Digital Commons Network^™

Goodbye To All That? A Requiem For Neoconservatism, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

American University, WCL Research Paper No. 2008-74 Abstract: The war on terror and the war in Iraq have occasioned a ferocious debate over the Bush administration's commitment to neo-conservatism as the guiding philosophy behind war aiming at democratic transformation. Two recent, widely noticed 2006 books have attacked neo-conservatism - one, by a former neoconservative, Francis Fukuyama (After the Neocons: America at the Crossroads), and a second, by a centrist liberal, Peter Beinart (The Good Fight). Each seeks to anatomize neo-conservatism and what, in each author's view, has gone wrong with it; each seeks to offer an alternative foreign policy. This …

Judicial Review And The War On Terror, John C. Yoo

ExpressO

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial …

Operation "Drive Out The Trash": The Case For Imposing Targeted United Nations Sanctions Against Zimbabwean Officials, Katherine Hughes

Fordham Law Review

In May 2005, representatives of President Robert Mugabe's government initiated a slum-clearance campaign entitled Operation Murambatsvina, which displaced nearly one million Zimbabweans. Using Operation Murambatsvina as a case study, this Note examines how the United Nations (U.N.) should respond to governments that violate the human rights of those living within their borders. Exploring arguments for and against the various responses available to the U.N., this Note argues that targeted sanctions are the most appropriate response to the abuses perpetrated by the Mugabe regime and offers suggestions for crafting a “smart” sanctions program.

Destructive Ambiguity: Enemy Nationals And The Legal Enabling Of Ethnic Conflict In The Middle East, Michael Kagan

Scholarly Works

In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights …

Evolving Geneva Convention Paradigms In The 'War On Terrorism': Applying The Core Rules To The Release Of Persons Deemed 'Unprivileged Combatants', Sean D. Murphy

GW Law Faculty Publications & Other Works

The purpose of this essay, written in late 2006, is to take stock of the current application of the Geneva Conventions in the global "war on terrorism," including interpretations recently taken by the U.S. Supreme Court in the Hamdan case. The Geneva Conventions and the laws of war more generally comprise a sophisticated regulatory regime whose rules can and should be closely analyzed by lawyers. Yet, like all law, the inevitable imprecision in the rules presents opportunities for governments to exploit gray areas so as to augment governmental authority, and to avoid sensible interpretations that will protect individuals from overreaching …

Attaining Optimal Deterrence At Sea: A Legal And Strategic Theory For Naval Anti-Piracy Operations, Michael Bahar

Vanderbilt Journal of Transnational Law

On January 21, 2006, a guided missile destroyer accomplished the U.S. Navy's first capture of suspected pirates in recent memory. As the Staff Judge Advocate for the NASSAU Strike Group, the Author advised the seizure, led the onboard investigation, oversaw the shipboard detentions, and testified at the trial in Kenya.

Drawing upon this experience, the Author constructs a comprehensive legal and strategic theory for piracy, defining the legal status of pirates and deriving the due process rights that should be afforded them.

The Article also analyzes the evolution of customary and positive international law to demonstrate that, contrary to conventional …

Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In this article, I develop three theses. First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that disputes about legality based on disagreements over characterization have arisen in at least eight different subject areas, ranging from …

An Introduction To The History Of International Human Rights Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

As part of a lecture series given at the International Institute of Human Rights, in Strasbourg, France, in July 2003, the author presents an overview of the history of international human rights law. The author explores numerous religious, political, cultural, philosophical, economic and intellectual movements throughout history that have informed and guided the development of human rights law on the global stage. In doing so, the author examines the moral and ethical dimensions which underpin international human rights law, including what she defines as the innate human desire for protection from abuse. The author highlights the world's most significant historical …

Do We Need New International Law To Protect Women In Armed Conflict, Karima Bennoune

Case Western Reserve Journal of International Law

No abstract provided.

Full Volume 81: International Law Challenges: Homeland Security And Combating Terrorism

International Law Studies

No abstract provided.

World News, J.C. Sylvan, Cari Shiffman, Frank Pigott, Abigail Okrent

PEEL Alumni Scholarship

Since an explosion on November 13, 2005 at Jilin Petrochemical Corporation’s benzene factory in the northeastern city of Harbin, 45 other pollution accidents were reported to China’s State Environmental Protection Administration [“SEPA”], including six “major disasters.” The Harbin explosion poured one hundred tons of the carcinogenic benzene and nitrobenzene into the Songhua River in a plume of contaminated water 150 kilometers long. Ten thousand people were evacuated and four million people had no public water services for several days. On February 14, 2006, another major spill in the Yuexi River left 20,000 residents of the Sichuan village of Guanyin without …

Hostis Humani Generi: Piracy, Terrorism And A New International Law, Douglas R. Burgess Jr.

University of Miami International and Comparative Law Review

No abstract provided.

Battered Nation Syndrome: Relaxing The Imminence Requirement Of Self-Defense In International Law, Michael Skopets

American University Law Review

No abstract provided.

Battered Nation Syndrome: Relaxing The Imminence Requirement Of Self-Defense In International Law, Michael Skopets

American University Law Review

No abstract provided.

South Korea's National Security Law: A Tool Of Oppression In An Insecure World, Diane B. Kraft

Law Faculty Scholarly Articles

In September 2004, the ruling party in South Korea, along with two opposition parties, called for the abolishment of the 1948 anti-communist National Security Law. The following month, Amnesty International, a long-time critic of the law, officially called for the law's repeal. The law had been enacted in 1948 in response to threats from communist North Korea, but has long been used by the government to silence legitimate opposition in South Korea. This Comment will examine South Korea's National Security Law as viewed by its domestic supporters and critics, as well as by the international community. Part I will consider …

Pro-Democratic Intervention In Africa, Jeremy I. Levitt

Journal Publications

In the past twenty years the people of the African continent have experienced human suffering on a scale unparalleled in human history. For the past decade I have examined and documented the evolution of Africa's peacekeeping, peace enforcement, regional collective security, and conflict management landscape as well as Africa's contribution to international law, particularly as it relates to the jus ad bellum, "the law of the use of force". Although an abundance of scholarly work and official studies have examined the complexities of humanitarian intervention, only a select body of credible work has considered the phenomenon of pro-democratic intervention (PDI)--very …

The Role Of International Law In Post-Conflict Constitution-Making: Toward A Jus Post Bellum For “Interim Occupations”, Jean L. Cohen

NYLS Law Review

No abstract provided.

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

Universal Jurisdiction And The Pirate: Time For An Old Couple To Part, Joshua M. Goodwin

Vanderbilt Journal of Transnational Law

For hundreds of years, the world has allowed any nation-state to exercise universal jurisdiction over high seas piracy. This has been recently codified by the United Nations in the Convention on the Law of the Seas. It has been almost universally assumed that allowing states to do this was legitimate. As this Note will argue, however, the reasons for allowing states to exercise jurisdiction in this way no longer make sense in the modern world. Further, allowing states to exercise universal jurisdiction over pirates violates the due process rights of the pirates and poses a threat to international stability. To …

Remarks By An Idealist On The Realism Of 'The Limits Of International Law', Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This paper is a response to Jack L. Goldsmith and Eric A. Posner, 'The Limits of International Law' (Oxford 2005), part of a symposium on the book held at the University of Georgia Law School in October 2005. The review views 'The Limits of International Law' sympathetically, and focuses on the intersection between traditional and new methodologies of international law scholarship, on the one hand, and the substantive political commitments that differing international law scholars hold, on the other. The paper notes that some in the symposium claim that the problem with 'The Limits of International Law' is that it …

The Limits Of Intervention—Humanitarian Or Otherwise, J. Peter Pham

Human Rights & Human Welfare

A review of:

The Dark Sides of Virtue: Reassessing International Humanitarianism by David Kennedy. Princeton: Princeton University Press, 2004. 400 pp.

and

At the Point of a Gun: Democratic Dreams and Armed Intervention by David Rieff. New York: Simon & Schuster, 2005. 288 pp.

Handcuffed Hegemony: International Restraint In Unbalanced Systems, Mark E. Schaefer

Graduate Theses, Dissertations, and Problem Reports (ETD)

This work contends that the current systemic view of hegemonic systems is incorrect. On one hand hegemonic actors are conceptualized as omnipotent actors that can mold the system to best reflect its goals. Still, others illustrate that such unipolar systems can never be achieved, or at best exist for a short time as other powers move to rebalance the international system. Mearsheimer illustrates a more realistic approach, that unbalanced multipolar systems can exist, in which a larger state is present in a traditional multipolar system, not a traditional vertical authority structure. He contends that such a system is transient, for …

International Space Law In Transformation: Some Observations, Glenn Harlan Reynolds

Scholarly Works

No abstract provided.

Authorizations For The Use Of Force, International Law, And The "Charming Betsy" Canon, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Although international law has figured prominently in many disputes around actions of the U.S. military, the precise relationship between international law and the President's war powers has gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorizations for the use of force. In the seminal case of Hamdi v. Rumsfeld, the plurality opinion used international law to interpret the authorization by Congress for the use of force, but did so without adequate attention to the content or interpretive function of international law. This …

Reply Declaration On Issues Of International Law, Laws Of War, Corporate Liability In International Law In Agent Orange Ats Litigation, Kenneth Anderson

Legislative Testimony & Comments

This reply declaration elaborates the November 2, 2004 declaration on behalf of corporate defendants by Kenneth Anderson in the Agent Orange product liability ATS case heard before Judge Jack B. Weinstein. I have posted the declaration and this reply declaration to SSRN because of frequent requests for them from academics and because the declaration has been cited in scholarship. The reply declaration addresses the use of Agent Orange in the Vietnam War and the claim that its use in that period violated the laws of armed conflict. It discusses treaty and customary law of poison and poisoned weapons, issues of …

The Legality Of Torture As A Means To An End V. The Illegality Of Torture As A Violation Of Jus Cogens Norms Under Customary International Law, Stephanie L. Williams

University of Miami International and Comparative Law Review

No abstract provided.

Disaster Relief And Governance After The Indian Ocean Tsunami: What Role For International Law?, David P. Fidler

Articles by Maurer Faculty

The tsunami in the Indian Ocean at the end of 2004 has produced heightened scrutiny of how international disaster relief is supplied and governed. This scrutiny connects to arguments by the International Federation of Red Cross and Red Crescent Societies that more effective and efficient disaster relief requires the significant development of international law on disaster relief. This commentary analyses the historical and current relationship between international law and disaster relief and challenges the arguments that more international law on disaster relief is needed.

The Meaning Of Moscow: "Non-Lethal" Weapons And International Law In The Early 21st Century, David P. Fidler

Articles by Maurer Faculty

At the intersection of new weapon technologies and international humanitarian law, so-called "non-lethal" weapons have become an area of particular interest. This article analyses the relationship between "non-lethal" weapons and international law in the early 21st century by focusing on the most seminal incident to date in the short history of the "non-lethal" weapons debate, the use of an incapacitating chemical to end a terrorist attack on a Moscow theatre in October 2002. This tragic incident has shown that rapid technological change will continue to stress international law on the development and use of weaponry but in ways more politically …

Why Not Preempt?: An Analysis Of The Impact Of Legal And Normative Constraints On The Use Of Anticipatory Military Activities, Rachel Tamara Bzostek

LSU Doctoral Dissertations

The 2002 National Security Strategy for the United States focused American strategic policy around the use, or potential use, of preemptive/preventive strikes, particularly as a counter-proliferation and counter-terrorism tool. While preemption and prevention are not new strategies, they have never been highlighted to such a degree as is currently the case. These activities have been studied in the context of international security, using elements such as spiral models and offense-defense theory. This study seeks to examine if other elements, specifically international law and normative issues, such as just war tradition, contribute to our understanding of the use, or non-use, of …

Subjects Of International Law: A Power-Based Analysis, Guido Acquaviva

Vanderbilt Journal of Transnational Law

In this Article, the Author challenges the definition of the term "state" that is commonly accepted in legal scholarship as the basis for assessing whether an entity is a subject of international law. By analyzing a number of cases that do not fit into the "traditional" model--including the Holy See, Napoleon, and the Confederacy--the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty. An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: territory and population are therefore not essential attributes of …