ASIL UN21 Interest Group NEWSLETTER - ISSUE #33: June 2005 ||| (formerly UN Interest Group and UN Decade of International Law)

Our ASIL Annual Meeting Panel was superb: State Building I: Issues of Choice, Creation and Legal Justification. It was the first of two panels on the macro and micro approaches to rebuilding a society recently in conflict. It addressed the situations on the ground in locations including East Timor, Kosovo, and Iraq. Each panelist did a fabulous job of educating and inspiring the audience.

Eyal Benvenisti of Tel Aviv University spoke on The Applicability of the Law of Occupation to Post-Conflict Societies. Ambassador Hans Corell, Former Under-Secretary-General for Legal Affairs and Legal Counsel of the United Nations, next presented the Authorization for State-building Missions: Legal Issues Related to Their Creation and Management. Dr. Elizabeth Cousens, Vice President, International Peace Academy, spoke about the Context and Politics of State-Building. Ralph Wilde, Lecturer in Law, University College of London, University of London, concluded with Post-Colonial International Territorial Administration and Issues of Legitimacy. As the Moderator, I prepared the panel summary, which will appear in the 2005 issue of the ASIL’s Proceedings of the 98^th Annual Meeting–a marvelous resource for succinct details about late-breaking issues. It is scheduled to be published in October 2005.

Corruption

François Vincke and Fritz Heimann (ed.), FIGHTING CORRUPTION: A CORPORATE PRACTICES MANUAL (ICC: 2^nd ed. 2003) [paper: 243] 92-842-1321-5. Price: USD 65.

Consumer confidence has no doubt been rattled by recent corruption and scandal plaguing the corporate world. Bribery, extortion and other forms of corruption, accounting scandals, terrorist financing and money laundering have had a severe impact on the public’s confidence, shareholder interests and market values. As a result, issues of corporate governance and business ethics have moved to the forefront of corporate concerns.

The OECD is actively monitoring national enforcement. Stricter laws and regulations in the US, as a result of recent corporate scandals, have lead to stricter international standards, calling for greater corporate transparency and accountability. This account of its work expands on the first edition, to incorporate interim developments. Thirty-four countries have ratified the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and have since enacted implementing legislation prohibiting foreign bribery. The post-September 11, 2001 campaign against terrorism has resulted in intensified anti-money laundering programs, and an intensified focus on customs regulation.

This book’s thirteen chapters covers the ICC Rules of Conduct and the OECD Convention; responsibilities of enterprises; bribery and four critical issues; the role of agents and sales representatives; accounting, auditing and financial controls; money laundering; political contributions; private-to-private bribery; preventing extortion; whistleblowing; compliance with customs regulations; compliance by small and medium size enterprises; and the unfinished anti-corruption agenda (a strategy overview). The appendices provide further access to key constitutive documents and information from the ICC, OECD Convention, Council of Europe Criminal Law Convention, Council of Europe Civil Law Convention and Inter-American Convention Against Corruption (Summary). It thus yields quite convenient access to the practical tools for operating in this evolving business environment.

Dictionaries

Richard Perruchound (ed.), INTERNATIONAL MIGRATION LAW: GLOSSARY ON MIGRATION (IOM: 2004) [paper: 78] 1813-2278. Price: USD 10.

This glossary consolidates the terminology relating to migration into one definitive text. It presents a succinct guide to terms and concepts in the field, and is a useful tool for both researchers and practitioners.

While there is an absence of universally accepted definitions, a number of migration-related terms still vary from country to country, and within many countries. This pamphlet is a remarkable tool for establishing uniform definitional standards for the various actors in this field, who would otherwise choose definitions according to their own perspectives, with little international guidance.

Boleslaw A. Boczek, INTERNATIONAL LAW: A DICTIONARY (Scarecrow: 2005) [477] 0-8108-5078-8. Price: USD 110.

This unusual, and thus quote useful, "dictionary" focuses on the development of International Law from its earliest times to the present. It is more than just a dictionary. It provides an impressive array of scholarly entries on all basic tenets of Public International Law–thus combining the best features of both an encyclopedic dictionary and a textbook.

This practical and intuitive assembly is organized into nine chapters. Chapter One, for example, covers the traditional introductory topics in International Law. It displays 49 alphabetized entries including John Austin, Domestic Jurisdiction, Dualism-Monism, Soft Law, and Teachings of Publicists. The latter entry (#42) unearths four rich paragraphs, each containing cross-references to related entries in other parts of this veritable research dream come true.

Chapters Two through Eight deal with matters within the general scope of the law of peace. Chapter nine defines and describes the rules of international humanitarian law. The books 373 entries typically incorporate descriptive text; acronyms and abbreviations; a glossary of Latin phrases; a chronology of major developments; a table of cases, with references to comparable entries. This is a fabulous resource for students, scholars, and all legal professionals.

Environment

Alice Palmer & Cairo A. R. Robb (ed.), INTERNATIONAL ENVIRONMENTAL LAW REPORTS: INTERNATIONAL ENVIRONMENTAL LAW IN NATIONAL COURTS (Cambridge: 2001) [582] 0-521-65965-5. Price: USD 190.

This collection of approximately fifty decisions of national courts includes decisions from twenty-six countries analyzing various environmental laws. This work unearths a rich vein of valuable insights into national legal perspectives on International Environment Law. About half of the cases were translated into English from a dozen other languages, thus offering a broad cross-section of translated judicial analyses of the key environmental issues of the day. This collection explores various approaches to the relationship between domestic and international legal systems. It also covers a vast range of environmental issues–from protected species and habitats, to activities that impact the environment.

Ready access to content is assured via a handy front-matter Digest. It alphabetizes a wide range of International Law subjects. Within each general subject, it presents the national environmental case law–alphabetically organized by subtopic. Under "Rights and Interests," for example, one finds five subtopics. The fourth of these five is "Human Rights–Rights of Minorities." There is a brief description of the translated Japanese case in the Digest, regarding the Japanese government’s construction of a dam that failed to take due account of the rights of the Ainu culture under Art. 27 of the International Covenant on Civil and Political Rights (culture, religion, language). A much fuller case summary, and its key excerpts, then appear at the pages in the book appearing at the end of the brief Digest description.

This book is a "must," for any collection that generally focuses on International Law, and specifically on contemporary environmental issues. All academics who teach/research environmental issues should have this book in their private collection.

Nico Schrijver & Friedl Weiss (ed.), INTERNATIONAL LAW AND SUSTAINABLE DEVELOPMENT: PRINCIPLES AND PRACTICE (Martinus Nijhoff: 2004) [709] 90-04-14173-1. Price: EUR 135.

This is a multi-authored, twenty-seven chapter collection. Its two central themes address the emergence of provocative scholarship on the crossroad intersection of environmental degradation and sustainable development (SD). The underlying "soft law" issues are reinforced by practical applications which further justify the movement of SD toward incorporation into the "hard law" of International Environmental Law. SD is now incorporated into various environmental treaties, international fisheries agreements, the agreement establishing the WTO, and EU law. It has also been featured in a number of international judicial decisions, including the ICJ and the WTO Appellate Body.

This masterfully written collection, from many experts, focuses on the efforts of policy makers, as well as regional and national interest groups, to invoke International Law as the tool for realizing the objectives of SD. The authors provide a rich vein recent State and organizational practices that can be profitably mined by both academics and practitioners exploring contemporary perspectives.

This authority-rich collection is divided into three parts. Part I addresses the evolution of principles of sustainable development. Part II analyzes the evolution of practice of SD, specifically in the fields of international trade, foreign investment, human rights, natural resources, and waste management. Part III focuses on the evolution of regional and national experiences with SD. No public or private library collection would be complete without this rich addition to the literature and application of SD.

European Union

Henry Schermers & Niels Blokker, International Institutional Law: Unity Within Diversity (Martinus Nijhoff: 2003) [paper: 1302] 90-04-13828-5. Price: USD 75.

This authoritative treatise is a "must have" for any personal or institutional library collection on international organization. The laws of various individual organizations are not analyzed as such. Instead, this exquisitely written and well-documented book presents comparative assessments of organizational practices regarding membership, decision-making, financing, sanctions, legal status, and external relations.

The blueprint is superbly divided into 1,902 sections, to facilitate both updating and cross-referencing. A thirty-page Annex conveniently collates what appears to be every other resource on the subject of international organization. A well-considered Index (often a disaster in other books) provides quick access to content. If there were an Editor’s Choice for best book reviewed on the subject, this one would surely rank at or near the top.

Margaret Karns & Karen Mingst, International Organizations: The Politics and Processes of Global Governance (Rienner: 2004) [paper: 603] 1-55587-963-2. Price: USD 32.50.

Having already received accolades from prominent sources (see back cover), one can readily add that this is an extraordinary primer for any student of international relations. It would be quite an understatement to observe that the process of global governance has become intensely complex, due to the participation of both former and fresh organizational actors in the post-Cold War era. This book collates and masterfully illustrates the varied processes that drive contemporary international organization (IO).

Its rich content is divided into four parts. Part 1 presents the first leg of this book’s satisfying journey: Understanding Global Governance. One may thus commence the study of IO with accommodating definitional contours in hand. Part 2 retains the brisk pace when presenting the Evolving Pieces of Global Governance, including analyses of State and non-State actors, system, the UN, regional IOs, and NGOs. Part 3 assesses the continuing and growing need for governance by IO, to encourage peace, human rights and development, and the environment. Part 4 intelligently explores the balance between the need for more global structures versus the associated dilemmas of supplemental IO governance. Some fifty tables, figures and maps provide excellent backdrops for illustrating the content to all potential readers ands students of international relations and organization.

Force

Judith Gardam, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES (Cambridge: 2004) [259] 0-521-83752-9. Price: USD 90.

Necessity and proportionality act as legal restraints on the forceful actions of States. This book offers the most up-to-date comprehensive assessment of both requirements. It examines the crossroad intersection of necessity, proportionality, use of force, and international humanitarian law (IHL). It offers a succinct but authoritative clarification of an area of International Law which is considerably misunderstood–especially in the authoritatively presented contexts of Kosovo, Afghanistan, and Iraq.

Chapter One assesses the relationship between these key international expectations governing the use of force in the conduct of hostilities. Chapter Two presents the historical development of necessity and proportionality–as restraints on the forceful actions of States even before the adoption of the United Nations Charter in 1945 (not that either word appears or is defined in the Charter). Chapter Three analyzes proportionality and combatants in contemporary IHL. Chapter Four addresses proportionality and civilians under IHL. Chapter Five applies necessity and proportionality in the context of unilateral use of force, given the strictures of the United Nations Charter. Chapter Six then analyzes necessity and proportionality under collective actions conducted under auspices of the UN.

The useful table of case illustrations, list of abbreviations, bibliography, and Index provide quick access to content. This well-written, superbly organized, and cut-to-the-chase analysis is a welcome addition to the literature in the never-ending saga of attempts to grab hold of one of the more slippery branches of International Law.

Int'l Criminal Court

Knut Dörmann, ELEMENTS OF WAR CRIMES: UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Cambridge: 2004) [524] 0-521-81852-4. Price: USD 190.

The primary author is Legal Advisor, Legal Division of the International Committee of the Red Cross (Geneva). This authoritative addition to the literature on war crimes should be available to all practitioners, academics, and the International Criminal Court itself–for potential applications and interpretations by the International Criminal Court (ICC) of the Rome Statute. This commentary will not be limited to its value in the future work of the ICC. It will undoubtedly be an indispensable tool for assisting national courts, which have the primary responsibility for prosecuting the war crimes provisions of the Rome Statute.

The integrated analysis of existing case law should aid the ICC, as it inches towards its first prosecution. This article-by-article commentary will also provide States, judges, prosecutors and defense lawyers with the necessary background information to intelligently implement international humanitarian law arising under the ICC Statute. It should also be of use in the Elements negotiations, and for anyone who must locate and then analyze the relevant case law. This richly documented book provides valuable insight into the considerations and debates which shaped the Elements drafting.

This book is a "must" for those working in international criminal law. It provides practical and unparalleled insight into the statutory war crimes Elements, in both the domestic and international context. No library could possibly claim complete access to war crimes materials without this classic work at hand.

Yitiha Simbeye, IMMUNITY AND INTERNATIONAL CRIMINAL LAW (Ashgate: 2004) [173] 0-7546-2433-1. Price: USD 99.95.

This work focuses on immunity issues related to International Criminal Law. It vividly focuses on two competing needs–the pursuit of international justice, and the maintenance of international peace and security.

Two significant events marked a simultaneous turning point for ICL applications: the establishment of the International Criminal Court, and the pursuit of Chile’s former head of state, General Pinochet, for crimes against humanity. Both events signal increased attention to new legal implications: State officials will now be more accountable for their acts; and, the community of nations has exhibited a newfound resolve to support the permanent ICC to deal with former (and potentially current) State officials in the upper echelons.

The author has quite intuitively organized her work into six well-written and authoritatively supported chapters. Chapter One focuses on the ICC. Chapter Two covers the concept of international crimes. Chapter Three addresses international criminal responsibility of the individual. Chapter Four focuses on individual immunities. Chapter Five analyzes the susceptibility of upper-echelon State officials to prosecution. Chapter Six is a well-conceived, provocative assessment of the need for balance in the pursuit of international justice and stable international relations.

Laws of War

Mark Danner, TORTURE AND TRUTH: AMERICA, ABU GHRAIB, AND THE WAR ON TERROR (NYR: 2004) [paper: 580] 1-59017-152-7. Price: USD 19.95.

This riveting account is an in-depth report of the Abu Ghraib Baghdad prison scandal. Like the outraged associated with Newsweek’s retracted story of a copy of the Koran being flushed down a toilet at the Guantánamo detention facility, numerous photographs were distributed worldwide, depicting the torture of Iraqi prisoners at the hands of American soldiers. The images at Abu Ghraib are truly shocking; however, this book notes that they are by no means the only evidence, or even the most important evidence of the torture that occurred there. Abu Ghraib is herein depicted as not being an isolated incident. It is ultimately tied to what Americans have been doing in Afghanistan, Guantánamo, and elsewhere as a byproduct of the "war on terror." The real scandal is also described as a political one, posing many questions: Does fighting a "new kind of war" justify torture? Who should be held responsible, and at what level of political costs to the current administration of justice?

The author offers a stark but reasonable account of how these incidents could have happened and, maybe more importantly, relates the evidence to the public in an accessible and comprehensible manner. Numerous documents are herein presented, including secret government memos portraying a fierce argument within the Bush Administration over whether al-Qaeda and Taliban prisoners were protected by the Geneva Conventions, and limitations on the United States in their interrogations. Official ICRC reports on these abuses are also included.

This book is divided into three parts. Part I collects the reports on the Abu Ghraib scandal. Part II intends to place the Abu Ghraib story in the broader context of the Iraq war. Part III, Appendices, contains primary documents involving the Abu Ghraib scandal. The first appendix includes letters, memoranda, and reports drafted by officials of the Bush Administration. The second appendix includes photographs of the abuses, the detailed depositions of those abused, and Red Cross investigators’ eyewitness accounts. The third appendix collects various reports initiated by US government officials into the scandal.

Any assessment of the Abu Ghraib blemish on the US conduct of the war on terror would be incomplete without the information contained in this very readable and detailed account.

Neutrality

Stephen C. Neff, THE RIGHTS AND DUTIES OF NEUTRALS: A GENERAL HISTORY (Manchester: 2000) [246] 1-929446-06-3. Price: USD 90.

This is a wealthy addition to the dearth of English-language books that comprehensively survey the history of the law of neutrality, from its medieval roots to the present day. It analyses the legal principles applicable to the somewhat neglected but increasingly important arena of the relationship between neutrals and belligerents during armed conflict. It traces the evolution of State practice, debates over the relevant doctrinal issues, and various attempts to reform and codify the law of neutrality–specifically, the attempts of rival powers to devise legal methods for restricting neutrals from trading with their enemies, as well as attempts by neutral traders to circumvent such restrictions.

Part I analyzes the medieval roots of conflict management by belligerents and neutrals. Part II explores the innovations of the belligerents and neutrals, the invention of total war, doctrinal clashes, and rules that evolved and now applied in contemporary conflicts. Part III presents new challenges to the rules of engagement between belligerents and neutrals.

The author includes a list of abbreviations, table of treatises, select bibliography, table of cases, and an index to assist the reader in navigating this fascinating terrain. The technical legal language is minimized, to ensure its accessibility to general readers, as well as international professional. No library collection–on general International Law, or one that specializes in the Laws of War– would be complete without this valuable and magnificently researched addition to the laws on neutrality.

Organizations

Victor-Yves Ghebali & Alexander Lambert, THE OSCE CODE OF CONDUCT ON POLITICO-MILITARY ASPECTS OF SECURITY: ANATOMY AND IMPLEMENTATION (Martinus Nijhoff: 2005) [428] 90-04-14292-4. Price: EUR 135.

The Organization on Security and Co-operation in Europe’s Code of Conduct has proven to be a vital reference tool on both European and Euro-Atlantic organizations. The Geneva Centre for the Democratic Control of Armed Forces (DCAF) commissioned the OSCE Cluster of Competence at the Graduate Institute for International Studies, Geneva, to carry out a research project: (1) on the Code, including a commentary on this politically binding document; and (2) an assessment of the Code’s implementation. This volume is the work product of this commission study. It is undoubtedly the quintessential guide to understanding the overall impact that the OSCE impact on Europe’s military security regimes.

This well-written and sculpted publication is divided into two parts. Part One is a paragraph-by-paragraph commentary on the OSCE Code of Conduct. Subsection I covers the reaffirmation of comprehensive security, cooperative security, and enunciates a solidarity principle. Subsection II assesses reaffirmation of the commitment to cooperate against terrorism. Subsection III focuses on the reaffirmation of the Helsinki Final Act’s principles and their commitment of non-assistance to aggressor States. Subsection IV discusses security rights and obligations of OSCE participating States. Section V presents the importance of arms control and disarmament. Subsection VI covers the reaffirmation of commitments to cooperate for conflict prevention and crisis management. Section VII and VIII analyze democratic control of armed forces. Section IX deals with implementation arrangements. Subsection X consists of final clauses.

Part II assesses implementation trends arising out of the OSCE Code of Conduct. Subsection 1 presents the OSCE’s assessment framework. Subsection 2 provides a thematic analysis of the informational exchanges necessary for this process to be implemented. Subsection 3 analyzes the effectiveness of the Code’s regime evaluation. Detailed indexes and annexes for both Parts provided ready access to content.

Ademola Abass, REGIONAL ORGANISATIONS AND THE DEVELOPMENT OF COLLECTIVE SECURITY: BEYOND CHAPTER VIII OF THE UN CHARTER (Hart: 2004) [239]1-84113-480-5. Price: USD 90.

Post-Cold War developments affecting regional organizations, and constitutional developments occurring within them, propelled their departure from the normative framework of regional collective security envisioned under Chapter VIII of the UN Charter.

This lively and well-documented evaluation vividly illustrates the impact of exercises of this newly asserted power by various regional organizations including ECOWAS, the African Union, NATO, and the OAS–when authorizing regional enforcement actions. This is a realistic examination of the evolution of collective security. It analyzes constitutional developments within selected regional organizations, and how they have impacted the resulting ability to respond to security threats.

The author first explores the meaning of regionalism under Chapter VIII of the UN Charter. One can thus appreciate the advantages and disadvantages of decentralized enforcement action–a surrogate for UN Security Council collective security, as authorized under Chapter VII of the UN Charter. It explores the residual responsibility for collective security that is either encouraged by, or results from, Charter approaches. One may thus appreciate the intersection of post-Cold War regional intervention, regional enforcement action, and the Charter’s general prohibition of the use of force.

Karen Wellens, REMEDIES AGAINST INTERNATIONAL ORGANIZATIONS (Cambridge: 2002) [295] 0-521-81249-6. Price: USD 70.

When the international community engages in State-building, there is often a not-so-hidden price tag: human rights violations by agents of the sponsoring international organization (IO), without clear accountability. As IOs are major players, like foreign occupying powers, their employees damage interests and violate the rights of the occupied territory. The author effectively poses (then analyzes) the all-too-often ignored questions: Should potential claimants have an ombudsman available for processing such claims? To national courts (if they are operating)? Should their only remedy be reliance upon support from their own State? If the potential claimants do rely on the remedies provided by IOs, are the remedies going to be sufficient? Meet international minimum standards?

This book’s substantial examination of accountability, via remedies against IOs, provides plausible solutions for claimants whose interests have been adversely impacted by non-State actors within these organizations. The author discusses various remedies, and the variousness of such disputes. She forcefully argues that it unwise and unrealistic to expect IOs to yield adequate accommodations for the diversity of claims via any single, comprehensive, all-encompassing remedial mechanism.

The book is divided into four parts. Part I focuses on the general features of potential remedies against IOs, including any accountability regime. Part I further analyzes the different levels of accountability, the appropriateness of certain remedies, whether there is realistic access to them, and the potential outcomes. Part II addresses the procedural aspects of remedial action against IOs, including remedial responses by member States, staff members, and private claimants. Part III assesses the substantive outcome of remedial action against IOs. Part IV discusses alternative remedial actions against IOs as potential options to the currently minimal regime. Pre-remedial action, non-legal remedial action, amendment of existing judicial remedies, and the inevitable role for the International Court of Justice are explored as part of this comprehensive analysis.

Violations by IOs, and their agents, have come under increasing scrutiny with contemporary occupations in Kosovo (UN), Afghanistan (NATO), Iraq (e.g., the UN Oil-for-food scandal). Professor Wellens’ excellent survey of this neglected area, within the law of international organizations, is a major contribution to the dearth of literature on a subject that has been "kept under wraps" for too long.

Private Int'l Law

RECUEIL DES COURS: COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 2003–Volume 302 (Martinus Nijhoff: 2004) [386] 90-04-14021-2. Price: EUR 115.

Dalhousie Professor Vaughn Black’s English language potion of this year’s Recueil Des Cours work product presents Foreign Currency Obligations in Private International Law. This succinct but authoritative analysis yields comprehensive coverage of a rather neglected topic in need of clarification. It asks (and answers): How are damages to be awarded, given an option to pay a judgment in different forms of currency? A tribunal’s decision is complete enough to select the currency of payment can have a drastic impact on the ultimate outcome of the dispute. Disputes about foreign currency obligations must therefore focus on the exchange value of the remedy received by the successful claimant.

The currency-of-judgment issue often divides judges or arbitrators, both within and between nations. Many legal systems continue to struggle with the judicial uncertainty emerging surrounding such decisions. The scholarly debates on this topic are not limited to any particular country or region.

Professor Vaughn’s five chapters reveal the international community’s uncertainty regarding exchange values. Chapter I focuses on the deployments in England, specifically the impact of Miliangos. Chapter II discusses applications by other Commonwealth nations. Chapter III analyzes US perspectives on the foreign currency problem. Chapter IV discusses civil law and international conventions. Chapter V analyzes the possibility of a multilateral convention as a solution.

The French language portion of Volume 302 presents the University of Paris II Professor Charles Leben’s lectures on The Theory of State Contract and Evolution of the International Law of Investments. He presents a history of State contracts. His study explores the degree to which individuals may be subjects of International Law, when contracting with the State; the nature of State contracts with individuals; and whether the usual sources of International Law play a role in contracts between States and individuals/business entities.

Regions

Jean Allain, INTERNATIONAL LAW IN THE MIDDLE EAST: CLOSER TO POWER THAN JUSTICE (Ashgate: 2004) [353] 0-7546-2436-6. Price: USD 124.95.

This powerful but scholarly, succinct but comprehensive, never-ending but timely assessment examines the Middle East through the lens of International Law. The author demonstrates the distinctive manner in which the law of nations is supposedly applied in this region of the world. Although law is intended to produce a just society, it oft-times cannot be divorced from its relationship to power. International Law may be perceived in the Western world as a legitimate means of regulating and maintaining international order. The author notes that in the Middle East, it is understood to be little more than the worst of the following: a tool of the powerful, used for coercion and oppression, selectively applied and enforced, while used and abused to the advantage of powerful States.

This authoritative study unearths the human experience of people in the Middle East, in its examination of the role of International Law in this most militarized region in the world. The pervasive theme is how International Law has been manipulated to meet the requirements of the interests of the Western powers, rather than the local populace. Prevailing international legal principles are unable to accommodate the aspirations of the people of the Middle East, spawning leaving a bitter legacy in the region.

This provocative study effectively utilizes the appendices, table of cases and index to help navigate through the wealth of valuable information and perspectives herein presented. No library that generally emphasizes International Law, or specializes in the Middle East, would be considered complete without this valuable analytical tool.

Sovereign Immunity

Donald L. Doernberg, SOVEREIGN IMMUNITY OR THE RULE OF LAW: THE NEW FEDERALISM’S CHOICE (Carolina: 2005) [paper: 254] 1-59460-012-0. Price: USD 35.

The doctrine of sovereign immunity is thoroughly examined through the lens of political philosophers whose writings were well known to the people who framed and ratified the United States Constitution.

John Locke, the philosopher upon whom the former colonists predominantly relied, espoused a theory of sovereignty that, by contrast, cannot tolerate the idea of sovereign immunity–where a government is not answerable under its own laws and the very instrument which gave it life. The author argues the US Constitution exists primarily to restrain government power. Further, to declare the government immune from accountability is a profanation of our political and philosophical history. This book therefore explores the question of whether we live under a constitution or an illusion. It demonstrates the author’s inability to accept the idea that a society based on law, not force, can authorize a (governmental) wrongdoer to be exempt from the law.

This book fields eight chapters involving US sovereign immunity constructs, beginning with the philosophers views on the concept of sovereignty. That introduction is corroborated by its ensuing analyses of sovereign immunity, federalism, the rule of law, and the perspective that sovereign immunity is fraught with irreconcilable differences in both theory and practice.

Naomi Roht-Arriaza, THE PINOCHET EFFECT: TRANSNATIONAL JUSTICE IN THE AGE OF HUMAN RIGHTS (Penn: 2005) [256] 0-8122-3845-1. Price: USD 55.

Much has been written about the former head of state, General Augusto Pinochet, since his 1998 arrest in London. This analysis is an electrifying account of Pinochet’s extradition proceedings, as it played throughout the international community. This legal precedent for bringing a former head of state to trial–outside his home country–signaled that neither the immunity of the former head of state, nor legal amnesties at home, could shield all participants in the crimes of military governments. Further, this potential prosecution would allow the victims of torture and crimes against humanity to hope their tormentors might be brought to justice.

The implications of the litigation against members of the Chilean and Argentine military governments is meticulously examined. It traces the impact on similar cases in Latin America and Europe. It identifies the difficulties with bringing violators of human rights to justice at home, while vividly identifying the role of transitional justice in transnational prosecutions in the national courts of countries other than those where the crimes took place.

The author traces the roots of the landmark Pinochet case, following its development and those of related cases through Spain, the United Kingdom, elsewhere in Europe–and then in Chile, Argentina, Mexico, and the US. These instances are assessed with a view towards an emergent International Criminal Court. One may herein witness the effectiveness of lawyers, judges, and activists–working together across continents–to make the new legal paradigm of head of state responsibility a reality.

This account is well-written and documented. It illustrates painstaking research and attention to detail, but never getting bogged down in unessential detail. It is a "must" read for anyone interested in learning more pieces of the rest of the story, in the evolving trend toward ameliorating an immunity that has all-too-often exalted form over substance.

States

James Crawford, The International Law Commission’s Articles On State Responsibility: Introduction, Text and Commentaries (Cambridge: 2003) [paper: 387] 0-521-81353-0. Price: USD 34.99.

This book is an indispensable accompaniment to the International Law Commission’s work on its central topic of State Responsibility. In 2001, the ILC completed its work, adopting the Articles on Responsibility of States for Internationally Wrongful Acts, a product of nearly forty years work. These articles mark a major milestone in the codification and progressive development of International Law. The articles cover topics including: attributing conduct to the State; defining when there has been a breach of International Law, and the excuses or justifications for such breaches; reparation for injury; and limitations on countermeasures.

The articles develop basic concepts of International Law and definitively signal the evolution of International Law, as it moves away from a purely State-to-State conception of responsibility to accommodating general public interest categories, such as human rights, the environment, etc.

This particular volume includes a very lucid introduction, the text of the articles and commentary, a practical guide to the legislative history, and a detailed index and table of cases. The introduction places the articles in perspective, giving an account of the major issues encountered during the second reading. Further, the text of the Draft Articles, as adopted on first reading (1996), is included in an appendix–complete with a table of equivalents for comparative purposes. These features are complimented by a select bibliography promoting access to a variety of related resources.

Tim Judah, KOSOVO: WAR AND REVENGE (2^nd ed. Yale : 2002) [paper: 349] 0-300-09725-5. Price: GBP 9.99.

This account vividly portrays the issues that spawned the ethnic conflict in Kosovo. It is an authoritative analysis of the origins of the Serb-Albanian conflict, the course of the battle, personalities, and options for the future. This story is complete, through the fall of the former Serbian president Slobodan Miloševic (now on trial in the ICTY).

This comprehensive account by an experienced journalist details the transformation of the Kosovo Liberation Army from outcasts to the most powerful political force in Kosovo. The author details the fall of Miloševic, including his being sent to the International Criminal Tribunal for the Former Yugoslavia in The Hague, where his war crimes trial began over three years ago. This is one of the more significant prosecutions in International Law, because he was the first former head of state to be tried by an international tribunal.

The book’s ten chapters are accompanied by appendices, notes, select bibliography, and an index to assist the reader in navigating the complex history of the conflict in Kosovo. One of the many interesting examples is the appendix on Kosovo’s population census from 1948-1991.

Cheryl A. Rubenberg, THE PALESTINIANS: IN SEARCH OF A JUST PEACE (Rienner: 2003) [485] 1-58826-225-1. Price: 65.

The author is a US political science professor who has written in this subject for twenty-five years. She vividly illustrates the power disparity between the Israeli’s and the Palestinians, with a view toward demonstrating how Palestinian security is constantly threatened by Israel. Israel is one of the strongest states in the global system, enjoying the unqualified backing of the world’s superpower–the United States. This controversial book depicts the struggles of the Palestinians, since the 1993 Oslo peace process, and before–during the long history of conflict that lead to and has continued to fuel regional conflict.

Chapter One contains a number of maps which quickly provide access to content. Its endnotes providing a wealth of historical source material for further reading. Chapter Two analyzes the agreements between the entities, constituting the contractual framework of the peace process. Chapter Three is an overview of the economic and social experiences of the Palestinians, as they have lived in occupied territories during the years before and after the 1993 peace process. Chapter Four focuses on the city of Hebron, wherein the author focuses on settler violence and Israeli collaboration. Chapter Five focuses on the city of Jerusalem, and the Israeli efforts to ensure its status as a sovereign Jewish entity. Chapter Six examines the Palestinian Authority and the condition of life for its Palestinian population. Chapter Seven assesses the US role in the Oslo process. Chapter Eight analyzes the Al-Aqsa Intifada as an expression of the despair of the Palestinians, after years of unfulfilled promises and worsening life conditions. Chapter Nine reconsiders the current condition of the Palestinians, under complete Israeli occupation of the West Bank and the former partial occupation of the Gaza Strip.

This book would be a useful reader for any course dealing with the Middle East–not to mention a riveting and well-documented resource for anyone seeking a veritable research goldmine of resources regarding the Palestinian conflict.

Tim Judah, THE SERBS: HISTORY, MYTH & THE DESTRUCTION OF YUGOSLAVIA (2^nd ed.: Yale, 2000) [paper: 382] 0-300-08507-9. Price: GBP 8.99.

The author’s above-described book, Kosovo: War and Revenge, provides a more substantial look at the conflict itself. This apparent companion is a somewhat narrower work, with significant updates added to this new edition, covering events in Serbia between 1995-2000. It similarly provides a chilling (journalist’s) perspective, which draws upon the author’s personally witnessing many horrifying events. This book not only whisks you away, directly to the location of his experiences, but also gives you a detailed history of the Serbs from medieval times to the present. This riveting account combines historical and cultural contexts, in a personal description of war itself. It adds observations on the rise of the Kosovo Liberation Army and NATO’s 78-day bombing campaign.

The seventeen chapters are accompanied by list of illustrations, including maps and tables, a list of abbreviations, appendices, notes, select bibliography, and index–all of which conveniently guide the reader through the author’s account of the Serbs in and around Kosovo. The two books are priced so that one would be inclined to obtain both, in order to have a more complete picture of the tragedies which too many westerners consider as dating only from the 1999 NATO bombing campaign.

I. M. Aguilar de Lugo (ed.), SPANISH YEARBOOK OF INTERNATIONAL LAW: VOLUME VIII 2001-2002 (Martinus Nijhoff: 2005) [540] 90-04-13977-X. Price: EUR 165.

This publication conveniently assembles articles, diplomatic and parliamentary practice, treaties, municipal legislation, judicial decisions and literature concerning matters of Spanish nationality in International Law. A list of abbreviations, table of cases, as well as an index accompany the substantive material, thereby assisting the readers with access to content.

The articles analyze recent modifications in a host of fascinating contexts, including new regulations on Spanish nationality, Spanish practice regarding universal jurisdiction, and enforcement of due diligence regarding human rights. One thus has convenient access to a vast array of information relating to Spanish interests in International Law, in both the public and private sectors.

This collection was organized by a group of eminent Spanish scholars. It notably suggests the degree of Spanish influence in the international community, while providing a solid account of the Spain’s practice of International Law.

Richard Price & E. Al Tamini, United Arab Emirates Court of Cassation Judgments 1998-2003 (2005) (Brill: 2005) [414] 90-04-14039-5. Price: EUR 135.

As evinced by its title, this work is a welcome addition to the literature of the United Arab Emirates (UAE). It follows the novel path of its predecessor, which was the first edition of this work, containing UAE Court of Cassation judgments from 1989-1997. The respective volumes thus provide summaries of key cases, in any language, about the jurisprudence of the UAE. This book provides a unique and priceless look into the jurisprudence of a country of great interest to the international business community.

The authors opted to summarize cases of practical use to the business community. The headings for the many (summarized) cases found in this volume include Commercial Transactions, Civil Procedure, Maritime/Transport, Banking, Insurance, Arbitration, Jurisdiction, I.P., Tort, and Miscellaneous subjects. A brief holding for each decision appears at the outset of each entry, followed by a succinct and quite readable summary–suitable for digestion by both the business and legal communities.

Terrorism

Edward McWhinney, THE SEPTEMBER 11 TERRORIST ATTACKS AND THE INVASION OF IRAQ IN CONTEMPORARY INTERNATIONAL LAW: OPINIONS ON THE EMERGING NEW WORLD ORDER SYSTEM (Martinus Nijhoff: 2004) [paper: 106] 90-04-14143-X. Price: EUR 45.

The US pursuit of the persons/entities responsible for the September 11, 2001 terrorist attacks was supported by an international "coalition of the willing." This ensemble was, at the outset, backed by the full legal authority of the UN Security Council. When the US was unable to rally support in the Security Council, the US proceeded to act unilaterally. With British military support, the US launched a pre-emptive military strike into Iraq against a country that was then suspected of complicity in this attack on the US.

This hard-hitting analysis of the US-driven pre-emptive presents daunting questions arising under contemporary International Law, spawned by conflicts including the lack of an authorizing Security Council resolution, and the proffered US/British claim of legality. Was this scenario an appropriate humanitarian intervention ( a la Kosovo)? Was regime change a viable justification for intervention? Can a preemptive military strike be a legitimate exercise of self-defense within the meaning of the UN Charter or evolving State practice? Can multilateralism be trumped by unilateralism, as an effective exercise of inherent security concerns, that can end-run the UN Charter and Security Council?

The author presents his forceful critique of lessons learned and future directions in three phases, marked by successive time periods. Phase One: international terrorism must be narrowly defined, and enforced via established international legal controls. Phase Two: the relevant definitions are widened, to involve "rogue States" asserted to be sponsoring or in collusion with perpetrators of the September 11 attacks–then broadened to include pre-emptive military strikes. Phase Three: since the U.S./British invasion of Iraq, the focus shifts to the legal foundations for unilateral military action without a UN Security Council Resolution authorizing such force–which must include more attention to the follow-up issue of the legal rights and duties associated with the ensuing belligerent occupation.

Theory

Markus Burgstaller, THEORIES OF COMPLIANCE WITH INTERNATIONAL LAW (Martinus Nijhoff: 2005) [230] 90-04-14193-6. Price: EUR 98.

The author notes how some theorists assert that compliance occurs when the actual behavior of a given subject conforms to prescribed behavior–while violations occur when actual behavior significantly differs from prescribed behavior. Other scholars argue that such a brightline approach makes no sense, because compliance cannot be objectively determined at all, as any such standard depends on the varying social constructs of members of the group.

The author’s analysis of the degree of compliance with International Law is addressed in six chapters. Chapter One addresses the role of International Law in national legal systems. Chapter Two assesses the claim that any theory of compliance with International Law must draw from some underlying political philosophy. Chapter Three is an overview of what constitutes an accepted norm. There is an elaborate discussion of the main theories that have been put forward with regard to why actors comply with norms. Chapter Four makes differentiates the realist, institutionalist, and normative theories of compliance with International Law. Chapter Five focuses on some of the most prominent contemporary theories of compliance. Chapter Six contains concluding remarks, and an overall re-assessment of the comparative value of the referenced theories.

This will be a useful text for assignments related to compliance and the essential theory-bases of International Law.

Trade

Debra P. Steger, PEACE THROUGH TRADE: BUILDING THE WTO (Cameron: 2004) [341] 1-874698-74-0. Price: EUR 125.

The WTO is the most advanced and complete institution devised by governments to regulate international trade relations. The author, a Canadian who contributed to the Uruguay Round agreements establishing the WTO, devised this useful publication from the perspective of a former insider.

It is divided into five parts. Part I addresses the origins and nature of the WTO, focusing on peace through trade, a new Constitution for the trading system, and Canadian implementation of the agreement establishing the WTO. Part II focuses on the early experiences with WTO dispute settlement, specifically: the emerging practice and procedure in decisions of the appellate body; new directions in international trade law; the appellate body and its contribution to WTO dispute settlement; and appellate body jurisprudence relating to trade remedies. Part III explores "growing pain" transparency and remedies. Part IV discusses the authority and legitimacy of the WTO as a global legal system. Part V reflects on reform of the dispute settlement institutions, including the need for general WTO adjudication improvements, and specifically, reform of the WTO appellate body.

All WTO professionals will find this work an indispensable tool for teasing out the underlying peace-oriented objectives of the WTO process.

Treaties

Duncan B. Hollis, Merritt R. Blakeslee & L. Benjamin Ederington (ed.), NATIONAL TREATY LAW AND PRACTICE (Martinus Nijhoff: 2005) [837] 90-04-14417-X. Price: none given.

This masterfully executed treatise contains analyses of top national experts from around the world. It illustrates the various applications States treaty practice, and how each approaches treaty-making and implementation. This rich vein of well-written and supported scholarship unearths the law and practice of nineteen countries, thus representing a cross-section of the international legal community. Each chapter contains an essay written by a national expert on treaty-related legislation and documentation.

These materials yield an important reference tool for scholars, a practical and quite readable assessment for practitioners and government officials. It should be an indispensable resource, providing a wealth of information that will undoubtedly assist any legal professional engaged in treaty practice.

Chapter One provides an insightful comparative approach to treaty law and practice. The ensuing chapters present treaty practice commentary for Austria, Canada, Chile, Cjina, Columbia, Egypt, France, Germany, India, Israel, Japan, Mexico, The Netherlands, Russia, South Africa, Switzerland, Thailand, the UK, and the US. A finely tuned index provides convenient access to this books content.

No library could possibly be complete without this general survey of international treaty practice–prepared by a cadre of leading experts in the filed. Every treaty-based course and discourse would be enhanced by the availability of this outstanding research tool.