Legal Theory Blog

Heller on the Rome Statute in Comparative Perspective

Kevin Jon Heller has posted The Rome Statute in Comparative Perspective (THE STANFORD HANDBOOK OF COMPARATIVE CRIMINAL LAW, Kevin Jon Heller, Markus Dirk Dubber, eds., 2009) on SSRN.  Here is the abstract:

The Rome Statute of the International Criminal Court is both inspiring and frustrating. On the one hand, by providing detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility, the Statute represents the international community's most ambitious attempt to create a general and special part of international criminal law. On the other hand, most of the drafters of the Statute were diplomats who had no practical criminal law experience of any kind, much less academic expertise in international criminal law or comparative criminal law. As a result, the Rome Statute's substantive provisions are often confusing, contradictory, and of uncertain application - an "unsystematic conglomeration from a variety of legal traditions," as one scholar has memorably put it.

This draft book chapter attempts to provide a systematic and comparative overview of the substantive criminal law of the Rome Statute. Section I provides an introduction to the Statute: its drafting history, jurisdictional principles, sources of law, and rules of procedure and evidence. Section II discusses the Statute's general part: theories of punishment, liability requirements (acts and omissions, material and mental elements, modes of participation), defenses, and sanctions. Finally, Section III examines the Statute's special part: the conceptual structure of the crimes within the jurisdiction of the Court and the crimes themselves: genocide, crimes against humanity, war crimes, and aggression.

The chapter is aimed primarily at domestic criminal law scholars, particularly those with an interest in comparative criminal law. But it should be of interest to international criminal law scholars, as well.

Recommended!

Staton & Moore on Realism in International Politics

Jeffrey K. Staton and Will H. Moore (Department of Political Science - Emory University and Florida State University - Department of Political Science) have posted The Last Pillar to Fall? Domestic and International Legal Institutions on SSRN.  Here is the abstract:

The grip of Realism on the study of international politics has been considerably loosened over the past three decades, but one of the central assumptions of Realism remains unchallenged by scholars working within other approaches: the primary distinction between domestic and international politics lies in a sharp distinction between legal institutions. We propose that there is much to be learned by challenging this assumption. More specifically, we argue that the presumed difference between domestic and international legal institutions has been severely overdrawn. An examination of the institutional literature on judicial politics reveals that this literature problematizes what IR scholars take for granted in domestic politics: delegation of authority to legal institutions, adverse rulings by those institutions, and government compliance with such rulings. Rather than assume that these processes simply work in the domestic setting, this scholarship demonstrates that it must be explained. Seen from this perspective, the distinction between the study of domestic and international legal institutions falls away, revealing that scholars interested in either arena are really working in a larger literature. To make this claim we review the existing work in the judicial politics and the international human rights literatures pointing out areas of overlap, distinction, and opportunities for cross-fertilization.

De Meester on International Legal Aspects of Sovereign Wealth Funds

Bart De Meester (Institute for International Law) has posted International Legal Aspects of Sovereign Wealth Funds: Reconciling International Economic Law and the Law of State Immunities with a New Role of the State on SSRN.  Here is the abstract:

This contribution addresses the international legal framework for SWFs. The prominence of the State as an investor challenges the existing rules of international economic law and of the law of State immunities. With regard to international economic law, the focus is on the General Agreement on Trade in Services ('GATS'), since this is the only multilateral agreement that has binding rules for investment. The GATS allows the receiving States to adopt preventive measures that restrict investments by SWFs, provided specific conditions are complied with. However, it does not impose restrictions on the activities of the States that make investment by means of SWFs. Moreover, while preventive measures are definitely useful, the real challenge occurs at the moment investments that passed preventive scrutiny turn out to be problematic. When these investments run counter prudential rules or endanger the national security interests of the State, the receiving State may want to intervene. However, the possibility for intervention may be constrained by rules on State immunity.

Nenova on the WTO & Culture

Mira Burri Nenova (World Trade Institute, University of Bern) has posted Trade and Culture: Making the WTO Legal Framework Conducive to Cultural Considerations (Manchester Journal of International Economic Law, Vol. 5, No. 3, 2008) on SSRN.  Here is the abstract:

The area of trade and culture reveals extreme fragmentation. Instead of mitigating this state, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which entered into force in March 2007, makes the disconnect between regulatory issues of trade and culture even more profound. The present article critiques this politically driven structural disconnection and exposes the Convention's failing potential to provide feasible solutions accommodating cultural policy objectives in a least trade- and competition distortive manner. In a second analytical strand, the article explores the changed conditions for creativity, as well as for production, distribution and consumption of cultural content, in the now pervasive digital networked environment. Under the conditions of the latter, any type of trade restriction upon the flow of cultural goods and services may be deemed dubious and could indeed be detrimental to the goal of cultural diversity. Paradoxical as it may sound, it could be that the World Trade Organization (WTO) offers the better solutions. In this context, the article reveals a number of 'neutral' paths towards making the WTO framework more culture-conducive.

Moeckli on "Terrorism" in International Law

Daniel Moeckli (University of Nottingham) has posted The Emergence of 'Terrorism' as a Distinct Category of International Law (Texas International Law Journal, Forthcoming) on SSRN.  Here is the abstract:

A considerable body of international norms, institutions and procedures specifically designed to deal with terrorism has emerged over the last few years. This body of international law increasingly bears the characteristics of a "special regime". At the same time, legal scholars have started to treat terrorism as a "branch" of international law in its own right, both in terms of research and teaching. This article argues that the emergence of a distinct category of "terrorism law" is due to reasons that are very different from those that account for the general trend towards the fragmentation and compartmentalization of international law. It is primarily the result of political pressure by certain powerful states to establish, at the international level, a separate legal system for terrorism that mirrors their own domestic special regimes, so as to give expression to the "international community's" sense of outrage at terrorist acts, stigmatize the perpetrators, and reassure the public. As these objectives can only be achieved if those who fall under the anti-terrorism regime are singled out for particularly harsh treatment, the special treatment model inevitably undermines the fundamental principle that all human beings deserve equal protection of the law.

van Aaken on Market Mechanisms for Effectuating Private International Law (with a comment by Zumbansen)

Anne van Aaken (University of St. Gallen - Law Department) has posted Effectuating Public International Law Through Market Mechanisms? on SSRN.  Here is the abstract:

Traditionally, the enforcement of Public International Law (PIL) was a task of states: the addressees and the enforcers of PIL were states. That has changed recently. Whereas the influence of private market actors on the making of PIL has been extensively analyzed, the influence of private market actors on the enforcement has been neglected although the idea of using private interests in order to foster social goals has a long history. This article draws on theoretical insights of a rational-choice approach to PIL in order to analyze the prerequisites of effectuating PIL through private market actor incentives and market mechanisms.

And also this comment, Peer Zumbansen (York University - Osgoode Hall Law School), The State as 'Black Box' and the Market and Regulator: A Comment on Anne Van Aaken's 'Effectuating Public International Law Through Market Mechanisms'.  Here is the abstract:

In the autumn of 2008, at a time of global reconsideration of the role of states in the regulation of markets, the paper uses the reflection on past experiences with the laissez faire state, the interventionist state, the welfare state and the enabling state as institutional crystallization points in an ongoing learning process of regulatory innovation as a framework to assess contemporary proposals to delegate public international law [PIL] enforcement to market actors. As such, the paper attempts to carve out possible conceptual and political implications of the current proposals against the background of interventionist and post-interventionist market regulation models. However, the translation of nation-state experiences with market regulation onto the global sphere presents a challenge in light of the particular structural qualities of transnational regulatory regimes. The task - both for a reconstructive narrative and for a delegation theory of PIL regulation through market actors - lies in the production of a better understanding of state-market and public-private distinctions in the transnational arena.

Chesterman on the Security Council & the Rule of Law

Simon Chesterman (New York University - School of Law, Singapore Programme) has posted The UN Security Council and the Rule of Law on SSRN.  Here is the abstract:

The UN Security Council is the most powerful multilateral political institution. It has grown well beyond its initial function as a political forum and serves important legal functions. Traditionally, this included determining that a threat to the peace, breach of the peace, or act of aggression had occurred and prescribing specific, legally binding obligations on Member States under Chapter VII of the UN Charter. Today it embraces establishing complex regimes to enforce its decisions and passing resolutions of general rather than specific application. These expanded powers can facilitate swift and decisive action, but have raised questions about the legal context within which the Council operates and the extent to which the Council itself adheres to the rule of law. This report, circulated as a document of the United Nations in all UN languages, draws on a series of meetings convened by New York University School of Law and the Permanent Mission of Austria to the United Nations and are intended to advance debate on the Council's role in strengthening a rules-based international system and maintaining international peace and security under the rule of law.

Heller on the International Criminal Court's "Situational Gravity" Standard

Kevin Jon Heller (University of Auckland - Faculty of Law) has posted Situational Gravity Under the Rome Statute on SSRN.  Here is the abstract:

The ICC is often derided as the "African Criminal Court." That criticism cannot easily be dismissed: all of the Office of the Prosecutor's (OTP) current investigations focus on African states - Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan - and it is analyzing the situations in three other African states, Cote D'Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq - the latter despite its conclusion that there was a "reasonable basis to believe" that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment. 

The OTP has not denied - nor could it - that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims. 

This essay critiques the OTP's quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that offend the fundamental values of the international community - those that cause "social alarm"; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

Highly recommended!

Guiora on Anticipatory Self-Defense

Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Anticipatory Self-Defence and International Law - A Re-Evaluation (Journal of Conflict and Security Law, 2008) on SSRN.  Here is the abstract:

Traditional state v. state war is largely a relic. How then does a nation-state protect itself - preemptively - against the unseen enemy? Existing international law - the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 - do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based "strict-scrutiny" approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, "A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law." Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, "A Response ot Amos Guiora's Article on Pre-Emptive Self-Defence Against Non-State Actors."

Guiora brings an important perspective to these issues.

Macklem on Minority Rights in International Law

Patrick Macklem (University of Toronto - Faculty of Law) has posted Minority Rights in International Law on SSRN.  Here is the abstract:

Why should international human rights law vest members of a minority community - either individually or collectively - with rights that secure a measure of autonomy from the state in which they are located? To the extent that the field offers answers to this question, it does so from its deep commitment to the protection of certain universal attributes of human identity from the exercise of sovereign power. It protects minority rights on the assumption that religious, cultural and linguistic affiliations are essential features of what it means to be human. There exists an alternative account of why minority rights possess international significance, one that trades less on the currency of religion, culture and language and more on the value of international distributive justice. On this account, international minority rights speak to wrongs that that international law itself produces by organizing international political reality into a legal order. This account avoids the normative instabilities of attaching universal value to religious, cultural and linguistic affiliation and instead challenges the international legal order to remedy pathologies of its own making.