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A Proposal for an International Convention To Regulate the Use of Information Systems in Armed Conflict

Introduction*

One of the greatest challenges of law is keeping up with the advancement of technology. In this respect, international law is no different. Indeed, the process of creating international law is hampered by constraints that do not affect the making of domestic law. In an autocratic state, the rule of law is the will of the ruler and is enforced by the ruler. In a democratic state, the rule of law is a composite of the diverse opinions of legislators who have come together to forge a principle that carries the support of the majority. That norm is then applied to the entire state and enforced by the government on its people. The law of nations, however, is enforceable only by the nations themselves, making the creation of norm-creating law more difficult.

In responding to the advancement of weaponry, the international community has struggled to promulgate standards of conduct in a timely manner that carry nearly universal support and adherence. On the heels of the first use of poison gas during World War I came the 1925 Geneva Gas Protocol, regulating the use of gas and “bacteriological” warfare. However, the Hague Rules of Aerial Warfare, crafted in the aftermath of the first use of aircraft in armed conflict, is a dead letter. It took nearly fifty years to formulate a total ban on biological weapons in the form of the 1972 Biological Weapons Convention and an additional twenty years to devise a comprehensive treaty outlawing the use of chemical weapons with the passage of the 1993 Chemical Weapons Convention. On the other hand, some rules of warfare have been rather ahead of their time, such as the treaty banning the use of environmental modification techniques in warfare, the protocol banning weapons whose fragments cannot be detected by X-ray, and the protocol banning the use of blinding lasers.

Overall, the body of jus in bello has been able to adapt to the development of new means of warfare remarkably well. For example, armed forces have applied the rules set forth in the Hague Regulations on Land Warfare to air warfare with relative ease. The basic principles of military necessity, proportionality, humanity, chivalry, and distinction are not situation-specific; they govern all use of force everywhere. Therein lies the problem inherent in the emergence of cyberspace as a medium of warfare: Cyberspace is nowhere.

Computer technology has advanced to the point where military forces now have the capability to inºict injury, death, and destruction via cyberspace. Not all of the injury is physical. Using techniques that disrupt automated systems or destroy or alter data, computers that fall into the wrong hands are capable of doing long-lasting personal and economic damage to military and civilians alike. The highly destructive scenarios that various authors on cyberwar have theorized, as well as the potential use of cyberwar techniques in asymmetrical warfare, underscore the need for an unambiguous standard of conduct for information warfare that will be universally recognized and respected—a cyber-jus in bello.

This Article will examine the principles and specific areas that a comprehensive body of international law regulating information warfare must cover. It will explore the tension between the needs of military forces to engage in information warfare and the rights of non-participants to safety and security. In doing so, the Article attempts to fashion a legal standard that is palatable to the major participants in information warfare. To that end, a hypothetical convention, Regulating the Use of Information Systems in Armed Conflict, is presented at the end of this work.

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

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Constitutionalism in International Law

With the establishment of the two superpowers after World War II, the international power of the European states waned. While military defeats brought this reality to light for Germany and Italy, it was the Suez crisis that taught this lesson to policymakers in France and the United Kingdom. Three European visions of world order and the role of international law can be seen as the response to this new insight. The first vision is that European nations should follow the superpower most closely aligned with their own interests and convictions. This vision entails a rather realist understanding of international law, in particular regarding issues of international peace and security. The second vision is the building of a unified Europe that is equal to other global powers—the multi-polar world vision. The third vision is that of striving for a global legal community that frames and directs political power in light of common values and a common good. This entails a reconaguration of international law often summarized as “constitutionalism.” These three visions are commonly associated with the United Kingdom, France, and Germany, respectively. To equate constitutionalism with German public international law thinking, however, would be erroneous. There are certainly other approaches in German international law scholarship, and international constitutionalism is most assuredly taught in other countries.

Nonetheless, understanding current international law as a building block of a global legal community has been a constant thread of thought among many German international law scholars. Of the three German scholars (Hermann
Mosler, Wilhelm Wengler, and Christian Tomuschat) who have taught the General Course at The Hague Academy since 1945, Mosler and Tomuschat were prominent exponents of this approach to international law. In 1974, Mosler taught the General Course under the title “The International Society as a Legal Community.” Since the course was given during the Cold War, it taught a dampened version of constitutionalism. Yet, it echoed the core concept of Walter Hallstein, Mosler’s former superior in the nascent German Foreign Service and the arst president of the Commission of the European Economic Community. Hallstein had devised the term Rechtsgemeinschaft (“legal community”) in order to conceive and direct the embryonic European integration project.6 Hallstein succeeded in inspiring the “constitutionalization” jurisprudence of the European Court of Justice (“ECJ”), laying the conceptual basis for the enormous power the Commission’s Legal Service wielded for decades as well as generally framing the political discourse. Mosler’s course brought this idea to the global level.

After the fall of the Iron Curtain, Tomuschat taught a much bolder course in 1999 entitled “Ensuring the Survival of Mankind on the Eve of a New Century.” This Article focuses on Tomuschat’s text, extrapolating from its 436 pages a “vision of Global Public Order,” which is more doctrinal than theoretical and representative of an understanding held by many scholars in the German speaking world. The strengths of Tomuschat’s thinking, as well as some inherent tensions, will be addressed.

Part I of the Article describes Tomuschat’s ideas about the roles and the normativity of international law. Tomuschat holds that among the various roles of international law, the constitutional function of legitimating, limiting, and guiding politics is of particular importance. Consequently, as discussed in Part II, Tomuschat inverts the prevalent understanding of the relationship between international law and municipal constitutional law, whereby the state becomes an agent of the international community. Part III examines the organization of the international community and discusses Tomuschat’s understanding of international institutions, focusing particularly on the issue of international federalism, since Tomuschat attributes a substantial and autonomous role to such institutions. Tomuschat does not himself use the term “Federal International Order” for his model. His reticence in this respect may be explained by his view, discussed in Part IV, that international law possesses merely derivative democratic credentials. This issue requires an examination of international law’s “social substratum” in the “international community.” Finally, Part V places Tomuschat’s vision of international law in the broad stream of universalistic thinking, along with its latest development in a recent text by Habermas.

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

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The Denationalization of Constitutional Law

Introduction*

International law, in general, and international human rights law, in particular, have experienced a battering in recent years. Spurred in part by national reactions to the “new terrorism,” politicians and legislators—as well as judges, practitioners, and intellectuals worldwide and along the ideological spectrum—have expressed reservations about the role and function of international law in domestic affairs. Reactions have ranged from sharp skepticism about the authority and utility of international law to conditions and caution about how it should be given effect within the domestic system.

Concerns regarding the role of international law are evident throughout Europe. In Germany, the federal constitutional court has in different ways positioned itself as a bulwark between the national legal system and the two European legal orders of which the court is a part—the European Union (“EU”) and the European Court of Human Rights (“ECHR”) system. In Denmark, the Council of Europe’s Human Rights Commissioner’s 2004 censure of Danish immigration policy on family reunification sparked critical political and media debate on the relevance and authority of international human rights law. And in the United Kingdom, which sought to derogate from the relevant provisions of the European Convention on Human Rights, the Home Secretary responded sharply to the United Nations Special Rapporteur on Torture’s criticisms by castigating the United Nations and its alleged focus on the “human rights of terrorists.” On the other side of the Atlantic, the debate about the relevance of “foreign law” to constitutional adjudication has been equally vigorous. A number of liberal academic scholars have joined conservative intellectuals in declaring international law fundamentally anti-democratic.

Using the European experience as a basis for analysis, this Article challenges the prevailing skepticism by arguing for an understanding of international human rights law and international adjudication as a practice of “justification.” Under this view, international law obligates states merely to justify those local practices that deviate from a shared, publicly evolving, crosscommunity set of standards. This obligation may be triggered in part by individual claims. The theory conceives of the relationship between national constitutional law and international adjudication, moreover, outside the context of a strict monism-dualism dichotomy. According to that dichotomy, international law is either an authoritative external body of law which directly penetrates the national legal order, or a corpus of foreign law which must be filtered first through the prism of national constitutional law. This Article argues instead that international adjudication should be conceived of as having a persuasive function and not an overriding one. International and constitutional norms should be understood as contextually competing rule-of-law values rather than as conflicting legal sources vying against one another.

Part I sets forth the theoretical framework of the argument for a “justification view.” Part II applies this framework to EU law, examining the relationship that has developed between both European Court of Justice (“ECJ”) and European Human Rights Convention (“EHRC”) case law on the one hand and national law on the other.

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

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Localism in the New Global Legal Order

Introduction*

Local governments are increasingly becoming major actors in the emerging global legal order. The United Nations, the World Bank, the European Union (“EU”), and other international and transnational institutions are beginning to view local governments as vehicles for the advancement of policies on a global scale. Local governments are transforming into objects for international regulation and are increasingly used as a means for disseminating and implementing global political programs, financial schemes, and governance strategies. The traditional legal focus on state actors is shifting on to local governments, giving them independent legal status in the new global order. Local governments are obtaining international duties, powers, and rights; enforcing international standards; forming global networks involved in the creation of international standards; and becoming objects of international regulation. It has indeed become impossible to understand globalization and its legal ordering without considering the role of localities: They have become prime vehicles for the dissemination of global capital, goods, work force, and images.

The evolving global status of local governments manifests itself in international legal documents and institutions, transnational arrangements, and legal regimes within many countries. To date, however, there has been almost no academic account of this significant legal transformation. International legal theory has remained captive to the centralist and unitary conception of local governments, according to which they are mere subdivisions of states and thus undeserving of any theoretical analysis. And while international legal theorists have analyzed the extension of international law over nonstate entities such as private persons, non-governmental organizations (“NGOs”), and transnational corporations, those same theorists have ignored the profound transformation of localities into independent actors in the international arena. Likewise, local-government scholars have ignored the impeding global pressures on localities, treating the interaction of localities with global and international norms and institutions only sporadically.

In contemporary international legal practice and policy making, however, localities are already being recast as independent semi-private entities, no longer mere state agents subsumed by their national governments. United Nations agencies, the World Bank, and various transnational institutions emphasize both the need to delegate and devolve power to local entities and the potential of localities to act like private corporations or other components of civil society. As such, localities’ ability to generate wealth and economic growth, their need to be financially viable and self-reliant, and their capacity to promote good governance are given prominence over other traits of local governments. With this reshaping of localities comes a new set of ideas about the desirable relationship between state and local governments, including the ideal level of local autonomy, the ideal division of power between national and local levels, and the amount of flexibility that should exist to adjust that division of power.

Many of the legal changes accompanying the new global vision of local entities are only beginning to appear. The activities of a special U.N. agency aimed at formulating a World Charter on local self-government have not yet given rise to a binding international legal document. Regional treatises and transnational agreements such as the North American Free Trade Agreement (“NAFTA”) and membership in the General Agreement on Tariffs and Trade (“GATT,” now the World Trade Organization (“WTO”)) have only started to affect localities and local-government laws, while states’ and local governments’ compliance with emerging international standards is slow and far from complete. Nonetheless, it is possible to predict the results of this transition as well as to analyze its justifications and normative ramifications.

This Article attempts to formulate preliminary lines of investigation into consequences of an emerging global regime that expands the role of localities, while also analyzing the normative underpinnings of the role localities could have in a world governed by a multitude of jurisdictions, some territorial, others less so. Part I traces recent changes that demonstrate the new role of localities in international law. Part II analyzes the normative justifications often used to legitimate the transformation of localities into prominent global actors: economic efficiency, democratic potential, and localities’ unique role as normative mediators between communities and states. Finally, Part III sets forth a normative and theoretical analysis of the role localities could and should have in the emerging global legal order.

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

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International Law in Latin America or Latin American International Law? Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination

Introduction

Is there a distinctively Latin American way of understanding global public order? How have Latin American international lawyers reflected upon alternative global designs and their implications for the region? When posed in relation to contemporary Latin America, these questions become unexpectedly tricky, since the discipline of international law does not offer to international lawyers situated at the periphery adequate analytic tools for understanding the meaning and uses of international law in their own context. Examining peripheral, regional, or national legal traditions, however, not only illuminates similarities and differences between alternative conceptualizations of the international world, but also helps to recognize structural constraints and unequal power relationships operating within the discipline of international law that might hamper efforts to imagine alternative visions of global order through the language of international law.

This Article probes the ways in which Latin American international lawyers have used international law in light of their own particular context and within a constrained set of available legal, doctrinal, and historical materials. At the same time, as part of a counterbalancing and decentering critique of international law, the aim of this Article is to reinterpret these uses and practices as constituting a distinctively regional approach or tradition of international legal thinking.

However, using international law to examine current thinking in Latin America about global public order elicits additional difficulties, for it appears to be a methodological choice headed in the wrong direction. Latin American international lawyers generally have disengaged themselves from discussions about various forms of governance, deferring to other experts, fields of knowledge, or international politics the articulation of a definition of international order and its relationship to Latin America. This approach sharply contrasts with other periods of the discipline’s trajectory in the region. As a heuristic entry point into the study of contemporary uses and practices of international law in Latin America, I examine a past, somehow forgotten disciplinary battle lasting from the 1880s to 1950s, during which legal professionals fought to affirm or negate the existence of a distinct Latin American international law. I also explore how this disciplinary dispute has been represented and treated in current Latin American legal scholarship. I argue that current depictions of this debate, which overemphasize its resolution and the cessation of professional divisions, erect a historical blind spot as to what happened to the discipline between the 1950s and 1970s. The strategic oblivion to this period in which the discipline experienced politicization and fragmentation is intrinsically connected to the nature of dominant contemporary practices.

This Article proposes the following periodization of international law’s trajectory in Latin America: first, international law as an instrument in the process of nation building (1810s–1880s); second, international law as part of the discursive creation of Latin America as well as a language for contesting its definition (1880s–1950s); third, a period of professional radicalization and fragmentation (1950s–1970s); and fourth, a period of professional depoliticization and irrelevance of international law as a discourse for thinking the region (1970s–2000s). I show that international law played an important role from the 1880s to the 1950s in laying down one of the languages through which Latin Americans have discussed and contested their identity, politics, and place in the international world. On the one hand, the periods in which the international legal tradition has been harnessed to support, as well as to contest, divergent ideals about Latin America correspond to the moments of disciplinary relevance and disputation. On the other hand, the appeasement and translation of disciplinary contentions into doctrinal and institutional settlements signaled the shift in significance from international law toward other discourses, making the international legal tradition less appealing for imaging Latin America.

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Joint Criminal Enterprise and Brđanin

The doctrine of Joint Criminal Enterprise (“JCE”) has become an essential tool of international criminal prosecution, but a recent trial judgment by the ad hoc International Criminal Tribunal for the former Yugoslavia (“ICTY”) jeopardizes its future. JCE developed within international criminal law to address the challenge of attaching liability to individuals who helped perpetrate or further mass crimes or atrocities, which often involve numerous perpetrators performing discrete, interrelated pieces of the larger crime. Responding to concerns about JCE’s broad scope, the ICTY Trial Chamber in Prosecutor v. Brđanin reversed the trend toward interpreting JCE broadly and narrowed JCE to resemble traditional criminal conspiracy. This undermined JCE’s unique ability to describe criminal arrangements too complex to at within traditional theories of criminal liability.

Part I of this Recent Development describes JCE’s origins and elements, providing the background necessary to understand Brđanin. Part II discusses Brđanin and explains the Chamber’s controversial position regarding JCE. Part III criticizes the Brđanin approach and offers an alternative that would address Brđanin’s concerns about JCE’s potentially broad application without sacriacing the unique ability of JCE to describe mass criminal activity.

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

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