American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Written by a team of international lawyers with extensive academic and practical experience of international criminal law, the fourth edition of this leading textbook offers readers comprehensive coverage and a high level of academic rigour while maintaining its signature accessible and engaging style. Introducing the readers to the fundamental concepts of international criminal law, as well as the domestic and international institutions that enforce that law, this book engages with critical questions, political and moral challenges, and alternatives to international justice. Suitable for undergraduate and postgraduate students, academics and practitioners in the field, and cited by the International Criminal Tribunal for Yugoslavia, the International Criminal Court, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the highest courts in domestic systems, this book is a must-read for anyone interested in learning more about international criminal law.

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An Introduction to International Criminal Law and Procedure

The creation of an International Criminal Court (ICC) to prosecute war crimes poses a real puzzle. Why was it created, and more importantly, why do states agree to join this institution? The ICC represents a serious intrusion into a traditional arena of state sovereignty: the right to administer justice to one's one nationals. Yet more than one hundred states have joined. Social scientists are hardly of one mind about this institution, arguing that it is (alternately) dangerous or irrelevant to achieving its main purposes: justice, peace, and stability. By contrast, we theorize that the ICC is a mechanism to assist states in self-binding, and draw on credible commitments theory to understand who commits to the ICC, and the early consequences of such commitments. This approach explains a counterintuitive finding: the states that are both the least and the most vulnerable to the possibility of an ICC case affecting their citizens have committed most readily to the ICC, while potentially vulnerable states with credible alternative means to hold leaders accountable do not. Similarly, ratification of the ICC is associated with tentative steps toward violence reduction and peace in those countries precisely least likely to be able to commit credibly to foreswear atrocities. These findings support the potential usefulness of the ICC as a mechanism for some governments to commit to ratchet down violence and get on the road to peaceful negotiations.

/pdf/credible-commitments-and-the-international-criminal-court-3056pg9at9.pdf

Credible Commitments and the International Criminal Court

This first of three progress reports on the subdiscipline of political geography reviews recent scholarship on the transformation of geographies of sovereignty. The piece offers a review of major analytical themes that have emerged in recent geographical analyses of sovereignty. These themes include the design of spatial metaphors through which to conceptualize sovereignty, US exceptionalism and the influence of Agamben’s work, productive blurring of onshore and offshore operations and productions of sovereign power, and debate about the kinds of power operating through these newly constituted global topographies of power. The text also visits five kinds of sites where contemporary struggles over sovereignty manifest: prison, island, sea, body, and border. After reviewing recent trends, themes, and locations in studies of sovereign power, recommendations for future research topics are made.

Political geography I Reconfiguring geographies of sovereignty

This article presents and assesses a new wave of empirical research on international law. Recent scholarship has moved away from theoretical debates over whether international law “matters,” and focuses instead on exploring the conditions under which international law is created and produces effects. As this empirical research program has matured, it has allowed for new, mid-level theorizing that we call “conditional international law theory.”

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2004640_code702020.pdf?abstractid=2004640&mirid=5

The Empirical Turn in International Legal Scholarship

Globalization represents the reality that we live in a time when the walls of sovereignty are no protection against the movements of capital, labor, information and ideas—nor can they provide effective protection against harm and damage.1 This declaration by Judge Rosalyn Higgins, the former President of the International Court of Justice, represents the conventional wisdom about the future of global governance. Many view globalization as a reality that will erode or even eliminate the sovereignty of nation-states. The typical account points to at least three ways that globalization has affected sovereignty. First, the rise of international trade and capital markets has interfered with the ability of nation-states to control their domestic economies.2 Second, nation-states have responded by delegating authority to international organizations.3 Third, a “new” international law, generated in part by these organizations, has placed limitations on the independent conduct of domestic policies.4

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Globalization and Sovereignty

Contemporary justifications of international criminal tribunals (ICTs), especially the permanent International Criminal Court, often stress the role of such tribunals in deterring future humanitarian atrocities. But hardly any academic commentary has attempted to explore in-depth this deterrence rationale. This essay utilizes economic models of deterrence to analyze whether a potential perpetrator of humanitarian atrocities would likely be deterred by the risk of future prosecution by an ICT. According to the economic theory of deterrence, two factors - certainty and severity of punishment - are central to the reduction of crime after taking into account a particular individual's preference for risk. In the context of a possible ICT prosecution, isolating the pool of individuals likely to commit humanitarian atrocities is difficult but not insurmountable. Given that international tribunals are not likely to have independent police powers in the foreseeable future, the actors most likely to face prosecution are individuals in weak states who have failed politically. In other words, the likely pool will be composed of individuals in weak states who have been forced from political power by local or foreign forces. Examining evidence concerning the fate of failed coup plotters and dictators in Africa - a group that represents a pool of likely perpetrators of atrocities - we show that the probability that this pool of individuals will be subject to a range of other legal and extra-legal sanctions is quite high. Moreover, the severity of the sanctions these individuals are likely to face - death, life imprisonment, and torture - is also likely to be higher than those imposed by an ICT. Thus, prosecution by an ICT will often serve as a weaker substitute, rather than a complement, to pre-existing sanctions. In one situation, however, the threat of ICT prosecution is likely to complement other possible sanctions and serve as a deterrent - where the perpetrator is unlikely to be subject to other sanctions because he is considered to be politically indispensable. But in such circumstances, the ex ante benefits of deterrence from ICT prosecution will likely be outweighed by the ex post harms of prosecuting a spoiler - an individual whose prosecution is likely to generate local political instability. In other words, the prospect of prosecution by an ICT may sometimes exacerbate the risks of humanitarian atrocities. Finally, prosecution by an ICT may also exacerbate conflicts though a political opportunism effect in which local politicians will have an incentive to free-ride off ICT efforts and turn a blind eye to the kinds of institutional reforms that are more likely to prevent future atrocities.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID934032_code170891.pdf?abstractid=931567&rulid=10929767&mirid=5

Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities

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The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretation of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference. In this Essay, we offer a functional defense of the doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs in wartime; doctrines that the Hamdan Court largely ignored. The executive branch has strong institutional advantages over courts in the interpretation of laws relating to the conduct of war. If followed in the future, the Hamdan Court's refusal to give deference to the executive branch and to require a congressional clear statement prior to any executive action will further disrupt the traditional system of political cooperation between Congress and the President in the conduct of wars. It will raise the transaction costs for policymaking in wartime without any significant benefit and potentially at large cost. Congress's recent enactment of the Military Commission Act of 2006 may be understood as an attempt to prevent future courts from applying Hamdan's new clear statement rule by strictly limiting judicial review of executive wartime decisions.

Hamdan V. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch

For nearly 150 years, courts have applied the last in time rule to resolve conflicts between treaties and federal statutes by giving effect to whichever was enacted later in time. Despite its acceptance by the courts, this rule has received unanimous criticism in the legal academy. In this article, I present the first comprehensive defense of the last in time rule on textual, structural, historical, and functional grounds. I argue that the last in time rule should be applied because the text of the Constitution grants treaties the status of enacted domestic law. As such, treaties are subject to the principle of statutory construction, leges posteriors priores contrarias abrogant (later laws abrogate prior laws that are contrary), unless otherwise indicated by the Constitution's text or structure. This understanding is supported by Supreme Court precedent, historical evidence from the Founding era, including practice during the pre-Constitution era, discussions during the Constitutional Convention and ratifying debates, as well as actions during the early years of the Constitutional era. In the course of defending the last in time rule, I also consider how the rule fits into the broader debate over the extent to which treaties, which increasingly seek to regulate traditionally domestic matters, have effect in the U.S. legal system. The last in time rule, I contend, provides an elegant compromise between internationalists seeking greater incorporation of treaties and revisionists seeking to limit or eliminate such incorporation. Under the last in time rule, treaties are given direct domestic effect, which facilitates greater U.S. participation in the international system. On the other hand, the last in time rule guarantees that a politically accountable Congress retains the flexibility to control a treaty's domestic effects.

Julian Ku

Papers

Globalization and Sovereignty

Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities

Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities

Hamdan V. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch

Treaties as Laws: A Defense of the Last in Time Rule for Treaties and Federal Statutes