On Saturday, the New York Times published an interview with NYU Professor Jerome A. Cohen regarding legal developments in China and the country's human rights record. From the interview: “There are now some 200,000 judges, close to 180,000 prosecutors, roughly…
Sahib Singh of the University of Vienna has posted a paper on SSRN titled The Ethics of Fragmentation: Formalism’s Fallacies and the Potential of International Law. The paper is interesting not least because it takes a serious and critical work at the fragmentation report of 2006, prepared for the International Law Commission by Martti Koskenniemi. Singh’s paper investigates the work of a first-rate scholar closely affiliated with NYU Law’s Hauser Global Law School program, and for that alone it would be worth reading for NYU international law students. But Singh’s paper is fascinating because it investigates the tension between Koskenniemi’s personal work and the report. Abstract after the jump.
This edition of our ongoing series of book reviews offers a critical but ultimately positive take on Kamari Maxine Clarke’s Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa. This book review is particularly timely, as the recent ECCC verdict in the “Duch” trial reminds us of that court’s landmark decision earlier this summer, which rejected one controversial form of “joint criminal enterprise” liability. Kelly Geoghegan’s review, published in issue no. 42:3 of JILP, takes the opportunity to level her own criticism, or skepticism, at JCE theory.
By Kelly Geoghegan
Fictions of Justice is Kamari Maxine Clarke’s searching anthropological critique of both the international rule of law movement and its flagship tribunal, the International Criminal Court (ICC). Clarke explores the unspoken assumptions, or “fictions,” that underlie this movement, showing that these assumptions privilege Western ideas of justice over African ones and obscure the post-colonial economic forces behind Africa’s turmoil. Ultimately, Fictions of Justice is an anthropological work, not a legal text. Still, the book has potent insights to offer legal practitioners, particularly activists working “on behalf of victims” to achieve “universal” ideals of justice.
by Graham Dumas (J.D. Candidate 2011)
Note: This is a cross-post from my Russia-specific blog, Onion Domes and Oligarchs.
That yesterday’s advisory opinion by the International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, was decided on extremely narrow grounds has already been noted elsewhere in the blogosphere. Further, its status as an advisory opinion of course means that it is non-binding (though widely respected) and pertains only to the question asked of the Court by the U.N. General Assembly.
Nevertheless, it may be interesting to apply to the context of the frozen conflicts in the former Soviet Union some of the principles discussed in and generated by the Court’s Kosovo opinion. After all, political leaders in Moscow have frequently (and threateningly) cited Kosovo as a precedent for the independence of Abkhazia and South Ossetia, despite the obvious and numerous differences between these cases. A brief bit of analysis after the jump.
The International Court of Justice today held that international law did not prohibit Kosovo’s declaration of independence, while sidestepping the larger issue of Kosovo’s statehood. All of the opinions can be found here, but we are happy to host the opinion of the court on this JILP Forum, since the ICJ’s site has been difficult to access as of late.
In a way, as Chris Borgen notes at Opinio Juris, this result should not come as a surprise, since international law generally does not seem to have much to say about declarations of independence. The Court sidesteps the trickier problem of the lex specialis created by S.C. Res. 1244 (and the subsequent Constitutional Framework adopted by UNMIK) by holding that the declaration did not constitute an act of one of the Provisional Institutions of Self-Government. This lays the groundwork for the Court to conclude that the declaration essentially took place outside the scope of S.C. Res. 1244 and the framework. Preliminary thoughts after the jump.
By Matthew Turk
The G20 Summit
At the recent G20 Summit, European leaders butted heads with the Obama administration by opposing further stimulus spending and calling for greater fiscal “austerity.” The move to fiscal tightening, even during unsteady economic times, reveals the profound affect that the Greek debt crisis has had on policymakers in other European countries. In particular, it indicates a common concern that growing public debt poses near-term challenges to the continued viability of an economically integrated European Union. The potential unraveling of the legal-institutional structures of European integration uproots assumptions about international law held by commentators across the ideological spectrum.
The NYU Journal of International Law and Politics is pleased to introduce the members of its 2010-2012 staff. As a student-run journal at the best international law program in the U.S., JILP provides a unique opportunity to become acquainted with the rich world of international law scholarship. Welcome aboard!
Like many student-run journals in the U.S., the Journal of International Law and Politics selects its staff through an anonymous process that evaluates their knowledge of and experience with international law, their writing and editing skills, and their academic performance. This year saw particularly fierce competition for the limited number of spaces on our staff, and we couldn’t be more pleased with the results. Hit the jump for the names of our new staff editors, and vist the About page for the complete masthead.
NYU Law Professor Samuel Estreicher has posted an interesting working paper on SSRN, titled Privileging Asymmetric Warfare?: Defender Duties Under International Law. Here is the abstract:
Scholarship and advocacy needs to bring defender duties to the forefront of any discussion and investigation of armed conflicts. The necessarily joint contribution of attackers and defenders alike to civilian harm must be recognized. Any investigation of an armed conflict must focus on the duties of both parties and evaluate the feasibility of attacker compliance with some of the more open-ended obligations of international humanitarian law (IHL), such as the so-called duty of proportionality, as a function in part of the extent of defender compliance with its duties.
There are open areas in IHL. States that have acceded to Additional Protocol (AP) I are not necessarily bound by ICRC interpretations and they and states that have declined to ratify AP I can play an active role in formulating and urging others to adopt rules of practice that strike the right balance between attacker and defender duties. Even if, for example, there is widespread international recognition that, at some abstract level, the duty of proportionality is grounded in customary law, the content of that duty is not necessarily identical to the wording contained in AP Article 57. The effectiveness of such a duty, including the ability of military commanders to implement it in the air and on the ground, may well depend on serious consideration, elaboration and implementation of defender duties, for defenders are often in the superior position to minimize civilian exposure to the dangers of military operations.
Defender duties in armed conflicts is a neglected area of IHL. This needs to change if the overall mission of this body of law – minimization of harm to civilians – is to have any reasonable prospect of being realized.
Over at Opinio Juris this morning, my good friend and colleague Scott Paul introduced the Making Amends Campaign, which is led by the Campaign for Innocent Victims in Conflict (CIVIC). Scott and CIVIC are working to develop a general practice…
Continuing with the theme of armed conflict, detention, and terrorism, the latest installment in our occasional series of book reviews addresses Karen Greenberg’s The Least Worst Place: Guantanamo’s First 100 Days. This review may also be found in Issue 42:3 of the Journal of International Law and Politics.
By John Wunderlin
In the preface to The Least Worst Place: Guantanamo’s First 100 Days, Karen Greenberg briefly sets out the aim of the book: to describe the early days of the Guantanamo Bay detention facility, in which few abuses occurred despite incredibly trying circumstances, and to ask whether this narrative sheds any light on how later abuses came to occur and how such abuses might be avoided in the future. Perhaps in deference to the complexity and difficulty of the subject, Greenberg never tries to formulate the lessons as a set of policy prescriptions. Nevertheless, she succeeds in developing a strong understanding of how certain forces and circumstances gathered to create a disaster at Guantanamo while other forces worked to keep disaster at bay.