Showing papers in "Berkeley Journal of International Law in 2009"

The Trust in Indicators: Measuring Human Rights

Abstract: August 27Teaching Session: Introductory Class (course instructors) September 3No class (legislative Monday) September 10Speaker: David Dyzenhaus, University of Toronto, NYU Global Law Professor Topic: The Concept of (Global) Administrative Law September 17Panel Discussion on the September 2008 ECJ Decision in Kadi. Professors Stewart, Kingsbury, and members of the international law faculty. September 24Speakers: Eyal Benvenisti (Tel Aviv/NYU) and George Downs (NYU) Topic: Toward Global Checks and Balances October 1Speakers: Nico Krisch (LSE); and Euan MacDonald and Eran Shamir-Borer (NYU) Topic: Global Constitutionalism and Global Administrative Law (two papers) Friday October 3 SPECIAL SESSION Furman Hall 310, 3pm-5pm Speaker: Neil Walker, Edinburgh Topic: Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders Background reading: Constitutionalism Beyond the State

The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers during Peacekeeping Missions

Abstract: International law concerning sexual violence has developed dramatically during the past 50 years. Within the field of international criminal law, there has been a transformation from the Nuremberg Tribunal's failure to acknowledge crimes of a sexual nature to the specific definitions of sexual crimes in the text of the Rome Statute of the International Criminal Court (ICC)1 and in the jurisprudence of both the International Criminal Tribunal for the former Yugoslavia (ICTY) 2 and the International Criminal Tribunal for Rwanda (ICTR). 3 Carla Del Ponte, prosecutor of the Yugoslav tribunal, observed that \"when the [Yugoslav] tribunal closes its doors, part of its legacy will be the condemnation of sexual violence against women during times of conflict\". 4 Set against the historical silence surrounding war-time sexual violence, the progress achieved over

The Community Referendum: Participatory Democracy and the Right to Free, Prior and Informed Consent to Development

Abstract: Development projects, especially mining ventures by large multinational corporations, are often the subject of sustained-and sometimes violentcontroversy in Latin America and other developing areas of the world rich in natural resources where resource extraction projects may have a devastating impact on the lives, health, resources, and culture of the local population. Among the most promising ideas to reduce violence and promote informed participation by citizens is an entirely democratic form of ascertaining community sentiment and determining policy-the community referendum or consulta popular-in which voters in the potentially affected localities can register their agreement or opposition to a specific development project by voting in free and fair elections. Such referenda, which have only recently arisen as a means to oppose unwanted resource extraction projects, represent a new, accurate, and democratic measurement of whether a community has provided the free, prior and informed consent (FPIC) to proposed development as required under international law. The use of community referenda as a means of ensuring the human rights of people whose communities may be threatened by large development projects had been intermittent and confined to just a few states but is now spreading rapidly. The idea of holding elections where people

From Nuclear War to Net War: Analogizing Cyber Attacks in International Law

Abstract: On April 27, 2007, Estonia suffered a crippling cyber attack launched from outside its borders. It is still unclear what legal rights a state has as a victim of a cyber attack. For example, even if Estonia could conclusively prove that Russia was behind the March 2007 attack there is no clear consensus on how Estonia could legally respond, whether with armed force, its own cyber attack, or some other measure. The scholarly literature dealing with these questions, as well as the ethical, humanitarian, and human rights implications of information warfare (IW) on national and international security is scarce. Treatments of IW outside the orthodox international humanitarian law (IHL) framework are nearly non-existent. This underscores the tension between classifying cyber attacks as merely criminal, or as a matter of state survival calling for the same responses as conventional threats to national security. International law has been slow to adapt. The facts on the ground, and the widespread, amorphous use and rapid evolution of the internet in many ways challenge state sovereignty. I will advocate that the best way to ensure a comprehensive regime for cyber attacks is through a new international accord dealing exclusively with cyber security and its status in international law. Yet, the international community lacks the political will to tackle this issue directly. Until such an accord becomes politically viable, it is critical to examine how existing treaty systems may extend to cover the novel facts presented by cybe attacks. Together, existing treaties form a dual track approach to cyber attacks - one that is available for cyber attacks that do not rise to the level of an armed attack, and another that is activated once an armed attack occurs. To that end this paper will examine the most apt analogues in international law to form an appropriate legal regime for the various types of cyber attacks - whether it is humanitarian law (laws of war), human rights law (regulation of nation states behavior), or some novel combination of these and other treaty systems. In framing this regime, it will be argued that cyber attacks represent a threat to international peace and security as daunting and horrific as nuclear war. Yet the nuclear non-proliferation model is not a useful analogy since the technology necessary to conduct IW is already widespread in the international community. Instead, other analogies will rely on communications and cyber law, space law, and the law of the sea. The main failings of existing international treaties that touch on cyber law though are that most do not carry enforcement provisions. Nor do they specify how the frameworks change or fall away entirely during an armed attack. Nevertheless, regardless of whether or not cyber attacks fall below the threshold of an armed attack these bodies of law have a role to play in forming an appropriate regime. The cyber attack on Estonia in April, 2007, presents an example of the dire need for clarity in the international law of non-conventional warfare using modern technology.

The Comparative Law and Economics of Judicial Councils

Abstract: In recent decades, many countries around the world have institutionalized judicial councils, institutions designed to enhance judicial independence and accountability. Our paper, the first comparative inquiry into this phenomenon, has two aims. First, we provide an economic theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we discuss the national experience of several legal systems in light of our theory.

Mulitilateralizing Investment Treaties through Most-Favored-Nation Clauses

Abstract: I.Introduction ................................................................................................... 496 II.Historical and Doctrinal Background of MFN Clauses ................................ 506 A. The Structure of M FN Clauses ..................................................... 506 B. The Historical Development of MFN Clauses ............................. 509 C. Codification on MFN Clauses by the International Law C om m ission ................................................................................. 5 14 III.Multilateralizing Substantive Investment Protection .................................. 518 A. Importing More Favorable Investor Rights .................................. 519 B. Limits to the Operation of MFN Clauses ..................................... 521 1. Explicit Restrictions of the Scope of Application of MFN C lau ses ................................................................................ 52 1 2. Restrictions of MFN Clauses Based on the Scope of Application of the Basic Treaty ........................................... 523 C. Circumventing Restrictions of MFN Treatment ........................... 525 IV.Multilateralizing Procedural Investment Protection ................................... 528 A. Circumventing Admissibility-Related Access Restrictions to Investor-State Dispute Settlement ................................................ 530

Extraterritorial Electioneering and the Globalization of American Elections

Abstract: This paper reviews the laws governing foreign involvement in American elections and their limitations in the face of modern technologies. Using examples of cross-border volunteering, phone banking, and electioneering from recent history, it suggests that we are on the verge of truly globalized local election contests. Without any neat conclusion, it presents the paradox facing the country: the value of a free globalized communication system is too great a sacrifice to maintain the integrity of elections, but the integrity of elections may not be able to withstand globalized communications.

Second Wives' Club: Mapping the Impact of Polygamy in U.S. Immigration Law

Abstract: Polygamy played a role in the development of United States immigration law from its very inception. Concerns about the polygamous marriage practices of Chinese immigrants flooding into California in the mid-nineteenth century fueled the passage of early anti-immigrant statutes, with predictions that the immoral Chinese, with their tradition of multiple wives and concubines, would pollute the sanctity of the American family. 1 At the same time, outrage over the practice of polygamy by Mormon settlers in the Western territories sparked a national debate about the importance of monogamy and Christian marriage to democracy and resulted in the passage of a series of federal statutes outlawing polygamy.2 In 1891, when Congress enacted the first comprehensive federal

Protean Jus Ad Bellum

Abstract: The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in inter-state relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature. Protean jus ad bellum acknowledges that, as of 1945, the static view was correct, but that over time-as we approach the 70th anniversary of the United Nations-the jus ad bellum is changing, buffeted in particular by several significant developments: (1) the emergence of weapons of mass destruction of various types potentially controllable by states and non-state actors; (2) the rise of global terrorism as a mechanism for projecting violence against states by non-state actors; (3) the elevation of the person to a central place in the realm of international law, both in terms of being protected and in terms of being accountable for misconduct; (4) the inability of the Security Council to be accepted by all states as a disinterested arbiter willing and capable of acting to address all threats to international peace and security as they arise; and (5) the continuing erosion of the sanctity of the sovereign state, resulting from exposure to myriad effects of globalization, including intrusive transnational rule of law programs, election monitoring, incessant and extensive media coverage, powerful transnational corporations and non-governmental organization, and relatively unrestricted transborder movement of capital, goods, and persons across borders.This essay suggests that the failure to either formally accept or reject the idea of protean jus ad bellum is likely, over time, to diminish the jus ad bellum's effectiveness as a normative regime. Too often transnational uses of military force are occurring in circumstances that are inconsistent with the idea of a static jus ad bellum: states and non-state actors are, at least in some situations, tolerating certain types of force in response to the overarching developments noted above. As the International Criminal Court moves closer to including aggression within its mandate for indicting and prosecuting persons, government leaders may see greater value in clarifying what uses of force are permissible. Things could continue as they are. But in the long-term, if the jus ad bellum is not to break down, then a more formal way should be found either to reject the notion of protean jus ad bellum or to accept it, and if the latter, then to try to identify the contemporary rules in this area, either through formal amendment of the UN Charter, through authoritative interpretations by the principal organs of the United Nations or regional organizations, or through other means.

Has the CISG Advisory Council Come of Age

Abstract: I.Introduction 448 II.The CISG Advisory Council 452 A. Foundation and Composition of the CISG Advisory Council....... 452 B. The Goal of Uniform Interpretation 457 C. The Drafting of Opinions 462 D. The CISG Advisory Council Compared 464 III.The Impact of the CISG Advisory Council on the Uniform Interpretation of the CISG 467 A. The Opinions of the Advisory Council 469 B. The Legal Status of Advisory Council Opinions 473 C. Citation of CISG-AC Opinions by Courts and Arbitral Tribunals. 475 D. Receipt of CISG-AC Opinions by the Academic Community...... 478 IV.The CISG Advisory Council in the Global Jurisconsultorium 483 A. Centralized and Decentralized Interpretation of the CISG 484 B. The Proper Role of the CISG-AC 491 V.Conclusion: The Future of the CISG-AC 493