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CIAO DATE: 06/06
2005 (Volume 16 Issue 4)
Articles
The Design of International Agreements by Andrew T. Guzman
Professor of Law, Boalt Hall School of Law, University of California at Berkeley.
Email: guzman@law.berkeley.edu.
States entering into international agreements have at their disposal several tools to enhance the strength and credibility of their commitments, including the ability to make the agreement a formal treaty rather than soft law, provide for mandatory dispute resolution procedures, and establish monitoring mechanisms. Each of these strategies – referred to as ‘design elements' – increases the costs associated with the violation of an agreement and, therefore, the probability of compliance. Yet even a passing familiarity with international agreements makes it clear that states routinely fail to include these design elements in their agreements. This article explains why rational states sometimes prefer to draft their agreements in such a way as to make them less credible and, therefore, more easily violated. In contrast to domestic law, where contractual violations are sanctioned through zero-sum payments from the breaching party to the breached-against party, sanctions for violations of international agreements are not zero-sum. To the extent that sanctions exist, they almost always represent a net loss to the parties. For example, a reputational loss felt by the violating party yields little or no offsetting benefit to its counter-party. When entering into an agreement, then, the parties take into account the possibility of a violation and recognize that if it takes place, the net loss to the parties will be larger if credibility-enhancing measures are in place. In other words, the design elements offer a benefit in the form of greater compliance, but do so by increasing the cost to the parties in the event of a violation. When deciding which design elements to include, the parties must then balance the benefits of increased compliance against the costs triggered in the event of a violation.
Guantánamo Bay and the Annihilation of the Exception by Fleur Johns
Lecturer, University of Sydney Faculty of Law, Sydney, Australia.
Email: fleurj@law.usyd.edu.au.
This article takes issue with prevailing characterizations of Guantánamo Bay as an instance of international law and US law's breakdown or withdrawal: a surmounting of the rule by the exception. Contentions along these lines circulating in international legal literature and, in a divergent sense, in the work of Italian philosopher Giorgio Agamben, are examined in a critical light. Against these accounts, this article argues that Guantánamo Bay is, to a hyperbolic degree, a work of legal representation and classification: an instance of the norm struggling to overtake the exception. Moreover, this article argues, strategies of detention, interrogation and control being utilized at Guantánamo Bay are being sustained in part through domestication, evisceration and avoidance of experiences of deciding on the exception. In short, this article maintains, experiences of the exception appear to be in retreat at Guantánamo Bay, rather than in ascendancy. The author develops this argument by reference to public records and official characterizations of decision-making at Guantánamo Bay. By way of a critical response, the author then presents a heterodox reading of Carl Schmitt's theorization of the exception, whereby the experience of exceptional decisionism is read away from Schmitt's preoccupation with the state. It is to such a renewed, diffuse sense of the exception within law, rather than to a vehement insistence upon the norm, that this article suggests turning in raising doubts about the ongoing work of the US Government at Guantánamo Bay.
From Benchmarking to Final Status? Kosovo and The Problem of an International Administration's Open-Ended Mandate by Bernhard Knoll
Mag.iur. (University of Vienna), M.A., International Relations (JHU/SAIS), Ph.D. cand. at the EUI, Florence.
Email: bernhard.knoll@iue.it.
This contribution examines certain inherent shortcomings of an ‘open-ended' institution-building operation for which the future status of the entity in statu nascendi remains undecided. It first addresses the policy of conditionality through which Kosovo's international administration attempts to measure the performance of local institutions against imported ‘standards'. The external representation function of an international administration acting on behalf of a non-state territorial entity, as an agent of necessity, is then analysed, considering recent and little-known developments and suggesting that UNMIK's practice supports the argument that ‘internationalized' territories possess limited legal personality. Turning ‘inward' to a sphere of domestic governance, the contribution highlights some of the problems encountered with regard to the privatization of public assets in Kosovo. Here, it argues that UNMIK is awkwardly caught between the pursuit of both the interests of the territory under its administration and the collective interest of the organized international community – two sets of interests which can collide head-on. The article concludes by suggesting that an international territorial agent should not, as a rule, attempt to mediate a solution, but endeavour to represent the territory in good faith.
'You gave us freedom, but not a future'.1
Legislation and Maintenance of Public Order and Civil Life by Occupying Powers by Marco Sassòli
Marco Sassòli is Professor of International Law at the University of Geneva, Switzerland.
Email: marco.sassoli@droit.unige.ch.
Article 43 of the 1907 Hague Regulations is a key provision of the law of belligerent occupation. This essay examines how it has been understood by states and scholars, how it was developed by the Fourth Geneva Convention of 1949 and whether and how it was respected by the US and the UK during their recent occupation of Iraq. Under Article 43, an occupying power must restore and maintain public order and civil life, including public welfare, in an occupied territory. Local legislation and institutions based upon such legislation must be respected by an occupying power and by any local authorities acting under the global control of the occupying power. This general prohibition to change the local legislation also applies to post-conflict reconstruction efforts, including constitutional reforms, and changes of economic and social policies. The author examines the exceptions to the prohibition and assesses whether the widespread legislative activities by the occupying powers in Iraq fall under these exceptions. He then analyses the question of whether the law of military occupation ceased to apply in Iraq on 30 June 2004. It is also suggested that Article 43 applies to some peace operations and provides a useful framework even for those peace operations to which it does not formally apply.
Foreign Occupation and International Territorial Administration: The Challenges of Convergence by Steven R. Ratner
Professor of Law, University of Michigan Law School.
Email: sratner@umich.edu.
International organizations have increasingly joined states as occupiers of territory. Yet international law doctrine and policymakers have regarded occupation by states and administration by international organizations as distinct legal and political phenomena. The stigma associated with state occupation has translated into an assumption that the two operations are governed by different norms and their tactics for asserting control subject to different standards of legitimacy. This article rejects that dichotomy and the doctrinal parsing that comes with it. It emphasizes the common traits and challenges of these occupations and argues for a joint legal and political appraisal. From the legal perspective, the two sorts of missions operate under common legal frameworks; those managing both need to find the proper balance among international humanitarian law, international human rights law, local law, and any mandate from an international organization. As a political matter, each encounters resistance from those in the territory opposed to its presence, leading to coercive responses whose legitimacy will be questioned from within and outside the territory. The article concludes with some modest thoughts on how each sort of occupier might learn something from the other.
The Antinomies of Transformative Occupation by Nehal Bhuta
Arthur C. Helton Fellow (2005–2006), Human Rights Watch. The views expressed in this article are the author's alone.
Email: Nehal.Bhuta@gmail.com.
In this article, the author sketches a preliminary conceptual history of the idea of belligerent occupation by situating its emergence in the particular conditions of the European land order as it evolved after the Congress of Vienna in 1815. He argues that the development of occupatio bellica as a legal institution can be seen as part of the wider effort to re-found and restore the concrete spatial order of the jus publicum Europaeum, in response to the twin perils of revolutionary war and wars of liberation. He develops an analogy between the classical concept of belligerent occupation and the Roman institution of commissarial dictatorship. He contends that the US occupation of Iraq is accurately regarded as a ‘transformative' occupation, which is analogous to a shift from commissarial to sovereign dictatorship. Sovereign dictatorship and transformative occupation are fraught with political risk, as their success depends on a precarious dialectic of subordination and legitimation.
When the French in 1792 invaded Italy, they had no scruple in summoning the invaded populations to repudiate all allegiance to their sovereigns...Nys may tell us that the French generals ‘limited themselves' to breaking the ties between invaded peoples and their princes and to convoking assemblies to determine the form of government. There is no doubt that the assemblies would never have been permitted to reinstate the princes, or to establish any form of rule distasteful to the Republic; it was practically a reversion to the old type of conquest by occupation; the later decree [...] directing the military authority to suppress all existing authorities, taxes, feudal government and privileges, in reality goes very little further. The whole drastic proceeding was a consequence of the breaking away of France from the sphere of international law, and of her desire to replace it by a new Law of Nations of which the first article should be – ‘no state may be organized on any but a soi-disant republican system.' It was not that a monarchical state was necessarily, as she expressed it, her enemy; it was not even a lawful enemy.1
A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya by William Abresch
Director, Project on Extrajudicial Executions, Center for Human Rights and Global Justice at New York University School of Law. JD (New York University School of Law).
Email: william.abresch@nyu.edu.
The cases on Chechnya recently decided by the European Court of Human Rights force us to re-evaluate the relationship between human rights law and humanitarian law. Since the International Court of Justice held that humanitarian law is lex specialis to human rights law in 1996 – if not since the Tehran Conference of 1968 – it has been widely accepted that ‘human rights in armed conflict' refers to humanitarian law. The ECtHR has directly applied human rights law to the conduct of hostilities in internal armed conflicts. The rules it has applied may prove controversial, but humanitarian law's limited substantive scope and poor record of achieving compliance in internal armed conflicts suggest the importance of this new approach.
An Inquiry into the Turkish ‘School' of International Law by Berdal Aral
Lecturer in International Law, Fatih University, Istanbul, Turkey.
Email: baral@fatih.edu.tr.
This paper seeks to examine major Turkish textbooks of public international law, focusing particularly on a small number of core areas in this discipline: historical origins and basic features; formal sources; main subjects; the law of territory; international law and development. These textbooks show a strong inclination towards Eurocentrism and positivism due to their denial of the vigour of ‘soft law', as manifested for instance in UN General Assembly resolutions, and of their marginal treatment of ‘international law and development'. What is more, substantive issues of international law are not discussed in a critical way; rather the procedures of the discipline are given priority. This is almost to suggest that Turkish international law scholars hold the view that their raison d'être is confined to ‘technical expertise', and that the relationship between law, other disciplines and society lies outside their domain. In the final analysis, therefore, the hard core of issues integral to international law and having a deep impact on international politics, such as the search for a New International Economic Order (NIEO), the principle of self-determination and human rights are either entirely bypassed or treated only very narrowly in Turkish international law textbooks.