Chicago journal of international law最新文献

{"title":"From Just War to False Peace","authors":"R. Delahunty, J. Yoo","doi":"10.1093/acprof:oso/9780199347735.003.0003","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199347735.003.0003","url":null,"abstract":"This Article addresses the reliance of both policymakers and scholars on just war theory as a guide to twenty-first century war. More especially, it evaluates the assumption that the UN Charter system is a modernized form of historical just war theory. The Article traces the genesis of various just war theories from ancient Greece and Rome through medieval Christianity, arguing that these theories were based on moral and religious obligation. In the early modern era, as papal supremacy weakened, just war theorizing tended to wane. In its place, four different approaches to limiting war began to emerge: public international law, jus in bello, reason of state, and balance of power. Although there are indications of a revival of just war thinking in the twentieth century, the Article argues that it is a fundamental mistake to understand and treat the UN Charter as an adaptation of adopting traditional just war principles. Instead, the UN Charter expresses an overriding commitment, not to the aim of ensuring that war is waged if and only if it is just, but rather to preserving the existing international order, regardless of that order’s justice or injustice. The UN Charter forbids both preventive war and humanitarian intervention unless authorized by the Security Council. International justice and the promotion of peace would be far better served, however, by a more flexible approach than is afforded either by historical just war theory or by the Charter system.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"1 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2012-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89646529","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}

{"title":"Bringing Pirates to Justice: A Case for Including Piracy within the Jurisdiction of the International Criminal Court","authors":"Y. Dutton","doi":"10.31228/osf.io/ztdvm","DOIUrl":"https://doi.org/10.31228/osf.io/ztdvm","url":null,"abstract":"I argue that modern piracy is a serious crime of international concern that should be included within the jurisdiction of the International Criminal Court (the \"ICC\") by way of an optional protocol. The increasing frequency and severity of pirate attacks is well-known to anyone watching or reading the daily news. Piracy poses a threat to the safety and security of ships and crews from around the globe, as well as to international trade, humanitarian aid deliveries, the stability of nations, and the environment. However, even though the international community seems uniquely focused on repressing piracy - by, for example, employing coordinated naval fleets to patrol pirate-infested waters - nations are doing little to ensure that those responsible for increasingly brazen and violent attacks are brought to justice. Instead, a culture of impunity reigns, with captured pirates often being released and permitted to continue their illegal activities. Nations are not prosecuting piracy suspects with any regularity: because they do not have the laws, capacity, or resources to mount such prosecutions, or because they alone do not want to bear the various burdens associated with an expensive and difficult prosecution that affects numerous nations. The attached article aims to contribute to the discussion about how to end the culture of impunity that surrounds piracy offenses. I focus specifically on judicial solutions to the problem of modern piracy, arguing that prosecuting pirates through the ICC could help to close that impunity gap. Even if all acts of piracy will not cease when pirates are shown that the international community is united to ensure they are brought to justice for their criminal acts, at least some pirates may learn that in return for their crimes they will be punished, rather than rewarded.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"179 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2010-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88071828","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 Domestic Political Coalitions: The Grand Theory of Compliance with International Law","authors":"J. Trachtman","doi":"10.2139/SSRN.1549337","DOIUrl":"https://doi.org/10.2139/SSRN.1549337","url":null,"abstract":"Compliance with international law is always dependent upon a domestic political decision to engage in the behavior that constitutes compliance. This article articulates the importance of the interdependence between home state domestic politics and foreign state domestic politics in determining compliance. International legal commitments allow the formation of domestic coalitions between those who will benefit by their own state’s compliance with the international legal rule in question, and those who will benefit from other states’ compliance with the international legal rule. The theory developed in this paper is based on established approaches to international relations in the political science literature, in particular the “liberal” theory of international relations associated with Andrew Moravcsik, the two-level game theory approach associated with Robert Putnam, and the “second image reversed” approach associated with Peter Gourevitch. The two extensions of these approaches made in this article, (i) from international relations more broadly to international law, and (ii) from adherence to compliance, raise some questions, and bear some important fruit. These extensions help to illuminate the problem of compliance. This article extends the rationalist approach to compliance with international law into the domestic politics of the target state. The model advanced in this article allows the formalization and contextualization of a variety of factors that have heretofore been viewed alone as explanatory variables in the decision to comply. Policy makers can use this model as an analytical template by which to assess whether their counterparties would comply with any undertakings they may make.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"1 1","pages":"127"},"PeriodicalIF":0.0,"publicationDate":"2010-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90852940","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":"Constitutions and Capabilities: A (Necessarily) Pragmatic Approach","authors":"D. Wood","doi":"10.4324/9781315251240-8","DOIUrl":"https://doi.org/10.4324/9781315251240-8","url":null,"abstract":"I. INTRODUCTION Professor Nussbaum has thrown down the gaundet in her Foreword:1 do countries have a moral obligation to develop and abide by constitutional principles that will lead to the full development of all human beings? Or is it either necessary or appropriate to take a more laissez-faire approach to the nurturing of human potential, perhaps because of the risk that governments might be too intrusive, or because of a concern about diverting enough resources from private control to governmental control to get the job done? There is a great deal to admire in Professor Nussbaum's Capabilities Approach (CA). Human beings are fundamentally social creatures. Before it is anything else, human history is the tale of groups of people and how they have chosen to live together and to interact with other groups. As the Foreword notes, the Founders of the United States drew on a rich intellectual history when they wrote the federal Constitution.2 Someone reading the Constitution for the first time, however, is not likely to think immediately of the CA. That suggests two questions: First, is Professor Nussbaum right when she argues that a society's constitution ought to include provisions designed to develop human capabilities? And second, even if this is a worthy goal, is there anything useful that judges can or should do to further that goal? II. CAPABILITIES AND THEIR PLACE IN LAW A. Generally It is helpful to begin with a quick review of the CA. In footnote 15 of the Foreword, Professor Nussbaum sets out the specific capabilities that she has identified (in the Foreword as well as in other work) as \"necessary conditions of a life worthy of human dignity.\"3 Here is the list: 1. Life 2. Bodily Health 3. Bodily Integrity 4. Senses, Imagination, and Thought 5. Emotions 6. Practical Reason 7. Affiliation (both with respect to associations with others and with respect to one's personal dignity with worth equal to that of others) 8. Respect for Other Species 9. Play 10. Control over One's Environment4 Law intersects with these capabilities in numerous ways - even more ways than Professor Nussbaum identifies in the Foreword. At a very practical level, law authorizes the employment of police, who must assure public safety and security and restrain those who do not respect the rights and autonomy of others. It protects freedoms to speak, to associate, and to choose and follow a religion. It forces those who might pollute the environment to internalize the costs they are imposing on all around them. It provides for mechanisms through which things like health care and education are delivered. But law is capable of doing more than this. One can see a glimpse of that potential in the two great international covenants on human rights: the International Covenant on Civil and Political Rights (ICCPR), to which the United States is one of 165 states parties,5 and the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which the United States ","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"1 1","pages":"415"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83795764","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 International Judge in an Age of Multiple International Courts and Tribunals","authors":"S. Linton, Firew Kebede Tiba","doi":"10.2139/SSRN.2635379","DOIUrl":"https://doi.org/10.2139/SSRN.2635379","url":null,"abstract":"International law, although still unsophisticated in comparison to domestic law, is increasingly showing signs of becoming a developed legal system. While there remains no central legislator or enforcer, substantive international law has come to be identified and codified in many areas, thanks in part to the work of the International Law Commission (\"ILC\") and the Sixth Committee of the UN General Assembly. As international law has developed, the number of participants in the international legal system has grown. Within this evolving international system, legal disputes are increasingly brought for resolution before judicial or quasi-judicial institutions. The 1990s saw a marked quantitative and qualitative expansion of international courts and tribunals. This Article focuses on two fruits of the increasing fecundity of the international judicial system. First, what is the international judge to do when there are several fora that could deal with a dispute, apart from his or her own? Second, what is an international judge to do when the jurisprudence on an issue is inconsistent between international courts and tribunals? The contribution the Article seeks to make is to provide, in line with the precedent set by the Burgh House Principles on the Independence of the International Judiciary, a blueprint to aid the international judge in dealing with two of the more common ramifications of an ever expanding family of international law.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"28 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84664832","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 Politics of International Judicial Appointments","authors":"E. Voeten","doi":"10.2139/SSRN.1266427","DOIUrl":"https://doi.org/10.2139/SSRN.1266427","url":null,"abstract":"How, if at all, do governments influence the choices that international judges make? This question has justly received ample attention in the literature. Unlike in the study of U.S. judicial politics, however, relatively few of these scholarly efforts have been devoted to the question of how governments use the appointment process to shape the international judiciary. This article evaluates what we know about the politics of international judicial appointments and identifies some areas for future research. International judges are much more diverse in their backgrounds and preferences than is commonly assumed. To some, the prototypical international judge is a committed professional with exceptional moral standards who cares deeply about the advancement of international law and is largely unresponsive to material incentives or political pressures. To others, international judges are more like diplomats who use legal reasoning as a mere guise for making decisions that fit the national interests of the governments that appointed them. Empirical research appears to show that the international judiciary contains examples of both these ideal types as well as many others. More interestingly, this research suggests that this variation can be understood reasonably well by examining the motivations of governments and the institutional details of the appointment process.","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"44 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2008-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90489558","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":"Environmental Cooperation in the (Partially) Disaggregated State: Lessons from the Security and Prosperity Partnership of North America","authors":"A. N. Craik, J. Dimento","doi":"10.2139/SSRN.1285571","DOIUrl":"https://doi.org/10.2139/SSRN.1285571","url":null,"abstract":"Recent accounts of the rise of transgovernmentalism have described the increasingly important role of transnational networks of regulatory officials in creating and implementing cooperative solutions to regional and global problems. In North America, the use of networks is becoming an increasingly important approach to environmental governance and to regional integration more generally. The Security and Prosperity Partnership of North America (the SPP) marks a further, and in our view, important, development in the use of transgovernmental networks because under the SPP, the executive branches of Canada, the United States, and Mexico deliberately turn to transgovernmental networks as a governance strategy across multiple issue areas. The self-conscious use of networks as an alternative to traditional international institutions on a broad scale was contemplated by Slaughter, but the SPP marks the first practical attempt by governments to create a cross-cutting transnational governance structure that relies principally on transgovernmental networks.The purpose of this Article is to evaluate the environmental agenda of the SPP process critically and the opposition to it in light of the existing literature on transgovernmental networks. Our basic argument is that the paucity of the debate over the SPP results from the failure of the architects of the SPP and their critics to appreciate the nature of transgovernmental networks as a governance structure. To this end we identify certain structural features shared by transgovernmental networks and examine the competing claims concerning the SPP in light of these characteristics. The Article provides additional support for the descriptive claims of transgovernmentalists that states are turning to networks, but the development and structure of the SPP qualifies the central transgovernmentalist claim that the state is disaggregating. Instead, the picture that emerges is one of partial disaggregation where central governments retain the power to create networks, to enable them, and to define their agendas. The situation also puts the debate over the SPP in greater focus by allowing for an exploration into whose characterization of the SPP more closely resembles its actual governance features. The result, we suggest, is that the debate is in its essence one between networks as they are and networks as they could be. Finally, we argue that the nature of transnational networks requires a distinct form of legitimacy. In the SPP process, the framers rely exclusively on two forms of legitimacy: expert legitimacy and a highly formalized version of process legitimacy. We argue that these forms of legitimacy are insufficient on their own. Our conclusion, like that of Professor Slaughter, is that the turn to networks as a governance strategy requires a shared normative foundation. But whereas Slaughter appears content to rely on principles of procedural legitimacy, such as inclusivity, discursiveness, and subsidiarity","PeriodicalId":87172,"journal":{"name":"Chicago journal of international law","volume":"12 1","pages":"479"},"PeriodicalIF":0.0,"publicationDate":"2008-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75960241","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}