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The Refugees We Are: Solidarity, Asylum, And Critique In The European Constitutional Imagination, Paul Linden-Retek Jun 2021

The Refugees We Are: Solidarity, Asylum, And Critique In The European Constitutional Imagination, Paul Linden-Retek

Journal Articles

This Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.

On this revised view, legal solidarity guarantees a particular form of adjudication through …


The International Criminal Court: Promise And Politics, Makau Wa Mutua Jan 2017

The International Criminal Court: Promise And Politics, Makau Wa Mutua

Journal Articles

No abstract provided.


The Spirit And Task Of Democratic Cosmopolitanism: European Political Identity At The Limits Of Transnational Law, Paul Linden-Retek Mar 2013

The Spirit And Task Of Democratic Cosmopolitanism: European Political Identity At The Limits Of Transnational Law, Paul Linden-Retek

Journal Articles

The problem motivating this essay is the continuing, yet difficult hope for a Europe of democratic cosmopolitanism, for a Europe in which cosmopolitics works to continually question the terms of lingering exclusion while preserving our ideals of self-legislation and democratic authorship. In what follows, I expand the familiar criticism of Europe’s democratic legitimacy gap, its democratic deficit, as a lens through which to analyse the possibility of a supranational participatory identity within the European political space. First, I describe the contemporary juridification of European politics, specifically concerning the legal formalism of the European Court of Justice, and the dangers such …


Authority To Proscribe And Punish International Crimes, Guyora Binder Jan 2013

Authority To Proscribe And Punish International Crimes, Guyora Binder

Journal Articles

Although criminal jurisdiction is usually exercised by governments, offenses can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow …


Typologies Of Scholarship On Africa, Makau Wa Mutua Jan 2013

Typologies Of Scholarship On Africa, Makau Wa Mutua

Journal Articles

No abstract provided.


Multipolar Governance Across Environmental Treaty Regimes: The Ramsar Convention In Its Middle Age, Kim Diana Connolly Jan 2013

Multipolar Governance Across Environmental Treaty Regimes: The Ramsar Convention In Its Middle Age, Kim Diana Connolly

Journal Articles

No abstract provided.


Pirate Trials, The International Criminal Court And Mob Justice: Reflections On Postcolonial Sovereignty In Kenya, Mateo Taussig-Rubbo Jan 2011

Pirate Trials, The International Criminal Court And Mob Justice: Reflections On Postcolonial Sovereignty In Kenya, Mateo Taussig-Rubbo

Journal Articles

No abstract provided.


Jeremy I. Levitt's Africa: Mapping New Boundaries In International Law, Makau Wa Mutua Jul 2010

Jeremy I. Levitt's Africa: Mapping New Boundaries In International Law, Makau Wa Mutua

Book Reviews

This is a review of Jeremy Levitt’s edited collection of chapters in Africa: Mapping the Boundaries of International Law, which is an impressive work to the dearth of scholarship on Africa’s contribution to the normative substance and theory of international law. The book explicitly seeks to counter the racist mythology that Africans were tabula rasa in international law. In his own introduction to the book, Levitt makes it clear that “Africa is a legal marketplace, not a lawless basket case.” The eight contributors to the book are renowned scholars who make the case that Africa is not stuck in pre-history …


Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish Apr 2009

Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish

Journal Articles

This Introductory Note to the publication in ILM of the newly-adopted Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) seeks to put the primary source document in proper context by briefly explaining its history, content, and significance in international law. The Note is accompanied by the text of the OP-ICESCR, adopted by the U.N. General Assembly on December 10, 2008 to commemorate the 60th anniversary of the Universal Declaration of Human Rights. The OP creates an individual complaints procedure for alleged violations of the ICESCR, rectifying a thirty year asymmetry in human rights treaty law.


States Of War: Defensive Force Among Nations (Reviewing George P. Fletcher & Jens David Ohlin, Defending Humanity: When Force Is Justified And Why (2008)), Guyora Binder Jan 2009

States Of War: Defensive Force Among Nations (Reviewing George P. Fletcher & Jens David Ohlin, Defending Humanity: When Force Is Justified And Why (2008)), Guyora Binder

Book Reviews

In "Defending Humanity: When Force is Justified and Why," George Fletcher and Jens Ohlin analogize international defensive force to individual self-defense. Based on this analogy, Fletcher and Ohlin justify a presumptive right on the part of every state to intervene against aggression, and a right of humanitarian intervention in support of national groups but not populations. They oppose reprisals, preemptive defense, and resistance to invading armies by irregular troops. This review essay argues that the relative weakness of the Security Council, the unequal power of states, and the contingency of international recognition on effective force all undermine the analogy between …


Just Back From The Human Rights Council, Makau Mutua Jan 2008

Just Back From The Human Rights Council, Makau Mutua

Journal Articles

The piece critically looks at the transition from the UN Commission on Human Rights to the UN Human Rights Council in 2006 and questions whether the change is one of substance or form. It argues that the same paralysis that dogged the Commission will continue to afflict the Council because power politics and regional blocs - fueled by the global asymmetries of power - will not go away. The piece also contends that the charge by the West that the Commission was utterly compromised by the Third World was without merit because it was the one forum where developing could …


Standard Setting In Human Rights: Critique And Prognosis, Makau Wa Mutua Aug 2007

Standard Setting In Human Rights: Critique And Prognosis, Makau Wa Mutua

Journal Articles

This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order - which is defined by multiple asymmetries - determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy …


The U.N. Disability Convention: Historic Process, Strong Prospects And Why The U.S. Should Ratify, Tara J. Melish Jan 2007

The U.N. Disability Convention: Historic Process, Strong Prospects And Why The U.S. Should Ratify, Tara J. Melish

Journal Articles

On December 13, 2006, the United Nations General Assembly unanimously adopted the Convention on the Rights of Persons with Disabilities. The Convention is historic and path-breaking on several levels, both in protection terms for the world's 650 million persons with disabilities who may now draw upon its provisions in defense of their internationally-protected rights, and in relation to the unprecedented level of civil society input and engagement in the negotiation process. This sustained and constructive engagement has given rise to a dynamic process of dialogue, cooperation, and mutual trust that will fuel monitoring and implementation work, at national and international …


Gender Equality And Women's Solidarity Across Religious, Ethnic And Class Difference In The Kenyan Constitutional Review Process, Athena D. Mutua Jan 2006

Gender Equality And Women's Solidarity Across Religious, Ethnic And Class Difference In The Kenyan Constitutional Review Process, Athena D. Mutua

Journal Articles

This paper examines Kenyan's women's struggle to gain new legal authority for gender equality and women's empowerment in the Kenya Constitutional Review process. Specifically it examines the efforts of the campaign to "safeguard the gains of women in the Draft Constitution," a campaign launched by a coalition of four civil society organizations in Kenya after the release of a new Draft constitution in 2002. Its focus is the 2002 Draft, the Draft's relationship to the current Kenyan Constitution and to recent constitutional proposals, from a gender perspective.

The constitutional review process is part of a larger movement to democratize the …


The Writ Of Habeas Corpus And The Special Court For Sierra Leone: Addressing An Unforeseen Problem In The Establishment Of A Hybrid Court, Anthony O'Rourke Jan 2005

The Writ Of Habeas Corpus And The Special Court For Sierra Leone: Addressing An Unforeseen Problem In The Establishment Of A Hybrid Court, Anthony O'Rourke

Journal Articles

No abstract provided.


Triptych: Three Meditations On How Law Rules After Globalization, David A. Westbrook Jan 2003

Triptych: Three Meditations On How Law Rules After Globalization, David A. Westbrook

Journal Articles

No abstract provided.


Universal Jurisdiction: Questions Of Blind Universality, Makau Wa Mutua Jul 2001

Universal Jurisdiction: Questions Of Blind Universality, Makau Wa Mutua

Other Scholarship

No abstract provided.


The Rwanda Tribunal: A Critical Assessment, Makau Wa Mutua Apr 2001

The Rwanda Tribunal: A Critical Assessment, Makau Wa Mutua

Other Scholarship

No abstract provided.


What Is Twail?, Makau W. Mutua Jan 2000

What Is Twail?, Makau W. Mutua

Journal Articles

The piece seeks to conceptualize the insurgent movement in international law known as Third World Approaches to International Law. Driven by scholars from the Third World, TWAIL rejects the traditional tenets and assumptions of traditional international law and argues for a re-imagination of the law of nations to purge it of racial and hegemonic precepts and biases to create a truly universal corpus that embraces inclusivity and empowerment. The movement turns away from the imperialist and colonialist foundation of international law. It argues that international law must be devoid of oppression, exploitation, and domination. The piece is among the first …


Critical Race Theory And International Law: The View Of An Insider-Outsider, Makau Mutua Jan 2000

Critical Race Theory And International Law: The View Of An Insider-Outsider, Makau Mutua

Journal Articles

This article contends that international law, like national law, is captive to the racial biases and hierarchies that hide injustice under the pretext of legal neutrality and universality. It argues that international law is tormented by racist and hegemonic asymmetries that govern the international order. The piece posits that international law could benefit greatly from the method of critical race theory in unpacking the pathologies of power and race that define it. It focuses on the use of international law to conceive and buttress the exploitation and marginalization of the North by the South. It calls for a reconstruction of …


Cultural Relativism And Cultural Imperialism In Human Rights Law, Guyora Binder Jan 1999

Cultural Relativism And Cultural Imperialism In Human Rights Law, Guyora Binder

Journal Articles

The "Universalism-Cultural Relativism" debate proceeds on the assumption that international human rights law requires the identification of fundamental principles of justice that transcend culture, society, and politics. Thus, the debate presumes that to assert the cultural relativity of justice is to deny the legitimacy of international human rights law. This comment challenges this presumed linkage between international human rights law and universally valid criteria of justice. Human rights standards are obviously culturally relative, and human rights law is obviously a Western institution. But so are the kind of states that human rights law sets out to restrain. The nation-state ideal …


Ingos As Political Actors, Makau Mutua Jan 1999

Ingos As Political Actors, Makau Mutua

Journal Articles

No abstract provided.


Look Who's Making The Rules: International Environmental Standard Setting By Non-Governmental Organizations, Errol E. Meidinger Jan 1997

Look Who's Making The Rules: International Environmental Standard Setting By Non-Governmental Organizations, Errol E. Meidinger

Journal Articles

No abstract provided.


Never Again: Questioning The Yugoslav And Rwanda Tribunals, Makau Wa Mutua Jan 1997

Never Again: Questioning The Yugoslav And Rwanda Tribunals, Makau Wa Mutua

Journal Articles

Fifty years after Nuremberg, the international community has again decided to experiment with international war crimes tribunals. The stated purpose for the establishment of both the Yugoslav and Rwanda Tribunals by the United Nations are to “put an end” to serious crimes such as genocide and to “take effective measures to bring to justice the persons who are responsible for them.” This piece argues that both assumptions are unrealistic and that such tribunals will have little or no effect on human rights violations of such enormous barbarity. In addition, this piece questions the motivations behind the formulation of the tribunals …


The Politics Of Human Rights: Beyond The Abolitionist Paradigm In Africa (Review Essay), Makau Wa Mutua Jan 1996

The Politics Of Human Rights: Beyond The Abolitionist Paradigm In Africa (Review Essay), Makau Wa Mutua

Book Reviews

Review of Claude E. Welch, Protecting Human Rights in America: Strategies and Roles of Non-Governmental Organizations (1995).


Putting Humpty Dumpty Back Together Again: The Dilemmas Of The Post-Colonial African State (Review Essay), Makau Wa Mutua Jan 1995

Putting Humpty Dumpty Back Together Again: The Dilemmas Of The Post-Colonial African State (Review Essay), Makau Wa Mutua

Book Reviews

Reviewing Collapsed States: The Disintegration and Restoration of Legitimate Authority, I. William Zartman, ed.


Why Redraw The Map Of Africa: A Legal And Moral Inquiry, Makau Wa Mutua Jan 1995

Why Redraw The Map Of Africa: A Legal And Moral Inquiry, Makau Wa Mutua

Journal Articles

This article questions the legitimacy of the African state and the imperial cartography on which it is based. It argues that African states are conceptually faulty because they are the crude and thoughtless handiworks of European colonial powers. It is the artificiality of the African state that has been responsible for its failure to cohere into a nation that is viable. The piece argues for geographic and normative re-articulation of the African state - by smashing the current states - to endow them with moral, political, and legal legitimacy. It concludes that democratic entities are unlikely to develop where pre-colonial …


Human Rights And State Despotism In Kenya: Institutional Problems, Makau Wa Mutua Oct 1994

Human Rights And State Despotism In Kenya: Institutional Problems, Makau Wa Mutua

Other Scholarship

No abstract provided.


Post-Totalitarian Politics, Guyora Binder May 1993

Post-Totalitarian Politics, Guyora Binder

Journal Articles

This review essay examines two Hegelian responses to the unexpected collapse of communism, both published in 1992: The End of History by Francis Fukuyama and Civil Society and Political Theory by Jean Cohen and Andrew Arato. Fukuyama’s book famously predicted that the triumph of markets would lead to the end of armed conflict. Cohen & Arato celebrated the role of civil society activists in overthrowing communism, and proposed that first world progressives follow a similar path to reform. This review essay argues that Fukuyama’s interpretation of Hegel as a cold war liberal ignores Hegel’s warnings about the anomic and antisocial …


Islamic International Law And Public International Law: Separate Expressions Of World Order, David A. Westbrook Jan 1993

Islamic International Law And Public International Law: Separate Expressions Of World Order, David A. Westbrook

Journal Articles

No abstract provided.