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Book Review: The Dark Sides of Virtue: Reassessing International Humanitarianism

Review of The Dark Sides of Virtue: Reassessing International Humanitarianism. David Kennedy. Princeton University Press: Princeton, N.J., 2004. Pp. 400. $29.95 (cloth).

In The Dark Sides of Virtue: Reassessing International Humanitarianism, Professor David Kennedy asks how the many devoted, resourceful, and well-intentioned individuals who make up the international humanitarian community can so often fail in their most basic goals. According to Kennedy, humanitarianism has many unintended costs stemming from the failure of humanitarians to acknowledge their increasing influence on international policymaking. Government officials and political actors recognize that they ultimately bear responsibility for the consequences of their policies, and, therefore, they pragmatically consider the risks and potential costs of their actions as well as the benefits. Humanitarians have traditionally seen themselves as outsiders with respect to global “rulership” and thus do not feel the same accountability for their actions. In addition, humanitarians often mistakenly assume that because their actions are well-intentioned, they will have only benefits. Kennedy argues that if humanitarians identified with their power in global governance, they would engage in pragmatic cost-benefit analysis more often and avoid many of the dark sides of humanitarianism. Although Kennedy offers few concrete solutions, his broad exploration of the problem through his own experiences is thought provoking and compelling. Kennedy’s goal is to provoke the human rights community to engage in the type of self-critical, pragmatic thinking that might reduce, if not eliminate, the costs of humanitarian action. The result is a challenging, engaging, and complicated book that may well have the desired effect.

Book Reviews, Print Archives

Book Review: Defending Interests: Public-Private Partnerships in WTO Litigation

Abstract:

Review of Defending Interests: Public-Private Partnerships in WTO Litigation. Gregory Shaffer. Brookings Institution Press: Washington, D.C., 2003. Pp. 227. $46.95 (cloth).

Much has been written about the increasing legalization of international trade relations, especially the development of the World Trade Organization (“WTO”) Dispute Settlement Mechanism (“DSM”). Professor Gregory Shaffer is at the forefront of this emerging field with his book Defending Interests: Public-Private Partnerships in WTO Litigation, which analyzes the vital role that ad hoc public-private networks play in litigation before the WTO. Shaffer explains that, although only WTO Member States can bring litigation before the WTO, private actors such as corporations and activists play an important role in states’ decisions about which cases to bring. Private actors may also provide states with the information and expertise needed to navigate the dispute settlement proceedings. Shaffer draws on over 100 interviews with critical actors to evaluate the public-private networks and partnerships that drive states’ decisions, primarily examining the networks in the United States and the European Union. Shaffer’s focus is on the actors, but his analysis necessarily includes a brief review of the system itself.

The WTO is unique among international institutions for its legalized dispute settlement with two levels of legal panels and effective enforcement mechanism. Member States can file complaints against any other Member State for actions they believe violate a provision of a WTO agreement. The first step in the procedure is a period of mandatory consultation between the opposing parties. Many disputes are settled at this stage, before actual litigation, due to strategic legal decisions, expediency, or political considerations. If the complaint is not settled during the consultation period, it is referred to a panel of experts for adjudication. The panel’s decision can then be appealed to the Appellate Body, which reviews the case much as an appellate court in the United States would. A decision that survives appellate review is considered final and enforceable. While neither the WTO nor a member country can force a country to change its offending laws or practices, the WTO can authorize the winning country to withdraw trade concessions, effectively imposing sanctions on the loser. The imposition of these sanctions is optional, and, frequently, the states negotiate an alternative settlement instead. This seemingly toothless enforcement mechanism has been remarkably effective in bringing about compliance with WTO agreements.

Book Reviews, Print Archives

Book Review: From Nuremburg to the Hague: The Future of International Criminal Justice

The last decade of the twentieth century witnessed the rapid expansion of international criminal law. Though catalyzed by many factors, signicant credit for this remarkable growth can be attributed to two mutually reinforcing phenomena. First, following the bloodshed in Rwanda and Yugoslavia, the international community resurrected the criminal tribunal as a fundamental component in defining and punishing criminal acts committed by state actors. Second, as the decade progressed, national governments became increasingly ready to protect their citizens’ rights by asserting “universal” jurisdiction over foreigners alleged to have violated those rights; most famously, this resulted in the London arrest of Augusto Pinochet. The growing acceptance of and jurisprudence surrounding both international criminal tribunals and universal jurisdiction came together in June 1998 when the United Nations adopted the Rome Statute, which defines the structure of the new International Criminal Court (I.C.C.).

Even if the immediate impetus for creating the I.C.C. was violence both in the Balkans and the African Great Lakes and related domestic judicial activism in the 1990s, the true forebear of the new Court is the Nuremberg Trials [hereinafter “the Trials”] following World War II; it was there that many of the notions later solidified by the Rome Statute were first promulgated, including the concept of “crimes against humanity.” Though the heritage of Nuremberg is evident in the I.C.C., the Trials have proven an uneasy foundation for the new body, with the precedent of Nuremberg’s dual political/judicial purpose causing some observers, and even potential I.C.C. member states, to shy away from endorsing the court. Philippe Sands’s edited work, From Nuremberg to the Hague: The Future of International Criminal Justice provides a wideranging examination of these issues, analyzing the Nuremberg Trials themselves, their impact on the ad hoc tribunals organized in response to Rwanda and Yugoslavia, and their likely impact on the potential of the I.C.C.

Book Reviews, Print Archives

Book Review: Law and Colonial Cultures: Legal Regimes in World History, 1400–1900

Challenging scholars of both colonial history and globalization, Lauren Benton’s Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems. These conflicts led colonial states to assume increased control of important economic transactions. Benton tackles both the scholarly accounts that claim colonizers overran helpless native populations and those that argue only European or Western powers pursued policies aimed toward promoting markets or economic growth. Benton even takes on one of the sacred cows of traditional colonial studies: Chinua Achebe’s Things Fall Apart. In Achebe’s novel, the protagonist, Okonkwo, faces two trials: the first by his fellow villagers and the second by a British colonial tribunal. In Benton’s rendering, Achebe depicts the first as part of a generally well-functioning Nigerian society suddenly ripped apart by the arrival of British colonialists, and the second as an entity almost entirely foreign to Okonkwo. In essence, Benton argues that, as a historical matter, not only would Okonkwo have been aware of the law governing British colonialists, but he would have taken advantage of it if he saw the possibility of a better outcome.

Benton traces, through five episodes in world history, how the colonizer’s law began as one of several legal systems, then gradually expanded to areas of economic concern, such as the enforcement of contracts or the transfer of property, and finally made a place for both indigenous and colonizing litigants. In seventeenth-century North America and Iberia, eighteenth-century Africa and India, and nineteenth-century Uruguay, Benton traces parallels in the historical development of the state-centered order. The reader will find engaging and thorough narratives on the legal history of these regions, but will be left unconvinced that a single phenomenon is at work. Benton is more successful at completing the historical narratives that emphasize the colonial state as resulting from competing European empires or from local processes that developed “national” consciousness in colonies. To this end, she claims that jurisdictional conflict formed a type of regime for this period.

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