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The 21st Century Space Arms Race: Curtailing Heavenly Thunderbolts Through The Shield Of The ‘Peaceful Purposes’ Mantra, Jackson N. Maogoto, Steven Freeland Dec 2008

The 21st Century Space Arms Race: Curtailing Heavenly Thunderbolts Through The Shield Of The ‘Peaceful Purposes’ Mantra, Jackson N. Maogoto, Steven Freeland

Jackson Nyamuya Maogoto

Because of its uniquely commanding height, outer space has gained even greater military and strategic value in the post-Cold War international strategic environment. This provides for the possibility – some say probability - that outer space will become a platform for warfare. This development can only have negative consequences in the long term. As the United States pursues a policy that incorporates the placing of weapons in outer space, the other major space faring powers have not been idly sitting by. Recent advances in space technologies have put the development of space weapons within the realm of possibility for several other countries ...


Constituting Vanuatu: Societal, Legal And Local Perspectives, Jackson N. Maogoto, Benedict S Jan 2008

Constituting Vanuatu: Societal, Legal And Local Perspectives, Jackson N. Maogoto, Benedict S

Jackson Nyamuya Maogoto

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as the Westminster system and its constitution are often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that create not ...


From Star Wars To Space Wars—The Next Strategic Frontier: Paradigms To Anchor Space Security, Jackson N. Maogoto, Steven Freeland Jan 2008

From Star Wars To Space Wars—The Next Strategic Frontier: Paradigms To Anchor Space Security, Jackson N. Maogoto, Steven Freeland

Jackson Nyamuya Maogoto

Military blueprints by major space-faring powers now encapsulate concepts of ‘space support’ and ‘force enhancement’ which point to a central role of space assets in facilitating military operations while notions of ‘space control’ and ‘force application’ suggest the weaponization of space, and the putative view that space may in the near future be a theatre of military operations. As defence goals increasingly focus on space as the final frontier evident in development of national missile defence systems, anti-satellite weapons and other space-based systems, international peace and security faces a new challenge. Creators of the current legal regime for space failed ...


The Private Military Company—Unravelling The Theoretical, Legal & Regulatory Mosaic, Jackson N. Maogoto, Benedict Sheehy Jan 2008

The Private Military Company—Unravelling The Theoretical, Legal & Regulatory Mosaic, Jackson N. Maogoto, Benedict Sheehy

Jackson Nyamuya Maogoto

As an undeclared arm of the state, the PMC is politically expedient having proved to be highly advantageous in certain circumstances when states wish to engage in surreptitious or unpopular violence, yet easy to condemn when states need to gather political capital. In other words, the PMC has become an integral actor in the system of governance at both national and international levels. Such corporations, at least at one level, represent the evolution, globalization, and corporatization of the age-old mercenary trade. The worry, of course, is that they operate without the public scrutiny appropriate for military actors. Indeed, the matter ...


A People Betrayed—The Darfur Crisis And International Law: Rethinking Westphalian Sovereignty In The 21st Century, Jackson N. Maogoto Jan 2007

A People Betrayed—The Darfur Crisis And International Law: Rethinking Westphalian Sovereignty In The 21st Century, Jackson N. Maogoto

Jackson Nyamuya Maogoto

Using the crisis in the Darfur region of Western Sudan as the reference for analysis, this article argues for a re-conceptualized notion of State sovereignty—one that views sovereignty not as control but as responsibility—as the starting point for designing appropriate legal and policy responses to the Darfur situation that has so far defied easy solution. The article proceeds from the assumption that while sovereign States have the primary responsibility for the protection of their people from avoidable catastrophe, this responsibility should shift to the international society whenever the State in question manifests an inability or unwillingness to protect ...


East Timor’S Tortured March To Statehood: A Tale Of Legal Exclusion & The Vagaries Of Realpolitik, Jackson N. Maogoto Jan 2007

East Timor’S Tortured March To Statehood: A Tale Of Legal Exclusion & The Vagaries Of Realpolitik, Jackson N. Maogoto

Jackson Nyamuya Maogoto

In 1976, without effective local opposition, Indonesia absorbed and annexed East Timor as its twenty-seventh province, but the integration remained controversial at the international level.In the course of the next three decades and in the face of heavy-handed tactics by Indonesian forces keen to wipe out a guerrilla resistance and effectively “pacify” East Timorese battle raged killing thousands. Indonesian police forces regularly detained and tortured innocent civilians and brutally suppressed peaceful protests. Massive violence committed by Indonesian backed militia forces on East Timor increasingly hardened the international community’s support for East Timor’s independence. The turning point was ...


A People Betrayed-The Darfur Crisis And International Law: Rethinking Westphalian Sovereignty In The 21st Century, Jackson N. Maogoto, Kithure Kindiki Jan 2007

A People Betrayed-The Darfur Crisis And International Law: Rethinking Westphalian Sovereignty In The 21st Century, Jackson N. Maogoto, Kithure Kindiki

Jackson Nyamuya Maogoto

This Article uses the Darfur Crisis in Sudan as a case study. It argues that rather than eliminating sovereignty as a political ideology, a more productive enterprise would be to refocus the discourse away from the traditional structural understanding of the term, which only serves to accentuate the level of discrepancy between the theological and the political definitions of the term and which ultimately leaves the false impression that absolute sovereignty is somehow realizable in the international political sphere. This refocus would constitute a shift toward a functional conception of sovereignty, wherein the purpose that State sovereignty would serve in ...


The Final Frontier: The Laws Of Armed Conflict And Space Warfare, Jackson N. Maogoto, Steven Freeland Jan 2007

The Final Frontier: The Laws Of Armed Conflict And Space Warfare, Jackson N. Maogoto, Steven Freeland

Jackson Nyamuya Maogoto

This article focuses on the application of the current laws of war to the emerging phenomenon of space weaponization and the increasing likelihood in the next few decades of space becoming a battleground. This predicament requires new ways of thinking and legal regulation, considering that the existing principles of the Laws of Armed Conflict (LOAC) are primarily focused on air, land and terrestrial warfare. This article addresses the special problems arising from applying the LOAC to space warfare. It will also analyze the significant problems posed by space assets dedicated to uses of both a civilian and military nature – the ...


The Superior Orders Defence: A Game Of Musical Chairs And The Jury Is Still Out, Jackson N. Maogoto Dec 2006

The Superior Orders Defence: A Game Of Musical Chairs And The Jury Is Still Out, Jackson N. Maogoto

Jackson Nyamuya Maogoto

This article has as its aim an exploration of the development of the superior orders defence within both the national and international arena. It discusses the case law at both national and international levels as well as reflect on the various legal provisions as encapsulated in international instruments and national military manuals. It concludes with an overview of the military and international law paradox. On the one hand, military law tutors and soldiers are trained to comply with commands in order to ensure organisational integrity and efficiency; on the other hand, international law seems to suggest, by the tenor of ...


Silencing Human Rights In The Clash Of Arms? Israel’S Official Policy Of “Targeted Killings”—A Dark Side In Fighting Terrorism, Jackson N. Maogoto Oct 2006

Silencing Human Rights In The Clash Of Arms? Israel’S Official Policy Of “Targeted Killings”—A Dark Side In Fighting Terrorism, Jackson N. Maogoto

Jackson Nyamuya Maogoto

There is no act to which the law does not apply in as far as it is a matter falling within the purview of the law and the law takes a position as to whether it is permitted or forbidden. Where there are legal norms there are also legal standards to implement the norms. When a democracy fights terrorism the law cannot be presumed to be silent. International human rights law applies equally in war and in peace, and covers all classes of people at all times, and under all circumstances. The wide and sweeping notion of national security should ...


Subcontracting Sovereignty: The Commodification Of Military Force And The Fragmentation Of State Authority, Jackson N. Maogoto Jan 2006

Subcontracting Sovereignty: The Commodification Of Military Force And The Fragmentation Of State Authority, Jackson N. Maogoto

Jackson Nyamuya Maogoto

This Article has as its central theme the decentralization of the state’s control over legitimate military force with the consequential diffusion of governmental control that stands to fragment state sovereignty. It argues that the increasing centrality of PMFs to the prosecution of war is creating a changed national security landscape with PMFs increasingly influencing governmental policy both overtly and covertly. PMF heads many of whom are former high ranking military and civilian personnel now advise governments and in some cases sit on government advisory boards. Additionally they also offer governments a conduit for pursuing covert foreign policy aims and ...


Gaming For “Good Governance” And The Democratic Ideal: From Universalist Rhetoric To Pacific Realities Seen Through A Fijian Microscope*, Jackson N. Maogoto Jan 2006

Gaming For “Good Governance” And The Democratic Ideal: From Universalist Rhetoric To Pacific Realities Seen Through A Fijian Microscope*, Jackson N. Maogoto

Jackson Nyamuya Maogoto

This Article canvasses the international rubric and dynamic that informs the democracy and good governance crusade before moving the discussion to a regional setting targeting Pacific Island Countries with Fiji as a case study. It seeks to argue that democratic experimentalism, not the so-called “McDonaldization” (globalization as homogenization) of the world, is important. This is based on the premise that “McDonaldization” minimizes the complex way in which the local interacts with the international. The efficacy of democratic experimentalism is that it acknowledges that rights are not based on first principles, but that, they are inevitably socially constructed and historically contingent ...


Contemporary Private Military Firms Under International Law: An Unregulated “Gold Rush”, Jackson N. Maogoto, Benedict Sheehy Dec 2005

Contemporary Private Military Firms Under International Law: An Unregulated “Gold Rush”, Jackson N. Maogoto, Benedict Sheehy

Jackson Nyamuya Maogoto

Clearly, the issues raised by the ascendance of contemporary PMFs would be suitable for a book length treatment; however, in light of the pressing nature of the present situation expediency dictates a shorter but timelier piece. This article has as its modest aim an exploration of the thorny legal issues raised by the commodification of force. It discusses the nature of the contemporary PMF noting that it bears vestiges of yester year mercenaries. It then grapples with their uncertain status under international law despite the fact that they potentially pose problems for state authority and the direct control of states ...


Countering Terrorism-From Wigged Judges To Helmeted Soldiers? Legal Perspectives On America’S Counter-Terrorism Responses, Jackson N. Maogoto Jan 2005

Countering Terrorism-From Wigged Judges To Helmeted Soldiers? Legal Perspectives On America’S Counter-Terrorism Responses, Jackson N. Maogoto

Jackson Nyamuya Maogoto

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures and implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN’s ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms—law enforcement and conflict management. Part III moves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. The part offers a ...


New Frontiers, Old Problems: The War On Terror And The Notion Of Anticipating The Enemy, Jackson N. Maogoto Oct 2004

New Frontiers, Old Problems: The War On Terror And The Notion Of Anticipating The Enemy, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The old truism, that international law is not a suicide pact, is forceful in an age of destructive weaponry. Nevertheless strategically, there is little precedent for a major military offensive against a state that has not proximately used force against the interests of the belligerent state. Legally, while a number of legitimate justifications might permit the use of force, an appropriate international law doctrine, under which the United States could execute the military campaign it recently successfully launched against Iraq, does not currently exist. But that lacuna was seemingly plugged with the “Bush Doctrine” that advocates pre-emptive strikes against rogue ...


The Final Balance Sheet? The International Criminal Court’S Challenges And Concessions To The Westphalian Model, Jackson N. Maogoto Jan 2004

The Final Balance Sheet? The International Criminal Court’S Challenges And Concessions To The Westphalian Model, Jackson N. Maogoto

Jackson Nyamuya Maogoto

This Article examines the organization and operating principles of the Court. Many aspects of the Rome Statute challenge fundamental tenets of the structure of international law existing heretofore. No analysis could address all the aspects of this new international institution and the Article seeks to focus attention on some of its major features impacting on State sovereignty--the focus of this Article. Part II of the Article explores the structure and competence of the Court and in particular the powers of the prosecutor, general principles underlying the jurisdiction of the Court, the formulation of the complementarity principle in the Court’s ...


Democratic Governance: An Emerging Customary Norm? , Jackson N. Maogoto Jan 2003

Democratic Governance: An Emerging Customary Norm? , Jackson N. Maogoto

Jackson Nyamuya Maogoto

Even when states agree on the kinds of changes necessary to initiate or restore democracy in a particular country, they may disagree sharply on the role the international community should play in seeking such changes. Such differences reflect strong philosophical and political differences over the extent to which external actors may legitimately seek changes in the domestic politics of other states. In practice, therefore, cases in which broad international agreement on measures to be taken against undemocratic regimes can be achieved are the exception rather than the rule. Democratic entitlement as a universal human right is a complex and multifaceted ...


Rushing To Break The Law? “The Bush Doctrine” Of Pre-Emptive Strikes And The Un Charter Regime On The Use Of Force, Jackson N. Maogoto Jan 2003

Rushing To Break The Law? “The Bush Doctrine” Of Pre-Emptive Strikes And The Un Charter Regime On The Use Of Force, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The issues that the Article tackles are obviously complex and lengthy, however the Article has as its modest goal the exploration of the general arguments that the use of force to counter terrorism raises under the UN Charter regime on the use of force. In Part II, the Article gives an overview of the UN and terrorism noting the ambivalence in addressing the issue that has contributed to the confusion over a precise definition in large part reflective of the basic disagreement over the elements of terrorism itself. Part II then adopts a definition for the purposes of this Article ...


The International Criminal Tribunal For Rwanda: A Paper Umbrella In The Rain? Initial Pitfalls And Brighter Prospects, Jackson N. Maogoto Jan 2003

The International Criminal Tribunal For Rwanda: A Paper Umbrella In The Rain? Initial Pitfalls And Brighter Prospects, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The tragedy which befell Rwanda in 1994 deserves a special place in the bloodstained pages of history. The Rwandan genocide merits distinction primarily because of its shocking efficiency, its scale and its proportional dimensions among the victim population. The Security Council's resolution establishing the ICTR articulates a set of decisions, assumptions, wishes, and objectives. Primarily, the States that voted in favour of the creation of the ICTR indicated that the root of the problem was individual violations of international criminal law. Only one State that voted for the resolution did not equate ipso facto ICTR actions with justice. That ...


Rushing To Break The Law? “The Bush Doctrine” Of Pre-Emptive Strikes And The Un Charter Regime On The Use Of Force, Jackson N. Maogoto Jan 2003

Rushing To Break The Law? “The Bush Doctrine” Of Pre-Emptive Strikes And The Un Charter Regime On The Use Of Force, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The issues that the Article tackles are obviously complex and lengthy, however the Article has as its modest goal the exploration of the general arguments that the use of force to counter terrorism raises under the UN Charter regime on the use of force. In Part II, the Article gives an overview of the UN and terrorism noting the ambivalence in addressing the issue that has contributed to the confusion over a precise definition in large part reflective of the basic disagreement over the elements of terrorism itself. Part II then adopts a definition for the purposes of this Article ...


Democratic Governance: An Emerging Customary Norm?, Jackson N. Maogoto Dec 2002

Democratic Governance: An Emerging Customary Norm?, Jackson N. Maogoto

Jackson Nyamuya Maogoto

Democratic entitlement as a universal human right is a complex and multifaceted issue. The Article has as its modest aim a general reflection on the enshrinement of democracy as a universal entitlement and the movement of international law in a pro-democratic direction The Article will seek to highlight the general uncertainties that continue to plague the democratic entitlement. The Article deliberately focuses on the United Nations system with reference also being given to regional efforts. The Article does not discuss the legal justifications and nature of measures to address undemocratic regimes. While such measures are significant in pro-democratic discourse, it ...


Revisiting The Balkan Crisis: A Un Question; The European Connection And The Us Solution. , Jackson N. Maogoto Jan 2002

Revisiting The Balkan Crisis: A Un Question; The European Connection And The Us Solution. , Jackson N. Maogoto

Jackson Nyamuya Maogoto

This Article examines the conflict in the former Yugoslavia which gave birth to the International Criminal Tribunal for the former Yugoslavia (ICTFY). The ICTFY established the beginning of a new pattern in the genuine international implementation of international criminal and humanitarian law and the move back to the international model inaugurated at Nuremberg which had in the Cold War era been boldly supplanted by national prosecutions. The Article seeks to show that even this ad hoc tribunal was the by-product of international realpolitik. It was born out of a political desire to redeem the international community’s conscience rather than ...


“Now You See, Now You Don’T: The Duty Of The State To Investigate And Prosecute ‘Disappearances And Extra Judicial Executions, Jackson N. Maogoto Jan 2002

“Now You See, Now You Don’T: The Duty Of The State To Investigate And Prosecute ‘Disappearances And Extra Judicial Executions, Jackson N. Maogoto

Jackson Nyamuya Maogoto

This article sets out to explore the duty of a state to punish “disappearances” and extra-judicial executions. Section II will introduce generally the spectre of forced “disappearances” and extra-judicial executions as conceived by Hitler (arguably the architect of the institutionalisation of this atrocious practice by the state) and outline a brief commentary on the scourge. Section III will define “disappearances” and extra-judicial executions. It will further discuss the attractiveness of this form of human rights violation as an instrument of governmental policy to states. Section IV will discuss developed principles of international law, both customary and conventional, that outlaw “disappearances ...


Presiding Over The Ex-President: A Look At Superior Responsibility In The Light Of The Kosovo Indictment, Jackson N. Maogoto Jan 2002

Presiding Over The Ex-President: A Look At Superior Responsibility In The Light Of The Kosovo Indictment, Jackson N. Maogoto

Jackson Nyamuya Maogoto

Individual criminal responsibility, and command responsibility in particular, are important because, to deter human rights abuses, potential perpetrators must perceive prosecution as a possible consequence of their actions. Historically, the doctrine of command responsibility has been an important tool to hold accountable leaders who plan, participate in, or acquiesce in large-scale human rights abuses. The scope of the command responsibility doctrine remains one of the most important issues in prosecuting human rights atrocities. The scope of the doctrine determines the degree to which a leader can insulate himself from criminal culpability when the criminal acts were committed by others but ...


Revisiting The Balkan Crisis: A Un Question; The European Connection And The Us Solution, Jackson N. Maogoto Dec 2001

Revisiting The Balkan Crisis: A Un Question; The European Connection And The Us Solution, Jackson N. Maogoto

Jackson Nyamuya Maogoto

This Article examines the conflict in the former Yugoslavia which gave birth to the International Criminal Tribunal for the former Yugoslavia (ICTFY). The ICTFY established the beginning of a new pattern in the genuine international implementation of international criminal and humanitarian law and the move back to the international model inaugurated at Nuremberg which had in the Cold War era been boldly supplanted by national prosecutions. The Article seeks to show that even this ad hoc tribunal was the by-product of international realpolitik. It was born out of a political desire to redeem the international community’s conscience rather than ...


Aggression: Supreme International Offence Still In Search Of Definition, Jackson N. Maogoto Dec 2001

Aggression: Supreme International Offence Still In Search Of Definition, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The consequence of the state of lawlessness that permitted States to wage war even on flimsy reasons was not fully appreciated until World War I when primitive barbarism and modern technology came together to result in enormous bloodshed and massive atrocities. The deep impression on public opinion opened the door to vigorous condemnation of aggression and a move at the international level to outlaw it. Though aggression continues to pose one of the greatest threats in the efforts to create a peaceful and stable world public order, the definition of aggression steeped as it is in political and legal quagmire ...


International Justice In The Shadow Of Realpolitik: Re-Visiting The Establishment Of The Ad Hoc International Criminal Tribunals, Jackson N. Maogoto Jan 2001

International Justice In The Shadow Of Realpolitik: Re-Visiting The Establishment Of The Ad Hoc International Criminal Tribunals, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The International Criminal Tribunals for the Former Yugoslavia and Rwanda establish the beginning of a new pattern in the genuine international implementation of international criminal law and the move back to the international model inaugurated at Nuremberg. But even these tribunals were first and foremost, the by-products of international realpolitik. They were born out of a political desire to redeem the international community’s conscience rather than the primary commitment of the international community to guarantee international justice. In the early stages, there was a persistent lack of political will by Member States to act, or to act with enough ...


Watching The Watchdogs: Holding The Un Accountable For International Humanitarian Law Violations Of The ‘Blue Helmets’, Jackson N. Maogoto Jan 2000

Watching The Watchdogs: Holding The Un Accountable For International Humanitarian Law Violations Of The ‘Blue Helmets’, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The political climate is ripe for the United Nations system to successfully and effectively provide global collective security. Now that relations have improved between the ‘East’ and ‘West’ the United Nations will indeed be able to broaden its role, and perhaps operate to its full capacity - to call into being the ‘New World Order,’ characterised by a Security Council able to respond swiftly and effectively to aggression and massive human rights violations through ‘police action’. However the significant and documented international humanitarian law violations by UN forces in the 1990s has raised the stakes. Thrice in the last decade of ...