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Abstract:

Governing interstate relations across the globe, contemporary international law is universal. But this is a relatively recent phenomenon: until the nineteenth century, the laws regulating interactions between sovereign polities were circumscribed to discrete regions of the world. How did international law become universal? This article critiques the assumption, held by most scholars, that this process was one of European expansion, arguing instead that international law universalized when jurists from semi-peripheral polities, such as Japan, the Ottoman Empire, and Latin American states, appropriated European international legal thought. Classical international law only recognized equality between states belonging to the “family of civilized nations,” while sovereign autonomy and equality was denied beyond the West. Faced with pressures to sign unequal treaties, elites in the semi-periphery realized the stakes of learning the international legal discourse. This article traces the work of non-Western jurists who studied international law in Europe, internalized the categories of classical international law, and ultimately used them in order to change, in the direction of equality, the rules of international law applicable vis-à-vis their polities. Their reinterpretation of the central elements of classical international law—positivism, absolute sovereignty and the standard of civilization—progressively achieved the inclusion of non-Western states within the regime of autonomy and equality. Thus, the doctrinal appropriation of semi-peripheral jurists transformed international law. It also formed a distinctive semi-peripheral legal consciousness defined by a “particularistic universalism.”

Abstract:

This Article seeks to better define the scope of the right to self-determination at international law and its relationship with unilateral secession. After an introductory overview, Part I begins by rooting internal self-determination in five societal institutions that support democratic rule. Among these institutions is the recognition of the fallibility of political systems and the acceptance of civil disobedience as an expressive claim for a new legal order. Part II seeks to “uncouple” external self-determination from unilateral secession, expanding the scope of the right to self-determination on the international plane. In doing so, it draws an analogy between unilateral succession and civil disobedience, where secessionist declarations of independence can be seen as moral claims to be legitimized through state recognition. Lastly, Part III introduces the concept of “democratic disobedience” as a means to support democratization on a global scale. It argues that the demonstration of a commitment to democratic principles can give increased force to secessionist claims in the eyes of democratic states. Furthermore, though secession is more likely to be effected from non-democratic states, democracies are not completely immune from secessionist cries and thus have an incentive to maintain healthy democratic institutions. The result is a model whereby new democracies may more readily gain international recognition and existing democracies may be self-preserving. The ideational goal is self-determination for all.

Abstract

This Article examines the response of European courts—and in particular of the European Court of Justice (“ECJ”)—to the dramatic challenges to the U.N. Security Council’s anti-terrorist sanctions regime recently brought before the courts. The ECJ in Kadi annulled the European Community’s implementation of the Security Council’s asset-freezing resolutions on the ground that they violated European Union (“EU”) norms of fair procedure and of property protection. Although Kadi has been warmly greeted by most observers, I argue that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union. Paralleling in certain striking ways the language of the U.S. Supreme Court in Medellin v. Texas, the approach of the ECJ in Kadi carries risks for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the enforcement of Security Council resolutions. More importantly, the ECJ’s approach risks undermining the image the EU has sought to create for itself as a virtuous international actor maintaining a distinctive commitment to international law and institutions.

Abstract

For the last sixty years, scholars and practitioners of international human rights have paid insufficient attention to the ground level social contexts in which human rights norms are imbued with or deprived of social meaning. During the same time period, social science insights have shown that social conditions can have a significant impact on human behavior. This Article is the first to investigate the far-ranging implications of behavioralism—especially behavioral insights about social influence—for the international human rights regime. It explores design implications for three broad components of the regime: the content, adjudication, and implementation of human rights. In addition, the Article addresses some of the advantages and limitations of the behavioral approach and outlines the rich but unexplored nexus of behavioralism, norms, and international law.

Abstract

When United Nations peacekeepers violate human rights, they do immeasurable damage to their victims, their missions, and themselves. Reparation for these wrongs is essential for both rebuilding the trust that is needed for effective peacekeeping and affirming the human dignity of those who suffer the abuse. However, because of the unique status of peacekeepers as both troops in their respective national services and members of an international U.N. force, the question of which entity is liable for reparation is particularly complicated. This Article provides a comprehensive analysis of the law and practice of reparation for the human rights abuses of U.N. peacekeepers and advances a new interpretation of how the “effective control” standard of liability attribution should be applied in this context. Specifically, this Article finds that both the United Nations and troop-contributing states are subject to human rights law under certain circumstances. It also finds that both the United Nations and the troop-contributors are subject to the fundamental duty to remedy human rights violations for which they are responsible. The key question is how to determine, for a given situation, which international legal person is responsible for the human rights abuses of peacekeepers. Effective control is the correct governing principle. However, rather than “overall operational control” as advocated by a number of jurists and as applied in some courts, effective control must be understood to mean “control most likely to be effective in preventing the wrong in question.” Applying this revised principle to the peacekeeping context, this Article proposes a five-category framework through which to assess the appropriate locus of responsibility for peacekeepers’ human rights violations. Emphasizing the importance of considering the full complexity of the command and control relationships between states, the United Nations and peacekeepers, this framework significantly expands the liability of troop-contributing states from what remains de facto immunity under existing interpretations in the vast majority of situations. Finally, by implementing joint and several liability wherever feasible within the confines of effective control, the proposed framework seeks to maximize the avenues to remedy for victims without prejudice to the fairness and effectiveness of a framework that accurately locates those most responsible.