Harvard International Law Journal最新文献

{"title":"The Human Right to peace","authors":"W. Schabas","doi":"10.1163/EJ.9789004191914.I-646.26","DOIUrl":"https://doi.org/10.1163/EJ.9789004191914.I-646.26","url":null,"abstract":"Recognition of the human right to peace provides an important link to international criminal law in that it underpins the crime of aggression. The article discusses how the right has developed within the context of debates about amendments to the Rome Statute.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"58 1","pages":"28-32"},"PeriodicalIF":0.0,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49565941","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":"What is an International Crime? (A Revisionist History)","authors":"K. Heller","doi":"10.2139/SSRN.2836889","DOIUrl":"https://doi.org/10.2139/SSRN.2836889","url":null,"abstract":"The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it. This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC. The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminali","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"61 1","pages":"353-420"},"PeriodicalIF":0.0,"publicationDate":"2016-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68373636","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":"Power Shifts in International Law: Structural Realignment and Substantive Pluralism","authors":"William W. Burke-White","doi":"10.2139/SSRN.2378912","DOIUrl":"https://doi.org/10.2139/SSRN.2378912","url":null,"abstract":"For most of the past sixty years, the United States and Europe have led, independently and collectively, the international legal system. Yet, the rise of the BRICs over the past decade has caused a profound transformation of global politics. This paper examines the implications of this redistribution of power for international law. While international lawyers have long debated the ability of law to constrain state behavior, this paper shifts the debate from the power of law to the role of power within international law. It first advances a structural argument that the diffusion, disaggregation, and issue-specific asymmetries in the distribution of power are giving rise to a multi-hub structure for international law, distinct from past structures such as bipolarity and multipolarity. This multi-hub structure increases pluralism within the international legal system. It also creates downward pressure on international legal processes to migrate from the global level toward a number of flexible, issue-specific subsystems. The paper then proceeds to demonstrate that the anticipated pluralism is emerging at three substantive tension points as some rising powers articulate distinct preferences with respect to sovereignty, legitimacy, and the role of the state in economic development. At each of these tension points, rising powers are reasserting the preeminence of the state in international law, leading to a gradual turning away from the individualization of international law championed by the US and Europe back toward the Westphalian origins of the international legal system. Notwithstanding this turn, the United States stands to benefit from the new multi-hub structure of international law.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"56 1","pages":"1-79"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68158510","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":"Behavioral International Law and Economics","authors":"Anne van Aaken","doi":"10.2139/ssrn.2342576","DOIUrl":"https://doi.org/10.2139/ssrn.2342576","url":null,"abstract":"Whereas the rational choice approach to international law has been widely accepted in legal scholarship and international relations theory, challenges to the rational choice paradigm in economic analysis of international law have hitherto not been systematically explored. Nevertheless, behavioral law and economics and psychology have been successfully applied to national law constellations. Behavioral economic insights have furthermore been used in international relations scholarship under the heading of political psychology but international norms are neglected. Building on all those insights, the article explores the potential and challenges of extending the behavioral law and economics approach to public international law and thus to further refine our understanding of international law. It looks specifically at treaty design problems and compliance questions. This ties in with increased use of empirical research in international law: a clear desideratum for evidence-based international law.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"35 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2342576","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68121650","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":"Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice","authors":"Zachary Elkins, Tom Ginsburg, B. Simmons","doi":"10.26153/TSW/1473","DOIUrl":"https://doi.org/10.26153/TSW/1473","url":null,"abstract":"This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not the drafters’ countries are legally committed to the agreements (though commitment enhances the effect). Our particular focus is on the all-important International Covenant on Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would not otherwise adopt. This finding confirms the complementary relationship between treaty ratification and domestic constitutional norms, and suggests that one important channel of treaty efficacy may be through domestic constitutions.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"54 1","pages":"61-95"},"PeriodicalIF":0.0,"publicationDate":"2013-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69258306","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":"A Sentence-Based Theory of Complementarity","authors":"K. Heller","doi":"10.4324/9781315613062.CH14","DOIUrl":"https://doi.org/10.4324/9781315613062.CH14","url":null,"abstract":"Scholars have long debated to what extent the Rome Statute’s principle of complementarity permits states to prosecute war crimes, crimes against humanity, and acts of genocide as ordinary crimes such as rape and murder instead of as international crimes. Two positions dominate the discourse, what I call the “hard mirror thesis” and the “soft mirror thesis.” Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions better serve the goals of the Rome Statute. I challenge both theses in the essay and defend an alternative theory of complementarity that focuses exclusively on sentence. In particular, I argue that any national prosecution of an ordinary crime should satisfy the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"53 1","pages":"86-133"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70653299","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":"Judicial Power to Determine the Status and Rights of Persons Detained Without Trial","authors":"J. Paust","doi":"10.1017/cbo9780511611322.005","DOIUrl":"https://doi.org/10.1017/cbo9780511611322.005","url":null,"abstract":"This article, cited later by the Supreme Court in Hamdi v. Rumsfeld, addresses the propriety of detention without trial under human rights law and the laws of war as well as judicial power and responsibility to review the propriety of detention. Significant trends in judicial decision concerning judicial power to second-guess the commander in chief during war with respect to the status, rights and detention of persons and the seizure of property are documented. Contrary to claims of the Bush Administration, the President does not have unreviewable power to classify persons as enemy or unlawful combatants and to detain such persons without trial. International law allows detention without trial in certain circumstances, but also requires access to courts of law and the right to challenge the propriety of detention.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"44 1","pages":"503-532"},"PeriodicalIF":0.0,"publicationDate":"2009-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cbo9780511611322.005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57079764","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 European Court of Justice and the International Legal Order after Kadi","authors":"G. Búrca","doi":"10.4324/9781315095905-13","DOIUrl":"https://doi.org/10.4324/9781315095905-13","url":null,"abstract":"Abstract: This article examines the response of Europe’s courts – and in particular of the EU’s Court of Justice (ECJ) - to the dramatic challenges recently brought before them against the UN Security Council’s anti-terrorist sanctions regime. The ECJ in Kadi annulled the EC’s implementation of the Security Council’s asset-freezing resolutions on the ground that they violated EU norms of fair procedure and property-protection. Although Kadi is a remarkable judgment in many ways and has been warmly greeted by most observers, I argue that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union. Resonating in certain striking ways with the language of the US Supreme Court in the Medellin case, the approach of the ECJ in Kadi carries risks for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the enforcement of Security Council resolutions. More importantly, the ECJ’s approach risks undermining the image the EU has sought to create for itself as a virtuous international actor which maintains a distinctive commitment to international law and institutions.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"51 1","pages":"1-49"},"PeriodicalIF":0.0,"publicationDate":"2008-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70630764","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":"Deconstructing Moral Rights","authors":"C. Rigamonti","doi":"10.7892/BORIS.69876","DOIUrl":"https://doi.org/10.7892/BORIS.69876","url":null,"abstract":"One of the most noteworthy developments in transnational copyright law over the past twenty years has been the adoption of statutory moral rights regimes in a number of countries that had previously ardently rejected the civil law concept of moral rights as completely alien to their legal tradition, including the United States, the United Kingdom, Australia, Ireland, and New Zealand. The standard scholarly reaction to these developments is to ask what they mean for the two classic questions of comparative moral rights law, namely whether the common law countries fulall the requirements for moral rights protection under international law and whether the common law countries provide a degree of protection comparable to that available in civil law countries.1 In this context, the enactment of statutory moral rights appears to be simply another factor to be considered when measuring the substantive level of moral rights protection in the United States, just as the Supreme Court’s recent Dastar decision,2 the copyright management information provisions of the Digital Millennium Copyright Act of 1998,3 or the Family Movie Act of 20054 are factors","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"64 1","pages":"353-412"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71357880","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 Future of International Law is Domestic (or, The European Way of Law)","authors":"William W. Burke-White, Anne-Marie Slaughter","doi":"10.1093/acprof:oso/9780199231942.003.0006","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199231942.003.0006","url":null,"abstract":"International law has traditionally been just that—international. Consisting of a largely separate set of legal rules and institutions,1 international law has long governed relationships among states. Under the traditional rules of international law, the claims of individuals could reach the international plane only when a state exercised diplomatic protection and espoused the claims of its nationals in an international forum.2 More recently, international law has penetrated the once exclusive zone of domestic affairs to regulate the relationships between governments and their own citizens, particularly through the growing bodies of human rights law and international criminal law.3 But even in these examples, international law has recognized a clear demarcation between domestic and international politics. The classic model of international law as separate from the domestic realm reoects the traditional problems the international legal system sought to address, namely the facilitation of state-to-state cooperation and the treatment of one state’s nationals by another state. Whether regulating the immunities of diplomats or the rights of ships on the high seas, the traditional purposes of international law have been interstate, not intrastate.","PeriodicalId":35765,"journal":{"name":"Harvard International Law Journal","volume":"47 1","pages":"327-352"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60648010","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}