Georgetown Journal of International Law最新文献

{"title":"The Gatekeeper of the ICC : Prosecutorial Strategies for Selecting Situations and Cases at the International Criminal Court","authors":"Lovisa Bådagård, M. Klamberg","doi":"10.2139/SSRN.2784470","DOIUrl":"https://doi.org/10.2139/SSRN.2784470","url":null,"abstract":"The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has a unique role in the proceedings before the Court. It is the organ primarily tasked with choosing among the numerous ...","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124426406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Your Country, My Rules: Can Military Occupations Create Successful Transitions?","authors":"Alonso Gurmendi Dunkelberg","doi":"10.2139/SSRN.2563212","DOIUrl":"https://doi.org/10.2139/SSRN.2563212","url":null,"abstract":"This paper argues against the idea that successful transitions can be created in the context of transformative belligerent occupations. It explains that given the prevailing interests of occupying powers and their tendency to ignore or underestimate the needs and political participation of the local population in the transition process, military occupations are ill-suited for applying precepts of transitional justice. Instead, it calls for the implementation of either international or multilateral approaches to transition processes in times of occupation, both in the form of international administration of territories or the operationalization of good practices and jus post bellum concepts. In the end, however, the paper recognizes that the political situation in today’s world makes these alternatives difficult to implement in practice, even if they are desirable lege ferenda.","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122635336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Military Necessity as Normative Indifference","authors":"N. Hayashi","doi":"10.2139/ssrn.2156124","DOIUrl":"https://doi.org/10.2139/ssrn.2156124","url":null,"abstract":"What does it mean to say that international humanitarian law (IHL) “accounts for” military necessity? According to one theory, unqualified IHL rules exclude not only military necessity pleas but also humanity pleas in support of deviant behavior. Three propositions underpin this view. They are, first, that military necessity generates imperatives; second, that the imperatives emanating from military necessity inevitably conflict with those emanating from humanity; and third, that all positive IHL rules embody the military necessity-humanity interplay in the process of their norm-creation. In lieu of what may be termed an “inevitable conflict” thesis, this Article proposes and develops a “joint satisfaction” thesis. In the process of IHL norm-creation, military necessity does not furnish the law with reason to obligate or forbid given conduct. Rather, it only generates permissions. It not only robustly permits pursuing military necessities and avoiding non-necessities; it also permits, albeit moderately, forgoing success and inviting failure. In other words, military necessity is normatively indifferent. By acting as non-indifferently exhorted or demanded by humanity, the belligerent never acts in a manner affirmatively contrary to what military necessity indifferently permits. Where both humanitarian exhortations or demands and military necessity’s indifferent permissions are at stake, one always jointly satisfies them by acting in accordance with the former. When the framers of IHL validly posit an unqualified rule regarding given conduct, the rule does two things. First, it unqualifiedly obligates the pursuit of joint military necessity-humanity satisfaction with respect to the conduct in question. Second, this rule extinguishes any indifferent permission, including that emanating from military necessity, not to pursue the said satisfaction. It is for this reason, rather than the empirically troublesome claim that every positive IHL rule embodies the military necessity-humanity interplay, that unqualified IHL rules admit no military necessity and other de novo indifference pleas. The same does not necessarily hold for non-indifference considerations. It is possible that these latter considerations may survive the process of IHL norm-creation. The mere fact of an IHL rule being validly posited may not resolve the relatively rare, yet genuine, norm conflict that arises where the said rule unqualifiedly obligates certain action while humanity exhorts or demands contrary action.","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116276845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Inductive and Deductive Methods in Customary International Law Analysis: Traditional and Modern Approaches","authors":"W. T. Worster","doi":"10.2139/SSRN.2197104","DOIUrl":"https://doi.org/10.2139/SSRN.2197104","url":null,"abstract":"This paper will criticize the current characterization of customary international law analysis as falling into two competing analytical methods, specifically, the “traditional” and “modern” methods. Following Koskennieni, Roberts, Wouters, Ryngaert, and others, contemporary customary international legal analysis is said to have divided into two schools: the traditional and modern. These schools are supposed to reflect the use of the inductive and deductive methods, respectively, and, in turn, to either apologize for the freedom of state action or establish a utopia where the freedom of the state is limited. This image of struggle between competing methods, however, does not fully capture the ways in which the inductive and deductive methods are actually intertwined in customary international law analysis. The methods are not two opposing monolithic techniques. Instead, in practice, the methods are intermixed, combining a variety of choices. Deductive steps are taken regarding the use of induction, inductive steps are taken in reaching patterns from practice, deductive steps are taken in identifying sample pools, and so on. This paper concludes that induction and deduction are both used in parallel in most analyses of customary international law in a delicate, yet valuable, balance of corrective tension. Furthermore, this situation is neither traditional, nor modern – in a chronological sense – but is consistent throughout the history of customary international law analysis. Following an introductory section reviewing the background to the debate over approaches, the paper will consider deduction and induction in more detail, attempting to understand these two methods of logical reasoning. Then the author will examine the way customary international law is analyzed by international tribunals by deconstructing the analytical process into smaller logical steps. For each step, an analysis will be undertaken of whether the conclusion is reached through induction or deduction, and whether this approach is consistent across tribunals and historical eras. Through this approach, the paper will take a first step to suggest the complex ways inductive and deductive analyses are layered in the assessment of customary international law.","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128987323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Flattening the World of Legal Services? The Ethical and Liability Minefields of Offshoring Legal and Law-Related Services","authors":"M. Daly, Carole Silver","doi":"10.2139/SSRN.907343","DOIUrl":"https://doi.org/10.2139/SSRN.907343","url":null,"abstract":"This article examines offshore outsourcing of legal and law-related services as the newest twist in the international market for legal services. We consider the impact of offshore outsourcing on the profession generally and analyze the ethical issues raised by offshore outsourcing, both as it exists today and as the practice may develop in the future. The article begins by situating offshore outsourcing in the framework of relationships created in the context of delivery of legal services. This framework is used, in turn, to construct a structure of analysis for the ethical implications of offshore outsourcing. Lawyers who outsource to offshore providers must conduct an investigation to ensure that the referral is appropriate. We also consider the potential reputation and economic benefits and disadvantages to law firms and legal departments in outsourcing offshore. We find that offshore outsourcing creates new opportunities for non-U.S. lawyers without putting them on equal footing with lawyers trained and licensed in the U.S. Instead, as with many aspects of globalization, offshore outsourcing emphasizes the divisions already present in the legal profession.","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115079160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Jurisdiction of the European Court of Human Rights","authors":"Stefka Kavaldjieva","doi":"10.1163/9789004425651_008","DOIUrl":"https://doi.org/10.1163/9789004425651_008","url":null,"abstract":"","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126387177","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Inchoate Terrorism: Liberalism Clashes With Fundamentalism","authors":"W. McCormack","doi":"10.2139/SSRN.783024","DOIUrl":"https://doi.org/10.2139/SSRN.783024","url":null,"abstract":"Islamist terrorism presents a culture clash between religious fundamentalism and the rest of the world. One view of the clash is that it is a battle between a peculiarly Arab perversion of Islam and the West. Another view is that it is a clash between the descendants of colonial regimes and their perceived oppressors. Whatever the sources and dimensions of the clash, it is a violent pattern that will play itself out over the next few decades at the same time that international tribunals are attempting to implement values of freedom embodied in human rights documents and conventions. To some degree, the human rights values of emerging international law are articulated from Western heritage. But the international community promotes those values as universal, and indeed it should be possible to find at least some variation of those values in every society. It just happens that it is from Western sources that the written form of those principles has been drawn. By these values, whether Western or universal, when does a person commit a crime by urging action in pursuit of his or her side of a culture clash? Western liberalism has struggled for centuries with trying to forestall violent or other harmful conduct while permitting maximum play of individual freedom. This tension is inherent in attempts to penalize inchoate crime. Limits on conspiracy law can be found in the due process notion that a person is not to be punished for thoughts without producing an actual threat. Limits on precursor crimes such as incitement or material support can be found in the related values of free expression. All of these values point to the same difficulty: a person is responsible for incitement to imminent lawless action. No better phrasing of the test has yet been suggested. The fact of imminence will be determined by judges and juries with whatever individual and community values they can bring to bear on this critical factual question.","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122613694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a Typology of Corporate Responsibility in Different Governance Contexts: What to Do in the Absence of Responsible Country Governance?","authors":"Naomi R. Cahn, A. Gambino","doi":"10.2139/SSRN.663381","DOIUrl":"https://doi.org/10.2139/SSRN.663381","url":null,"abstract":"This paper develops a typology of different country governance contexts, in which we propose four broad categories of countries in Sub-Saharan Africa. Our analysis measures the most appropriate methods for helping to create a climate that is receptive to fostering corporate accountability. Our criteria are based on several different factors, none of which is determinative: the natural resources of the country; the country's dependence on one commodity; the corruption level; the stability and accountability of the government; the state of civil society; and the existence of ongoing conflict. Examining these factors together results in measuring not just the country's receptivity to change, but also the means for producing change. At one end of the spectrum, what we label Category 0 countries, are nations with economies and governments that are so poorly managed that there is little multinational investment - sometimes even in the context of lucrative investment opportunities. At the other end lie those countries with acceptable levels of good governance, more developed economies and markets, and with, consequently, a comparatively high level of both domestic and multinational corporate investment. We examine the appropriateness of strategies to apply external or internal pressure in different types of countries. Next, we discuss the affects of applying the proposed intervention strategies to the countries, addressing both short and long-term expected results. We find that in Category 0 countries, with extremely low levels of international investment, strategies should focus on improving governance and overall human welfare, which often could lead to welcoming international corporate investment. Other categories of countries, with greater - and often problematic - international corporate involvement, require different types of approaches.","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130738446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Occupation of Iraq","authors":"Gregory H . Fox","doi":"10.2139/SSRN.595163","DOIUrl":"https://doi.org/10.2139/SSRN.595163","url":null,"abstract":"This paper addresses an aspect of the 2003-2004 Iraq war that was central to American foreign policy but, to date, has been almost wholly ignored as a legal question. This is the program of reform and reconstruction undertaken by the Coalition Provisional Authority (CPA), the US civil administration in Iraq. The CPA changed virtually every aspect of Iraqi public law, abolishing many institutions, creating new ones and introducing areas of regulation (such as anti-corruption) previously unknown in the Iraqi legal system. The reforms were the very antithesis of what is usually understood as a central obligation of occupying powers: to preserve existing laws and institutions to the extent possible. Sweeping legislative action of the kind undertaken by the CPA is generally reserved for the indigenous government that returns to power at the end of the occupation. An occupier is a de facto but not a de jure sovereign. To hold otherwise, most writers say, would border on allowing an occupier to annex the territory and assume all the law-making powers of a legitimate government. The paper asks whether an accommodation is possible between these two compelling imperatives: to reform a society in which many laws and institutions lag far behind international standards, but also to preserve the ability of Iraqis to make fundamental decisions about their political and economic institutions for themselves. It examines a series of justifications for the reforms, some of which seek an accommodation with occupation law and some that challenge its central premises. The article concludes that only the core of human rights-related reforms can be justified.","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130795783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Legal Compliance: Surveying the Field","authors":"W. Bradford","doi":"10.2139/SSRN.577104","DOIUrl":"https://doi.org/10.2139/SSRN.577104","url":null,"abstract":"Does international law matter, or is it but a fairy ship upon a fairy sea: a beautiful construct of the legal imagination floating upon a sea of false assumptions? International legal compliance (ILC), the newest and most rapidly developing subfield in international law, was born in the early 1990s from the revived debate between legalization theorists, a group committed to the belief that the transformations wrought by the end of the Cold War have rendered international law independently capable of constraining and shaping the behavior of states, and their critics, a camp committed to the contrary notion that international law remains primarily an aspirational enterprise subordinate to politics and epiphenomenal to state practice. In attempting to prevail on the question of the efficacy of international law, legalists and skeptics alike have set about propounding and testing an array of interrelated theories, and in the process the questions of whether, and if so, why and under what circumstances states elect to comply with international law have emerged as the most central and pressing issues within the international legal academy. Building upon the insights of international relations theory and the methodologies of the social sciences, the field of ILC has organized around competing answers to these meta-questions, and the body of ILC scholarship now consists of more then ten books and over one hundred articles. International Legal Compliance: Surveying the Discipline, lists and annotates the major entries within the ILC corpus. For each entry a brief summary, together with one or more numbers corresponding to a list of major ILC themes, is provided. Although it is intended to be complete and comprehensive, the Bibliography does not list every article that could arguably be included within the ILC corpus. Short articles duplicative of the previous work of scholars have been omitted, as have articles that are tangentially connected to ILC or are largely descriptive, rather than analytical. Although the majority of ILC scholars are legal academics, an effort has been made to include the works of authors in related fields such as international relations and economics. The methodology is as follows. A search of Westlaw, Lexis, and Worldcat was conducted to identify every potential book and article in the field of ILC. Each source was then read to ensure that it fit within the field. Additional articles cited or discussed by the authors of each source were noted for possible inclusion. A preliminary draft of this Article was sent to each author for comments, corrections, and suggestions for additional authors and sources (I have appended their comments infra). To be included in the bibliography, each source was required to address one or more themes that constitute the field of ILC. These themes, along with the number and letter scheme employed to denote them, are as follows: 1. General theory, 2. Empirical analysis, 3. Skepticism, 4. Critical pers","PeriodicalId":213210,"journal":{"name":"Georgetown Journal of International Law","volume":"211 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114967685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}