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521. Legality and Legitimacy in International Order

Author:
Vesselin Popovski and Nicholas Turner
Publication Date:
05-2008
Content Type:
Policy Brief
Institution:
United Nations University
Abstract:
The 1999 NATO armed intervention over Kosovo was illegal under international law, but widely regarded as legitimate. The 2003 US invasion of Iraq was both illegal and illegitimate, though unilateral attempts were made to legitimize it, using the Kosovo precedent. The sanctions against Iraq, preceding the 2003 invasion, were legal, but seen by many as illegitimate. These examples are symptomatic of a wider disconnect between legality and legitimacy which affects many areas of international life. Legality is not the only criteria for determining acceptable state behaviour. Other criteria—humanitarian, ethical and political—play a significant role in modern international relations. Ignorance of international law has serious negative consequences, but so has the blind reliance on international law, detached from human aspirations and actual circumstances.
Topic:
International Law
Political Geography:
United States, Iraq, and Kosovo

522. Anatomy of a Fallacy: The Senlis Council and Narcotics in Afghanistan

Author:
Frédéric Grare
Publication Date:
02-2008
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
Supplying the majority of the heroin consumed in Europe and nearly all consumed in Russia, Afghanistan's booming illicit drug market has not only entirely distorted the Afghan economy but also corrupted the country's nascent, fragile political system. While current norms regulating the production and traffic of illicit drugs have established the framework of an international prohibition regime, the policies associated with this regime have so far failed to stop or significantly slow the growing of Afghan opium. In 2005, in response to this situation, the Senlis Council, an international drug policy think tank, proposed the creation of a licensing system in Afghanistan which would allow the cultivation of opium for the production of essential medicines such as morphine and codeine. This system is intended to break the vicious circle of the drug economy by moving the opium trade into a legal system controlled by, and benefiting, the state. This paper adopts a critical view of the Senlis proposals, arguing that their underlying principles–economic, social and political–diverge only marginally from those underpinning previous approaches and have little potential for success under current political conditions. The paper concludes that, despite many imperfections, the current policies in place may be optimum given both Afghanistan's present situation and the structural problems inherent in the global war against drugs.
Topic:
Crime, International Law, and Markets
Political Geography:
Afghanistan, Russia, and Europe

523. The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law

Author:
Jochen von Bernstorff
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
The article explores the genesis of the Universal Declaration of Human Rights and the turn to rights in international law. To this end, it focuses on how international lawyers have received the Declaration in their contemporary doctrinal and political contexts. The fact that the political and moral importance of the Declaration from the very beginning outweighed its concrete legal significance invited intriguing scholarly reflections on the symbolic dimension of the document. Despite early sceptical voices about its legal and moral value, international lawyers welcomed and reaffirmed its significance during the 1960s and 1970s. While attention turned to human rights treaty law in the 1980s, the Declaration embodied the hope for a new era of human rights protection after the end of the Cold War. Throughout the 1990s a new scholarly defence of the universal character of the Declaration could be observed, later being accompanied by new insecurity and soul-searching in the face of institutional limitations. In general, the Declaration became synonymous with the turn to individual rights in international law, and whenever there was a sense of crisis because of institutional blockades or challenged foundations, the Declaration received new and increased attention. It symbolized unity in an increasingly fragmented and contentious institutional and political environment for international human rights protection. The story of its scholarly reception is therefore also a story of the failed and perhaps unattainable attempt fully to institutionalize international human rights in a cosmopolitan legal order.
Topic:
Cold War, Environment, Human Rights, and International Law

524. Softness in International Law: A Self-Serving Quest for New Legal Materials

Author:
Jean d'Aspremont
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
The concept of soft law which rests on the idea that the binary nature of law is ill suited to accommodate the growing complexity of contemporary international relations has been endorsed by a large number of scholars. It has however remained under the attack of those who are commonly portrayed as positivists. Although it does not seek to rehabilitate positivism as a whole, this article will try to offer a refreshed and modernized account of the positivist objection to soft law. It will accordingly distinguish several types of softness. Such a dichotomy will help to unravel the underlying agenda of some of the staunchest supporters of the concept of soft law. The article will ultimately expound on the proneness of international legal scholars to stretch the limit of their object of study by constantly seizing materials outside the realm of international law in order to alleviate the strain inherent in the contemporary proliferation of international legal thinking.
Topic:
International Law

525. Immunità e crimini internazionali. L'esercizio della giurisdizione penale e civile nei confronti degli organi statali sospettati di gravi crimini internazionali

Author:
Chiara Ragni
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
This book offers a thorough and detailed analysis of the doctrinal debate on the controversial question whether state organs are entitled to invoke any kind of immunity, before either international or national tribunals, when accused of committing or ordering the commission of international crimes, such as war crimes, crimes against humanity, and genocide. The problem is not merely a theoretical one, given that, since the end of the Second World War and in particular since the Pinochet Affair 1 (decided in 1999 by the British House of Lords), national judges from all over the world have been required to determine whether all state organs can benefit from immunity from jurisdiction and, if so, whether this can cover all the possible violations of international law, including the most serious ones. Initially, and as long as the courts could properly cope with the question of the immunity of former military officers, no problem seemed to emerge with regard to the possibility of judging the latter for crimes committed during a war; however, the choice seemed to be more controversial when the accused were high-ranking representatives of the state and the acts in question were performed in times of peace. The leading case in this regard was the above-mentioned Pinochet case, since it made clear the differing attitudes of judges according to the accused's rank in the state hierarchy and, as the author notes, according to whether or not the person in question was still in office. The debate which ensued with regard to those issues and to the controversial practice which had developed on the subject makes the book reviewed here particularly interesting. First, it has the merit of taking into account the different points of view expressed by scholars dealing with the topic and comparing them with the practice – described in a historical perspective – of international and especially of national courts and tribunals. Secondly, even though the literature on the subject of immunities is quite broad, this work stands out thanks to the author's original approach to the subject and to the accuracy of the analysis conducted.
Topic:
Crime and International Law

526. A Holistic Approach for Promoting the Rule of Law

Author:
Josef Bucher
Publication Date:
09-2008
Content Type:
Working Paper
Institution:
Human Rights Human Welfare (University of Denver)
Abstract:
The world has become smaller as a result of globalization tendencies, making the establishment of a global order more important than ever. Nations have become closer. Hence, the intensive relations between countries must be increasingly protected by legal security. In order to stabilise this global order, also intra-state relations must be subjected to the protection of the law. The rule of law has thus become a central element of successful globalisation on two different levels.
Topic:
International Relations, Civil Society, Globalization, Human Rights, Human Welfare, and International Law
Political Geography:
Asia

527. List of Books Available for Review

Publication Date:
11-2008
Content Type:
Journal Article
Journal:
African Journal of Legal Studies
Institution:
The Africa Law Institute
Abstract:
The African Journal of Legal Studies is pleased to present the following books relating to human rights in Africa received from two major publishers:. Antje du Bois-Pedain, Transitional Amnesty in South Africa (Cambridge: Cambridge University Press, 2007) 418 pages, hardback. . Obiora Chinedu Okafor, The African Human Rights System, Activist Forces and International Institutions (Cambridge: Cambridge University Press, 2007) 350 pages, hardback . John Hagan and Wenona Rymond-Richmond, Darfur and the Crime of Genocide (Cambridge: Cambridge University Press, 2008) 296 pages, paperback.. Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007) 673 pages, hardback.
Topic:
Human Rights and International Law
Political Geography:
Africa

528. Review: Falk and Friel: Israel Palestine on Record and Dunsky: Pens and Swords

Author:
Cheryl Rubenberg
Publication Date:
06-2008
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
Israel-Palestine on Record: How the New York Times Misreports Conflict in the Middle East and Pens and Swords: How the American Mainstream Media Report the Israeli-Palestinian Conflict are two tour-de-force works devoted to an analysis of the U.S. media as it reports on the Israeli-Palestinian conflict. Both present devastating critiques of the media in its pro-Israel bias, and both are extensively documented, reflecting analytical scholarship in the finest tradition.
Topic:
Human Rights and International Law
Political Geography:
Middle East, Israel, and Palestine

529. Healing the Enlightenment Rift: Rationality, Spirituality and Shared Waters

Author:
Aaron T. Wolf
Publication Date:
10-2008
Content Type:
Journal Article
Journal:
Journal of International Affairs
Institution:
School of International and Public Affairs, Columbia University
Abstract:
Water management, by definition, is conflict management. Water, unlike other scarce, consumable resources, is used to fuel all facets of society, from biologies to economies to aesthetics to spiritual practice. Moreover, it fluctuates wildly in space and time, its management is usually fragmented and it is often subject to vague, arcane and/or contradictory legal principles. As such, there is no such thing as managing water for a single purpose—all water management is multi-objective and based on navigating competing interests. Within a nation, these interests include domestic users, agriculturalists, hydropower generators, recreators and environmentalists. Any two of the interests are regularly at odds, and the complexity of finding mutually acceptable solutions increases exponentially as more stakeholders are involved. Add international boundaries, and the difficulty grows substantially yet again.
Topic:
Health and International Law
Political Geography:
Pakistan, India, and Israel

530. The Crime of Genocide in Internatioanal Law and Underlying Social Structures of the Crime: Rwanda Case

Author:
Ebru Çoban
Publication Date:
03-2008
Content Type:
Journal Article
Journal:
Uluslararasi Iliskiler
Institution:
Uluslararasi Iliskiler
Abstract:
Genocide is a crime which is defined under internatioanal law in the twentieth century and could not come about without the ideological, bureaucratic power of a modern state with is sanctions and modern discources on identities and modern classifications. With a non-modern Picture but with modern techniques of governing Rwanda was a place that genocidal killings occured and is a place of a breaking case for modern theories. Rwanda has modern state characteristics in terms of monopoly of use of violence, giving orders and providing obidience of its people, surveillance, classification and registration of its people, and keeping discourses. Morever, Rwandan culture that gives great importance to obidence and Rwandan geography that is so suitable to surveillance become additional factors. In that sense, Rwandan government could influence to daily life of the people even to the smallest details of anyone. All factors provided a suitable bas efor the crime of genocide.
Topic:
Genocide, Government, and International Law
Political Geography:
Africa and Rwanda