Chicago journal of international law最新文献

{"title":"Between Reparations and Repair: Assessing the Work of the ICC Trust Fund for Victims Under Its Assistance Mandate","authors":"A. Dutton, F. N. Aoláin","doi":"10.2139/ssrn.3254972","DOIUrl":"https://doi.org/10.2139/ssrn.3254972","url":null,"abstract":"The practice of international justice has made a significant shift from narrowly focused criminal accountability to a broader and more holistic understanding encompassing the totality of victims’ justice needs. In particular, international criminal justice is concerned with victims of mass atrocity crimes, whose needs are profound and whose capacities are limited by the experiences of gross and systematic violence. These needs include individual and communal capacity building to engage in criminal processes as well as remedy and repair in the aftermath of criminal procedures. The Trust Fund for Victims represents, in many ways, the epicenter of this shift in international law practice, as a unique institution that has a central role in providing both an assistance and reparations mandate under the International Criminal Court (Rome) Statute. A clear innovation of the Trust Fund’s work is its capacity to be operationalized before a criminal finding is made, providing the means to support victim survivors in situations still under investigation by the Prosecutor. In this capacity, the Trust Fund is priming and creating the conditions conducive to effective participation by victims in the Court’s work. This article addresses how well that task has been operationalized in practice by the Trust Fund. In parallel, the assessment has a wider purview by allowing a broad engagement with the challenges, complexities, and realities on the ground that shape the enforcement of reparations for victims, as well as molding institutional responses by intervenors  Anne Dutton & Professor Fionnuala Ní Aoláin. Equal Justice Works Emerson Fellow at the Center for Gender & Refugee Studies, University of California Hastings College of the Law & Regents Professor and Robina Chair in Law, Public Policy and Society, University of Minnesota Law School respectively. The authors wish to thank the Grand Challenges Research Fund at the University of Minnesota for the financial support which enabled this project. We would also like to thank our colleagues at the Human Rights Laboratory based at the University of Minnesota. Their input and support was essential to the completion of this project. We also thank Megan Knapp for research assistance. All remaining faults lie with the authors. Finally, our thanks to all those at the Trust Fund for Victims and the implementing partners of the Northern Uganda assistance mandate for sharing their insights and reflections on their critically important work. Between Reparations and Repair Dutton & Ní Aoláin Winter 2019 491 including the Trust Fund. Given the challenges of successfully implementing reparations there is often little time or capacity to measure (as one goes along) what has worked effectively and what has not. International organizations, states, courts, and civil society have made consistent calls for evidence of success, failure, and/or the value of reparations. At the simplest level, because most human rights and humanitar","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"120 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75792759","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":"\"We Only Spy on Foreigners\": The Myth of a Universal Right to Privacy and the Practice of Foreign Mass Surveillance","authors":"A. Lubin","doi":"10.2139/SSRN.3008428","DOIUrl":"https://doi.org/10.2139/SSRN.3008428","url":null,"abstract":"The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go beyond their limited territorial jurisdiction and sweep in “the telephone, internet, and location records of whole populations.” Today’s political leaders and corporate elites are increasingly engaged in these kinds of programs of bulk interception, collection, mining, analysis, dissemination, and exploitation of foreign communications data that are easily susceptible to gross abuse and impropriety. When called out about any of these programs, policy makers often respond to their constituencies with a shrug and a smile: we only apply these programs to foreigners, you have nothing to worry about. \u0000While the human rights community continues to adamantly uphold the myth of a universal right to privacy, in actuality the pax technica has already erected an alternative operational code, one in which “our” right to privacy and “theirs” are routinely differentiated. One higher set of standards and protections is provided for those within the territory of the state, and a lowered set is handed to those abroad. This distinction is a common feature in the wording of electronic communications surveillance regimes and the practice of signals intelligence collection agencies, and it is further legitimized by the steadfast support of the layman general public. Nonetheless, a liberal defense of this distinction is non-existent in the literature, as human rights scholars continue to oppose it arguing that it reflects in-group biases and violates the principle of non-discrimination. \u0000In this piece I try to make the liberal case for the distinction, justifying, in a limited sense, certain legal differentiations in treatment between domestic and foreign surveillance. These justifications, as I show in the piece, are grounded in practical limitations in the way foreign surveillance is conducted, both generally and in the digital age more specifically. I will further make a controversial claim: that in fighting this absolutist battle for universality, human rights defenders are losing the far bigger war over ensuring some privacy protections for foreigners in the global mass surveillance context. Accepting that certain distinctions are, in fact, legitimate, creates an opportunity to step outside the bounded thinking of one-size-fits-all human rights standards for all surveillance practices, and begin a much needed co","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"1 1","pages":"502"},"PeriodicalIF":0.0,"publicationDate":"2017-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86466830","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":"How the United States Uses the Trans-Pacific Partnership to Contain China in International Trade","authors":"D. Chow","doi":"10.2139/SSRN.2817337","DOIUrl":"https://doi.org/10.2139/SSRN.2817337","url":null,"abstract":"The Trans-Pacific Partnership (TPP) was signed on February 5, 2016 by its twelve members and is now open for ratification. If ratified, the TPP will be the largest mega-free trade area in history and will encompass 40 percent of world trade. The United States led the TPP negotiations and deliberately excluded China from the negotiations. This ploy by the United States was a calculated effort to contain China and to shift power in trade in the Asia-Pacific from China to the United States. China now appears to be faced with a difficult choice. China can join the already concluded TPP with its text, largely drafted by the United States, and submit to terms it had no part in negotiating and to a humiliating process of approval by the U.S. Congress or decide not to join, which has its own set of consequences. Joining the TPP means accepting a treaty in which every major provision is directed at China in an attempt to contain China’s ascendancy in international trade. The other alternative is to ignore the TPP, but this could mean significant losses in trade opportunities right in China’s own neighborhood. The battle over the TPP is a major contest between the two countries to determine which will write the rules of international trade for the twenty-first century. On the one hand, the United States is determined to write the rules, which will have as their chief aim to contain China. On the other hand, China seeks to write the rules in a way that will benefit China at the expense of the United States. This article examines how the TPP is designed specifically to contain China and how China might respond to this challenge over who will write the rules of international trade and gain supremacy in trade in the twenty-first century.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"46 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2016-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82475231","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 Law of Cyber Peace","authors":"Scott J. Shackelford","doi":"10.2139/SSRN.2805061","DOIUrl":"https://doi.org/10.2139/SSRN.2805061","url":null,"abstract":"Increasing and worthwhile attention has been paid to applying existing international law to the cause of enhancing global cybersecurity. The bulk of this research, though, has been focused on leveraging international humanitarian law to regulate the conduct of cyber warfare. Yet much of this work is largely theoretical given how exceedingly rare it is for a cyber attack to cross the armed attack threshold. The bulk of the cyber risk facing the public and private sectors lies in the arena of cybercrime and espionage. More scholars have been applying international law ‘below the threshold’ to these issues, but much more work remains to be done. For example, perhaps surprisingly, relatively little attention has been paid to leveraging private international law to the cause of mitigating cyber risk. This Article seeks to address this omission by offering a roadmap that synthesizes and extends work in this field by drawing from cybersecurity due diligence, bilateral investment treaties, and customary international law along with underexplored realms of public international law including the Vienna Convention on Diplomatic Relations, lesser studied global commons regimes, and Mutual Legal Assistance Treaties. The time is ripe for a fresh look at existing international legal tools that would help us better manage the multifaceted cyber threat. Only then can an accounting be made of gaps to be filled in by norms, custom, and perhaps one day, new accords.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"52 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2016-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76916602","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":"Unpacking the International Law on Cybersecurity Due Diligence: Lessons from the Public and Private Sectors","authors":"Scott J. Shackelford, S. Russell, A. Kuehn","doi":"10.2139/SSRN.2652446","DOIUrl":"https://doi.org/10.2139/SSRN.2652446","url":null,"abstract":"Although there has been a relative abundance of work done on exploring the contours of the law of cyber war, far less attention has been paid to defining a law of cyber peace applicable below the armed attack threshold. Among the most important unanswered questions is what exactly nations’ due diligence obligations are to one another and to their respective private sectors. The International Court of Justice (“ICJ”) has not yet explicitly considered this topic, though it has ruled in the Corfu Channel case that one country’s territory should not be “used for acts that unlawfully harm other States.” But what steps exactly do nations and companies under their jurisdiction have to take under international law to secure their networks, and what of the rights and responsibilities of transit states? This Article reviews the arguments surrounding the creation of a cybersecurity due diligence norm and argues for a proactive regime that takes into account the common but differentiated responsibilities of public and private sector actors in cyberspace. The analogy is drawn to cybersecurity due diligence in the private sector and the experience of the 2014 National Institute of Standards and Technology (“NIST”) Framework to help guide and broaden the discussion.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"3 2 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2015-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83641852","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":"Chaining the Dog of War: Comparative Data","authors":"Tom Ginsburg","doi":"10.2139/SSRN.2491045","DOIUrl":"https://doi.org/10.2139/SSRN.2491045","url":null,"abstract":"A central function of constitutions is to address issues of international relations, especially questions of war and peace. This Article describes trends across time and space in the treatment of questions of war. It shows that constitutions continue to allocate the power of declaring war, even though such declarations have become meaningless in international law. There is also a trend toward specifying legislative involvement in approving the actions of commanders-in-chief. The assignment of war powers seems to be driven by copying from neighboring countries and a country’s own previous constitutional history. In closing, the final section of this Article speculates on considerations of optimal constitutional design.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"9 1","pages":"138"},"PeriodicalIF":0.0,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83222762","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 Economic Structure of the Law of International Organizations","authors":"J. Trachtman","doi":"10.2139/SSRN.2385751","DOIUrl":"https://doi.org/10.2139/SSRN.2385751","url":null,"abstract":"The essence of an international organization is the delegation of decision-making authority from individual states to the organization, which represents the collectivity of member states. The focus of this article is on the formal structure and function of international organizations, as distinct from international law per se. This article evaluates the reasons for creation of international organizations, as well as the reasons why particular structures of international organizations are utilized. It evaluates the relationship among assignment of subject matter authority, legislative capacity, adjudicative capacity, enforcement capacity, and membership. It examines how these features correspond to particular contexts of international cooperation.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"59 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2014-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86549247","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":"Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?","authors":"Nienke Grossman","doi":"10.2139/SSRN.1773015","DOIUrl":"https://doi.org/10.2139/SSRN.1773015","url":null,"abstract":"This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups traditionally excluded from international law-making or historically discriminated against, inclusion likely strengthens sociological legitimacy and continued exclusion perpetuates conclusions about unfairness. Finally, sex representation is important to democratic legitimacy of international courts, although it may endanger sociological legitimacy for constituencies who associate authority with male judges or if women are unqualified or perceived as less qualified.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"42 9","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2011-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72367038","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":"Privileging Asymmetric Warfare?: Defender Duties Under International Humanitarian Law","authors":"S. Estreicher","doi":"10.2139/SSRN.1612013","DOIUrl":"https://doi.org/10.2139/SSRN.1612013","url":null,"abstract":"Scholarship and advocacy needs to bring defender duties to the forefront of any discussion and investigation of armed conflicts. The necessarily joint contribution of attackers and defenders alike to civilian harm must be recognized. Any investigation of an armed conflict must focus on the duties of both parties and evaluate the feasibility of attacker compliance with some of the more open-ended obligations of international humanitarian law (IHL), such as the so-called duty of proportionality, as a function in part of the extent of defender compliance with its duties. . There are open areas in IHL. States that have acceded to Additional Protocol (AP) I are not necessarily bound by ICRC interpretations and they and states that have declined to ratify AP I can play an active role in formulating and urging others to adopt rules of practice that strike the right balance between attacker and defender duties. Even if, for example, there is widespread international recognition that, at some abstract level, the duty of proportionality is grounded in customary law, the content of that duty is not necessarily identical to the wording contained in AP Article 57. The effectiveness of such a duty, including the ability of military commanders to implement it in the air and on the ground, may well depend on serious consideration, elaboration and implementation of defender duties, for defenders are often in the superior position to minimize civilian exposure to the dangers of military operations. Defender duties in armed conflicts is a neglected area of IHL. This needs to change if the overall mission of this body of law – minimization of harm to civilians – is to have any reasonable prospect of being realized.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"14 1","pages":"19"},"PeriodicalIF":0.0,"publicationDate":"2010-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81919082","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 Limits of Constitutional Convergence","authors":"Rosalind Dixon, E. Posner","doi":"10.2139/SSRN.1677634","DOIUrl":"https://doi.org/10.2139/SSRN.1677634","url":null,"abstract":"Globalization, some legal scholars suggest, is a force that makes increasing convergence among different countries’ constitutions more or less inevitable. This Essay explores this hypothesis by analyzing both the logic – and potential limits – to four different mechanisms of constitutional convergence: first, changes in global “superstructure”; second, comparative learning; third, international coercion; and fourth, global competition. For each mechanism, it shows, quite special conditions will in fact be required before global convergence is likely even at the level of legal policy. At a constitutional level, it further suggests, it will be even rarer for these mechanisms to create wholesale convergence. This also has direct implications for ongoing debates over the desirability of constitutional decision-makers seeking to engage in global learning or borrowing.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"46 1","pages":"399"},"PeriodicalIF":0.0,"publicationDate":"2010-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80005000","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}