Berkeley Journal of International Law最新文献

{"title":"Maritime Interdiction of North Korean Ships under UN Sanctions","authors":"James Kraska","doi":"10.15779/Z38M61BQ4M","DOIUrl":"https://doi.org/10.15779/Z38M61BQ4M","url":null,"abstract":"To be effective in shaping state conduct, the liberalism and idealism that informs public international law must contend with geopolitical realities and the role of power in the international system. David D. Caron was unafraid to address this dichotomy. His work bridged epistemic communities and offered concrete approaches to some of the most vexing international problems. Caron’s work on radioactive waste and nuclear weapons at sea, for example, manifests a profound understanding of the threats posed by the proliferation of nuclear weapons and illicit nuclear materials in the oceans, and how international law reduces these ghastly perils. By providing boundaries for state behavior and fashioning a stability of expectations, international law deepens military and environmental security, and thereby reduces geopolitical risks. Inspired by the contributions of Caron and Harry Scheiber in exploring international law as a tool for addressing the threat of nuclear weapons and material at sea, this Article demonstrates how the legal process is the best tool available, albeit an imperfect one, to counter North Korea’s maritime proliferation of nuclear weapons and technology. \u0000 \u0000The nuclear weapons program of the People’s Democratic Republic of Korea (DPRK) emerged within a complex regional political reality. Protected by U.S. extended deterrence, the Republic of Korea (ROK) has prospered for nearly seventy years despite lying directly under the guns of North Korea, which is enabled by China and Russia to serve as a cudgel to oppose American presence in the region. The DPRK detonated its first nuclear device in 1993, challenging the U.S. nuclear security umbrella and opening the specter of nuclear proliferation. If the United States and ROK actively punish North Korea with military force, North Korea likely would lash out in all directions. If they relent and accept the DPRK into the nuclear club, the consequences could prove equally deadly. International law lies within this dilemma as the only credible option for containing the rogue state’s nuclear ambitions. The Charter of the United Nations (UN) and the United Nations Convention on the Law of the Sea (UNCLOS) operate in tandem for this purpose. The Charter may be considered a constitution for the world; UNCLOS has been called the constitution for the oceans. \u0000 \u0000These seminal treaties work together in a powerful way to restrain North Korea’s nuclear program. Specifically, the UN Security Council has invoked its authority in Chapter VII of the Charter to address threats to the peace by harnessing the legal competence of flag state, port state, and coastal state authority reflected in UNCLOS to strangle North Korea’s access to oceanic trade, crippling its economy and undermining its ability to spread nuclear material and weapons. The struggle to develop and enforce international rules to stop North Korea’s nuclear program is a story still unfolding. But decades of progress in international law and sta","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124866213","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 South China Sea as a Challenge to International Law and to International Legal Scholarship","authors":"Lorenz Langer","doi":"10.5167/UZH-162699","DOIUrl":"https://doi.org/10.5167/UZH-162699","url":null,"abstract":"The 2016 Arbitration Award of the PCA has set out the maritime legal questions in the South China Sea in great detail. This paper takes the Award as a starting point, but rather than focussing on maritime legal issues, it uses the South China Sea as a paradigm for the challenges that face not only international law as a normative order, but also international legal scholarship. First, the conflict in the South China Sea has weighty implications for the law of the sea, which, historically, has primarily served the interests of (Western) sea-faring nations. More importantly, the conflict in the South China Sea threatens the safeguarding of peace as one of the main tasks of international law, setting the United States against China in a reiteration of previous historical conflicts. These developments should serve as a cautionary contrast to the prevailing narrative of international law as a progressively successful normative order. The paper will analyse two aspects of that narrative: the gradual deterritorialisation and the advancing constitutionalisation of international law. It will be argued that while such concepts have their merits, the South China Sea exposes the (considerable) limitations that they are still subject to.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"82 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124935467","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":"Back in the Game: International Humanitarian Lawmaking by States","authors":"Yahli Shereshevsky","doi":"10.15779/Z38WS8HM4H","DOIUrl":"https://doi.org/10.15779/Z38WS8HM4H","url":null,"abstract":"This article is the first to identify and analyze the recent tendency of states to use unilateral, non-binding, lawmaking initiatives in the context of international humanitarian law (IHL), also known as the Law of Armed Conflict (LOAC). While there was minimal direct state involvement in IHL-making initiatives in the first decade of the 21st century, in recent years states have taken an active part in IHL making. This article analyzes the policies of two states that stand in the middle of this debate – the U.S. and Israel – to provide a detailed account of contemporary state-led IHL-making. It argues that these new initiatives are an attempt by states to regain their influence over IHL from non-state actors. This suggests three broad implications for international lawmaking. First, unilateral lawmaking documents might be adopted more often as an alternative to traditional lawmaking and soft law initiatives when contracting costs are high. Second, the new lawmaking initiatives tend to adopt non-state actors' strategies to influence the debate, as an expression of states’ internalization of the horizontal nature of contemporary international lawmaking. Third, states often cooperate with non-state actors that share their interpretive positions in the international lawmaking process.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121081452","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 Law and Corporate Participation in Times of Armed Conflict","authors":"Kevin L. Crow","doi":"10.15779/Z3J09W480","DOIUrl":"https://doi.org/10.15779/Z3J09W480","url":null,"abstract":"This paper explores the overlapping conceptions of ‘international legal personhood’ in international criminal law (ICL) and international investment law (IIL) in light of the December 2016 ICSID Award of Urbaser v. Argentina. It is an effort to parse out and test potential standards for investor-to-state liability for corporate participation in mass atrocities and human rights violations, particularly in instances of armed conflict. In exploring the question of when a corporation can be held financially liable for human rights violations under international investment law, the paper suggests that Urbaser invites an application of ICL liability doctrines as ‘boundary crossing’ tools that arbitrators can use to further define the contours of international corporate subjectivity to international law.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124752566","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":"Reversing the Two Wrong Turns in the Economic Analysis of International Law: A Club Goods Theory of Treaty Membership & European Integration","authors":"Matthew C. Turk","doi":"10.15779/Z38NG4GS2Z","DOIUrl":"https://doi.org/10.15779/Z38NG4GS2Z","url":null,"abstract":"Research that uses economic concepts to analyze international law has generated an impressive body of insights but, as this article will argue, it has nonetheless been limited by a pair of methodological missteps. First, law-and-economics scholarship generally assumes that the standard dilemmas of international cooperation do not apply in the case of the European Union, on the grounds that the EU represents a single super-federation rather than an agreement among sovereign states. That position has proven implausible after Brexit, however, and cannot account for the current unraveling of legal coordination across Europe. Second, the literature assumes that treaties are designed to facilitate the provision of global public goods, and has not incorporated the related economic theory of club goods. That decision is also problematic because a vast body of international agreements concern joint investments in club goods, which raise a distinct set of design problems. Thus, the two “wrong turns” in the economic analysis of international law consist of a misinterpretation of European integration and a neglect of club theory. \u0000This article not only identifies these gaps in the scholarship but also further shows that they remedy one another when analyzed in parallel. On one hand, club theory supplies a framework that can be used to construct a unified explanation of the three recent waves of European disintegration: the Eurozone financial crisis, the collapse of Schengen Area border controls, and Brexit. This includes their underlying causes, the limits of available policy responses, and implications for the EU going forward. On the other hand, a close examination of the treaties underlying European integration proves useful for understanding how other international club good agreements work. Specifically, it reveals that the legal elements that regulate entry and exit in those agreements serve radically different functions than is otherwise predicted by the prevailing theories of treaty design. The result is to flip some classic debates in international law — such as whether treaties “screen or constrain” member states, and the extent to which “flexibility” in treaty obligations can promote international cooperation — on their heads.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"158 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125778071","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":"Genocide Left Unchecked: Assessing the ICC’s Difficulties Detaining Omar al-Bashir","authors":"Saher Valiani","doi":"10.15779/Z38VX0628P","DOIUrl":"https://doi.org/10.15779/Z38VX0628P","url":null,"abstract":"INTRODUCTION ...................................................................................................150 I. BACKGROUND ON THE SITUATION IN DARFUR ................................................153 A. History of Conflict .........................................................................153 B. International Intervention .............................................................154 1. The ICC and the UNSC ...........................................................154 2. The Decision to Issue Arrest Warrants ...................................156 a. War Crimes ......................................................................157 b. Crimes Against Humanity ................................................158 c. Genocide ..........................................................................159 II. ANALYSIS ......................................................................................................162 A. The Significance of Bashir’s Prosecution on the Development of Genocide in the ICC ..................................................................162 B. Obstacles to ICC Enforcement ......................................................165 CONCLUSION ......................................................................................................168","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130602699","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":"Women and the Making of the Tunisian Constitution","authors":"R. Alwis, Anware Mnasri, Estee Ward","doi":"10.15779/Z38B56D41P","DOIUrl":"https://doi.org/10.15779/Z38B56D41P","url":null,"abstract":"This article attempts to glean from field interviews and secondary sources some of the sociopolitical complexities that underlay women’s engagement in Tunisia’s 2011-14 constitution-making process. Elucidating such complexities can provide further insight into how women’s engagement impacted the substance and enforceability of the constitution’s final text. We argue that, in spite of longstanding roadblocks to implement and enforce constitutional guarantees, the greater involvement of Tunisian women in the constitution drafting process did make a difference in the final gender provisions of Tunisia’s constitution. Although not all recommendations were adopted, Tunisian women were able to use an autochthonous process to edify the country and set the foundation for greater rights consciousness. This article also seeks to define the degree and nature of external influence on national efforts to advance women’s rights and on the drafting of Tunisia’s gender provisions. Although our research suggests that international forces had less of an impact on the Tunisian constitution-making process than we had assumed initially, we also found that many Tunisian women still saw themselves as part of a transnational women’s movement in which they were able to engage with a broad network of international women’s groups and transnational stakeholders. Our conclusion, thus, is that the Tunisian constitutional project, at least in regards to its gender provisions, can be regarded as intermestic in the sense that it drew directly or indirectly from both local and transnational sources. This shows that even when drafters are able to create constitutions that fit local contexts, they are still deeply influenced by international human rights provisions and relevant structural frameworks. Finally, this article summarizes some of the early efforts to translate constitutional guarantees into enforceable legislation. While we have deemed Tunisia’s drafting process as a success in participatory constitution-making, the country has a considerable way to go to ensure that “equal opportunities for men and women” as guaranteed in its new constitution become a reality for Tunisians in their daily modes of existence.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128633121","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":"Recognizing Women’s Rights at Work: Health and Women Workers in Global Supply Chains","authors":"Erika George, Candace Gibson, R. Sewall, D. Wofford","doi":"10.15779/Z381R6N059","DOIUrl":"https://doi.org/10.15779/Z381R6N059","url":null,"abstract":"This article proposes and sketches a new international agreement to address the crucial human rights and international security issues posed by mass migration. Currently, the human rights of people fleeing violence are largely unprotected by international law. The 1951 Refugee Convention protects only refugees: those fleeing across borders due to a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group. The world’s other 46.3 million people displaced by violence have few international legal protections. I argue that an international agreement that creates an additional category of people who receive international protections, whom I call “Displaced Persons,” is necessary to foster human rights, further state interests, and improve international security. A new Displaced Persons Convention would provide the strongest legal protections for individuals fleeing violence and states alike. If this proves impossible, second best would be a nonbinding or partially binding international agreement, which could also shape state practices and international norms. An agreement to protect Displaced Persons would supplement, not supplant the 1951 Refugee Convention, which provides critical protections for minorities and political dissidents that must not be diluted. Policymakers should consider the provisions discussed in this article as they prepare the UN Global Compact on Migration and similar agreements. DOI: https://dx.doi.org/10.15779/Z38901ZF5Z * Associate Professor of International Law and International Relations, Marine Corps University Command and Staff College; Distinguished Senior Scholar, Fox Leadership Program, University of Pennsylvania. Ph.D., A.M., Government, Harvard University; J.D., New York University School of Law; A.B., Princeton University. Thanks to Susan Akram, Daniella Caruso, James Hathaway, Michael Ignatieff, Harold Hongju Koh, Stanley Katz, Itamar Mann, Jaya Ramji-Nogales, Robert Sloane, Mark Tushnet; especially to Noah Feldman and Michael Pine; and to participants in the Boston University School of Law Faculty Workshop, the American Law and Religion Workshop, and the University of Maryland Junior Faculty Workshop. Thanks to Agnes Hurwitz for helpful conversations. This article was selected for presentation at the “New Voices in International Law” Panel of the 2015 Annual Meeting of the American Society of International Law. 48 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 35:1","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116035658","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 Law and Stability in Cyberspace","authors":"Brian Egan","doi":"10.15779/Z38CC0TT2C","DOIUrl":"https://doi.org/10.15779/Z38CC0TT2C","url":null,"abstract":"Thank you to Saira for that kind introduction, and thank you to the Miller Institute, the Human Rights Center, and the Berkeley Center for Law and Technology for inviting me to give this talk. I am honored to be back at Boalt Hall. I’ve had the chance to spend a few days in Berkeley meeting with students and feeling nostalgic. I also spent some time at the beginning of my trip at the Stanford campus, where I was an undergraduate. Please do not hold that against me as you listen to my remarks! From my short time back, it is clear that this city and this law school remain as vibrant and socially engaged today as they were when I was a student here nearly 20 years ago.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129416763","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":"Trade Law’s Responses to the Rise of China","authors":"Wentong Zheng","doi":"10.15779/Z38CS1Z","DOIUrl":"https://doi.org/10.15779/Z38CS1Z","url":null,"abstract":"This Article offers a systematic examination of trade law’s responses to the emergence of China as a major player in world trade. As an intricate set of rules written largely prior to the advent of the China era, trade law had to readjust to the powerful newcomer in ways that eventually changed trade law itself. This Article investigates these changes in four major areas of trade law: antidumping, countervailing duties, safeguards, and managed trade. In almost all of those areas, trade law witnessed a protectionist shift against Chinese products at the expense of sound, consistent principles. But, at the same time, trade law has corrected some of the most egregious protectionist policies on China. These adaptations on the part of trade law tell a story of how an organic legal system evolves in response to changing external circumstances. This Article concludes that at least as an initial assessment, trade law has been rather successful in accommodating China in the new world trade order and has preserved the structural stability of the world trade system without deviating too far from its core principles.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132025075","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}