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16781. Response

Author:
Paul Schadewald
Publication Date:
02-2012
Content Type:
Journal Article
Journal:
Macalester International
Institution:
Macalester College
Abstract:
Dr. James von Geldern is a public scholar, lawyer, teacher, and professor who raises questions with profound moral implications for international policy, activism, and human rights work. Von Geldern's argument that the Institutional Criminal Court (ICC) may be fatally flawed is disturbing for people who work for human rights, but it is also a critical line of inquiry. His argument is troubling because it does not engage us solely in an intellectual conundrum. The topics raised by his essay, such as whether universal global justice is ultimately possible, engages us in multiple ways. We enter the conversation as scholars, human rights workers and activists, and as human beings, who live with the recent images of Darfur and with memories and stories of other genocides.
Political Geography:
United Nations

16782. Response

Author:
Proma Sen
Publication Date:
02-2012
Content Type:
Journal Article
Journal:
Macalester International
Institution:
Macalester College
Abstract:
On a preliminary reading of “International Criminal Justice: Growing Pains or Incurable Contradictions,” by Professor James von Geldern, one understands that the debate about enforcement arises from the assumption of a pre-existing set of human rights concerns in the world today. Beyond the continuing debate surrounding the universal applicability versus the cultural relativism of these rights, the very existence of human rights in today's globalizing context leads to the question of how these rights can be protected and who is responsible for their enforcement? To date, the largest internationally accepted organization with the combined political power of multiple nations is the United Nations and its various sub-organizations. The highest global power seemingly permitted to pass cross-national judgments today is the International Criminal Court (ICC), formed by the Rome Statute, which was drafted in 1998. Yet the ICC has not convicted enough aggressors to truly be deemed a successful mechanism for justice.
Topic:
Human Rights
Political Geography:
United Nations

16783. Integration Through Fear

Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
Quos Deus vult perdere prius dementat! The manner in which Europe is addressing its grave crisis seems to be validating this piece of wisdom attributed to Euripides, Seneca and others.
Political Geography:
Europe

16784. In Whose Name? An Investigation of International Courts' Public Authority and Its Democratic Justification

Author:
Armin Von Bogdandy, Ingo Venzke, and Armin Bogdandy
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
Court judgments are epitomes of sovereign rule in many grand theoretical sketches. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not say in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? How can it be justified in accordance with basic premises of democratic theory? Our contribution develops an understanding of international adjudication as an exercise of public authority. It places emphasis on the asymmetry between international adjudication and parliamentary politics, unfolds legitimacy problems in the practice of international courts, and sketches how to interpret and develop international law in response. Procedural adjustments and politicization could react to power vested in decisions, elections might respond to the exercise of public authority, and systemic interpretation as well as a dialogue between courts may perhaps ease problems of fragmentation. We ultimately suggest that domestic constitutional organs will retain a critical role in relieving the international level from shouldering the whole legitimatory burden, contesting and accommodating authority in a normative pluriverse. We finally contend that the idea of transnational and possibly cosmopolitan citizenship should further guide the democratic justification of international courts' public authority.

16785. Do International Criminal Courts Require Democratic Legitimacy?

Author:
Marlies Glasius
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
International criminal courts have in recent years been criticized for being 'undemocratic' in their dealings with populations affected by the crimes they are concerned with. They are beginning to formulate responses to these criticisms. This article will first outline the nature of these critiques and the courts' responses. Then it will take inspiration from classical and recent theories in legal sociology and legal anthropology to assess whether there is a theoretical basis for the demand for democracy. It concludes that there is no viable argument that would support requiring a direct democratic basis for international criminal courts, but there are clear points of departure for insisting that they should pursue wider social aims, for identifying these aims, and for identifying principles that can guide the conduct of relationships with affected populations.

16786. The Protection of Humanitarian Legal Goods

Author:
Nicolás Carrillo-Santarelli and Carlos Espósito
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
National judges are increasingly exposed to deciding on issues regulated by the international legal system, given its expansion and specialization. However, this is just one of the many ways in which national judges interact with international law: they have the potential not only to receive and take into account international law, but also to shape and contribute to its modification, acting alone or in conjunction with other judicial authorities, and considering or ignoring the interests of several actors. The attitude of judges towards international norms, in the reception and modification dimensions, depends on a variety of factors worth exploring in detail. Such exploration allows us to ascertain how and when judges are more prone to protecting legal goods enshrined by international norms. The fact that national judges are empowered by a domestic legal system to act, while generating tensions and paradoxes when norms created in different levels of governance clash, does not detract from the possibility for them to defend interests and values, i.e., legal goods, belonging to other legal systems, even those generated in a global space of interaction where interests and values shared by different legal systems are shaped, including the protection of human dignity.

16787. . . . and New York and The Hague and Tokyo and Geneva and Nuremberg and . . .: The Geographies of International Law

Author:
David Koller
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
In the dominant narrative of international law, historical events in space and time are made to fall along an invisible line of progress, from Westphalia in 1648 through the Bretton Woods and San Francisco conferences of 1944 and 1945 to the present day and continuing on through the future to a more just world. Against this, a counter-narrative has emerged which denies the possibility of such linear development and consigns international law to forever tracing an unending circular path between points of idealism and realpolitik. This article examines how international lawyers have created and continue to create these metaphysical geographies of international law. Drawing on the work of the French multi-disciplinary thinkers Gilles Deleuze and Félix Guattari, this article shows that both approaches, and indeed the very concept of international law, can at most only replicate and impose pre-conceived theories and that the imposition of such theories is contrary to the natural patterns of human consciousness. It urges us to see international law rather as but one manifestation of the ongoing struggle between efforts to impose unity on and to control human consciousness and the mind's efforts to break free of such restricting structures.
Political Geography:
Geneva, New York, Tokyo, San Francisco, Papua, and Westphalia

16788. Al-Skeini and Al-Jedda in Strasbourg

Author:
Marko Milanovic
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
The article analyses the European Court of Human Rights' recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.
Political Geography:
United Kingdom and Europe

16789. International Courts and the European Legal Order

Author:
Matthew Parish
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
The growth of a range of different areas of international law gives rise to the possibility of conflict between them. International courts and tribunals created by one branch of international law may be called upon to adjudicate in other areas of the discipline. The risk of conflict presents a particularly acute problem to the EU legal order, because the Court of Justice of the European Union sees itself as the final, and exclusive, authority on questions of interpretation of EU law. On two occasions the Court has issued opinions prohibiting EU Member States from signing agreements creating international courts, because those courts' roles would necessitate construing EU law and their composition would mean they could not guarantee the 'homogeneity' necessary to EU law. The more recent of these opinions, concerning the European and Community Patents Court, sets an unusual legal test for the consistency of international tribunals with the EU legal order that, taken to its logical conclusion, would preclude several well-established international courts and tribunals to which EU Member States are parties. Ultimately this standard may fetter development of EU law, and the ECJ would do well to adopt a more flexible approach.
Political Geography:
Europe

16790. National, Ethnic, Racial, and Religious Groups Protected against Genocide in the Jurisprudence of the ad hoc International Criminal Tribunals

Author:
Agnieszka Szpak
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
The aim of this article is to analyse the jurisprudence of the ad hoc International Criminal Tribunals with regard to the understanding of the notion of the groups protected against genocide. According to the Convention on the Prevention and Punishment of the Crime of Genocide, only national, ethnic, racial, and religious groups are protected. Among the conclusions is the one according to which the Tribunals developed this notion in a creative way and contributed to its dynamic application, especially by way of introducing the concepts of stable and permanent groups being protected as well as the concepts of positive/negative and objective/subjective notions of the targeted group.