Jus cogens: Recent Developments in International Law

Recent Scholarship: This Week in Public International Law Scholarship

A juscogens.net weekly feature, This Week in Public International Law Scholarship highlights new and notable books and articles concerning public international law. For comments or suggestions, please contact [email protected].

Books:

Desmond Dinan (ed.), Origins and Evolution of the EU

Lavanya Rajamani, Differential Treatment in International Environmental Law

Ole Kristian Fauchald and Jacob Werksman (eds.), Yearbook of International Environmental Law, Volume 15, 2004

Articles:

Ocean Development and International Law, Volume 37, Number 1, January-March 2006

• Timothy C. Perry, Blurring the Ocean Zones: The Effect of the Proliferation Security Initiative on the Customary International Law of the Sea

Law and Contemporary Problems, Volume 68, Numbers 3 & 4, Summer/Autumn 2005

• David Dyzenhaus, The Rule of (Administrative) Law in International Law

Columbia Journal of Transnational Law, Volume 44, Number 1, 2005

• David Kaye, Adjudicating Self-Defense: Discretion, Perception, and the Resort to Force in International Law David Kaye
• Wayne Sandholtz, The Iraqi National Museum and International Law: A Duty to Protect

International and Comparative Law Quarterly (United Kingdom), Volume 55, Number 1, January 2006

• Alex Mills, The Private History of International Law
• Joanna Harrington, Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making
• Michael Bohlander, Referring an Indictment from the ICTY and ICTR to another Court--Rule 11Bis and the Consequences for the Law of Extradition
• Matthew Happold, Darfur, the Security Council, and the International Criminal Court

Cornell International Law Journal, Volume 38, Number 3, Fall 2005

SYMPOSIUM - Miloševic & Hussein on Trial

• Geoffrey Robertson, QC, Ending Impunity: How International Criminal Law Can Put Tyrants on Trial

PANEL 1: Global or Local Justice: Who Should Try Ousted Leaders?

• Farhad Malekian, Emasculating the Philosophy of International Criminal Justice in the Iraqi Special Tribunal
• Frédéric Mégret, In Defense of Hybridity: Towards a Representational Theory of International Criminal Justice
• Jeremy Rabkin , Global Criminal Justice: An Idea Whose Time Has Passed
• Ruth Wedgwood, Address to the Cornell International Law Journal Symposium: Miloševic & Hussein on Trial

PANEL 2: Perspectives on Transitional Justice: Collective Memory, Command Responsibility, and the Political Psychology of Leadership

• Nataša Kandic, The ICTY Trials and Transitional Justice in Former Yugoslavia
• Mark J. Osiel, Modes of Participation in Mass Atrocity
• Jerrold M. Post & Lara K. Panis, Tyranny on Trial: Personality and Courtroom Conduct of Defendants Slobodan Miloševic and Saddam Hussein
• Ruti Teitel, The Law and Politics of Contemporary Transitional Justice

PANEL 3: The Trial Process: Prosecution, Defense, and Investigation

• Michael A. Newton, The Iraqi Special Tribunal: A Human Rights Perspective
• Tom Parker, Prosecuting Saddam: The Coalition Provisional Authority and the Evolution of the Iraqi Special Tribunal
• Michael P. Scharf & Ahran Kang, Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR, and SCSL
• Mikhail Wladimiroff, Former Heads of State on Trial

PERSPECTIVES

• Payam Akhavan, Justice, Power, and the Realities of Interdependence: Lessons from the Miloševic and Hussein Trials
• Michael J. Kelly, The Tricky Nature of Proving Genocide Against Saddam Hussein Before the Iraqi Special Tribunal
• Alfred P. Rubin, Miloševic and Hussein on Trial

Recent Scholarship: This Week in Public International Law Scholarship

A juscogens.net weekly feature, This Week in Public International Law Scholarship highlights new and notable books and articles concerning public international law. For comments or suggestions, please contact [email protected].

Books:

Jeffrey F. Addicott, Terrorism Law Cases and Materials (3rd ed.)

Thomas Cottier, Joost Pauwelyn, and Elisabeth Bürgi (eds.), Human Rights and International Trade

Edward W. Daigneault, Drafting International Agreements in Legal English

Articles:

Journal of the Philosophy of International Law (United Kingdom),Volume 1, Issue 1, 2006

• Anthony Carty, The Black Hole of Modernity: From Sovereignty to International Legal Order and Back Again!

Michigan State Journal of International Law, Volume 13, Issue 3, 2005

• Carlos Di Ponio, Competition, Cooperation, and Conflict: An Assessment of the Extraterritorial Application and Enforcement of Competition Laws in Canada and the United States
• Gregory Tardi , Comparative First Jurisprudence on the War in Iraq
• Laurence Juma, Africa, its Conflicts and its Traditions: Debating A Suitable Role for Tradition in Africa Peace Initiatives

San Diego International Law Journal, Volume 7, Number 1, Fall 2005

• Edward R. Fluet, Conflict Diamonds: U.S. Responsibility and Response
• Amos N. Guiora, Legislative and Policy Responses to Terrorism

Recent Scholarship: This Week in Public International Law Scholarship

A juscogens.net weekly feature, This Week in Public International Law Scholarship highlights new and notable books and articles concerning public international law. For comments or suggestions, please contact [email protected].

Books:

• Gian Antoini Benacchio & Barbara Pasa, A Common Law for Europe

• Michael Byers, War Law : Understanding International Law and Armed Conflict

• James Crawford & Vaughan Lowe (eds.), British Year Book of International Law 2004 Volume 75

• Adam Czarnota, Martin Krygier & Wojciech Sadurski, Rethinking the Rule of Law after Communism

• Stephen Weatherill, Cases and Materials on EU Law

Articles:

Northwestern University Journal of International Human Rights, Volume 4, Issue 2, Fall 2005

• Symposium:  The Future of the United Nations in Matters of Security and Human Rights

Michigan Journal of International Law, Volume 26, Number 4, Summer 2005

• Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Criminal Justice

American University International Law Review, Volume 21, Number 1, 2005

• Louis-Philippe F. Rouillard, Misinterpreting the Prohibition of Torture Under International Law: The Office of Legal Counsel Memorandum

Brooklyn Journal of International Law, Volume 31, Number 1, 2005

• Erik B. Bluemel, Overcoming NGO Accountability Concerns in International Governance

International Lawyer, Volume 39, Number 3, Fall 2005

• Claes Sandgren, Combating Corruption: The Misunderstood Role of Law

Recent Scholarship: This Week in Public International Law Scholarship

A juscogens.net weekly feature, This Week in Public International Law Scholarship highlights new and notable books and articles concerning public international law. For comments or suggestions, please contact [email protected].

Books:

• John Grant, ed., Deskbook Of International Criminal Law

• Lutz Feldt, Proliferation Security Initiative (psi): Instrument For The Evolution Of International Law Of The Sea (HTML e-doc) 

Articles:

War Crimes, Genocide & Crimes Against Humanity, Volume 1, Number 1, January 2005

• David H. Jones, On the prevention of genocide: The gap between research and education

• George S. Yacoubian, Jr., Anna N. Astvatsaturova, & Tracy M. Proietti, Iraq and the ICC: Should Iraqi Nationals be prosecuted for the crime of genocide before the International Criminal Court?

Journal of International Affairs, Volume 59, Number 1, Fall/Winter 2005

• John Norton Moore and William L. Schachte Jr., The Senate Should Give Immediate Advice and Consent to the United Nations Convention on the Law of the Sea: Why the Critics Are Wrong

• Doug Bandow, Don't Resurrect the Law of the Sea Treaty

Gonzaga Journal of International Law, Volume 9, 2005

• Martin Lee, A Case for World Government of Antarctica

• Andre Verani, Dividing the Sea: the 1982 Law of the Sea Convention, Maritime Case Law, and the Current Dispute Between Guyana and Suriname

Recent Scholarship: This Week in International Law Scholarship

A juscogens.net weekly feature, This Week in Public International Law Scholarship highlights new and notable books and articles concerning public international law. For comments or suggestions, please contact [email protected].

Books:

Paul Schiff Berman, The Globalization of International Law

Vaughan Lowe, International Law

Stuart Maslen, Commentaries on Arms Control Treaties: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction, Volume 1

Terry Nardin and Melissa S. Williams (eds.), Humanitarian Intervention

Steven Wheatley, Democracy, Minorities and International Law

Articles:

Netherlands International Law Review,Volume 52, Issue 3, December 2005

• Michal Gondek, Extraterritorial Application of The European Convention on Human Rights: Territorial Focus in the Age of Globalization?
• Peter Hilpold, Reforming the United Nations: New Proposals in a Longlasting Endeavour
• Jackson Nyamuya Maogoto, The Military Ascent into Space: From Playground to Battleground: The New Uncertain Game in the Heavens

International Journal of Human Rights, Volume 10, Number 1, March 2006

• Murat Metin Hakki, War crimes and the war in Iraq: Can George W. Bush and Tony Blair be held legally responsible?
• Rachel Kerr, Prosecuting war crimes: Trials and tribulations

George Washington International Law Review Volume 38, Number 1, 2006

• Laura E. Little, Transnational Guidance in Terrorism Cases
• Emeka Duruigbo, Permanent Sovereignty and Peoples' Ownership of Natural Resources in

International Law Nordic Journal of International Law (Sweden), Volume 74, Numbers 3-4, 2005

• Andreas L. Paulus, Jus Cogens in a Time of Hegemony and Fragmentation An Attempt at a Re-appraisal Catherine Brolmann, Law-Making Treaties: Form and Function in International Law

Recent Scholarship: This Week in Public International Law Scholarship

A new juscogens.net feature, This Week in Public International Law Scholarship highlights new and notable books and articles concerning public international law.

Books:

Philip Allott, Towards the International Rule of Law: Essays in Integrated Constitutional Theory

Ustinia Dolgopol & Judith Gardam, eds., The Challenge of Conflict: International Law Responds

Enrico Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy

Christian J. Tams, Enforcing Obligations Erga Omnes in International Law

Articles:

Georgia Journal of International and Comparative Law, Volume 34, Number 1, Fall 2005

• James Thuo Gathii, Foreign Precedents in the Federal Judiciary: The Case of the World Trade Organizations DSB Decisions

University of Chicago Law Review, Volume 72, Number 4, Fall 2005

• Rosa Ehrenreich Brooks, Failed States, or the State as Failure?

International Criminal Law Review (Netherlands), Volume 5, Number 4, December 2005

• Stefania Negri, The Principle of "Equality of Arms" and the Evolving Law of International Criminal Procedure

• Neelanjan Maitra, A Perpetual Possibility? The International Criminal Tribunal for Rwanda's Recognition of the Genocide of 1994

Tulane European and Civil Law Forum, Volume 20, 2005

• Clemens Rieder, Protecting Human Rights Within the European Union: Who Is Better Qualified to Do the Job-- the European Court of Justice or the European Court of Human Rights?

Georgetown Journal of International Law, Volume 36, Number 4, Summer 2005

• Amichai Cohen, Bureaucratic Internalization: Domestic Governmental Agencies and the Legitimization of International Law

Recent Scholarship: "No Case Exists" Procedure at the International Court of Justice

Sienho Yee, A Proposal for Formalizing the "No Case Exists" Objections Procedure at the International Court of Justice, 4 CHIN. J. INT'L. L. 393 (2005)

Professor Yee evaluates the "no case exists" objections made before the International Court of Justice (ICJ), which, generally, involves disputes presented to the ICJ where there is clearly a lack of jurisdiction or no dispute. In such cases, Professor Yee suggests, no case exists "because, for a case to exist, there must be, at a minimum, some dispute as to the Court's jurisdiction so as to trigger the Court's function under Article 36(6) of the Statute" of the ICJ. Lacking procedural mechanisms to address such instances, Professor Yee suggests the ICJ " formalize the procedure to deal with these objections by amending the Rules of Court to provide for a "no case exists" objections procedure."

Recent Scholarship: Aligning Legal Systems in ICTY Proceedings

Patrick L. Robinson, Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY, 3 J. INT'L. CRIM. JUST. 1037 (2005)

Judge Robinson of the International Criminal Tribunal for the Former Yugoslavia (ICTY) discusses the tensions "between the adversarial and the inquisitorial systems in the application of the Statute and Rules governing International Criminal Tribunal for the Former Yugoslavia proceedings." Specific examples include "(i) the admissibility of evidence in written form with regard to crimes committed not by the accused but by his subordinates (Rule 92bis (A)), or of a transcript of evidence given by a witness in other proceedings before the Tribunal (Rule 92bis (D)); (ii) the possibility of a judgment of acquittal at the end of the prosecution case (Rule 98bis); (iii) the Trial Chamber's power to summon witnesses on a defence submission of ‘no case to answer’; (iv) the possibility for a party calling a witness to cross-examine him if he proves to be hostile; and (v) the right of a party to request an interview with a witness of the opposing party in preparation for trial." Judge Robinson argues recent case developments illustrate potential conflict between two legal systems, common-law and civil law, which may lead to injustice or unfairness if not prevented or resolved. Judge Robinson suggests providing detailed guidance via a revision of the ICTY Rules.

Recent Scholarship & Treaties: Examining and Understanding "Treaty Exit"

Laurence Helfer, Exiting Treaties, 91 Va. L. Rev. 1579 (2005) (full text, pdf)

In the latest issue of the Virginia Law Review, Professor Helfer presents an analysis of "treaty exit," specifically, the unilateral exit by States from international conventions and organizations. The analysis includes six "distinguishing characteristics" of treaty exit and empirical evidence of treaty exit since 1945. After concluding the topic of treaty exit has been largely ignored by legal scholars and international relations theorists, Helfer presents a framework to "rethink" treaty exit from both an international law and international relations perspective. Based on this framework, Helfer provides a "blueprint for future research" for the "under-explored phenomenon of treaty exit."

Recent Scholarship: Foreign Law and the U.S. Supreme Court

In Roper v. Simmons, 543 U.S. __ (2005), faced with analyzing the legitimacy of the juvenile death penalty, the majority opinion of the U.S. Supreme Court notes:

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in [Trop v. Dulles, 356 U.S. 86 (1958)], the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

The Court's usage of "foreign law" produced a number of commentators, including:

• Vicki C. Jackson, CONSTITUTIONAL COMPARISONS: CONVERGENCE, RESISTANCE, ENGAGEMENT, 119 Harv. L. Rev. 109 (2005)(full text link)
• Jeremy Waldron, FOREIGN LAW AND THE MODERN IUS GENTIUM, 119 Harv. L. Rev. 129 (2005)(full text link)
• Ernest A. Young, FOREIGN LAW AND THE DENOMINATOR PROBLEM, 119 Harv. L. Rev. 148 (2005) (full text link)

Recent Scholarship: Torture and Positive Law

Jeremy Waldron, "Torture and Positive Law: Jurisprudence for the White House," 105 Colum. L. Rev. 1681 (2005)

From the Columbia Law Review, an article that "argues that the prohibition on torture is not just one rule among others, but a legal archetype—a provision which is emblematic of our larger commitment to non-brutality in the legal system. Characterizing it as an archetype affects how we think about the implications of authorizing torture (or interrogation methods that come close to torture). It affects how we think about issues of definition in regard to torture. And it affects how we think about the absolute character of the legal and moral prohibitions on torture. . . .the Article concludes not only that the absolute prohibition on torture should remain in force, but also that any attempt to loosen it . . .would deal a traumatic blow to our legal system and affect our ability to sustain the law's commitment to human dignity and nonbrutality even in areas where torture as such is not involved."

Further Information:

Columbia Law Review
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 2340-2340A: MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL, December 30, 2023 (discussing federal criminal prohibition against torture)