result is a view of global order that vastly differs from perceptions held by the United States. Take, for instance, Brazilian perceptions of “international threats.” Polls show that the average Brazilian worries little about terrorism, radical Islam or a major international war. Instead, the primary fears concern climate change, poverty and infectious disease. Many Brazilians, in fact, fear the U.S., focusing in particular on the perceived threat it poses to the natural riches of the Amazon and the newfound oil fields under the Brazilian seabed. Perceptions matter enormously. It is no wonder that the Brazilian military spends a chunk of its time studying how Vietnamese guerrillas won a war against far superior forces in jungle battlefields. Nor should it be a surprise that Brazil is now investing heavily in the development of nuclear-propulsion submarines that its admirals think will facilitate the nation's ability to defend oil wells in open waters. But Brazil is nowhere near being a revolutionary state. While its leaders believe that a major transition of global power is currently underway, they want to be seen as smooth operators when new rules to the game emerge. Their designs are moderate because they have a stake in preserving the principles that underwrite Brazil's emergence as a major world player. They will not seek to radically overturn existing norms and practices but to adapt them to suit their own interests instead. Could Brazilian intentions change over time? No doubt. Notions of what constitutes the national interest will transform as the country rises. Brazil's international ambitions are likely to expand—no matter who runs the country. Three factors will shape the way national goals will evolve in the next few years: the relationship with the U.S., Brasilia's strategies for dealing with the rest of South America, and Brazil's ideas about how to produce global order. When it Comes to the U.S., Lie Low Brazilian officials are used to repeating that to be on the U.S. “radar screen” is not good. In their eyes, being the source of American attention poses two possible threats. It either raises expectations in Washington that Brazil will work as a “responsible stakeholder” according to some arbitrary criteria of what “responsible” means, or it turns Brazil into a target of U.S. pressure when interests don't coincide. As a result, there is a consensus among Brazilians that a policy of “ducking”—hiding your head underwater when the hegemonic eagle is around—has served them well. Whether this judgment is correct or not is for historians to explore. But the utility of a policy based on such a consensus is declining fast. You cannot flex your diplomatic muscle abroad and hope to go unnoticed. Furthermore, being a “rising state” is never a mere function of concrete things, such as a growing economy, skilled armies, mighty industries, a booming middle class, or a functional state that is effective in tax collection and the provision of public goods. The perception of other states matters just as much. And nobody's perception matters more than that of the most powerful state of all: the United States. Brazil's current rise is therefore deeply intertwined with the perception in Washington that Brazil is moving upwards in global hierarchies. Securing the acceptance or the implicit support of the U.S. while maintaining some distance will always be a fragile position to maintain. But as Brazil grows more powerful, it will be difficult to accomplish its global objectives without the complicity—and the tacit acceptance—of the United States. For Brazil this means that the “off the radar” option will become increasingly difficult. Not the Natural Regional Leader Brazil accounts for over 50 percent of South America's wealth, people and territory. If power were a product of relative material capabilities alone, Brazil would be more powerful in its own region than China, India, Turkey or South Africa are in theirs. But Brazil is not your typical regional power. It has sponsored layers of formal institutions and regional norms, but its leaders recoil at the thought of pooling sovereignty into supranational bodies. Yes, Brazil has modernized South American politics by promoting norms to protect democracy and to establish a regional zone of peace, but its efforts at promoting a regional sense of shared purposes have been mixed and, some say, halfhearted at best. Brazilian public opinion and private-sector business increasingly doubt the benefits of deep regional integration with neighbors, and plans for a South American Free Trade Zone have gone asunder. And yes, according to the Stockholm International Peace Research Institute (SIPRI), from 1998 to 2007, Brazil spent far more on its armed forces than Argentina, Chile, Colombia, and Venezuela combined. Yet, Brazil's ability to project military power abroad remains minimal. The end result is that many challenge the notion that Brazil is a regional leader. From the perspective of smaller neighboring countries, it remains a country that is too hard to follow sometimes. If you are sitting on its borders, as 10 South American nations do, you find it difficult to jump on its bandwagon. This is problematic for Brazil. As a major and growing regional creditor, investor, consumer, and exporter, its own economic fate is interconnected with that of its neighbors. Crises abroad impact its banks and companies at home as never before. Populism, ethnic nationalism, narcotics trafficking, guerrilla warfare, deforestation, unlawful pasturing, economic decay, and political upheaval in neighbors will deeply harm Brazilian interests. Whether, when and how Brazil will develop the policy instruments to shape a regional order beneficial to itself remains to be seen. But curiously enough, Brazilian leaders do not normally think their interests in South America might converge with those of the United States. On the contrary, Brazil in the twenty-first century has geared its regional policies to deflect, hedge, bind, and restrain U.S. power in South America to the extent that it can. This is not to say that Brazil is a stubborn challenger of U.S. interests in the region. That would be silly for a country whose success depends on the perception of economic gain and regional stability. But it means that future generations of Brazilians might discover that if they want to unlock some of the most pressing problems in the region, perhaps they will have to reconsider their attitude towards the United States...
Topic:
Foreign Policy, International Law, and Islam
Political Geography:
United States, America, Washington, Brazil, Argentina, Colombia, South America, Venezuela, and Chile

380. Are Sovereigns Entitled to the Benefit of the International Rule of Law? An Introduction

Author:
Nehal Bhuta
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
In this symposium, we publish Jeremy Waldron's article, 'Are Sovereigns Entitled to the Benefit of the Rule of Law?' together with four responses, by Samantha Besson, David Dyzenhaus, Thomas Poole and Alexander Somek. Waldron is justifiably renowned as a jurisprude and theorist of the concept of the rule of law. His engagement with international law is more recent, but no less significant. In this article, he takes a familiar (perhaps even tired) question among international lawyers – can there be something akin to a rule of law in international affairs? – and recasts how we ought to think about it. With characteristically deft and plain-speaking arguments, Waldron burrows to the heart of the issue: What might it mean to speak of an 'international rule of law,' and who or what are properly understood as its beneficiaries? Waldron leads us first along a familiar path: the absence of a sovereign of sovereigns puts into …
Topic:
International Law