International Law

“International Law, International Relations, and the ‘War on Terror’”,

by Ruben Zaiotti

Editorial for the special issue of Journal of International Law and International Relations, Vol. 3. No. 1, pp. 2-8 (2007)

Contesting Internet Governance: Global Dissent and Disparities in the Management of Cyberspace Resources

by David Drissel

The Vietnamization of the Long War on Terror: An Ongoing Lesson in International Humanitarian Law Noncompliance

by Lesley Wexler

Boston University International Law Journal, Forthcoming

This essay rejects the conventional wisdom that post Vietnam military reforms adequately addressed the problem of U.S.... more This essay rejects the conventional wisdom that post Vietnam military reforms adequately addressed the problem of U.S. noncompliance with international humanitarian law. Just as My Lai and Son Thang defines the nadir of America’s counterinsurgency in Vietnam, and the trio of Haditha, Abu Ghraib, and Operation Iron Triangle evoke our worst behavior in Iraq, the recent events of the 5th Stryker “kill team” brigade may come to symbolize our greatest failings in Afghanistan. The premeditated and deliberate killing of Afghani civilians reveals an indifference to human life that is utterly inconsistent with the premises of International Humanitarian Law and the deeply held values of the American military. In this short piece, I examine the Stryker kill team’s behavior to help build the knowledge and insight necessary to develop further reforms for military practices during the long war on terror.

The essay situates the 5th Stryker brigade’s troubling behavior within the military’s recent shift to counterinsurgency and highlights the suboptimal compliance conditions likely to bedevil the U.S. military during the long war on terror. Though the U.S. military successfully restructured its goals and reformed its behavior after Vietnam, at least three notable similarities remain. In particular, the military still: (a) abandons effective sorting strategies to exclude high risk soldiers when the demand for troops rises; (b) lacks adequate safeguards against leadership failures that allow a culture of disrespect for human life to fester; and lastly (c) faces only weak checks on its behavior as the result of domestic pressure. In identifying these factors, this essay seeks to help the military and other actors better target efforts to improve international humanitarian law compliance.

Fighting Terror Through Justice: Implementing the IGAD Framework for Legal Cooperation Against Terrorism

by Matthew Schwartz

Co-authored with the Task Force on Legal Cooperation against Terrorism in the IGAD Subregion.

East Africa and the Horn face a number of transnational security threats, including terrorism, transnational crime,... more East Africa and the Horn face a number of transnational security threats, including terrorism, transnational crime, and piracy. In recent years, particularly following the July 2010 attacks in Kampala, al-Shabaab has been increasingly viewed as a threat not only to Somalia, but to the greater subregion. Tourism has declined and shipping costs have risen due to the threat of piracy from Somalia. Lawless pockets where government reach is weak, together with rampant corruption, have turned the region into a major transit point for black market financial flows and various forms of illicit trafficking.

Terrorism and transnational crime increasingly threaten security in the subregion of the Intergovernmental Authority on Development [IGAD]. Because of their transnational nature, no individual IGAD member state will single-handedly be able to deal effectively with these threats. As the IGAD Security Strategy adopted in December 2010 makes clear, effective cooperation will be crucial to winning the struggle against terrorism and to ensuring that other forms of transnational crime do not similarly jeopardize the IGAD subregion’s growth, prosperity, and stability.

The Non-Legal Role of International Human Rights Law in Addressing Immigration

by Lesley Wexler

University of Chicago Legal Forum

Current domestic and international law relating to immigration tends to favor law enforcement over human rights... more Current domestic and international law relating to immigration tends to favor law enforcement over human rights approaches. Despite these tendencies, international law has helped develop a human rights framework applicable to migrants. In particular, this paper hypothesizes that international human rights treaties that deal specifically with migrants' rights may provide some small but meaningful gains for migrants by: (1) influencing non-binding regional processes; (2) contributing to the development and dissemination of best practices; and (3) producing and codifying a human rights discourse. If such an account is correct, the emphasis on whether states formally adopt international law obscures some of the less obvious benefits of developing immigration human rights treaties and their related regimes.

First, the article suggests that treaties can be agenda-setting for non-binding regional processes. While political science scholars have begun looking at the effects of such processes more generally, few international law scholars address this phenomenon. This paper hopes to spur some interdisciplinary discourse by suggesting that non-binding regional processes create a pathway by which international law may reach and influence even those states skeptical about joining international treaty regimes. Second, the article investigates the way in which immigration human rights treaties may contribute to the development and dissemination of best practices. Third, this paper conjectures that treaties assist in the production and codification of a human rights discourse. It relies on insights from psychology to demonstrate why language and rhetoric might guide state and individual behavior.

Finally, this paper concludes with a snapshot of Italian immigration policy as a case study. Italy provides a discrete example of how international treaties can influence domestic legislation as well as highlights some of the difficulties in promoting and enforcing migrants' human rights.

Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime

by Lesley Wexler

Cardozo Law Review (2010)

The opening and expansion of global markets has created and exacerbated resource curses, the phenomenon in which... more The opening and expansion of global markets has created and exacerbated resource curses, the phenomenon in which natural resource abundance creates governance problems. Yet international legal scholarship has been slow to recognize the relationship between freer trade and the financing of internal conflicts. While legal academics have long debated law’s role in addressing conflict generally, few have systematically addressed the intersection of trade regulation and prevention or abatement of internal conflict. This article looks closely at a recent regulatory effort to address the global trade in so-called blood diamonds which are a particularly destructive example of a resource curse. As many are seeking an appropriate model for resource curses generally, I develop a case study of blood diamonds and the Kimberley Process, an international commodity tracking regime. This article investigates both the scope of the Kimberley Process’s regulatory reach as well as the mechanisms by which those regulations are promulgated and enforced.

This article focuses on the unique coalition of NGOs, corporations, and states and the unusual international arrangement upon which they agreed. Evidence from the evolution of that institution suggests that although designers may indeed seek to maximize their own interests - the legalization elements of that international institution such as the obligations the regime creates, the precision with which those obligations are defined, and the possible delegation of interpretive and enforcement efforts determine whether an institution can regulate effectively and when it may move beyond the designers’ original interests. In accumulating and assessing this evidence, this article contends that although skeptics may correctly identify the Kimberley Process’s initial alignment with state and corporate interests, this lightly legalized regime provides an opportunity for substantial progress on human rights. Although the Kimberley Process might appear as an attempt to whitewash state and corporate abuses, over time, the institution can, though need not necessarily, evolve over time to address both the rebel induced and state inflicted human rights violations related to the diamond trade. In so doing, this article acknowledges the importance and potential stickiness of initial design choices and that institutional evolution in favor of issue expansion and greater enforcement is merely feasible rather than inevitable. Thus, this article demonstrates some of the possibilities and limitations of looking to the Kimberley Process as a model for resource curses, and more generally for other areas in which NGOs seek to align state, corporate, and human rights interests.

Beyond Literacy: A Response to An Economic Interpretation of the Pashtunwalli

by Lesley Wexler

The University of Chicago Legal Forum, pp. 115-128, 2011

After mapping out an insightful political economy of the Pashtunwalli, Tom Ginsburg asks if the West can meaningfully... more After mapping out an insightful political economy of the Pashtunwalli, Tom Ginsburg asks if the West can meaningfully engage the Pashtun through this non-state-based legal code. He encourages such engagement as a tool to both reduce violence within and across Pashtun tribes and to improve the treatment of women within the Pashtun society. In so doing, Ginsburg poses a very important question about the West’s strategy for approaching Pashtun governance. I want to focus on the difficulties and unintended consequences of Ginsburg’s complementary suggestion that the West promote literacy and education in this area. He contends that literacy and, in particular, its role in creating written jirga opinions, may serve as a mechanism to facilitate clearer substantive legal norms within the Pashtunwalli and thus reduce the potential for future disputes. He also tentatively suggests that literacy programs might improve Pashtun women’s quality of life in a variety of ways. First, it might reduce the occurrence of disagreements in which women may be bartered as a conflict-resolution mechanism. Second, literacy may hasten general economic prosperity, which often brings accompanying benefits for women and can provide them the means to improve their position within the community. Finally, literacy may allow the introduction of new, more female-friendly ideas into the general culture and, more specifically, into the Pashtunwalli itself.

This response, however, introduces some significant limitations that Ginsburg’s literacy proposal faces in achieving its dual aims of reducing violence and improving the treatment of women. In brief, as to be discussed in more detail in Part I, without a simultaneous source of and motivation for norm change, literacy may not ameliorate the root causes of disputes. More worrisomely, attempts to promote literacy may ratchet up violence. One possibility is that the Pashtun will use written precedents to harmonize the punishments within the legal system and in so doing embrace the harshest penalties for norm violations. In addition, such efforts may draw the ire of the Pashtun, the Taliban, al-Qaeda, and the Pakistani government if they perceive such Western-led literacy programs as threats to their control. Relatedly, literacy programs can also stoke violence when they engender rising expectations for their beneficiaries without any concomitant economic improvements to satisfy them. Lastly, literacy alone seems unlikely to enhance the status or treatment of women because nothing about literacy inherently undermines the structure of the honor culture that promotes women’s subjugation and places them at great risk of violence. That being said, as I will explain in Part II, history suggests that the coupling of literacy with a bottom-up push for norm change may transcend these limitations and make progress toward the goals of reducing violence and changing conditions for Pashtun women.

Litigating the Long War on Terror: The Role of Al-Aulaqi v. Obama

by Lesley Wexler

Loyola University Chicago International Law Review, Vol. 159, 2011

The U.S. government’s decision to list an American citizen on a kill list raises an important series of questions. At... more The U.S. government’s decision to list an American citizen on a kill list raises an important series of questions. At the time the government allegedly placed Anwar al-Aulaqi on a kill list, remarkably little was known about the procedures for listing and reviewing placements of individuals. How and under what authority did the government target Anwar al-Aulaqi? What legal standards guide the decision to list? Who makes the initial decisions about listing? What evidentiary standards do they use to determine if the legal standards are satisfied? Who reviews the determinations and how frequently? What opportunity, if any, exists for the listing individual to challenge his placement? Writ large, the pressing issue is whether the executive branch possesses unreviewable authority to order the targeted killing of an American that the President deems to be a threat to the nation.

The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) filed suit to find out the answers to the questions raised above. Although the actual case has drawn to a close, these questions remain important ones. Rather than attempt to resolve the numerous legal issues raised by the al-Aulaqi litigation, this short piece seeks to explain why the ACLU and CCR brought this lawsuit and then ultimately abandoned it. In short, al-Aulaqi’s case demonstrates both the potential for and the limitations of litigation as a strategy to curb executive authority during the so-called long war on terror. Even though Judge Bates rightly noted that al-Aulaqi’s case is a “unique and extraordinary” one, many issues raised by the litigation speak to more run of the mill terrorism cases. This article begins by identifying the ACLU and CCR’s successful challenge of a specific procedural burden, effectively ensuring greater access to lawyers for many of those designated as terrorists. In contrast, Part II of this article notes the ACLU and CCR’s general failures in accomplishing their immediate litigation goals. Their efforts to expand the standing doctrine and narrow the application of sovereign immunity, state secrets, and political question doctrines were largely futile. Yet, Part III suggests the ACLU and CCR’s real goals may have been the lawsuit’s extra-legal consequences and contributions. While they were unable to obtain a judicial review of the executive branch’s behavior, this part documents how they leveraged the litigation to provoke and influence a public debate over certain aspects of the war on terror. The lawsuit allowed the ACLU and CCR to raise and initiate the framework for legal and policy questions about the targeting of American citizens and the government has responded through leaks and speeches. In the wake of al-Aulaqi’s death, this framework is bearing some limited fruit as the push for greater transparency over legal standards for and reviewability of targeting decisions increases in strength and the demand for a rethinking of the policy wisdom of pursuing a targeting policy grows more fervent.

The Promise and Limits of Local Human Rights Internationalism

by Lesley Wexler

Fordham Urban Law Journal, Vol. 37, No. 599, 2010

For many people across the globe, human rights remain aspirational. American politicians and diplomats often speak of... more For many people across the globe, human rights remain aspirational. American politicians and diplomats often speak of the need to improve human rights abroad in places such as China, Sudan, and North Korea. Popular political discourse recognizes much less often the need to turn inward and improve our own government’s human rights behavior, be it federal, state, or local. Despite the lack of mainstream support, for the last several years, NGOs and academics have increasingly criticized the failure of domestic actors to successfully bring human rights home. These critiques have given way to a second stage in the struggle — the articulation of justifications, structures, and specific policies for implementing domestic human rights.

This piece is the fourth of a multi-part series of papers that takes a supportive but also critical approach to the project of bringing international law home. The first three pieces documented the existence of apathetic and intransigent federal actors; identified the role of sub-federal actors; and proposed that states and localities undertake human rights review of pending legislative and agency actions. As a part of this larger project, this paper once again focuses on cities as a vital pathway for the movement from the international to local. Like the prior works, this paper mixes theories, hypotheses, and case studies to illuminate the potential for bringing international law home. While the nation-state remains an extremely important player in the formation and enforcement of international law, international law also influences behavior by moving through sub-federal actors and regional sites. Sometimes this change occurs at the national government’s behest, but oftentimes it also occurs when other government actors bypass those nation-states resistant to its pull. This paper seeks to explain why and how cities in particular can play an important role in bringing human rights home.

In the fifth and final paper, I anticipate concluding this discussion by looking closely at various methods to move human rights into the administrative state. Before moving into this final component, however, this current paper needs to first explain the role of cities in the overall project. In recent years, international law scholarship has moved beyond a statist conception in which only national governments create and then implement international law. Rather, bodies at all levels ranging from the transnational, such as regional consultative process and more formal international institutions, to state legislatures and state courts, to the most local unit of cities have all become active participants in the project of enshrining human rights in law. This paper investigates both domestic and international examples of cities acting as norm entrepreneurs in voluntarily implementing treaty based human rights. While previous works mostly took as a given federal inactivity in regards to human rights treaties, Part I reviews the numerous historical, political, and structural reasons for the limited federal efforts to integrate human rights treaties at home. These include the institutional objections of International Federalists, the substantive objections of Positive Rights Rejecters, and the political discretion concerns of the Flexible Foreign Policy Advocates. Although a domestic constituency supportive of human rights exists, until recently, such groups have focused on human rights promotion rather than internal integration. I then link these political objections to the various structural hurdles that treaties must pass through.

Part II articulates some reasons why some cities might be more likely first movers. These include structural advantages, possible political homogeneity, and enhanced capacity to generate visible benefits for their constituents. In undertaking those efforts to integrate human rights, cities might create some local benefits that exist above and beyond mere substitution for federal action. I also wish to identify some of the city-specific gains that may arise from local implementation. Cities can capture good governance gains independent of whether the federal government decides to act. As they are often the provider of basic social services and possess a large bureaucracy, citizens can gain from subjecting those bureaucracies to human rights regardless of what states and the federal government decide to do. So even in those instances in which the federal government acts to bring human rights home, cities can supplement and reinforce those efforts by acting as laboratories and providing an additional layer of protection by promoting good government. This section, however, counsels caution for those who believe cities to be a likely motivator of federal behavior. Many of the same factors that allow cities space to act also serve as impediments to effective state and federal spillovers. While cities can perform much significant work bringing human rights home, we must simultaneously acknowledge that they also labor under significant structural and political constraints.

Human Rights Impact Statements: An Immigration Case Study

by Lesley Wexler

The United States has long criticized other governments for their human rights abuses. Yet violations at home often go... more The United States has long criticized other governments for their human rights abuses. Yet violations at home often go unobserved by both the government and the general public. A more proactive domestic policy, however, could prevent some of these human rights violations. Using Congress’s mandate for environmental assessments and environmental impact statements as a model, this article proposes that domestic actors undertake human rights review of proposed legislative and agency actions. This review process should both generate information about the impact of policies on individuals as well as influence substantive decision making.

Such a proposal raises many design issues. This article addresses some of these questions including: (1) which policies should be subject to human rights impact assessments; (2) who should conduct them; (3) which human rights will be measured; (4) whether public participation should be included; and (5) what consequences ought to flow from a human rights assessment or impact statement. This article uses experiences under environmental statutes as a guide, but ultimately leaves these questions open for further investigation.

I chose to use immigration as a case study for my proposal as increasing many scholars and advocates suggest that human rights law provides a viable framework for protecting migrants, while the actual practice on the ground is quite limited. The federal government has voiced some limited support for human rights generally, but it boasts a weak track record in regards to the ratification and implementation of human rights treaties. Although the formal immigration system supposedly builds in respect for human rights, such a system at best only acknowledges the abuses that migrants might suffer at the hands of other governments. More generally, immigration quotas reflect political exigencies such as who the United States considers political allies and a preference for highly skilled workers. Given the limitations on increased ratification and implementation of human rights treaties, this paper proposes an alternate mechanism for bringing human rights home to migrants.

Deliberation and Global Civil Society: Agency Arena Affect

by james brassett

The article provides a critical analysis of the role and function of global civil society within deliberative... more The article provides a critical analysis of the role and function of global civil society within deliberative approaches to global governance. It critiques a common view that global civil society can/should act as an agent for democratising global governance and seeks to explore the importance of global civil society as an arena of deliberation. This more reconstructive aim is supplemented by an empirically focused discussion of the affective dimensions of global civil society, in general, and the increasingly important use of film, in particular. Ultimately, this then yields an image of the deliberative politics of global civil
society that is more reflective of the differences, ambiguities and contests that pervade its discourses about global governance. This is presented as a quality that debates about deliberative global governance might learn from as well as speak to.

Advancing International Criminal Law. The Special Court for Sierra Leone Recognizes Forced Marriage as a ‘New’ Crime against Humanity

by Micaela Frulli

published in Journal of International Criminal Justice 6 (2008), 1033-1042

The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced... more The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced marriages may amount to crimes against humanity, falling under the sub-heading of ‘other inhumane acts’. This decision is to
be welcomed because the practice of forced marriage is not adequately described by existing categories of sexual crimes. As forced conjugality results in particular psychological and moral suffering for the victims, it is argued that this heinous
practice may be more appropriately pursued as a separate crime, under a definition that describes the entirety and complexity of the criminal conduct. The SCSL decision
may also be important for its impact on the activities of the International Criminal Court (ICC). The widespread practice of forced marriage presently features in all the situations being investigated by the ICC and the inclusion in the ICC
Statute of the offence of forced marriage as a separate crime against humanity could be discussed during the Review Conference in 2009.

Is Characterization of Treaties a Solution to Treaty Conflicts?

by Ahmad Ali Ghouri

Chinese Journal of International Law 2012; doi: 10.1093/chinesejil/jms034

The Vienna Convention on the Law of Treaties (VCLT) rules on the resolution of treaty conflicts are known as being... more The Vienna Convention on the Law of Treaties (VCLT) rules on the resolution of treaty conflicts are known as being despondently unhelpful. One identified lacuna is that these rules disregard many differences present in different kinds of treaties. This paper characterizes treaties on the basis of their differences and investigates whether this yields legal rules to resolve treaty conflicts. This paper presents three broad characterizations founded on: (A) the subject matter; (B) the number of State Parties; and (C) the intended objects and purposes of treaties. Respecting the intended objects and purposes, this paper presents three sub-characterizations, namely: (i) universal character treaties; (ii) constitutional character treaties; and (iii) treaties with conflict resolution
clauses. The results are variegated, but the discussions expose the mythic role of treaty characterization in the resolution of treaty conflicts.

Personal Immunity of President Omar Al Bashir: An Analysis Under Customary International Law and Security Council Resolution 1593

by Dan Terzian

The Legal Response to International Water Conflicts_Post Print

by Patricia Wouters

The Inter American Reception of the U.S Counterterrorism Doctrine

by David Restrepo Amariles

This article analyzes the migration of the U.S. counterterrorism doctrine and its reception in the Inter-American... more This article analyzes the migration of the U.S. counterterrorism doctrine and its reception in the Inter-American legal system. For so doing, it inquires into (1) the emergence of the counterterrorism doctrine after 9/11 in the United States and (2) its influence in the creation and implementation of the  Inter-American Convention against Terrorism and the (3) Colombian Security doctrine Seguridad Democrática. This three-layered analysis provides a comprehensive account on how the U.S. counterterrorism doctrine became a leading global discourse against terrorism. It shows how the discourse changes throughout these three layers to gain legitimacy, and particularly how it is transformed when it reaches new sites of reception.

GMOs in the WTO: A Critique of the Panel's Legal Reasoning in EC-Biotech

by Caroline Henckels

Overcoming Jurisdictional Isolationism at the WTO-FTA Nexus: A Potential Approach for the WTO'(2008)

by Caroline Henckels

Indirect Expropriation and the Right to Regulate: Revisiting Proportionality Analysis and the Standard of Review in Investor-State Arbitration

by Caroline Henckels

Uluslararası Hukukta Eleştirel Yaklaşımlar

by Uluslararası İlişkiler

Hürkan Çelebi, Ali Murat Özdemir, "Uluslararası Hukukta Eleştirel Yaklaşımlar", Uluslararası İlişkiler, Cilt 7, Sayı 25 (Bahar), 2010

Bu makale uluslararası hukukta mevcut eleştirel yaklaşımlar içerisinde önemli yer tutan iki yaklaşımı eleştirel olarak... more Bu makale uluslararası hukukta mevcut eleştirel yaklaşımlar içerisinde önemli yer tutan iki yaklaşımı eleştirel olarak incelemektedir: iyileştirici yaklaşım ve meta-biçim teorisi bağlamında ekonomi politik yaklaşım. Son dönemde uluslararası hukuk teorisi “Yeni Dalga” olarak bilinen eleştirel perspektifl erin yükselişine şahit olmuştur. “Yeni Dalga” yazarları Eleştirel Hukuk Çalışmaları olarak bilinen daha geniş bir akımın parçasını oluşturmaktadırlar. Ekonomi politik yaklaşım Evgeny Pashukanis’in hukuku meta dolaşımına bağlayan ve uluslararası hukuku meta biçim teorisinin geliştirilmesinde kullanan öncü hukuk çalışmalarına dayanmaktadır.