forthcoming scholarship

Symmetry and Selectivity: What Happens in International Law When the World Changes

Chicago Journal of International Law, (forthcoming)

Paul B. Stephan (Univ. of Virginia – Law)

This article has a simple hypothesis: Selectivity in international law increases as international relations become more symmetrical. Conversely, international law becomes more universal as asymmetry grows. This relation holds true during the modern period. Its existence in turn supports the theoretical claim that the content of international law reflects the rational interests of those actors that make it.

Consider first international relations. A simple narrative, seriously incomplete but good enough for present purposes, would go something like this: From the end of World War II to the collapse of the Soviet empire a bipolar superpower competition dominated international relations. There followed a period of U.S. hegemony, but more recently significant Chinese, European, Indian and Russian challenges to the United States have complicated that structure. The details do not matter, neither the dates, nor the extent of U.S. hegemony when it existed, nor the number of the new great powers, nor the precise relative influence of each. What matters is that the basic structure of international relations underwent a transformation in the latter part of the twentieth century and now appears to have changed again.

Next consider competing trends in international law, that toward universality and that toward selectivity. Universal international law applies equally to all states. Selective international law means that states vary in what rights and obligations they recognize as well as how to allow them to be enforced. In the extreme case of selectivity the content of international law and its enforcement depends entirely on the identity of the state in question. If the recognition of international law reflects the rational interests of states, then international law should trend toward universality during times of hegemony and toward selectivity during periods of multipolar great power competition. Conversely, if international law does not conform to this pattern, then something other than the rational interest of states must explain its content. Much more is going on, of course, but this simple hypothesis suffices to ground an inquiry into the nature of international law as a creature of, and dependent on, international relations.

Developments in international law since World War II are consistent with the claim that selectivity increases as international relations become less asymmetrical.

International Legal Dimension of Terrorism

Pablo Antonio Fernández-Sánchez (Univ. of Seville – Law & International Relations)

(Martinus Nijhoff Publishers 2009).

More than ever before International Humanitarian Law needs to find new solutions to new types of conflicts. The current state of the fight against terrorism is without doubt one of the new problems facing international society and one of the concerns of International Humanitarian Law. This volume offers reflections on the international legal theory of terrorism, international responsibility, the obligation to prevent terrorist acts, terrorism in armed conflicts, the responses to terrorism by regional international organizations and the legal limits to the fight against terrorism. The contributors consist of academics (and politicians) from Morocco, Algeria, Egypt, Tunisia, Lebanon and Israel, as well as from Spain, Italy, France, the United Kingdom, Switzerland and a representative for the Organisation of American States. The book thus contains a wide, multidisciplinary debate, with an emphasis on a Mediterranean perspective. In addition to examining all aspects of international terrorism, the objective of the symposium which gave rise to these essays was to establish some guidelines, in the form of a Declaration, to serve as the basis for the UN’s High Level Group for the Alliance of Civilisations on the subject of international terrorism. This overall objective was achieved with the adoption of the Huelva Declaration for an Alliance of Civilisations against Terrorism, the text of which is included at the end of this book.

“Reconciling Crimes Against Humanity with the Laws of War: Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence”

Journal of International Criminal Justice, Vol. 6, Issue 1, pp. 21-37, 2008

PAYAM AKHAVAN, McGill University
Email: pakhavan@post.harvard.edu

If conduct is consistent with the laws of war, may it nonetheless constitute crimes against humanity during an armed conflict? Crimes against humanity initially emerged during the World Wars, in order to extend the protection of the laws of war to a perpetrator’s co-nationals. This new category initially required a nexus with international armed conflict, but is now an autonomous concept based on human rights law that criminalizes large-scale atrocities in both war and peacetime. Crimes against humanity committed in armed conflict continue to be shaped by the laws of war. There is substantial convergence between the normative core of non-derogable human rights and the minimum humane treatment standards in the Geneva Law. However, there is considerable divergence with respect to combat operations where the Hague Law applies as lex specialis, displacing certain human rights norms. ICTY jurisprudence demonstrates some of the instinctive tensions inherent in reconciling human rights with armed conflict. A notable instance is the Gotovina case, in which the Trial Chamber held that the laws of war do not apply to deportation qua crimes against humanity such that there is no distinction between forcible displacement of civilians in occupied territories as opposed to combat operations. The temptation to dilute the laws of war through reclassification of conduct as crimes against humanity should be resisted because it does not necessarily result in increased protection for civilians in times of armed conflict. Utopian jurisprudence that disregards humanitarian law’s realistic code of conduct in the name of progress risks making the law irrelevant to military commanders.

“The EU Data Protection Directive: An Engine of a Global Regime”

Computer Law & Security Report, Vol. 24, No. 6, 2008

MICHAEL BIRNHACK, Buchmann Faculty of Law, Tel Aviv University
Email: birnhack@post.tau.ac.il

This article explores a unique form of legal globalization, in which one jurisdiction induces other countries to adopt similar legal mechanisms, without coercion, taking advantage of ignorance or abusing political power. The 1995 EU Directive on data protection regulates the collection, processing and transfer of personal data within the EU, with the dual goal of enabling the free flow of data while maintaining a high level of protection. It includes a mechanism which addresses the export of such data. Article 25 stipulates that member states should allow transfer of data to a third country only if the third country ensures an adequate level of data protection. Thus, countries that wish to engage in data transactions with EU member states are indirectly required to provide an adequate level of protection. The article shows that the Directive has had a far greater global impact than thus far acknowledged and that it is currently the main engine of an emerging global data protection regime. Studying the Directive and its actual impact and comparing it to other mechanisms of legal globalization, I conclude that unlike some American scholars who described the Directive as “aggressive”, it is better understood as a non-coercive mechanism of soft legal globalization.

“Understanding Public Confidence in Government to Prevent Terrorist Attacks”

Journal of Homeland Security and Emergency Management, Vol. 5, No. 1, Article 4

THOMAS E. BALDWIN, Argonne National Laboratory
Email: baldwint@anl.gov
ARKALGUD RAMAPRASAD, University of Illinois at Chicago – Department of Information and Decision Sciences
Email: prasad@uic.edu
MICHAEL E. SAMSA, Argonne National Laboratory
Email: msamsa@anl.gov

A primary goal of terrorism is to instill a sense of fear and vulnerability in a population and to erode its confidence in government and law enforcement agencies to protect citizens against future attacks. In recognition of its importance, the Department of Homeland Security includes public confidence as one of the principal metrics used to assess the consequences of terrorist attacks. Hence, a detailed understanding of the variations in public confidence among individuals, terrorist event types, and as a function of time is critical to developing this metric. In this exploratory study, a questionnaire was designed, tested, and administered to small groups of individuals to measure public confidence in the ability of federal, state, and local governments and their public safety agencies to prevent acts of terrorism. Data was collected from three groups before and after they watched mock television news broadcasts portraying a smallpox attack, a series of suicide bomber attacks, a refinery explosion attack, and cyber intrusions on financial institutions, resulting in identity theft. Our findings are: (a) although the aggregate confidence level is low, there are optimists and pessimists; (b) the subjects are discriminating in interpreting the nature of a terrorist attack, the time horizon, and its impact; (c) confidence recovery after a terrorist event has an incubation period; and (d) the patterns of recovery of confidence of the optimists and the pessimists are different. These findings can affect the strategy and policies to manage public confidence after a terrorist event.

“Emergency Preparedness for a Pandemic Under International Law”

RENEE DOPPLICK, affiliation not provided to SSRN
Email: ReneeDC@dopplick.com

The outbreak of an epidemic disease, unlike armed conflicts and humanitarian emergencies, potentially can impact not just citizens of a single state or within a region but citizens within every state. International trade and travel, assisted by international airports, rail lines, and open borders resulting from free-trade agreements, can carry diseases rapidly across the globe. Left unchecked, a communicable disease could spread worldwide in a matter of hours. If a virulent disease broke out in a state unable or unwilling to respond with effective disease containment strategies, the lack of an effective response could turn a localized outbreak into a pandemic, threatening people in states worldwide. The paper explores the legal authority of the international community to respond to a severe infectious outbreak at the source of an outbreak within an uncooperative state. The discussion explores the powers of the UN Security Council acting under the Chapter VII powers, the emergent humanitarian doctrine, and the enforcement mechanisms of the International Health Regulations under the World Health Organization.

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