Legal Theory Blog

Kamminga on Human Rights & General International Law

M. Kamminga (University of Maastricht) has posted Final Report on the Impact of International Human Rights Law on General International Law on SSRN. Here is the abstract:

This report, prepared for the Committee on International Human Rights Law and Practice of the International Law Association, examines the impact of international human rights law on general international law in the following areas: the structure of international obligations, the formation of customary international law, treaty law, the relationship between international law and domestic law, immunity, diplomatic protection, the right to consular notification and state responsibility. It concludes that the response by the International Court of Justice and the International Law Commission (the principal guardians of general international law) to the challenge to make international law less 'statist' and more receptive to the needs of a wider range of actors has been rather mixed.

McCrudden on Judicial Interpretation of Human Rights

Christopher McCrudden (University of Oxford - Faculty of Law) has posted Human Dignity and Judicial Interpretation of Human Rights (European Journal of International Law, Forthcoming) on SSRN.  Here is the abstract:

The Universal Declaration on Human Rights was pivotal in popularizing the use of "dignity" or "human dignity" in human rights discourse. This article argues that the use of "dignity", beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common understanding of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to significant judicial manipulation, increasing rather than decreasing judicial discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of substantive interpretations of human rights guarantees that appear to be intentionally, not just coincidentally, highly contingent on local circumstances. Despite that, however, I argue that the concept of "human dignity" plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication.

Petersen on Deliberation, Rational Choice, and Customary International Law

Niels Petersen (Max Planck Institute for Research on Collective Goods) has posted Rational Choice or Deliberation? - Customary International Law between Coordination and Constitutionalization on SSRN. Here is the abstract:

Rational choice approaches to customary international law have gained in prominence in recent years. Although becoming increasingly sophisticated, they are not able to explain all phenomena of customary international law. This contribution claims that there are two different types of unwritten law in the international order. On the one hand, we have the traditional customary norms, which are identified by observing patterns of state conduct and a related opinio iuris. These norms may very well be described by rational choice approaches, which primarily observe under which conditions we may find stable patterns of behavior. However, there is, on the other hand, a different category of norms that functions in a different manner. These norms concern either human rights or public goods and can be considered as the principles of the international legal order. Their function is not to stabilize already existing behavioral equilibria, but to shape international relations in a positive way. They are not past-oriented, but future-directed. Therefore, it is the thesis of this contribution that a deliberative approach is more suitable to explain the role of these principles in the international community.

Very interesting paper.

Pearlstein on International Law & Terrorist Detention

Deborah N. Pearlstein (Princeton University - Visiting Scholar in the Program on Law and Public Affairs, 2007-2009) has posted Avoiding an International Law Fix for Terrorist Detention (Creighton Law Review, Forthcoming) on SSRN.  Here is the abstract:

Broad international counterterrorism efforts aimed in part at the detention of terrorist suspects have prompted renewed debate about the adequacy of the Geneva Convention regime and associated international law for addressing the current needs of international security. Criticisms that current law leaves unacceptable gaps in the regulation of terrorist detention, or is otherwise unclear, have led to a growing number of calls for new or revised international law governing state counterterrorism operations. This essay explores the primary arguments in favor of pursuing new international law in this realm, and ultimately rejects the new-law approach. While recognizing that existing international law is unclear in some respects, the essay identifies two basic reasons why pursuing new international law in this arena is not a useful next step, particularly for the United States. First, many of the "gaps" new-law advocates see in international laws regulating terrorism were left with the understanding that they would be filled in by other existing bodies of national and international law, including domestic criminal law. The existence of multiple, potentially relevant bodies of law governing different aspects of state action against terrorism is not of itself a problem; indeed, different governing laws usefully afford states a meaningful array of different policy options in responding to different degrees of terrorist threat. Second, to the extent international law is unclear on key questions surrounding detention, a U.S.-driven effort to negotiate a new formal (or informal) international understanding of these topics is unlikely to satisfy the interests of many U.S. proponents of a revised international framework, and otherwise unlikely to succeed anytime soon. Indeed, a different U.S. administration may well conclude the particular "clarifications" current proponents have in mind are not helpful to the security interests of the United States. Any engagement with international partners on these matters should be preceded by a strategic reassessment of the role of detention in U.S. counterterrorism policies. It may be that the outcome of this project will render moot the enormous task of international re-negotiation of core ideas in the international law of war.

Van Schaack on the Akayesu Case

Beth Van Schaack (Santa Clara University - School of Law) has posted Engendering Genocide: The Akayesu Case Before the International Criminal Tribunal for Rwanda (HUMAN RIGHTS ADVOCACY STORIES, Foundation Press, 2008) on SSRN. Here is the abstract:

This article - which will appear as a chapter in a "law stories" volume on Human Rights Advocacy - discusses the role that advocacy by women's rights and human rights organizations and activists played in gaining legal recognition of the concept of genocidal rape within international criminal law. The chapter discusses the procedural history and jurisprudential contributions of the case against Jean Paul Akayesu before the International Criminal Tribunal for Rwanda. The chapter then traces Akayesu's legacy with respect to gender justice with respect to subsequent cases before the ad hoc international tribunals and within the Statute of the international criminal court. The Chapter concludes that while feminist advocacy produced important concrete results in the Akayesu case, when placed in this larger context, the Akayesu case better exemplifies the difficulty faced by activists in influencing the prosecutorial and adjudicative process, where prosecutorial discretion is paramount and tribunals may only rule on the evidence that properly appears before them.

D'Amato on Binding International Law

Anthony D'Amato (Northwestern University - School of Law) has posted Why is International Law Binding? on SSRN.  Here is the abstract:

Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal system that has survived for four thousand years. In every dispute or controversy, the international legal system weighs in on the side of peaceful and stable resolution - simply because that is in the system's interest of self-perpetuation. In sum, it is international law itself that selects from state actions those actions most conducive to the peaceful resolution of disputes and formulates them as rules and precedents of the system.

Another interesting piece by D'Amato.

Satterthwaite on Rendition

Margaret L. Satterthwaite (New York University - School of Law) has posted From Rendition to Justice to Rendition to Torture: Informal Transfer under International Law and the Prospects of Enforcement in U.S. Courts on SSRN.  Here is the abstract:

The practice of international rendition--the transfer of an individual across borders without recourse to extradition or deportation proceedings - is not new. Indeed, the practice has been used by governments for more than a century. Famous renditions include that of Nazi war criminal Adolf Eichmann from Argentina to Israel, and terrorist Carlos "the Jackal" (Ilich Ramirez Sanchez) from Sudan to France. Such renditions have been celebrated as crucial in the fight against impunity for grave crimes.

In the United States, "rendition to justice," in which a suspect is apprehended and transferred to the United States for criminal prosecution, was approved and formalized by President Reagan and expanded by President George H.W. Bush. U.S. courts approved of the practice in a series of cases that culminated in the 1992 Supreme Court case U.S. v. Alvarez-Machain. President Clinton altered the practice by initiating the transfer of suspects from one country to another, placing them into foreign legal processes rather than bringing them into the U.S. legal system. Since 9/11, the administration of President George W. Bush has been citicized for the new practice of "extraordinary rendition" - the transfer of suspects to countries known for the systematic use of torture. Secretary of State Condoleezza Rice and CIA Director Michael Hayden have defended the practice, relying on justifications developed to support "rendition to justice" and arguing that the practice is legal. Despite these justifications, international human rights bodies and intergovernmental bodies including the European Union and the United Nations have determined that the extraordinary form of rendition is unlawful under human rights law. Although individuals have faced significant legal hurdles in fighting the practice in the U.S. legal system (most prominently in the form of the state secrets doctrine), there is little doubt among international law experts that extraordinary rendition is prohibited.

Despite this clear consensus, there is no similar agreement concerning the practice of informal transfers - renditions of the non-"extraordinary" kind - more generally. In part this lack of consensus comes from the varied contexts in which informal transfers occur: one state may seek custody of a suspect for a regular criminal trial, while another seeks an individual solely for intelligence-gathering purposes, and yet another seeks to transfer an individual to an international tribunal despite its failure to enact domestic legislation regulating the hand-over. To provide a firm grounding for legal analysis, the first section of this article develops a taxonomy of rendition and examines the range of justifications for informal transfers. Examining the authority of states and international tribunals to prescribe and enforce criminal law across borders, the article identifies instances in which informal transfers may be the only acceptable policy option. The article concedes that such renditions may, in a limited set of circumstances where states harbor suspects or refuse to engage in international cooperation, be necessary to ensure that fugitives do not enjoy impunity. This is especially the case in the age of terrorism and grave international crimes such as genocide.

The second section of the article examines the handful of rendition cases decided by international criminal tribunals and regional human rights courts, as well as comparative jurisprudence from Canada, Israel, South Africa, and the United Kingdom, as well as the international legal literature on the topic. The article uncovers a gap in the legal reasoning behind rendition: the human rights of the individual transferred are rarely analyzed; instead, questions of sovereignty and jurisdiction dominate.

The third section of the article seeks to fill the gap in the literature by identifying the basic protections that must be extended to all individuals facing informal transfer - no matter their destination - and providing the basis of those protections in international law. Drawing on emerging norms as well as existing rules governing formal transfers accomplished through extradition and deportation, the article sets out basic substantive and procedural rights that should be afforded to all individuals facing transfer.

The final section of the paper considers practical solutions to the argument that affording transferees procedural rights is impossible in the context of the "War on Terror." Examinnig the U.S. context, this section presents an analysis of the recent Supreme Court decisions in Boumediene v. Bush and Munaf v. Geren/Geren v. Omar to determine what procedural vehicles may exist under U.S. law for individuals facing transfer who seek to enforce the rights guaranteed to them by international law.

Lienau on Sovereign Debt

Odette Lienau (Harvard University) has posted Who is the Sovereign in Sovereign Debt? Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century (Yale Journal of International Law, Vol. 33, No. 1, 2008) on SSRN. Here is the abstract:

Combining legal interpretation with political science analysis, this Article highlights the competing "statist" and "popular" conceptions of sovereignty at stake in sovereign debt issues. It argues that these two dominant approaches do not exhaust the offerings of intellectual history and considers an alternative approach that emerged in the early twentieth century and may be of relevance again today. The Article contends that U.S. Chief Justice Taft's foundational 1923 "Tinoco" decision, which grounds the current approach to sovereign governmental recognition, has been misinterpreted to support a purely statist or absolutist conception of sovereignty. It argues that a proper interpretation presents an intermediate or "rule of law" framework that coincides with Taft's domestic jurisprudence and provides an alternate conception of sovereignty for the current lending system. In emphasizing the historical and theoretical contingency of the current sovereign debt regime, this Article problematizes the assumption in mainstream international finance that only a narrow conception of sovereignty and a strict practice of debt repayment are consistent with a functioning sovereign credit market. Considering the economic and geopolitical context of Taft's decision, the Article also suggests that the changing nature of creditor competition may partially account for variations in the concept of sovereignty underlying sovereign debt.

Rosenblum on Gender & International Law Theory

Darren Rosenblum (Pace Law School) has posted Internalizing Gender: Why International Law Theory Should Adopt Comparative Methods (Columbia Journal of Transnational Law, Vol. 45, 2007) on SSRN. Here is the abstract:

This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. CEDAW, the Convention on the Elimination of All Forms of Discrimination Against Women, the principal international convention on gender equality, models the complexities and the potential interaction between the disciplines of comparative and international scholarship. International theory is divided between predominant theories of internalization and neorealist challenges to those theories. In internalization theory, international law crashes into comparative law realities. Comparative methodologies can add crucial complexity to internalization, the success of which depends on acknowledging vast differences in national legal cultures. Incorporation of difference may lead to wider acceptance of and agreement on norms and the remedies for violations of those norms.

Brazilian and French internalization of CEDAW's political representation norms have led those countries to require, respectively, thirty and fifty percent of all candidacies be reserved for women. These contexts provide the opportunity to study internalization in divergent contexts. Not only do laws vary among states, but that the very construction of gender itself varies. Comparative awareness of the cultural contingency of gender may lead to more direct and effective agreements that model change for real legal systems both international and national. Understanding these differences point to crucial limitations in realist theories of international human rights law. International law does affect state behavior, but states internalize international law in their own syncretic fashion. Recognizing cultural divergence in gender constructions, this Article concludes by advocating a more polyglot understanding of internalization, in which the pursuit of international goals draws on the recognition of divergent legal cultural realities.

Symeonides on Result Selectivisim

Symeon C. Symeonides (Willamette University - College of Law) has posted Result-Selectivism in Private International Law (Roman. Priv. Int'l L.& Comp.Priv. L. Rev., 2008) on SSRN. Here is the abstract:

One of the basic dilemmas of conflicts law, or private international law (PIL), is whether, in choosing the law applicable to cases involving conflicts of laws, one should aim for: (1) the law of the proper state without concern for the "justness" of the particular result ("conflict justice"); or (2) for the same quality of substantive results as in non-conflicts cases ("material justice").

For centuries, the "conflicts justice" view has been dominant in all countries. The "material justice" view has had some recent following in the United States, but in the rest of the world it has had only marginal influence. In recent years, however, this view has gained significant ground, even in codified PIL systems. Without endorsing this view, this essay examines several recent PIL codifications and identifies a surprisingly high number of result-selective rules, namely choice-of-law rules that are specifically designed to accomplish a particular substantive result.

The fact that these rules are far more numerous now than in the past suggests that the above dilemma is no longer an all-or-nothing proposition. Material-justice considerations are gaining increasing acceptance as one of the factors that should guide the pursuit of conflicts justice. The difficult question is not whether but rather when these considerations should receive preference in uncodified systems in which the choice of law is made by judges rather than legislators.