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21071. Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?

Author:
Carlo Focarelli
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
Common Article 1 of the 1949 Geneva Conventions is today generally seen as a 'quasi-constitutional' international law rule, premised on the doctrine of obligations erga omnes and imposing on all contracting states an obligation to take a variety of measures in order to induce not only state organs and private individuals but also other contracting states to comply with the Conventions. The phrases 'ensure respect' and 'in all circumstances' contained therein, in particular, have been understood to imply a 'state-compliance' meaning, drawing basically upon the ICRC Commentaries to the 1949 Geneva Conventions and to the 1977 Additional Protocols. However, expressions similar to 'ensure respect' in human rights treaties, in other provisions of the Geneva Conventions themselves, and in military manuals have been given an exclusive 'individual-compliance' meaning. Lists of measures available to contracting states against other contracting states deemed to be in breach of the Conventions have been suggested without investigation of whether such measures were per se lawful or unlawful and whether their adoption was legally required, or authorized, or merely recommended under common Article 1. Measures the adoption of which is expressly required or authorized by ad hoc provisions of the Geneva Conventions have been redundantly linked to Article 1. The phrase 'in all circumstances' too has a variety of meanings already found in ad hoc provisions other than Article 1. Ultimately, the purported 'quasi-constitutional' character of common Article 1 has proved a subject of speculation. Common Article 1 is a reminder of obligations, negative and positive, to 'respect' the Geneva Conventions (according to the general pacta sunt servanda rule) which has progressively been given the meaning of a mere recommendation to adopt lawful measures to induce transgressors to comply with the Conventions.
Political Geography:
Geneva

21072. Customary International Law in the 21st Century: Old Challenges and New Debates

Author:
Roozbeh (Rudy) B. Baker
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This article will survey the new non-traditional scholarship which has emerged in international law to challenge the two long-established sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer are. The new question, the new debate, will be over what the implications of this shift in the traditional building blocks of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national (domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years the jurisprudence of these international tribunals has, aside from finding its way into customary international law, also begun to seep into the domestic (mainly criminal) law of several countries.
Topic:
International Law

21073. Will Climate Change Alter the NPT Political Balance? New Challenges for the Non-proliferation Regime

Author:
Milagros Álvarez-Verdugo
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This article focuses on the possibilities of implementing a valid multilateral system for uranium enrichment and nuclear fuel-recycling activities. The contribution to the literature is twofold. First, I identify the economic, political, and legal tensions which should be overcome in order to establish such a multilateral system: enterprises' interests in keeping their economic advantages; mistrust among states as well as mistrust in the current non-proliferation verification system; the necessity of redefining the content of the states' right to use nuclear energy for peaceful purposes. And, last but not least, the willingness to cooperate of the states currently developing those activities of enrichment and recycling. Based on that analysis, the second contribution is the definition of those formulae for cooperation which would be the most appropriate for tackling the problems detected, as they could pave the way to the transition towards a multilateral system of worldwide reach.
Topic:
Economics

21074. Conceptualizing the Administration of Territory by International Actors

Author:
Lindsey Cameron and Rebecca Everly
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This article reviews five major recent works on the phenomenon of the administration of territory by international actors. Covering both legal and policy elements of the works, it delves into how the scholars treat the purported legitimacy deficit often associated with this activity. It then addresses the authors' approaches to the key international law questions, including the legal status of internationally administered territories, the legal basis for administration, the legal framework governing administrators' acts, and, finally, the accountability of the international actors involved.
Topic:
International Law

21075. Walter Kälin and Jörg Künzli. The Law of International Human Rights Protection.

Author:
Wolfgang S. Heinz
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
Two renowned scholars of international human rights protection from the University of Berne offer this excellent volume which is based on and expands the second edition of their book Universeller Menschenrechtsschutz (2008). Professor Walter Kälin was representative of the UN Secretary General on the Human Rights of Internally Displaced Persons, and from 2003 to 2008 a member of the UN Human Rights Committee. Jörg Künzli is Associate Professor of Law at the University of Berne.
Topic:
Human Rights
Political Geography:
United Nations

21076. Justice and Reconciliation in Post-Apartheid South Africa

Author:
Mia Swart
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
Sometimes, one can judge a book by its cover. The strikingly beautiful cover of this book on justice and reconciliation in South Africa is more than a mere decoration. As the editors of this exciting collection on transitional justice explain, the artwork on the cover was created by modern San artist Andry Kashivi and depicts the struggle for acceptance and belonging, 'for citizenship and reconciliation' in the new South Africa. The San communities of the !Xun and Khwe live on the margins of South Africa and on the brink of poverty. In the introduction to the book, the editors take trouble to explain the symbolic link between the marginalization of the San people and the quest for legal and political transformation in South Africa. The book's emphasis on the art of transformation extends beyond the description of the artwork. In quite a literal sense the book addresses (among other themes) the transformative function of art in the chapter by Carrol Clarkson entitled 'Drawing the Line: Justice and the Art of Reconciliation'. Clarkson analyses post-apartheid South African art, and in doing so she illustrates and explains the re-drawing of lines, specifically the 'lines that reconfigure the margins of exposure of one to the other' (at 288). The inclusion of this chapter adds freshness and originality to a collection of chapters on transitional justice, a field which cannot always be said to be characterized by great originality (or intellectual vigour).
Political Geography:
South Africa

21077. The Law of State Immunity

Author:
Paul David Mora
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
Over a distinguished career, Lady Hazel Fox CMG QC has come to be recognized as one of the leading publicists in the law of state immunity. In the introductory chapter to the second edition of her monograph, Lady Fox recognizes that the law in this area is simply not static. Since the initial publication of the monograph in 2002, two significant developments have taken place and the revised second edition provides an excellent up-to-date and authoritative account of both.

21078. Simon Chesterman and Chia Lehnardt (eds). From Mercenaries to Market. The Rise and Regulation of Private Military Companies

Author:
Ebrahim Afsah
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
Currently prevailing notions of the state have been considerably shaped by Max Weber's definition which distinguished the state from other socio-political communities through its monopoly on the use of legitimate violence to enforce its administrative decisions. In order to make this normative claim effective, the state needs to have the necessary coercive instruments (military, police, penitentiaries, etc.) at its disposal. At least in the industrialized nations there has therefore been a linear increase in the strength and reach of the state. This seemingly perennial increase in the ability of the state to engineer social outcomes, if necessary through the use of coercive means, was fuelled by a steady increase in economic production and a corresponding enlargement of the relative share of public spending. The lasting recessions in the aftermath of 1973, however, dramatically altered this overall picture. The end of full employment, seemingly unlimited economic growth, and attendant tax revenue exposed fundamental structural limits of statehood. This set in motion an ongoing academic and public discourse on the appropriate functional scope of a weakening state in an increasingly globalizing world which appeared far less amenable to deliberate political control, given pressures towards greater efficiency, competitiveness, and rationalization.
Topic:
Economics

21079. David Vine. Island of Shame. The Secret History of the U.S. Military Base on Diego Garcia

Author:
Ebrahim Afsah
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
Almost in the middle of the Indian Ocean lies the Chagos Archipelago, a place which visually comes fairly close to the image most people have of paradise. Unfortunately for its inhabitants, the islands are also very conveniently located, a fact which led the United States and United Kingdom to expel these people from their apparent paradise into abject destitution in order to turn the place into one of the world's most important military bases. Vine's book is the best account of this sordid tale so far.
Political Geography:
United States and United Kingdom

21080. Mark A. Pollack and Gregory C. Shaffer. When Cooperation Fails: The International Law and Politics of Genetically Modified Foods

Author:
Aaron Fellmeth
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This book presents an engaging and thorough study of a seemingly intractable international trade dispute, primarily between the United States and Europe, over the dissemination of genetically engineered foods. The United States and several other countries have increasingly approved transgenic (also known as 'genetically modified' or 'GM') foods for public consumption, while the European Community (EC) has strongly resisted the introduction of this new technology. From 1998 to 2004, the EC imposed a moratorium on approvals for the marketing of transgenic foods in the EC. It continues to approve new marketing requests desultorily and to pursue an effective moratorium on the cultivation of transgenic species today, despite losing a challenge before the WTO Dispute Settlement Body brought by the United States.
Political Geography:
United States and Europe