On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators contend that these statements constitute direct and public incitement to commit genocide. This Article analyzes this assertion by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. It pieces together an analytical framework based on principles derived from these cases, including the Canadian Supreme Court's opinion in the Leon Mugesera matter. Using this framework, it demonstrates that while a successful prosecution would entail clearing significant substantive and procedural hurdles, it could include both incitement and crimes against humanity charges in light of the incitement's nexus with Iran's sponsorship of terrorist attacks against Israel. However, to take the case, the International Criminal Court would have to put aside political pressures related to the Middle East's toxic political environment and the absence of causation. The odds of this happening are long. As a result, the Article proposes that incitement law shift its focus from post-atrocity punishment to deterrence. This would permit early intervention and center incitement on its core mission of atrocity prevention. The Article also suggests that euphemisms employed to disguise incitement, such as "predictions" of destruction, when anchored to direct calls for violence, should also be considered acts of direct incitement. Finally, with respect to crimes against humanity, the Article explains that attacks on a civilian population carried out by a proxy at the insistence of the inciter, rather than directly by the actual inciter himself, should be sufficient to establish liability. At the same time, in the interest of protecting free speech, the crime should not be charged absent evidence of calls for protected-group violence, as opposed to mere hatred.
{"title":"From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework","authors":"G. S. Gordon","doi":"10.2139/SSRN.2005967","DOIUrl":"https://doi.org/10.2139/SSRN.2005967","url":null,"abstract":"On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to \"be wiped off the face of the map\" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators contend that these statements constitute direct and public incitement to commit genocide. This Article analyzes this assertion by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. It pieces together an analytical framework based on principles derived from these cases, including the Canadian Supreme Court's opinion in the Leon Mugesera matter. Using this framework, it demonstrates that while a successful prosecution would entail clearing significant substantive and procedural hurdles, it could include both incitement and crimes against humanity charges in light of the incitement's nexus with Iran's sponsorship of terrorist attacks against Israel. However, to take the case, the International Criminal Court would have to put aside political pressures related to the Middle East's toxic political environment and the absence of causation. The odds of this happening are long. As a result, the Article proposes that incitement law shift its focus from post-atrocity punishment to deterrence. This would permit early intervention and center incitement on its core mission of atrocity prevention. The Article also suggests that euphemisms employed to disguise incitement, such as \"predictions\" of destruction, when anchored to direct calls for violence, should also be considered acts of direct incitement. Finally, with respect to crimes against humanity, the Article explains that attacks on a civilian population carried out by a proxy at the insistence of the inciter, rather than directly by the actual inciter himself, should be sufficient to establish liability. At the same time, in the interest of protecting free speech, the crime should not be charged absent evidence of calls for protected-group violence, as opposed to mere hatred.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"437 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114002471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Economic approaches are becoming increasingly prominent in international law. A few years ago, Jack Goldsmith and Eric Posner caused a great stir with their account of The Limits of International Law, in which they argued that international law did not have any effect on state conduct. This contribution reviews two recent books analyzing the effectiveness of international law from an economic perspective. Both authors, Andrew Guzman and Joel Trachtman, take a much more differentiated approach than did Goldsmith and Posner, thus making analytical methods of economics more acceptable for mainstream international law scholarship. Still, this contribution argues that we should be cautious to perceive the economic perspective as a holistic explanation of "how international law works". Economic models are, for methodological reasons, based on certain assumptions. The analytical tools are thus only capable to answer a certain range of questions so that they have to be complemented by other theoretical approaches. Therefore, we have to be very cautious with policy recommendations that are based on a purely economical perspective.
经济方法在国际法中日益突出。几年前，杰克·戈德史密斯(Jack Goldsmith)和埃里克·波斯纳(Eric Posner)在《国际法的极限》(The Limits of International Law)一书中提出，国际法对国家行为没有任何影响，引起了巨大轰动。本文回顾了最近两本从经济角度分析国际法有效性的著作。两位作者，安德鲁·古兹曼和乔尔·特拉赫特曼，采取了比戈德史密斯和波斯纳更有区别的方法，从而使经济学的分析方法更容易被主流国际法学者所接受。尽管如此，这篇文章认为，我们应该谨慎地将经济视角视为对“国际法如何运作”的整体解释。由于方法上的原因，经济模型是建立在某些假设的基础上的。因此，分析工具只能回答一定范围的问题，因此它们必须得到其他理论方法的补充。因此，对于纯粹基于经济角度的政策建议，我们必须非常谨慎。
{"title":"How Rational is International Law?","authors":"Niels Petersen","doi":"10.2139/ssrn.1423727","DOIUrl":"https://doi.org/10.2139/ssrn.1423727","url":null,"abstract":"Economic approaches are becoming increasingly prominent in international law. A few years ago, Jack Goldsmith and Eric Posner caused a great stir with their account of The Limits of International Law, in which they argued that international law did not have any effect on state conduct. This contribution reviews two recent books analyzing the effectiveness of international law from an economic perspective. Both authors, Andrew Guzman and Joel Trachtman, take a much more differentiated approach than did Goldsmith and Posner, thus making analytical methods of economics more acceptable for mainstream international law scholarship. Still, this contribution argues that we should be cautious to perceive the economic perspective as a holistic explanation of \"how international law works\". Economic models are, for methodological reasons, based on certain assumptions. The analytical tools are thus only capable to answer a certain range of questions so that they have to be complemented by other theoretical approaches. Therefore, we have to be very cautious with policy recommendations that are based on a purely economical perspective.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132843429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, whereby members of a terrorist organization can be considered “unlawful combatants” and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach.
{"title":"The United States, Israel, and Unlawful Combatants","authors":"C. Bradley","doi":"10.2139/ssrn.1408135","DOIUrl":"https://doi.org/10.2139/ssrn.1408135","url":null,"abstract":"This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, whereby members of a terrorist organization can be considered “unlawful combatants” and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123158428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-05-19DOI: 10.5040/9781472565907.ch-009
A. Tzanakopoulos
States increasingly 'contract out' their governmental authority in favour of international organizations. As a result, remedies available under domestic law to individuals and legal entities may no longer be available, leaving them without redress. (Domestic) courts have devised a method to react to such diminution of their jurisdiction, which at the same time comprises a message for various addressees and engages a dialogue on multiple levels. This method is shaped by the spirit and thrust of the argument the German Constitutional Court put forward in its Solange jurisprudence, and has the potential of fostering a harmonization of domestic and international law, as well as that of establishing a rudimentary normative hierarchy at the international level.
{"title":"Judicial Dialogue in Multi-Level Governance: The Impact of the Solange Argument","authors":"A. Tzanakopoulos","doi":"10.5040/9781472565907.ch-009","DOIUrl":"https://doi.org/10.5040/9781472565907.ch-009","url":null,"abstract":"States increasingly 'contract out' their governmental authority in favour of international organizations. As a result, remedies available under domestic law to individuals and legal entities may no longer be available, leaving them without redress. (Domestic) courts have devised a method to react to such diminution of their jurisdiction, which at the same time comprises a message for various addressees and engages a dialogue on multiple levels. This method is shaped by the spirit and thrust of the argument the German Constitutional Court put forward in its Solange jurisprudence, and has the potential of fostering a harmonization of domestic and international law, as well as that of establishing a rudimentary normative hierarchy at the international level.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125274294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the "climate change winner" argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation - the construction of both literal and figurative sea walls to reduce the effects of global warming. The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach.We demonstrate that even if one accepts that the premises of the climate change winner argument - that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states - the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong.We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs.This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.
{"title":"Sea Walls are Not Enough: Climate Change and U.S. Interests","authors":"Jody Freeman, Andrew T. Guzman","doi":"10.2139/ssrn.1357690","DOIUrl":"https://doi.org/10.2139/ssrn.1357690","url":null,"abstract":"The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the \"climate change winner\" argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation - the construction of both literal and figurative sea walls to reduce the effects of global warming. The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach.We demonstrate that even if one accepts that the premises of the climate change winner argument - that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states - the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong.We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs.This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123794813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As the Universal Declaration on Human Rights celebrates its sixtieth anniversary this article examines the gendered foundations of the document. Drawing on its drafting history the article concludes that despite considerable advances contained within it the document has many limitations. Over the years, greater attention has been focused on the ways in which the Universal Declaration has advanced claims for gender equality. As the document's influence and status have magnified, its gendered boundaries are in plainer sight. Moreover, as feminists have systematically exposed the entrenched biases of international law, the Universal Declaration does not emerge from scrutiny unscathed. This article analyses the enduring impact of gender inclusions and exclusions in the drafting of the Universal Declaration on Human Rights. Examining the Declaration's drafting history reveals the character and form of gender as included in the document and the long-term effects on the normative character of human rights law. Following in the footsteps of other feminist international scholars, this article suggests that foundational documents matter to the construction of gender relations in ways that are difficult to dislodge and create conceptual pathways that can substantially limit theoretically open-ended visions of international human rights law. Thus, advancements typified as achievements in their time may carry more baggage with them than we perceive. The article suggest that a more quizzical view of the gains made for women in the Universal Declaration might contribute to the broader project of defining gender dignity, violation, and accountability in ways that consistently reflect and respond to the experiences and needs of women rather than to an accommodationalist model which tries to "fit" the experiences of women within an existing and constrained framework.
{"title":"Gendering the Declaration","authors":"Fionnuala D. Ni Aolain","doi":"10.2139/ssrn.1339102","DOIUrl":"https://doi.org/10.2139/ssrn.1339102","url":null,"abstract":"As the Universal Declaration on Human Rights celebrates its sixtieth anniversary this article examines the gendered foundations of the document. Drawing on its drafting history the article concludes that despite considerable advances contained within it the document has many limitations. Over the years, greater attention has been focused on the ways in which the Universal Declaration has advanced claims for gender equality. As the document's influence and status have magnified, its gendered boundaries are in plainer sight. Moreover, as feminists have systematically exposed the entrenched biases of international law, the Universal Declaration does not emerge from scrutiny unscathed. This article analyses the enduring impact of gender inclusions and exclusions in the drafting of the Universal Declaration on Human Rights. Examining the Declaration's drafting history reveals the character and form of gender as included in the document and the long-term effects on the normative character of human rights law. Following in the footsteps of other feminist international scholars, this article suggests that foundational documents matter to the construction of gender relations in ways that are difficult to dislodge and create conceptual pathways that can substantially limit theoretically open-ended visions of international human rights law. Thus, advancements typified as achievements in their time may carry more baggage with them than we perceive. The article suggest that a more quizzical view of the gains made for women in the Universal Declaration might contribute to the broader project of defining gender dignity, violation, and accountability in ways that consistently reflect and respond to the experiences and needs of women rather than to an accommodationalist model which tries to \"fit\" the experiences of women within an existing and constrained framework.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123165480","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, Ciaran J. Burke argues that the ‘Responsibility to Protect’ initiative has failed. Burke presents a series of fundamental flaws, both with the doctrine advanced by the ICISS, and with the subsequent attempts to incorporate it into the international legal framework. Burke opines that equity, as a source of international law, should instead be used to shed fresh light on the debate, keeping the discourse within the law and away from subjective ethics, and drafting a novel framework which he dubs ‘equitable humanitarian intervention’.
在这篇文章中，Ciaran J. Burke认为“保护的责任”倡议已经失败。伯克提出了一系列根本性的缺陷，既包括由ICISS提出的理论，也包括随后将其纳入国际法律框架的尝试。伯克认为，作为国际法的来源，公平应该被用来为辩论提供新的思路，使讨论保持在法律范围内，远离主观伦理，并起草一个他称之为“公平的人道主义干预”的新框架。
{"title":"Replacing the Responsibility to Protect: The Equitable Theory of Humanitarian Intervention","authors":"C. Burke","doi":"10.37974/ALF.61","DOIUrl":"https://doi.org/10.37974/ALF.61","url":null,"abstract":"In this article, Ciaran J. Burke argues that the ‘Responsibility to Protect’ initiative has failed. Burke presents a series of fundamental flaws, both with the doctrine advanced by the ICISS, and with the subsequent attempts to incorporate it into the international legal framework. Burke opines that equity, as a source of international law, should instead be used to shed fresh light on the debate, keeping the discourse within the law and away from subjective ethics, and drafting a novel framework which he dubs ‘equitable humanitarian intervention’.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"850 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126433386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Foreign relations law serves as an internal constraint on the unilateral exercise of foreign relations powers through the distribution of authority within the national government. Given the predominance of the executive branch in foreign affairs, courts routinely resolve questions regarding the breadth of the executive’s authority by reference to the Constitution, legal precedent, historical practice, and functional considerations. Though courts generally focus on these domestic factors, they have been historically quite sensitive to the international political implications of their decisions. But we don’t have a clear understanding of how or when courts consider international politics in resolving foreign relations law questions. We lack a framework to begin thinking about the relationship between international politics and the allocation of decisionmaking authority. This short Article frames foreign relations law as a function of international politics to explore the relationship between the strength of external international political constraints on a state and the levels of judicial deference to the executive in that state. Variation in the structure of international politics— bipolar, multipolar or unipolar—likely produces variation in the strength of external constraints on a state. This approach yields a simple descriptive claim and a related predictive claim. The stronger the external constraints on a state, such as the constraints present in multi-polar or bipolar worlds, the greater the likelihood of judicial deference to the executive on institutional competency grounds. Conversely, the weaker the external constraints on a state, such as the constraints present in a unipolar world, the lesser the likelihood of judicial deference to the executive. If this claim is accurate, it leads to a predictive claim that the rate of judicial deference to the executive will likely decrease as long as the United States is the hegemon of a unipolar world. This approach also provides a clearer picture of the overall level of constraint on the executive, helps describe the impact of external constraints on judicial deference, and explores the effects of international politics on the US’s engagement with international law.
{"title":"Great Power Politics and the Structure of Foreign Relations Law","authors":"Daniel Abebe","doi":"10.2139/SSRN.1331162","DOIUrl":"https://doi.org/10.2139/SSRN.1331162","url":null,"abstract":"Foreign relations law serves as an internal constraint on the unilateral exercise of foreign relations powers through the distribution of authority within the national government. Given the predominance of the executive branch in foreign affairs, courts routinely resolve questions regarding the breadth of the executive’s authority by reference to the Constitution, legal precedent, historical practice, and functional considerations. Though courts generally focus on these domestic factors, they have been historically quite sensitive to the international political implications of their decisions. But we don’t have a clear understanding of how or when courts consider international politics in resolving foreign relations law questions. We lack a framework to begin thinking about the relationship between international politics and the allocation of decisionmaking authority. This short Article frames foreign relations law as a function of international politics to explore the relationship between the strength of external international political constraints on a state and the levels of judicial deference to the executive in that state. Variation in the structure of international politics— bipolar, multipolar or unipolar—likely produces variation in the strength of external constraints on a state. This approach yields a simple descriptive claim and a related predictive claim. The stronger the external constraints on a state, such as the constraints present in multi-polar or bipolar worlds, the greater the likelihood of judicial deference to the executive on institutional competency grounds. Conversely, the weaker the external constraints on a state, such as the constraints present in a unipolar world, the lesser the likelihood of judicial deference to the executive. If this claim is accurate, it leads to a predictive claim that the rate of judicial deference to the executive will likely decrease as long as the United States is the hegemon of a unipolar world. This approach also provides a clearer picture of the overall level of constraint on the executive, helps describe the impact of external constraints on judicial deference, and explores the effects of international politics on the US’s engagement with international law.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116484391","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since 3rd January, 1976 when the International Covenant on Economic, Social and Cultural Rights entered into force, gallons of juristic ink have been spilled globally by legal pundits in examining the nature and scope of what is now widely known as economic, social and cultural rights. While the adoption of the treaty has recorded yet another milestone in the protection of international human rights, opinions differ as to whether these ideals could be recognized as 'rights properly so called' under international law. The classification of socio-economic rights as non-justiciable 'positive' rights requiring the dedication of significant State resources for their realization, as opposed to 'negative' civil and political rights requiring only that the State refrain from encroaching on specified areas of the life of the individual, considerably oversimplified the legal challenges which the Covenant raises. Several reasons have been given by critics of economic, social and cultural rights with a view to establishing the fact that these sets of rights are not rights per se but mere privileges accorded by the State to individuals as per its available resources. Are economic, social and cultural rights really 'rights' or 'privileges'? Are states bound to respect these rights? Are they truly enforceable? What effort is being made at the international and regional levels to give effect to these rights? What is the justiciable status of these rights in national arena?
{"title":"Economic, Social and Cultural Rights: Rights or Privileges?","authors":"D. Okeowo","doi":"10.2139/SSRN.1320204","DOIUrl":"https://doi.org/10.2139/SSRN.1320204","url":null,"abstract":"Since 3rd January, 1976 when the International Covenant on Economic, Social and Cultural Rights entered into force, gallons of juristic ink have been spilled globally by legal pundits in examining the nature and scope of what is now widely known as economic, social and cultural rights. While the adoption of the treaty has recorded yet another milestone in the protection of international human rights, opinions differ as to whether these ideals could be recognized as 'rights properly so called' under international law. The classification of socio-economic rights as non-justiciable 'positive' rights requiring the dedication of significant State resources for their realization, as opposed to 'negative' civil and political rights requiring only that the State refrain from encroaching on specified areas of the life of the individual, considerably oversimplified the legal challenges which the Covenant raises. Several reasons have been given by critics of economic, social and cultural rights with a view to establishing the fact that these sets of rights are not rights per se but mere privileges accorded by the State to individuals as per its available resources. Are economic, social and cultural rights really 'rights' or 'privileges'? Are states bound to respect these rights? Are they truly enforceable? What effort is being made at the international and regional levels to give effect to these rights? What is the justiciable status of these rights in national arena?","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126570715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"Why is International Law Binding?","authors":"A. D'Amato","doi":"10.2139/SSRN.1157400","DOIUrl":"https://doi.org/10.2139/SSRN.1157400","url":null,"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.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114818544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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