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502. Categorizing Groups, Categorizing States: Theorizing Minority Rights in a World of Deep Diversity
- Author:
- Will Kymlicka
- Publication Date:
- 12-2009
- Content Type:
- Journal Article
- Institution:
- Carnegie Council
- Abstract:
- Since 1989 we have witnessed a proliferation of efforts to develop international norms of the rights of ethnocultural minorities, such as the UN's 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the Council of Europe's 1995 Framework Convention for the Protection of National Minorities, and the Organization of American States' 1997 draft Declaration on the Rights of Indigenous Peoples. This activity at the level of international law is reflected in a comparable explosion of interest in minority rights among normative political theorists. In the same twenty-year period we have seen a proliferation of attempts at formulating a normative theory of minority rights and examining how minority rights relate to broader political values (such as freedom, equality, democracy, and citizenship) and broader normative frameworks (such as liberalism, communitarianism, and republicanism). Key works here include those by Charles Taylor, Jim Tully, Iris Young, Jeff Spinner-Halev, Bhikhu Parekh, Yael Tamir, Joseph Carens, Susan Okin, and Anne Phillips—a rich literature that has informed and inspired my own work in the field.
- Topic:
- International Law
- Political Geography:
- United States, America, and Europe
503. Justice and the Convention on Biological Diversity
- Author:
- Doris Schroeder and Thomas Pogge
- Publication Date:
- 09-2009
- Content Type:
- Journal Article
- Institution:
- Carnegie Council
- Abstract:
- Benefit sharing as envisaged by the 1992 Convention on Biological Diversity (CBD) is a relatively new idea in international law. Within the context of non-human biological resources, it aims to guarantee the conservation of biodiversity and its sustainable use by ensuring that its custodians are adequately rewarded for its preservation. Prior to the adoption of the CBD, access to biological resources was frequently regarded as a free-for-all. Bioprospectors were able to take resources out of their natural habitat and develop commercial products without sharing benefits with states or local communities. This paper asks how CBD-style benefit-sharing fits into debates of justice. It is argued that the CBD is an example of a set of social rules designed to increase social utility. It is also argued that a common heritage of humankind principle with inbuilt benefit-sharing mechanisms would be preferable to assigning bureaucratic property rights to non-human biological resources. However, as long as the international economic order is characterized by serious distributive injustices, as reflected in the enormous poverty-related death toll in developing countries, any morally acceptable means toward redressing the balance in favor of the disadvantaged has to be welcomed. By legislating for a system of justice-in-exchange covering nonhuman biological resources in preference to a free-for-all situation, the CBD provides a small step forward in redressing the distributive justice balance. It therefore presents just legislation sensitive to the international relations context in the 21st century.
- Topic:
- Economics and International Law
504. The Myth of "Torture Lite"
- Author:
- Jessica Wolfendale
- Publication Date:
- 03-2009
- Content Type:
- Journal Article
- Institution:
- Carnegie Council
- Abstract:
- Although the term "torture lite" is frequently used to distinguish between physically mutilating torture and certain interrogation methods that are supposedly less severe, the distinction is not recognized in international law.
- Topic:
- International Law
- Political Geography:
- United States
505. Second Thoughts on the Crime of Aggression
- Author:
- Andreas Paulus
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
- Topic:
- International Law
506. Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus
- Author:
- Claus Kreß
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
- Topic:
- International Law
507. Aggression, Legitimacy and the International Criminal Court
- Author:
- Sean D. Murphy
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- The late Thomas Franck postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors, notably whether the norm or institutional process was validated through commonly accepted means, whether it was clearly understood by those upon whom it operated, whether it cohered with other norms and institutions, and whether it was well-grounded in secondary rules of international law concerning law formation. This article argues that the proposed draft amendment to the Rome Statute on the crime of aggression does not fare well under these criteria, casting into doubt the long-term prospects for the legitimacy of the definition of the crime and of the institutional structures charged with administering it. Choices made at the ICC Review Conference in 2010 to finalize an amendment to the Rome Statute may help alleviate or aggravate these concerns.
- Topic:
- International Law
508. Raphael Lemkin: A Tribute
- Author:
- Sergey Sayapin
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- This short article honours Professor Raphael Lemkin (1900–1959), author of the term 'genocide' and initiator of the Convention for the Prevention and Punishment of the Crime of Genocide, on the occasion of the 50th anniversary of his death. The article provides a brief overview of his career in international law and highlights Professor Lemkin's key ideas which shaped the Genocide Convention.
- Topic:
- International Law
509. Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law
- Author:
- Ana Filipa Vrdoljak
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- 2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
- Topic:
- International Law and United Nations
- Political Geography:
- Europe
510. Alexander Orakhelashvili. The Interpretation of Acts and Rules in Public International Law
- Author:
- Jörg Kammerhofer
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- Dr Orakhelashvili, currently lecturer in law at the University of Birmingham Law School, is a prodigious writer as well as a very conscientious and thorough scholar. His latest book on interpretation in international law shows precision in scholarship and a comprehensive grasp of the subject. It comes at a time when the process of interpretation is little understood, yet often talked about by scholars, practitioners, and tribunals alike. Despite the large amount of literature already published on the topic – the bibliography printed in Orakhelashvili\'s book (at 585–591) is just the tip of the iceberg – and regardless of the countless dicta of various international tribunals, a new and fresh look at this central nexus between international legal practice and theory is highly welcome.
- Topic:
- International Law