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481. 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

482. Five years of illegality: Time to dismantle the Wall and respect the rights of Palestinians

Author:
Valérie Féron
Publication Date:
07-2009
Content Type:
Policy Brief
Institution:
Oxfam Publishing
Abstract:
The Green Line: Term used following Israel's occupation of the West Bank and GazaStrip in 1967 to refer to the post-1948 war ceasefire line (Armistice Line of 1949). The demarcation line (laid down in the cease fire agreements of 1949) is the internationally recognised border between Israel and the occupied Palestinian Territory (Gaza Strip and West Bank, including East Jerusalem).
Topic:
Imperialism, International Law, and Power Politics
Political Geography:
Middle East, Palestine, Arabia, and Gaza

483. La importancia de la Convención sobre la protección y la promoción de la diversidad de las expresiones culturales de la UNESCO y su impacto en las políticas culturales mexicanas

Author:
Fabiola Rodríguez Barba
Publication Date:
01-2009
Content Type:
Working Paper
Institution:
CONfines de Relaciones Internacionales y Ciencia Política
Abstract:
En un contexto de globalización económica y de múltiples tratados comerciales de integración económica, asistimos a un creciente interés por el tema de la diversidad cultural. Desde esta perspectiva, la promoción y protección de la diversidad cultural se han convertido en una preocupación de la comunidad internacional, particularmente en la última década, como lo demuestra la publicación de diversos documentos: Reporte mundial sobre Cultura, creatividad y mercados ; Reporte mundial sobre la cultura 2000 . Diversidad cultural, conflicto y pluralismo; Informe sobre el Desarrollo Humano 2004 . La libertad cultural en el mundo diverso hoy ; así como la adopción de la Declaración universal de la UNESCO sobre la diversidad cultural proclamada en noviembre de 2001; y la Convención sobre la protección y promoción de la diversidad de las expresiones culturales (en adelante, Convención ) del mismo organismo, adoptada en 2005, y que entró en vigor en 2007.
Topic:
Economics, Education, and International Law
Political Geography:
Latin America

484. The Use of Force against Terrorists

Author:
Christian J. Tams
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
Whether states can use force against terrorists based in another country is much discussed. The relevant provisions of the UN Charter do not provide a conclusive answer, but have to be interpreted. The present article suggests that in the course of the last two decades, the Charter regime has been re-adjusted, so as to permit forcible responses to terrorism under more lenient conditions. In order to illustrate developments, it juxtaposes international law as of 1989 to the present state of the law. It argues that the restrictive approach to anti-terrorist force obtaining 20 years ago has come under strain. As far as collective responses are concerned, it is no longer disputed that the Security Council could authorize the use of force against terrorists; however, it has so far refrained from doing so. More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.
Topic:
Security, Development, International Law, Terrorism, and United Nations

485. Passions et ambivalences. Le colonialisme, le nationalisme et le droit international

Author:
Barbara Delcourt
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
This book is the second of a new collection called 'doctrine(s)', edited by Emmanuelle Jouannet (Professor of International Law at Paris I and Deputy Director of the Centre d'étude et de recherche en droit international/ CERDIN). The first one was dedicated to Martti Koskenniemi's works. This second volume brings together seminal articles, by Nathaniel Berman and translated from English, which deserve, without a doubt, to be presented to a French speaking public under this label 'doctrine'. All articles are underpinned by a consistent line of thought which is epitomized in Emmanuelle Jouannet's presentation. Far from being a mere description of the content of Berman's articles, or a kind of hagiographic introduction, her presentation contains elements of explanation, be they personal or more linked to the academic or political environment, which prove to be very useful in order fully to grasp the richness and the complexity of his analyses. Indeed, Nathaniel Berman can hardly be classified into ready-made categories of legal doctrines. Being inspired by different disciplines, among others history and psychoanalysis, he offers a truly original perspective on colonialism and nationalism which sheds light on international law and, more precisely, on the conditions under which these political phenomena have been tackled by case law, diplomats, and legal scholars.
Topic:
International Law

486. Targeted Killing in International Law

Author:
William Abresch
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
Studies of targeted killing are often situated within the politically fraught debate over Hellfi re missile attacks on suspected terrorists. The scope of Melzer's analysis is, then, refreshingly broad, covering equally sniper shots used to end hostage stand-offs, poison letters sent to insurgent commanders, and commando raids launched with orders to liquidate opponents. These diverse practices are marked off from other uses of lethal force by states, such as soldiers shooting in a firefight, with a precise and intuitively satisfying definition. Melzer defines targeted killing as a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that 'the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims').
Topic:
International Law

487. Culture and International Law

Author:
Stephan Sberro
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
Although not often explicitly mentioned, culture is always at the centre of law and politics. Furthermore, it is certainly a study area which is steadily growing in international relations too. Thus any book which aims to help academics and practitioners to clarify the meaning, importance, and implications of culture in social sciences should be welcomed. Paul Meerts' Culture and International Law, based on the annual Conference of the Hague Academic Coalition held on 16 and 17 April 2007 in The Hague, is such a book.
Topic:
International Relations, International Law, and Politics

488. Principles of International Investment Law

Author:
Stephan W. Schill
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
International investment law is one of the fastest-growing areas of international law today. Only a decade ago, the current surge in investor – state arbitrations, having cumulated in approximately 300 investment treaty disputes, was beyond imagination. At the same time, investment treaties enshrine principles of international investment law, rather than hard and fast rules. Almost unavoidably, international investment law therefore became coined more by the dispute settlement activities of arbitral tribunals which entertain claims between foreign investors and host states brought under investment treaties rather than by diplomatic exchange, intergovernmental negotiation, and inter-state treaty-making. Similarly, international investment law transpires and develops more in view of arbitral precedent and case law than on the basis of traditional textual approaches to treaty interpretation. Nonetheless, applying investment treaties in practice as well as studying and understanding the field not only requires knowledge about the jurisprudential developments but also demands awareness of the historic, economic, and customary international law context of foreign investment activities.
Topic:
International Law

489. National Courts, Domestic Democracy, and the Evolution of International Law

Author:
Eyal Benvenisti and George W. Downs
Publication Date:
02-2009
Content Type:
Journal Article
Abstract:
National courts are gradually abandoning their traditional policy of deference to their executive branches in the fi eld of foreign policy and beginning more aggressively to engage in the interpretation and application of international law. This change has been precipitated by the recognition of courts in democratic states that continued passivity in the face of a rapidly expanding international regulatory apparatus raises constitutionally-related concerns about excessive executive power and risks further erosion in the effective scope of judicial review. To avoid this, national courts have begun to exploit the expanding scope and fragmented character of international regulation to create opportunities to act collectively by engaging in a loose form of inter-judicial co-ordination. Such collective action increases their ability to resist external pressures on their respective governments, and reduces the likelihood that any particular court or country that it represents will be singled out and punished as an outlier by either domestic or foreign actors. Should this strategy continue to be refi ned and developed, it holds out the promise of enabling national courts not only to safeguard their role domestically but to function as full partners with international courts in creating a more coherent international regulatory apparatus.
Topic:
Foreign Policy and International Law

490. No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary

Author:
Yuval Shany
Publication Date:
02-2009
Content Type:
Journal Article
Abstract:
The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international dispute settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and nonstate parties, and the growing inclination of national courts to apply international law. Arguably, these developments point to the emergence of a new judiciary the operation of which is governed by a new ethos (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution). The article then moves on to discuss some of the 'blind spots' of the present judicial institutional landscape, which includes a consideration of the remaining difficulties associated with addressing politically-charged conflicts before international courts (especially those relating to war and terror), and problems relating to the enforcement of judicial orders and judgments. While national courts can, in theory, fill some of these remaining gaps, their actual ability to do so remains unclear. In addition, the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: co-ordination problems, and concerns relating to the effectiveness and legitimacy of international adjudication.
Topic:
International Law
Political Geography:
Middle East