Showing papers in "American Journal of International Law in 2003"

Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights

Abstract: Transnational corporations and other large businesses have acquired a significant amount of power since the trends of globalization started to develop. With this increase in power comes an increase in responsibility. The UN Human Rights Norms for Transnational Corporations and Other Businesses help fill a major gap in the international human rights system, which already addresses the responsibilities of governments, individuals, and armed opposition groups, but has not yet focused on one category of powerful nonstate actors, businesses. The Norms provide companies that want to be socially responsible with an easily understood and comprehensive summary of their obligations under such systems as human rights law, humanitarian law, international labor law, environmental law, consumer law, and anticorruption law. Accordingly, the Norms help to establish a level playing field for competition. Further, the Norms can strengthen the will of governments to insist that businesses avoid human rights abuses. Implementation remains a key issue in the future development of these standards.

Subsidiarity as a Structural Principle of International Human Rights Law

Abstract: There is an inherent tension in international human rights law between affirming a universal substantive vision of human dignity and respecting the diversity and freedom of human cultures. Although understanding and securing human rights in international law requires us to grapple with that conflict, classic notions of state sovereignty cannot adequately address the issue. The principle of subsidiarity, instead, gives us a conceptual tool to mediate the polarity of pluralism and the common good in a globalized world and helps us make sense of international human rights law. I argue that we should regard subsidiarity as a structural principle of international human rights law.

The Promise of Hybrid Courts

Abstract: Over the past decade, issues of accountability and reconciliation in the aftermath of mass atrocities have increasingly dominated the field of international human rights. Much of the discussion among scholars and policy-makers has focused on the relative merits of international tribunals - such as the International Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the newly created International Criminal Court (ICC) - and domestic approaches, such as local trials or truth commissions. Comparatively little attention has been paid, however, to a newly emerging form of accountability and reconciliation: hybrid domestic-international courts. Such courts are "hybrid" because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards. This hybrid model has developed in a range of settings, generally post-conflict situations where no politically viable full-fledged international tribunal exists, as in East Timor or Sierra Leone, or where an international tribunal exists but cannot cope with the sheer number of cases, as in Kosovo. Most recently, an agreement to create a hybrid court in Cambodia has been reached, and there is discussion about creating a such a court in post-war Iraq. Hybrid courts have not yet been the subject of sustained analysis, even among scholars and policy-makers who focus on transitional justice issues. This article seeks to fill that gap by identifying hybrid courts as an important area of future study and making a preliminary assessment of their potential strengths and weaknesses. I look at the Kosovo, East Timor, and Sierra Leone courts, and I suggest that such courts, while not perfect, hold considerable promise as a model, particularly with regard to their perceived legitimacy (among both international and domestic constituencies), their ability to catalyze local efforts to establish rule of law institutions, and their potential to foster the development of human rights norms within emerging legal systems. Finally, I discuss ways in which hybrid courts might fit into the ICC's complementarity regime. I argue that such courts are best seen not as alternative to international or local justice, but rather as an important complement to both.

Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court

Abstract: The rapid ratification of the Rome Statute of the International Criminal Court (ICC) and the orderly election of its judges and prosecutor belie the radical nature of the new institution. The Court has jurisdiction over genocide, aggression, crimes against humanity, and war crimes—crimes of the utmost seriousness often committed by governments themselves, or with their tacit approval. The ICC has the formal authority to adjudge the actions of high state officials as criminal and to send them to jail, no matter how lofty the accused’s position or undisputed the legality of those acts under domestic law. While the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) also possess this authority, those institutions operate directly under the control of the United Nations Security Council and within narrow territorial limits. The ICC, by contrast, is largely independent of the Council and vests the power to investigate and prosecute the politically sensitive crimes within its broad territorial sweep in a single individual, its independent prosecutor.

Sovereignty - Modern: A New Approach to an Outdated Concept

Abstract: Although much criticized, the concept of “sovereignty” is still central to most thinking about international relations and particularly international law. The old “Westphalian” concept in the context of a nation-state’s “right” to monopolize certain exercises of power with respect to its territory and citizens has been discredited in many ways (as discussed below), but it is still prized and harbored by those who maintain certain “realist” views or who otherwise wish to prevent (sometimes withjustification) foreign or international powers and authorities from interfering in a national government’s decisions and activities. Furthermore, when one begins to analyze and disaggregate the concept of sovereignty, it quickly becomes apparent that it has many dimensions. Often, however, the term “sovereignty” is invoked in a context or manner designed to avoid and prevent analysis, sometimes with an advocate’s intent to fend off criticism orjustifications for international “infringements” on the activities of a nation-state or its internal stakeholders and power operators.

Famine Crimes in International Law

Abstract: Some of the worst human rights catastrophes of the twentieth century were famines created or manipulated by governments. In 1932 at least five million Ukrainians starved to death, while hunger was largely unknown across the border in Russia.The Soviet government imposed disastrous grain quotas on the Ukraine, then let its own citizens literally collapse in the streets while it exported grain to further its “revolutionary” objectives.The Ethiopian famine of 1983-1985, preserved in popular memory as a natural disaster of biblical proportions, most fiercely struck those parts of the country that harbored irredentist movements. In a stunning, but telling, rejoinder to international pity for the purportedly hapless Ethiopian government, the Ethiopian foreign minister told a U.S. charge d’affaires that “food is a major element in our strategy against the secessionists.” Since 1994, more than two million out of a population of twenty-two million in North Korea have starved to death, while South Koreans, affected by similar weather patterns, have remained completely untouched by famine. Nongovernmental organizations (NGOs), trying to distribute aid earmarked for famine victims, have watched helplessly as the government callously interfered and have arrived at the conclusion that “the authorities are deliberately depriving hundreds of thousands of truly needy Koreans of assistance.”

Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight Against Terrorism

Abstract: Following September 11, 2001, the Security Council took a number of important steps in the fight against terrorism. It condemned global terror and recognized the right to self-defense under Article 51 of the UN Charter in responding forcefully to those horrific attacks. Perhaps its most significant action in this area, however, was the adoption of Resolution 1373 which established the Counter-Terrorism Committee (the CTC). Addressing the significance and substance of this Security Council action, this essay reviews the work of the CTC to date, highlighting some of its accomplishments, and then touches upon some of the challenges the CTC will likely confront as it progresses with its mission. How it chooses to confront these challenges will surely have a considerable impact on its future work.

What happens now? the united nations after iraq?

Abstract: Thirty-three years ago I published an article in this Journal entitled Who Killed Article 2 (4)? or: Changing Norms Governing the Use of Force by States, which examined the phenomenon of increasingly frequent resort to unlawful force by Britain, France, India, North Korea, the Soviet Union, and the United States. The essay concluded with this sad observation: The failure of the U.N. Charter's normative system is tantamount to the inability of any rule, such as that set out in Article 2(4), in itself to have much control over the behavior of states. National self-interest, particularly the national self-interest of the super- Powers, has usually won out over treaty obligations. This is particularly characteristic of this age of pragmatic power politics. It is as if international law, always something of a cultural myth, has been demythologized. It seems this is not an age when men act by principles simply because that is what gentlemen ought to do. But living by power alone ... is a nerve-wracking and costly business.

Preemption, Iraq, and International Law

Abstract: Preemption comes in many forms and what we think of it depends on the circumstances. One state may not strike another merely because the second might someday develop an ability and desire to attack it. Yet few would criticize a strike in the midst of an ongoing war against a second state’s program to develop new types of weapons. Between these two examples lie countless fact patterns. In the end, each use offeree must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it. While nations must not use preemption as a pretext for aggression, to be for or against preemption in the abstract is a mistake. The use of force preemptively is sometimes lawful and sometimes not.

International Law and the War in Iraq

Abstract: Many international legal scholars and foreign governments have argued that the recent war in Iraq violated international law. This paper, published as part of an Agora in the American Journal of International Law, criticizes this view on two grounds. It explains that these scholars have failed to properly read existing United Nations Security Council resolutions that authorized the use of force against Iraq. Even putting the United Nations to one side, this paper explains that the use of force could have been justified, at the time of the invasion of Iraq in the spring of 2003, as an exercise of self-defense. It argues that traditional notions of self-defense, which permit the anticipatory use of force before an offensive attack occurs, have changed to take into account the greater magnitude of destruction of weapons of mass destruction and the behavior of rogue states.

Beyond Occupation Law

Abstract: its strong iteration of the position—seemingly uncontroversial—that sovereignty resides in the state of Iraq may simply be a deliberate measure to avoid any doubt as to a matter that in particular instances in the context of decolonization presented a tangle of ambiguities. It bears stating clearly, in light of late colonial history, that the transition, even as it involves vesting substantial administrative competence in the CPA, does not displace sovereignty from its original location. Indeed, it is especially because of the sweeping powers of the CPA within the transition framework that some parties would like to have a formal reminder of the disposition of underlying rights. The French representative to the Security Council, after the adoption of Resolution 1483, referred to the establishment of the GCI as \"a positive first step towards the establishment of a representative and internationally recognized government.\" Akram (for Pakistan), evidently viewing the GCI as synonymous with the \"interim authority\" specified in Resolution 1483, also welcomed the GCI as a valuable \"first step,\" with an internationally recognized government as the goal in an implied progression. The German delegate referred to the GCI as \"broadly based\" and indicated that it \"could provide the international community with an Iraqi partner, with whom it could engage.\" Participation by three GCI representatives in the meeting of the Security Council on July 22, 2003, marked a milestone; one hopes that the cooperation of the United Nations in securing the status of the GCI as agent responsible for external representation of the Iraqi state will smooth the transition in this important dimension. Resolution 1511, while tracing in its text the outline of continued disagreement between Council member states on the precise apportionment of UN competence, affirms the continued commitment of the international organization to a process of novel scope and challenge.

Belgium’s War Crimes Statute: A Postmortem

Abstract: particularly in defiance of established rules, historically generates resistance. As is suggested by the backlash generated by actions taken by other possible agents of global HIL (such as the International Monetary Fund), global HIL, even when it generates resistance, may undermine the legitimacy of the collective institutions deemed responsible, thus making it harder to manage multilateral solutions. Global HIL is more insidious than unilateral HIL precisely because blame for it is shared. The third lesson is that, particularly when it is legislating (but not only then), the Security Council would be well-advised to be sure that what it does reflects the will of the international community as a whole, including states not represented on the Council and members of international civil society. This is so for the same reasons good legislators the world over consult relevant constituencies: to secure the benefits of a diversity of insights and viewpoints, improve the quality of legislation, and avoid repeating mistakes. Consultation and participation may require institutionalized mechanisms—such as Michael Reisman's suggestion of a Chapter VII Consultation Committee for Council/General Assembly interaction—as well as less formal approaches, such as greater attempts at transparency. Such mechanisms are also essential to securing continued multilateral cooperation in the future, whenever the hegemon and others require such cooperation. The Council will not forever remain a legitimate body for collective action if it is perceived as acting in accord with Morgenthau's words at the beginning of this Comment. Recognizing global HIL also urges caution with respect to recipes for reform that might make the Council only more subject to hegemonic capture. The Council's actions surveyed here remain works in progress. The Council may yet recognize human rights and other limits on its counterterrorism efforts, refuse to acquiesce in overly expansive readings of inherent self-defense, or exercise greater control over Iraq's future. As the Council's tempering of the harshest aspects of its counterterrorism sanctions and the annual review imposed on the Authority in Iraq suggest, even in an increasingly unipolar world, the collective can influence what the hegemon can achieve through the Council and it behooves the hegemon to permit itself to be influenced—if it wants to have a legitimating and effective Council around for a long time to come.

The fall of saddam hussein: security council mandates and preemptive self-defense

Abstract: At long last, the people of Iraq are freed from the brutality of Saddam Hussein. The swift success of the coalition’s military campaign has been followed by predictable difficulties in organizing a hew government, restoring an economy, rebuilding civic society, and quelling violence from remnants of the old regime. But these challenges are kept in scale by recalling a dictator who murdered three hundred thousand fellow citizens. Saddam chose weapons of mass destruction as the central symbol of his domestic and international swagger—using the same internal security apparatus to parry United Nations inspectors and to extinguish domestic political dissent. Removing Iraq’s Ba’athist regime has ended a looming danger to regional neighbors, including Kuwait and Saudi Arabia. The crucial hopes for Middle East peace may also be enhanced by the change. And a new government in Baghdad lessens the chance that weapons materiel will be transferred to ill-intentioned nonstate actors.

Iraq: The Shifting Sands of Preemptive Self-Defense

Abstract: The United States articulated a new concept of preventive self-defense last fall that is designed to preclude emerging threats from endangering the country. Rising like a phoenix from the ashes of the September 11 terrorist attacks, the preventive approach to national security is intended to respond to new threats posed by “shadowy networks of individuals [who] can bring great chaos and suffering to our shores for less than it costs to purchase a single tank.” The Bush administration wisely concluded that it could not rely solely upon a reactive security posture, due to the difficulty in deterring potential attacks by those determined to challenge the United States and the magnitude of harm that could occur from weapons of mass destruction falling into the wrong hands. Although the administration has characterized its new approach as “preemptive,” it is more accurate to describe it as “preventive” self-defense. Rather than trying to preempt specific, imminent tiireats, the goal is to prevent more generalized threats from materializing.

The International Law of Terrorist Financing

Abstract: The international dimensions of terrorism had been identified prior to World War II Nonetheless, no agreement could be reached on an acceptable definition, or appropriate action, and the 1937 Convention on the Prevention and Punishment of Terrorism, adopted by the League of Nations, was ratified by a single country The issue resurfaced in the late 1950s when private individuals perpetrated an alarming number of incidents endangering civil aviation during transnational flights These incidents led to the adoption of three distinct conventions on the subject, namely the 1963 Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation

State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory

Abstract: When Sulaiman Al-Adsani traveled from the United Kingdom to Kuwait to repel Saddam Hussein’s invasion in 1991, he never dreamed he would depart with bruises and burns inflicted by the very government he had sought to defend. According to Al-Adsani, his troubles began when he was accused of releasing sexual videotapes of Sheikh Jaber Al-Sabah Al-Saud Al-Sabah, a relative of the emir of Kuwait, into general circulation. After the first Gulf war, with the aid of government troops, the sheikh exacted his revenge by breaking into Al-Adsani’s house, beating him, and transporting him to a Kuwaiti state prison, where his beatings continued for days. Al-Adsani was subsequently taken at gunpoint in a government car to the palace of the emir’s brother, where his ordeal intensified. According to Al-Adsani, his head was repeatedly submerged in a swimming pool filled with corpses and his body was badly burned when he was forced into a small room where the sheikh set fire to gasoline-soaked mattresses.

The law of aerial bombardment in the 1991 gulf war

Abstract: I shall often go wrong through defect of judgment. When right, I shall often be thought wrong by those whose positions will not command a view of the whole ground. I ask your indulgence for my own errors, which will never be intentional, and your support against the errors of others, who may condemn what they would not if seen in all its parts. —Thomas Jefferson On August 2,1990, Iraqi forces invaded and occupied Kuwait, beginning a seven-monthlong series of events that would come to be known as the Persian Gulf war. Perhaps the most thoroughly examined of these events was the thirty-eight-day air campaign, which began on January 17,1991, and marked the beginning of the offensive by the coalition of states arrayed against Iraq, which ended after the latter’s withdrawal from Kuwait. Much has been written about the air campaign and its objectives, its implications for the future use of military force, and the extent to which it conformed to international law. Although this article will focus on the last of these topics, a contextual understanding of the air campaign is essential to a serious consideration of the military necessity and proportionality issues that lie at the heart of the legal analysis.

Assessing Claims to Revise the Laws of War

Abstract: For better or worse, participants in a civilization of science and technology are locked in a relentless process of research and a frenzied, competitive drive to apply the results wherever they promise enhanced productivity and profit. Each innovation stimulates further innovations and the juggernaut of development roars on. As for the law that would regulate it all, thanks to its characteristic deliberative and measured methods, it often lags behind the innovations, leaving intervals of legal gap in which authority becomes uncertain. Weapons and their delivery systems are no exception to this dynamic. They, too, evolve inexorably, as do the identity, character, and modus operandi of manifest and latent adversaries. The first imperative of every territorial community—hence the first imperative of the international law that these communities have created—is provision for national defense. That part of the legal regime that establishes the licit means and modes for the maintenance by each community of its national defense is necessarily a response to the common needs and common interests of politically relevant actors in the system. Their felt necessities determine the content of the law and, in its crafting, take account of a wide range of factors, such as the current and projected technology and quanta of weapons; their modes of application; geography and geostrategic implications in specific contexts; and, of course, the characteristics, objectives, and capacities of manifest and latent adversaries. When some of these factors change to the point that communities can no longer assure their defense within the ambit of inherited law, those charged with national defense inevitably demand changes in the law.

McCaffrey, Stephen C. The Law of International Watercourses: Non-navigational Uses

Abstract: I. INTRODUCTION 1. Human Use of Water and the Coming Era of Water Scarcity 2. The Concept of the International Watercourse System II. THEORETICAL BASES OF THE LAW OF INTERNATIONAL WATERCOURSES 3. Theoretical Bases of International Watercourse Law: Introductory Considerations 4. International Watercourses as Exclusively National Resources: The 'Harmon Doctrine' in United States Practice 5. The Theoretical Basis of International Watercourse Law: An Examination of the Four Principal Theories III. THE MAJOR CASES AND CONTROVERSIES: A SURVEY OF STATE PRACTICE 6. The Major Cases 7. Selected Case Studies IV. FUNDAMENTAL RIGHTS AND OBLIGATIONS 8. Introduction: The 1997 United Nations Convention A. SUBSTANTIVE OBLIGATIONS 9. The Obligation to Utilize an International Watercourse in an Equitable and Reasonable Manner 10. The Obligation to Prevent Harm to Other Riparian States 11. The Obligation to Protect International Watercourses and their Ecosystems B. PROCEDURAL OBLIGATIONS 12. Procedural Obligations C. GROUNDWATER 13. The Special Case of Groundwater D. DISPUTE AVOIDANCE AND SETTLEMENT 14. Dispute Avoidance and Settlement: Selected Aspects ANNEXES BIBLIOGRAPHY Index

What future for the un charter system of war prevention

Abstract: President George W. Bush historically challenged the United Nations Security Council when he uttered some memorable words in the course of his September 12, 2002, speech to the General Assembly: “Will the UN serve the purpose of its founding, or will it be irrelevant?” In the aftermath of the Iraq war there are at least two answers to this question. The answer of the U.S. government would be to suggest that the United Nations turned out to be irrelevant due to its failure to endorse recourse to war against the Iraq of Saddam Hussein. The answer of those who opposed the war is that the UN Security Council served the purpose of its founding by its refusal to endorse recourse to a war that could not be persuasively reconciled with the UN Charter and international law. This difference of assessment is not just factual, whether Iraq was a threat and whether the inspection process was succeeding at a reasonable pace; it was also conceptual, even jurisprudential. The resolution of this latter debate is likely to shape the future role of the United Nations, as well as influence the attitude of the most powerful sovereign state as to the relationship between international law generally and the use of force as an instrument of foreign policy.

International arbitration and the islamic world: the third phase

Abstract: Arbitration, the principal form of international dispute resolution, has a long and often troubled history in the Islamic world. Shortly after the founding of Islam, the Treaty of Medina of 622 A.D. (a security pact among die city's Muslims, non-Muslim Arabs, and Jews) called for arbitration of any disputes by the Prophet Muhammad. Indeed, the Prophet himself resorted to arbitration in his conflict with the tribe of Banu Qurayza. Muslim rulers subsequently followed his example, notably in the disastrous arbitration between Muawiyah (the governor of Syria) and the Caliph Ali (the Prophet's son-in-law) in 659 A.D. to determine the succession to the Caliphate. Ali's refusal to accept the arbitrators' ruling in favor of Muawiyah made permanent Islam's enduring split into the Shiite and Sunni branches. Arbitration between Islamic states or uieir nationals and non-Islamic parties—that is, truly international arbitration—has followed a similarly perilous course. Thus, although Bahrain, for example, was an international commercial-arbitration center long before Paris and London, die modern era of international arbitration (dating from the late nineteentii century, but particularly since World War II) has been for die Islamic world a \"roller coaster\" experience. In much of that region, international arbitration has long been viewed skeptically, if not with hostility. In this modern era, international arbitration as it relates to the Islamic world has already passed through two phases and is well into a third. Each phase reflects precisely the power equation in place at the time between Islamic states that are sources of petroleum and the foreign developers and off-takers of those resources. Each is also bound up with closely related developments in, and developing nations' broader attempts to shape, international law relating to compensation for expropriation. Finally, each marks the evolution of the relationship between the domestic law of Islamic states and international law.

So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples' Rights

Abstract: Pending the establishment of the African Court on Human and Peoples' Rights, the African Commission on Human and Peoples' Rights remains the only institutional body for the implementation of the rights guaranteed in the African Charter on Human and Peoples' Rights. The Assembly of Heads of State and Government of the Organization of African Unity (OAU), reconstituted as the African Union (AU), established the Commission in 1987, after the entry into force of the African Charter, in 1986, and pursuant to its Article 64 (1). The Commission was established, inter alia, “to promote human and peoples' rights and ensure their protection in Africa.” That is, besides “any other tasks which may be entrusted to it” by the Assembly, the Commission performs three primary functions: it promotes and protects human and peoples' rights and interprets the provisions of the Charter.

The Delimitation of the Outer Continental Shelf Between Neighboring States

Abstract: Following the 1985 Judgment of the International Court ofjustice in the Libya-Malta case, the late Keith Highet gave a presentation entitled \"Whatever Became of Natural Prolongation?\" at a seminar at the University of Georgia. It was a fair question from a man who had served as counsel in both the Tunisia-Libya\" and the Libya-Malta cases and had tried to make sense of the confusing statements by the Court in the North Sea Continental Shelf 'cases about the relevance of natural prolongation and geology and geomorphology to the bilateral delimitation of the continental shelf between neighboring states. In Libya-Malta, the Court set aside the relevance of natural maritime boundaries, at least insofar as bilateral boundary delimitations are concerned within 200 nautical miles of the coast. The subject has not been heard of since. However, things have changed. Today Highet would surely be contemplating the subject anew and asking whether arguments based on the geomorphology of the seabed and geology of the subsoil might find their way into the maritime boundary cases once again in the context of the delimitation of the outer continental shelf beyond the 200-nautical-mile exclusive economic zone. What has changed? First, the law and practice of maritime delimitation has matured, which in turn leads to a clearer understanding of how arguments concerning the physical features of the outer continental shelf might fit into any particular case. In a recent presentation to the Sixth Committee of the United Nations General Assembly, Judge Gilbert Guillaume, president of the International Court ofjustice, reported on the advancement and consolidation of the law of maritime delimitation, reflected in the Court's recent Judgment in the QatarBahrain case, about which more will be said below. Second, bilateral delimitation questions pertaining to the outer continental shelf beyond the 200-nautical-mile zone no longer represent a problem for the distant future. Their immediacy is evidenced by the emergence of state practice consisting of seven bilateral delimitations addressed to the subject, and the submission,

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening)

Abstract: On March 29, 1994, Cameroon filed an application with the International Court of Justice (ICJ) requesting that it determine the question of sovereignty over the oil-rich Bakassi Peninsula and a parcel of land in the area of Lake Chad (principally Darak and its region), both of which were in dispute between Cameroon and Nigeria. Cameroon also asked the Court to specify the land and maritime boundary between the two states, and to order an immediate and unconditional withdrawal of Nigerian troops from alleged Cameroonian territory in the disputed areas. As the basis of the Court'sjurisdiction, Cameroon relied on the declarations made by the parties under Article 36(2) of the ICJ Statute. In itsjudgment of June 11,1998, the Court rejected Nigeria's seven preliminary objections alleging that the Court lackedjurisdiction and that Cameroon's application was inadmissible, but it reserved the remaining, eighth objection—relating to the parties' maritime boundary— for consideration at the merits stage. The Court's order of June 30,1999, allowed Nigeria to introduce certain counterclaims, and its subsequent order of October 21,1999, unanimously authorized Equatorial Guinea to intervene in the case as a nonparty. On October 10, 2002, the Court ruled, by 13 votes to 3 (Judges Koroma and Rezek and Judge ad hoc Ajibola, chosen by Nigeria, dissenting), that sovereignty over the Bakassi Peninsula and the Lake Chad area lay with Cameroon. Upholding the validity of certain colonial arrangements invoked by Cameroon, the Court fixed, by clear majorities, the land boundary from Lake Chad in the north to the Bakassi Peninsula in the south. In fixing the portion of the maritime boundary between the two states over which it hadjurisdiction, the Court agreed with Nigeria that the equidistant line between them produced an equitable result. It did not, however, specify the location of the point off the coast of Equatorial Guinea at which the maritime boundary between Cameroon and Nigeria terminates (the \"tripoint\"). The Court ordered

The Prospect for International Law and Order in the Wake of Iraq

Abstract: International lawyers should help our political leaders, die media, and the electorate appreciate more adequately the implications for international law and order of the United States-led invasion of Iraq and its nearest precedent, the Kosovo intervention. At this point, mid-2003, those implications remain unclear.

Law and Force After Iraq: A Transitional Moment

Abstract: What impact will the Iraq war of 2003 have on international law governing the use of force and on the future of the United Nations Security Council? Some commentators have proclaimed that the military intervention led by the United States amounted to the “death” of the UN Charter and the end of “the grand attempt to subject the use of force to the rule of law.” The Security Council’s failure to reach agreement—in die face of French-U.S. antagonisms—spells the end, they argue, of an effective Council role in addressing major threats to peace and security. My own view is that it is premature to pronounce the “death” of the UN Charter or to give up on future prospects for Security Council agreement on the use of force. We are, nevertheless, at a difficult and precarious transitional moment in the international legal system governing the use of force, and the stark tensions reflected in the differences over Iraq are symptomatic of hard problems that may persist for the foreseeable future. Both the rules and the system need refining and reform. Success in doing so will require imagination and much greater willingness by policy makers to consider law’s potential role, not as a barrier to necessary action, but as a means to enhance global security in the face of emerging threats. In seeking such reform, it will be important to build upon the realism of the Charter’s founders, who combined rules governing the use of force with a clear commitment to credible enforcement action in response to threats to peace and security.

Eyewitness to a Genocide (Book)

Abstract: treatment of these issues contains a wealdi of useful information and analysis, based on his study of the relevant legal instruments and state practice in a variety of cases. For some of the issues examined, such as determining the command and composition of multinational forces, practical considerations seem of greater importance than ethical principles. But other issues, such as the circumstances under which the United Nations should authorize the use offeree to prevent or terminate human rights violations, clearly require ethical analysis. On such issues, Lepard has a good deal to say. His analysis leads to conclusions that in many respects mirror those advanced by other commentators, but that also exhibit some differences attributable to his approach. Many readers will likely be most interested in Lepard's views on humanitarian intervention that is not authorized by the Security Council. This is the subject of his penultimate chapter, which uses NATO's intervention in Kosovo as a case study. After reviewing both the historical and the contemporary debates on this subject, Lepard thoughtfully examines the relevant Charter and customary law norms in light of recent state practice. He concludes that although some states believe unauthorized humanitarian intervention is morally permissible in extreme cases, there is no consensus that the Charter should be reinterpreted to permit unauthorized interventions. Furthermore, he argues that pertinent ethical principles support this position. Even though such principles demand that humanitarian intervention be legally permissible in some cases, he notes that intervention is permissible with Council authorization— an avenue that is open as a matter of law if not always as a matter of political reality. At the same time, Lepard concludes that \"[t]he current state of the law is morally unacceptable\" (p. 363). In his view, states may be morally justified in using force in violation of the Charter when \"abiding by the law would severely frustrate fundamental ethical principles, and if every possible attempt has first been made to realize those principles through legal avenues\" (id.). Lepard suggests, however, that the ethical principles of consultation and respect for law require states to introduce a resolution in the Council and obtain a majority in favor as a prerequisite to unauthorized intervention (even if the resolution is vetoed). This seems a questionable requirement. As a practical matter, states will not wish to highlight the illegality of an intervention by provoking a veto. More important, it seems counterintuitive to make unauthorized intervention contingent on majority support, which may be withheld for political reasons unrelated to the severe frustration of fundamental ethical principles that would otherwise trigger a moral right to intervene. Overall, Lepard's book represents a major and creative effort to come to terms with the complex legal and ethical dilemmas posed by humanitarian intervention. The analysis will be of considerable interest to anyone seeking insights into these dilemmas.

Neither Bush nor the 'jurisprudes'

Abstract: Relations between the United States and most other countries, including major U.S. allies, have been severely strained during the past year by divergent opinions about the rules of international law governing the use of armed force. On the one side, the Bush administration has unveiled a new strategic doctrine asserting the right to use force preemptively against any country or terrorist group that could potentially threaten U.S. security. On the other side, most UN members have rejected the Bush doctrine as inconsistent with the traditional view that armed force can only be used when authorized by the Security Council or in self-defense against an armed attack. I will argue that neither the new Bush doctrine nor the strict interpretation of the “jurisprudes” represents good law or good policy. The new strategic environment, marked by suicidal terrorists and the spread of mass destruction weapons, requires a different approach.