Legal positivism has long provided the usual theory for comprehending international law. The typical positivist definition of international law is grounded on a subject-based differentiation between international and municipal rules. Positivism views international law as a set of rules with states as its subjects. Municipal law is thought of as pertaining to individuals who are subjects of a single state. This Article rejects the positivist subject based approach to international law and calls for a definition of the discipline that recognizes individuals as subjects of international law. This Article is divided into three parts. First, it briefly reviews the development of the positivist theory of international law. Second, it tests the subject-based approach against some realities of international practice and shows that international law actually has long involved individual rights and obligations. Finally, it suggests that a different, albeit older, theoretical foundation for international law may be a better way to encompass individuals as subjects of international law.
{"title":"Individuals as Subjects of International Law","authors":"M. Janis","doi":"10.2139/SSRN.1101693","DOIUrl":"https://doi.org/10.2139/SSRN.1101693","url":null,"abstract":"Legal positivism has long provided the usual theory for comprehending international law. The typical positivist definition of international law is grounded on a subject-based differentiation between international and municipal rules. Positivism views international law as a set of rules with states as its subjects. Municipal law is thought of as pertaining to individuals who are subjects of a single state. This Article rejects the positivist subject based approach to international law and calls for a definition of the discipline that recognizes individuals as subjects of international law. This Article is divided into three parts. First, it briefly reviews the development of the positivist theory of international law. Second, it tests the subject-based approach against some realities of international practice and shows that international law actually has long involved individual rights and obligations. Finally, it suggests that a different, albeit older, theoretical foundation for international law may be a better way to encompass individuals as subjects of international law.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2008-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1101693","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68138501","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}
What criteria of justice should guide societies emerging from mass atrocity? This question lies at the heart of the ongoing debate on 'Transitional Justice.' It has become commonplace in mainstream Transitional Justice discourse to speak as though we were presented with an either/or choice: retributive or restorative justice? In arguing that this is a false antithesis, this essay elaborates on the idea of 'justice as recognition' — the kind of justice that is involved in recognizing the victims of massive wrongs, and thereby acknowledging their human and civic worth. This argument is developed through a series of critical engagements with recent works in moral and political theory that are representative of a general shift away from an exclusive concern with a 'politics of distribution,' focused on the just distribution of social goods, toward a 'politics of recognition,' focused on the reduction of humiliation and moral cruelty. Drawing on the ideas of social and political thinkers such as Axel Honneth and Avishai Margalit, this analysis sets out to construe transitional justice as a moral, political and legal project of recognition that puts victims and their negative experiences of injury and humiliation at its center. In formulating this project, it identifies two levels at which recognition may operate. While the first level focuses on an understanding of crime as interpersonal conflict, the second level concerns the inherently political nature of large-scale instances of evil. The strategy pursued here is to argue for an integrative approach that encompasses both aspects of recognition.
{"title":"Another Kind of Justice: Transitional Justice as Recognition","authors":"F. Haldemann","doi":"10.2139/SSRN.1458308","DOIUrl":"https://doi.org/10.2139/SSRN.1458308","url":null,"abstract":"What criteria of justice should guide societies emerging from mass atrocity? This question lies at the heart of the ongoing debate on 'Transitional Justice.' It has become commonplace in mainstream Transitional Justice discourse to speak as though we were presented with an either/or choice: retributive or restorative justice? In arguing that this is a false antithesis, this essay elaborates on the idea of 'justice as recognition' — the kind of justice that is involved in recognizing the victims of massive wrongs, and thereby acknowledging their human and civic worth. This argument is developed through a series of critical engagements with recent works in moral and political theory that are representative of a general shift away from an exclusive concern with a 'politics of distribution,' focused on the just distribution of social goods, toward a 'politics of recognition,' focused on the reduction of humiliation and moral cruelty. Drawing on the ideas of social and political thinkers such as Axel Honneth and Avishai Margalit, this analysis sets out to construe transitional justice as a moral, political and legal project of recognition that puts victims and their negative experiences of injury and humiliation at its center. In formulating this project, it identifies two levels at which recognition may operate. While the first level focuses on an understanding of crime as interpersonal conflict, the second level concerns the inherently political nature of large-scale instances of evil. The strategy pursued here is to argue for an integrative approach that encompasses both aspects of recognition.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183168","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}
{"title":"Iraq’s Constitution: A Drafting History","authors":"A. Deeks, M. Burton","doi":"10.2139/SSRN.3068137","DOIUrl":"https://doi.org/10.2139/SSRN.3068137","url":null,"abstract":"","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68535184","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 a few months, the trial of Saddam Hussein and other former Iraqi regime leaders will begin before the Iraqi Special Tribunal (IST). The IST is a unique "internationalized-domestic tribunal" whose Statute and Rules of Procedure are modeled upon the UN-created Yugoslavia War Crimes Tribunal (ICTY), Rwanda Genocide Tribunal (ICTR), and the Special Court for Sierra Leone (SCSL), but whose judges are all Iraqis and whose courtroom is in Baghdad. There is much the IST can learn both from the successes and missteps of the ICTY, ICTR, and SCSL; many of the issues that will arise in the trials of Saddam Hussein and other Ba'ath party leaders have been tested in the real-world judicial laboratory of the three ad hoc tribunals. This article thus analyzes the experience of the ICTY, ICTR, and SCSL with respect to the following ten questions: (1) What is the most effective prosecutorial strategy for the trial of Saddam Hussein; (2) How should the IST handle challenges to its legitimacy; (3) Must the IST permit Saddam Hussein to act as his own lawyer; (4) should the IST televise its proceedings; (5) should the IST employ international trial observers; (6) what steps should the IST take to protect witnesses; (7) should the IST employ plea bargaining; (8) should the IST employ a hearsay rule; (9) should the IST take judicial notice of certain historic facts; and (10) how should the IST handle some of the unique defenses that are often raised in war crimes trials such as the tu quoque (you also) defense.
{"title":"Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR and SCSL","authors":"M. Scharf, Ahran Kang","doi":"10.2139/SSRN.804607","DOIUrl":"https://doi.org/10.2139/SSRN.804607","url":null,"abstract":"In a few months, the trial of Saddam Hussein and other former Iraqi regime leaders will begin before the Iraqi Special Tribunal (IST). The IST is a unique \"internationalized-domestic tribunal\" whose Statute and Rules of Procedure are modeled upon the UN-created Yugoslavia War Crimes Tribunal (ICTY), Rwanda Genocide Tribunal (ICTR), and the Special Court for Sierra Leone (SCSL), but whose judges are all Iraqis and whose courtroom is in Baghdad. There is much the IST can learn both from the successes and missteps of the ICTY, ICTR, and SCSL; many of the issues that will arise in the trials of Saddam Hussein and other Ba'ath party leaders have been tested in the real-world judicial laboratory of the three ad hoc tribunals. This article thus analyzes the experience of the ICTY, ICTR, and SCSL with respect to the following ten questions: (1) What is the most effective prosecutorial strategy for the trial of Saddam Hussein; (2) How should the IST handle challenges to its legitimacy; (3) Must the IST permit Saddam Hussein to act as his own lawyer; (4) should the IST televise its proceedings; (5) should the IST employ international trial observers; (6) what steps should the IST take to protect witnesses; (7) should the IST employ plea bargaining; (8) should the IST employ a hearsay rule; (9) should the IST take judicial notice of certain historic facts; and (10) how should the IST handle some of the unique defenses that are often raised in war crimes trials such as the tu quoque (you also) defense.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2005-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67832627","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 : 2005-01-01DOI: 10.1093/acprof:oso/9780195394948.003.0007
Ruti G. Teitel
{"title":"The Law and Politics of Contemporary Transitional Justice","authors":"Ruti G. Teitel","doi":"10.1093/acprof:oso/9780195394948.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780195394948.003.0007","url":null,"abstract":"","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60642095","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}
{"title":"Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea","authors":"K. Agyebeng","doi":"10.1007/3-540-33192-1_4","DOIUrl":"https://doi.org/10.1007/3-540-33192-1_4","url":null,"abstract":"","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1007/3-540-33192-1_4","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51558246","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 : 2005-01-01DOI: 10.4324/9781315254081-10
J. Rabkin
{"title":"Global Criminal Justice: An Idea Whose Time Has Passed","authors":"J. Rabkin","doi":"10.4324/9781315254081-10","DOIUrl":"https://doi.org/10.4324/9781315254081-10","url":null,"abstract":"","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70641046","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}
{"title":"Misapplied ethical considerations: U.S. federal stem cell mandates lack global focus and market foresight.","authors":"Heather L Fowler","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25962747","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 : 2002-12-01DOI: 10.1093/acprof:oso/9780198767626.003.0015
H. Shue, D. Wippman
{"title":"Limiting attacks on dual-use facilities performing indispensable civilian functions","authors":"H. Shue, D. Wippman","doi":"10.1093/acprof:oso/9780198767626.003.0015","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780198767626.003.0015","url":null,"abstract":"","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60646231","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}
International public law, in a Hobbesian sense, exists in a state of nature - there is no overarching legal authority to enforce agreements. Inevitably, reciprocity has become an important element in the body of existing law. This paper explores the role of reciprocity in the context of the law of nations. This paper draws on earlier work to characterize certain types of interactions between countries in a game-theoretic framework. We then consider the types of games where reciprocity constraints would yield an optimal outcome, and when such constraints would be ineffective, in the context of examples from international law. No external reciprocity constraint is necessary to achieve the Pareto optimum when the interests of all players coincide, as in a Common Interest game. In such a case, the reciprocity condition is termed structural. We find that different types of external reciprocity constraints are effective in Prisoner's Dilemma and Divergent Preference (Battle of the Sexes) games. Induced reciprocity, which eliminates the off-diagonal options is sufficient to get the players out of Prisoner's Dilemma. Stochastic reciprocity, based on the concept of role reversibility, can result in cooperation in a repeat Divergent Preference game. Reciprocity constraints are not effective in achieving cooperation in fixed sum games, or in what we term Unilateral games, where one player has a dominant strategy, regardless of what the other player does, and each player's dominant strategy could differ. We examine a number of areas of international law, including the law on the Continental Shelf, the GATT regime, the Law of the Sea and the CTBT to analyze the role of reciprocity. In view of the prevalence of reciprocity in the major sources of international law - treaties, custom and generalized principles - we conclude that, despite the occasional failure, as in the case of the CTBT, reciprocity is a meta-rule in international law.
{"title":"The Role of Reciprocity in International Law","authors":"F. Parisi, Nita Ghei","doi":"10.2139/SSRN.307141","DOIUrl":"https://doi.org/10.2139/SSRN.307141","url":null,"abstract":"International public law, in a Hobbesian sense, exists in a state of nature - there is no overarching legal authority to enforce agreements. Inevitably, reciprocity has become an important element in the body of existing law. This paper explores the role of reciprocity in the context of the law of nations. This paper draws on earlier work to characterize certain types of interactions between countries in a game-theoretic framework. We then consider the types of games where reciprocity constraints would yield an optimal outcome, and when such constraints would be ineffective, in the context of examples from international law. No external reciprocity constraint is necessary to achieve the Pareto optimum when the interests of all players coincide, as in a Common Interest game. In such a case, the reciprocity condition is termed structural. We find that different types of external reciprocity constraints are effective in Prisoner's Dilemma and Divergent Preference (Battle of the Sexes) games. Induced reciprocity, which eliminates the off-diagonal options is sufficient to get the players out of Prisoner's Dilemma. Stochastic reciprocity, based on the concept of role reversibility, can result in cooperation in a repeat Divergent Preference game. Reciprocity constraints are not effective in achieving cooperation in fixed sum games, or in what we term Unilateral games, where one player has a dominant strategy, regardless of what the other player does, and each player's dominant strategy could differ. We examine a number of areas of international law, including the law on the Continental Shelf, the GATT regime, the Law of the Sea and the CTBT to analyze the role of reciprocity. In view of the prevalence of reciprocity in the major sources of international law - treaties, custom and generalized principles - we conclude that, despite the occasional failure, as in the case of the CTBT, reciprocity is a meta-rule in international law.","PeriodicalId":45714,"journal":{"name":"CORNELL INTERNATIONAL LAW JOURNAL","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2002-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.307141","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68539340","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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