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Abstract

When the International Criminal Court (“ICC” or “Court”) was established in 2002, states, nongovernmental organizations (“NGOs”), and the international community had extraordinarily high expectations that the Court would bring an end to impunity and provide broad-based accountability for international crimes. Nearly five years later, those expectations remain largely unfulfilled due to political constraints, resource limitations, and the limited ability of the ICC to apprehend suspects. This article offers a novel solution to the misalignment between the Court’s limited resources and legal mandate on the one hand and the lofty expectations for it on the other, arguing that the Court must engage more actively with national governments and must encourage states to undertake their own prosecutions of international crimes. It advocates a shift in the ICC’s role through a policy of “proactive complementarity,” whereby the Court would encourage and at times assist states in undertaking domestic prosecutions of international crimes. The article examines the legal mandate for such a policy, considers the political constraints on the Court, offers a practical framework for the implementation of proactive complementarity in the range of circumstances the ICC is likely to face, and documents examples of proactive complementarity in the ICC’s initial operations. Overall, the article argues that encouraging national prosecutions within the “Rome System of Justice” and shifting burdens back to national governments offer the best and perhaps the only ways for the ICC to meet its mandate and help end impunity.

Abstract

The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference. Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins to forecast prosecutorial challenges created by alternative formulations. It concludes by identifying the main prosecutorial challenges common to all formulations to see how a case against a political or military leader for the crime of aggression will look.

Abstract

The odious debt doctrine, which holds that in some cases, successor governments should not be responsible for the debts incurred by previous despotic rule, has limped along in the legal imagination for over a hundred years. Recently, however, legal theorists and practitioners have attempted to define the contours of this controversial concept. This article investigates the contents of the odious debt doctrine to query what characteristics make debt odious rather than simply onerous. It then argues that there may be little distinction between those characteristics as they apply to debt and as they apply to other types of transnational financial obligations and financing arrangements that despots may adopt. Finally, the article posits that if there is, in fact, little distinction, there may be valuable lessons to be learned from the odious debt doctrine for application to other types of transnational financing arrangements, and proposes that a broader “odious finance” doctrine is the better approach.

Abstract

In response to reports of frequent criminal misconduct, aggressive behavior, and human rights abuses committed with impunity by private contractors in Iraq and Afghanistan, some have argued that private military and security companies (“PMSCs”) are no more than modern mercenaries, and that they should therefore be banned under the standing international prohibition on mercenarism. However, the existing instruments prohibiting mercenarism would be difficult to apply to most PMSCs, making it easy for states that want to continue to use these companies to evade such a ban. In contrast, given market forces pushing PMSCs to be more compliant and emerging state practices that favor regulation, coordinated international regulation of PMSCs might feasibly be enforced. This article proposes that many of the issues with private military and security companies could be addressed by creating an international humanitarian law (“IHL”) principle that recognizes state use of PMSCs as a means of warfare. The availability of advanced, independent security and military capabilities-for-hire enables states or nonstate actors to get around political or resource constraints that otherwise might limit the use of force, and may undermine IHL enforcement. These threats might be addressed if IHL established a stronger state responsibility link between states and the PMSCs they hire. International humanitarian law should provide that states who outsource government security or military functions in support of any combat or humanitarian operations that would otherwise trigger IHL must establish internal oversight, accountability, and liability mechanisms to ensure that these actors comply with international and domestic legal norms and regulations.

Introduction*

Many commentators who favor expansions in international law also favor restrictions on executive authority. What these commentators often fail to recognize is the potential for conflict between these two commitments. In this Article, I consider one example of this potential conflict: the effect under international law of signed but unratified treaties.

Under contemporary treaty practice, a nation’s signature of a treaty, especially a multilateral treaty, typically does not make the nation a party to the treaty. Rather, nations become parties to treaties by an act of ratification or accession, either by depositing an instrument of ratification or accession with a depositary (for multilateral treaties) or exchanging instruments of ratification (for bilateral treaties). The signing of treaties under this practice is at most an indication that the terms of the treaty are satisfactory to the executive institution in that nation charged with negotiating and signing treaties and does not constitute a promise that the nation will become a party to the treaty.

Despite the modern separation between signature and ratification, many international lawyers and academics contend that when a nation signs a treaty, it is bound to refrain from actions that would defeat the object and purpose of the treaty until such time as it makes clear its intention not to become a party to the treaty. This obligation is reflected in Article 18 of the Vienna Convention on the Law of Treaties (“Vienna Convention”), a treaty that itself governs the formation, interpretation, and termination of treaties. Although the United States is not a party to the Vienna Convention, many commentators claim that Article 18 reflects customary international law that is binding on nations that have not joined the Convention, a claim that the United States has not denied. In addition, some commentators have made broad claims about the content of the object and purpose obligation, arguing that it either binds signatory nations not to violate a treaty at all or that it binds them not to violate any of the “core” or “important” provisions in the treaty. These claims are frequently made, for example, in connection with the U.S. signature of human rights treaties, such as the Convention on the Rights of the Child.

Treaties are signed for the United States by the president and his agents. As a result, any international obligations that the United States would incur as a result of signing a treaty would be triggered by unilateral executive action. This sort of unilateral executive authority, however, appears to be in tension with the process specified in Article II of the Constitution for making treaties, which requires the advice and consent of two-thirds of the Senate.  As I will explain, this tension is not eliminated by the existence of the president’s power to enter into “sole executive agreements.” Whatever its precise scope, the sole executive agreement power must be significantly narrower than the power to enter into Article II treaties.

The extent of this constitutional tension, however, depends on the breadth of the signing obligation. The drafting history of Article 18 suggests that the signing obligation was intended to be narrower than some commentators have assumed. This obligation is best construed as precluding only actions that would substantially undermine the ability of the parties to comply with, or benefit from, the treaty after ratification. Considered in these terms, the obligation has little relevance to many types of treaties, such as human rights treaties, where pre-ratification conduct inconsistent with the treaty is not likely to undo the bargain reflected in the treaty. Adopting this narrow interpretation of the object and purpose obligation helps reduce the gap between presidential authority under the Constitution and international law. Nevertheless, because there is still some potential for constitutional conflict, and because the object and purpose obligation is undefined in the text of the Vienna Convention, the Senate should be attentive to this issue if it is to preserve its already diminished role in the treaty process.

Part I of this Article describes the phenomenon of signed but unratified treaties and discusses some of the reasons for this phenomenon. Part II discusses the effect under modern international law of signing a treaty and explains how some commentators have claimed that signing a treaty obligates the United States either to comply with the treaty in its entirety or to comply with the “core” or “important” terms of the treaty. Part III argues that broad obligations arising from signature are in tension with the U.S. constitutional process for making treaties, and that this tension is not eliminated by the president’s power to conclude sole executive agreements. Part IV explains how the drafting history of Article 18 of the Vienna Convention suggests that the scope of the object and purpose obligation is narrower than is sometimes assumed, thus resolving some of the constitutional tension posed by signing obligations. . . .

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF above.

Introduction*

The remedial regimes established by international treaties exhibit considerable diversity. Some treaties merely provide review mechanisms and do not permit further action against the violating state, while others allow for the imposition of punitive fines. Some agreements respond to non-compliance with individually tailored packages of incentives and disincentives, while others provide for the award of compensatory damages enforceable in domestic courts. This Article examines the remedial regime established under what is arguably the most complex multilateral treaty arrangement in the world today: the World Trade Organization (“WTO”) Agreements.

Within the WTO system, the remedy for a continuing violation of WTO obligations is the right granted to the affected WTO Member State to suspend “concessions or other obligations” owed to the violating WTO Member State. Thus, WTO remedies take the form of a response “in kind” — the remedy for one violation of the treaty is an offsetting violation of the treaty. In domestic law, one rarely encounters situations where the remedy for a violation of law is a right granted to the affected party to violate the law as well. In contrast, remedies in international law frequently take this form. In fact, given the absence of coercive and centralised enforcement mechanisms at the international level, the ultimate remedy for the breach of an international treaty will usually take the form of a further violation, or “countermeasure.”

This Article examines a basic issue that is confronted in every instance in which this remedy is sought: How far can the retaliating state go in responding to the breach of WTO obligations owed to it? It analyzes the limitations on retaliation in the WTO Agreements and the manner in which WTO arbitral panels have confronted and resolved this issue.

The limitations on the right to retaliate are important for a variety of reasons. First, they determine the dimensions of any ensuing retaliation and, therefore, are of considerable practical significance for WTO Members in making decisions about whether to comply with their obligations and whether to seek to enforce their rights. Second, these limitations are important because they shed light on broad theoretical questions about the nature of WTO rights and obligations. Finally, an understanding of the WTO regime may carry lessons both for negotiators of remedial regimes for other trade treaties and for those called upon to apply similar remedial regimes installed in bilateral or regional trade agreements.

The Article is organized as follows. Parts I and II outline the procedural and substantive context in which WTO arbitrators make assessments about the permissible intensity of retaliation. Part III explores the negotiating history of current WTO remedial regime. Part IV scrutinizes the manner in which arbitral panels have assessed the permissible intensity of retaliation to date. It organizes the jurisprudence into two broad approaches and analyzes the issues that arise when these approaches are applied in concrete cases. Part V then considers the possible purposes that may be served by the WTO remedial regime and examines whether this regime coherently promotes any or all of these purposes. The Article argues that the remedial regime and the jurisprudence are difficult to justify by reference to instrumental purposes such as ensuring compliance, providing compensation, rebalancing the bargain or facilitating efficient conduct. A retributive rationale can justify the regime but this rationale is difficult to defend. It concludes by arguing that the true value of arbitral review lies in its escalation prevention function. Part VI explores certain implications of the absence of a guiding rationale for the WTO remedial regime. . . .

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.