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101. Saving the Scarecrow

Author:
André Nollkaemper
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This brief Comment responds to Jan Klabbers’ recent article, ‘The Transformation of International Organizations Law’. It focuses on three points: the polemical style and disengagement with substance in the article; the question of whether we can do without some form of functionalism; and the further question of what it means to speak of ‘responsibility beyond functionalism’.
Topic:
International Law, International Organization, Law, and Critique
Political Geography:
Europe and Global Focus

102. Local Recommendations for Access to Justice in Turkey

Author:
Bürge Elvan Erginli, Gamze Nur Çelik, Koray Özdil, and Seda Akço Bilen
Publication Date:
11-2015
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
The report “Local Recommendations for Access to Justice in Turkey” was developed under the project Enhancing Civic Participation and Confidence Building in the Judicial Reform Process and run in partnership with the Turkish Economic and Social Studies Foundation (TESEV) and Turkije Instituut, based in Leiden, Netherlands. The main objectives of the project are to identify, at a local level, the problems that prevent citizens in Turkey from accessing justice in judicial processes, to support local actors serving in the field of justice and law in turning identified problems into significant policy recommendations, and thus, to develop local recommendations for judicial reform.
Topic:
Environment, Law, Courts, and Justice
Political Geography:
Turkey, Middle East, and Netherlands

103. State Practice on Sovereign Immunity in Employment Disputes Involving Embassy and Consular Staff

Author:
Julia Brower
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This report identifies and analyzes foreign case law and statutes on sovereign immunity in employment disputes brought by dismissed embassy and consular staff from twenty-seven countries and two international courts. State practice remains quite diverse, and it is not possible to identify one clear, specific majority test for whether foreign States are immune in such disputes. However, several recent trends exist, with state practice in Europe in particular starting to coalesce around a common approach. The findings of this report must be considered with the limitations of the research in mind. The vast majority of case law surveyed in this report is from Europe and English-speaking countries. Only a handful of translated decisions or statutes from Latin America, Africa, and Asia could be found, and significantly, this report does not include any decisions from China or Brazil.
Topic:
Law, Protected People, Diplomatic Immunity, and Sovereign Immunity
Political Geography:
Global Focus

104. General Principles Regarding the Legal Validity of RUD

Author:
Eric Chung
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper examines the legal validity of reservations, understandings, and declarations (RUDs) in both U.S. and international courts. The analysis is based on 46 U.S. cases discussing RUDs as a general category and 26 U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis is also based on 13 cases from international courts out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the United Nations Convention on the Law of the Sea (UNCLOS) tribunal and arbitral bodies, the European Court of Human Rights, and the Inter- American Court of Human Rights. In the U.S. cases, RUDs are nearly always recognized as valid. For example, non-self- execution reservations in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) are usually treated as legally controlling. The same is true for the reservation to the ICCPR that reserves the right to use capital punishment on juveniles despite treaty prohibitions, as well as interpretative understandings and declarations defining specific terms used in the CAT. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, did not support a contrary interpretation, or focused on issues of wholly domestic concern (although the only case on this point was vacated and is not precedential). In addition, individual circuit judges, writing in dissent, have examined whether RUDs violate the separation of powers principle or are inconsistent with the treaty language and international law. With few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the Vienna Convention on the Law of the Treaties. Yet the ICJ has only invalidated a RUD when it determined that a reservation was in fact an interpretative declaration (as opposed to a reservation modifying the state’s legal obligations under the treaty). This has been particularly important in cases where the treaty in question prohibits reservations, such as the UNCLOS. Rules stipulated by a treaty also shape how other courts review RUDs. The European Court of Human Rights, for instance, applies treaty rules to invalidate RUDs that are of a general character or fail to include a statement of the law concerned. Following a number of practices can reduce a RUD’s vulnerability to invalidation in U.S. and international courts. For U.S. courts, a RUD is extremely unlikely to be questioned if it is documented clearly at the time of ratification and communicated to all treaty parties at the time of ratification. For international courts, a RUD is unlikely to be questioned if, in addition to the above factors, it is not counter to the “object and purpose” of a treaty, it is not objected to by other parties, and it is not a reservation masquerading as an interpretive declaration in a situation where reservations are prohibited by the relevant treaty.
Topic:
Human Rights, Law, Legal Theory, and Courts
Political Geography:
United States of America and North America

105. Below the Threshold: The Law Governing the Use of Force Against Non-State Actors in the Absence of a Non-International Armed Conflict

Author:
Daniel Hessel, Julia Shu, and Sarah Weiner
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Boko Haram attacks civilians in Nigeria. The Islamic State launches attacks in Paris. Terrorists take hostages at a hotel in Mali. Mexican drug gangs threaten government officials and civilians. Houthi rebels seek to take control of the government in Yemen—and succeed. States increasingly face security threats from non-state actors, which have led states and observers to ask what states can do in response. What legal framework should apply? What constraints do states face? When can states resort to the use of military force to address threats posed to them by non-state actors, either on their own territory or on the territory of another state? The answer to these questions turns on whether the conflict in question rises to the level of a non-international armed conflict (NIAC). Based on the drafting history of international humanitarian law (IHL) governing NIACs, international jurisprudence, recent state practice, and academic commentary, this paper concludes that a NIAC does not exist unless the conflict passes an intensity threshold. In other words, the intensity of the conflict distinguishes generalized violence involving a non-state actor from a NIAC. Once the existence of a NIAC is established, states participating in it will be governed by relevant IHL. But if states are only governed by the IHL applicable to NIACs once an intensity threshold has been crossed, what law applies below that threshold? The answer varies with the circumstances, depending on whether the state is responding to a threat within its own territory or from outside; and if the threat is from outside the state, whether the host state consents to the use of force against the non-state actor. Thus, to answer the question of what law applies before a NIAC is established, this white paper analyzes three different scenarios in which a state contemplates forceful engagement with a non-state actor. Each scenario presumes that t he non- state actor is organized and has engaged in some violence, but that the intensity of the clash has not crossed the intensity threshold and thus has not risen yet to the level of a NIAC. 1. In Scenario One, a state seeks to engage a non-state actor that operates exclusively within the state’s territorial borders. 2. In Scenario Two, an intervening state seeks to engage a non-state actor located in another state, with the consent of the host state. 3. In Scenario Three, an intervening state seeks to engage a non-state actor located in another state, without the consent of the host state. The analysis of each scenario first identifies the authority that governs whether and when the state may initiate forceful engagement with the non-state actor (the “may the state use force” evaluation), then discusses which legal regime governs the scope and nature of the resulting use of force (the “how may the state use force” evaluation). Different legal regimes govern the acting state’s options in each of the scenarios. Although the authority for action differs, the inquiries for Scenarios One and Two are quite similar. In Scenario One, the acting state may engage the non-state actor with force by virtue of its territorial sovereignty. It must act, however, through a domestic law enforcement framework and in compliance with human rights law. In Scenario Two, the acting state derives the authority to use force against the non-state actor from the host state’s consent. However, it may only rely on that consent insofar as it comports with the host state’s human rights obligations under international law. In raising the possibility of one state violating another state’s territorial integrity, Scenario Three raises a different set of questions. The intervening state’s threat or use of force within another state’s territory is only lawful when authorized by the U.N. Security Council or justified under the Charter’s Article 51 self-defense provision. The intervening state’s use of force is accordingly regulated by the traditional IHL of international armed conflict. Where scenarios overlap (when, for example, the intervening state has both consent and Article 51 authority to act), the acting state may rely on more than one source of authority. It must, however, continue to ensure that it has authority to use force and that its use of force comports with the legal framework appropriate for the nature and intensity of the conflict. It is worth noting at the outset that these scenarios highlight developing areas of international law. Some raise questions that have clear answers in existing legal authority, while others contend with more inchoate legal regimes. Where state practice has not yet solidified into definitive international norms, legal ambiguity remains. In such instances, this white paper notes the existence of ambiguity and examines the history, purposes, and principles of relevant legal regimes to proffer answers.
Topic:
Military Strategy, Non State Actors, Law, and Conflict
Political Geography:
Global Focus

106. The Applicability of International and Domestic Immigration Law to Relocated Guantanamo Detainees

Author:
Sarah Weiner
Publication Date:
11-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The physical relocation of detainees from Guantanamo to the United States would not meaningfully alter U.S. obligations under domestic immigration law or international law concerning refoulement. Domestic immigration law would not affect U.S. authority to bring aliens into the United States and to detain those aliens under the laws of war. Detainees would not enter the United States as immigrants, but rather would remain legally “at the border” during their detention. If a detainee secures his release from law-of-war detention, then the United States would be prohibited from transferring the former detainee to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture. This obligation applies equally to detainees held at Guantanamo and in the United States. If the United States could not find a suitable country to accept the former detainee, then the United States may have the authority to hold the alien indefinitely in immigration detention, provided that his custody meets statutory requirements. This authority is constitutionally untested and potentially inconsistent with obligations under international law, but these concerns would apply equally to both Guantanamo- and U.S.-located former detainees.
Topic:
Law, Prisons/Penal Systems, War on Terror, and Detention
Political Geography:
North America, United States of America, and Guantanamo

107. Institutionalisation of Sub-Saharan Africa's Land Reforms: The Way Forward

Author:
Rasmus Hundsbæk Pedersen
Publication Date:
02-2014
Content Type:
Policy Brief
Institution:
Danish Institute for International Studies
Abstract:
Governments across Sub -Saharan Africa seek to address the increasing pressure on land by introducing land reforms. More than half — at least 32 countries — have introduced reforms since the end of the Cold War. Though the reforms are heterogeneous, most of them share a number of characteristics. Most reforms aim to streamline land legislation, land administration and land dispute settlement and to promote markets in land. These new wave land reforms typically do so by recognising existing rights to land (customary rights included), by decentralising responsibility over land administration and land dispute settlement and by promoting registration and issuing land title deeds. How are land reforms being implemented? What is their effect on institutions at the local level? Are the land administration and land court institutions becoming more accessible due to the reforms? This policy brief addresses some of these questions.
Topic:
Security, Poverty, Culture, Law, and Reform
Political Geography:
Africa

108. Ergenekon: An Illegitimate Form of Government

Author:
Markar Esayan
Publication Date:
02-2014
Content Type:
Journal Article
Journal:
Insight Turkey
Institution:
SETA Foundation for Political, Economic and Social Research
Abstract:
On August 5th, 2013, an Istanbul court reached its verdict in the Ergenekon coup plot trial, handing down various prison sentences to 247 defendants, including the former Chief of Military Staff and several high-ranking members of the military's command. Although the Supreme Court of Appeals has yet to make a final decision on the 6-year legal battle, the Ergenekon trial has already become part of the country's history as a sign that anti-democratic forces, many of whom date back to the final years of the Ottoman Empire, no longer have free reign. Notwithstanding its limited scope and other shortcomings, the court's decision marks but a humble beginning for Turkey's acknowledgement of the dark chapters in its history, as well as a challenging struggle to replace the laws of rulers with the rule of law.
Topic:
Government and Law
Political Geography:
Turkey

109. Book reviews on drug trafficking and the law in Central America, China's silent conquest and Afro-Mexican identity.

Author:
Jose Luis Leon-Manriquez and Nnenna M. Ozobia
Publication Date:
03-2014
Content Type:
Journal Article
Journal:
Americas Quarterly
Institution:
Council of the Americas
Abstract:
Central America is receiving more attention in the U.S. news media and from the U.S. government than at any time since the region's civil wars and domestic insurgencies three decades ago. Unfortunately, the attention is negative. The focus has shifted from the 1980s Cold War battles of President Ronald Reagan's administration to the violence associated with organized crime, drug cartels and street gangs (maras). In Drug Trafficking and the Law in Central America: Bribes, Bullets, and Intimidation, Julie Marie Bunck and Michael Ross Fowler—professors of political science at the University of Louisville—provide those interested in Central America, the drug trade and U.S. foreign assistance in the region with an invaluable tool for understanding the causes and implications of drug trafficking through an analysis of what they term the “bridge countries” of Belize, Costa Rica, Guatemala, Honduras, and Panama. The authors intentionally do not include Mexico, which they argue (correctly) involves a different dynamic both in terms of the strength or weakness of the state, and the nature of the drug trade.
Topic:
Law
Political Geography:
China and Central America

110. Noah Davis and Juan C. Cappello debate: Does FIFA's corruption hurt the beautiful game?

Author:
Juan C. Cappello and Noah Davis
Publication Date:
04-2014
Content Type:
Journal Article
Journal:
Americas Quarterly
Institution:
Council of the Americas
Abstract:
The series of scandals have not only tainted FIFA, but undermined trust in the game as well. BY NOAH DAVIS Does FIFA's corruption hurt the beautiful game? Yes FIFA, international soccer's governing body, is corrupt. The degree of corruption may be debatable, but its existence at the highest levels is not. Over the past three years, at least a dozen of the organization's 24 Executive Committee (ExCo) members have been accused of serious improprieties stemming from bribes, illegal ticket sales and other scandals. While Sepp Blatter, FIFA's president since 1998, has escaped punishment—so far, at least—many of his colleagues have fallen or resigned. The endemic corruption not only compromises the quality of play on the field, but reduces fan support of the sport and tarnishes the beauty of the beautiful game. For example, Jack Warner, the president of the Confederation of North, Central American and Caribbean Association Football (CONCACAF), resigned in 2011 after facing numerous corruption and bribery charges. In 2006, FIFA's Ethics Committee censured Warner after an audit revealed he made at least $1 million illegally selling World Cup tickets. Warner's deputy, CONCACAF General Secretary Chuck Blazer, earned the nickname “Mr. 10 Percent” for his rumored skimming on deals and was suspended for “fraudulent” behavior in 2013.
Topic:
Corruption, Governance, and Law
Political Geography:
South America and England