Jackson Nyamuya Maogoto

Legal control of the private military corporation

Two years ago a newspaper article of a few paragraphs reporting on an attempted coup caught the attention of the reader. The paragraphs referred to a private military firm being hired to assist in the overthrow of the government. Such an event sat uncomfortably with the reader and led to some informal discussions with colleagues. It did not seem right that a private individual could hire an army to overthrow a government. It goes against the premises of Western liberal worldview in which the state is the center and all powers within its territory are subject to it. It also contradicts the notion that the only violent challenge to a state can come from other states or from a popular or at least domestically instigated uprising.

Changing the guard—The price of democracy: Lessons from the Arab Spring on constitutionalism

In 2010 the self-immolation of a Tunisian street vendor—Mohamed Bouzazi—unwittingly encapsulated the frustration of corruption and heavy-handed administrative structures by the vast bulk of Tunisia’s populace. What would have been an isolated act and a country specific phenomenon morphed into potent totemic symbolism for Arab citizenry in coming weeks. Civilian unrest on the streets rapidly toppled the Tunisia government generating a political earthquake across the Arab World. The perception in the liberal West and elsewhere has been that Islam is incompatible with democracy. This Chapter while taking into account the different trajectories encapsulated by the Arab Spring seeks to illustrate that constitutionalism informed by principled governance is a process as well as a goal. In particular it cautions against the pitfalls of implementing monolithic liberal preferences for a “corporatist” State, followed by two illustrative case studies focusing on Libya and Egypt—two examples which illustrate the pitfalls of modularised political/constitutional templates. Keywords:Arab Spring; constitutionalism; corporatist; democracy

Constituting Vanuatu: Societal, legal and local perspectives

Abstract 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 that system is 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 not only creates a broad challenge for governance, but undermines the credibility of simplistic, universalist approaches of liberal solutions, including institutional transplants, to these challenges. This paper asks questions about the nature and status of law in and governance of society in Vanuatu and then examines various answers, from broad social perspectives and academic sources to interviews conducted among members of the Vanuatu community. It concludes that the system fails as insufficiently attuned to the realities of the society that makes up Vanuatu. That is to say the system fails to effectively address the needs and interests of the population, and fails to sufficiently incorporate the indigenous systems in situ.

The 'Good Governance' Crusade in the Third World: A Rich, Complex Narrative - Magic Wand or Smoke Screen

The project of governance, which has been heralded as a contemporary advance in the development of international law, has a very old lineage. Since the beginnings of the modern discipline of international law in the sixteenth century, international law has devised a number of doctrines directed at shaping and reforming the government of the non-European state. Most typically, this project of reform involves two elements that are often characterized as inseparable: the furtherance of commerce and the advancement of civilization. The non-European world has, on the whole, been rendered non-sovereign by international law over the course of the last five centuries. It is precisely in the non-European world therefore, that international law can, as in the case of doctrine of government, extend and expand its reach, and develop and refine a series of paradigms directed towards creating good government. The domestic sphere, which is entirely immune to international law in the case of European states, is entirely vulnerable to international law in the case of non-European states. The Article argues that good governance exerts an extraordinarily powerful influence on the thinking of the international community in part because it is connected with human rights, the universal language in this age of rights. This link between governance and human rights suggests, furthermore, that the Third World state is the focus of concern: it is the aberrant Third World state which both violates rights and engages in bad governance. The Article challenges the Western assumption that the problems of the Third World lie within the Third World itself. It critiques the stance that the problem of addressing international justice can be largely achieved through the project of good governance which would reform the Third World state.

Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies

Introducing International Humanitarian Law to Judicial and Quasi Judicial Bodies.- Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armes Conflict.- The Role of the U.S. Judicial Branch During the Long War: Drone Courts, Damage Suits, and Freedom of Information Act (FOIA) Requests.- International Humanitarian Law in the Maritime Context: Conflict Characterization in Judicial and Quasi-Judicial Contexts.- Domestic Humanitarian Law: Developing the Law of War in Domestic Courts.- The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience.- Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law.- Armed Conflict and the Inter-American Human Rights System: Application or Interpretation of International Humanitarian Law? The European Court of Human Rights Engagement with International Humanitarian Law.- The Interaction between Domestic Law and International Humanitarian Law at the Extraordinary Chambers in the Courts of Cambodia.- Applying the Laws of Armed Conflict in Swiss Courts.- International Humanitarian Law in the Courts of Australia.- Aut Deportare Aut Judicare: Current Topics in International Humanitarian Law in Canada.- International Humanitarian Law in Indian Courts: Application, Misapplication and Non-Application.- Interpretations of IHL in Tribunals of the United States.- The International Commission of Inquiry on Darfur and the Application of International Humanitarian Norms.- The Mavi Marmara Incident and the Application of International Humanitarian Law by Quasi-Judicial Bodies.

The Military Ascent into Space: From Playground to Battleground: The New Uncertain Game in the Heavens

The mastery of outer space as the basis of integrated battleground platforms is fast becoming a reality. As the two Gulf Wars and the Kosovo military campaign made clear, space assets are decisive in battle planning and execution. The contemporary move towards weaponization of space and its intersection with international law forms the basis of this article. This article analyses the militarization and weaponization of space. It is premised on the fact that the active move to militarization and weaponization of outer space that exposes the deficit of the international law space law regime. The article highlights the fact that the international space law legal regime now has a new game in the making for which it is in many ways ill equipped to handle.

Applying international humanitarian law in judicial and quasi-judicial bodies: International and domestic aspects

Introducing International Humanitarian Law to Judicial and Quasi Judicial Bodies.- Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armes Conflict.- The Role of the U.S. Judicial Branch During the Long War: Drone Courts, Damage Suits, and Freedom of Information Act (FOIA) Requests.- International Humanitarian Law in the Maritime Context: Conflict Characterization in Judicial and Quasi-Judicial Contexts.- Domestic Humanitarian Law: Developing the Law of War in Domestic Courts.- The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience.- Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law.- Armed Conflict and the Inter-American Human Rights System: Application or Interpretation of International Humanitarian Law? The European Court of Human Rights Engagement with International Humanitarian Law.- The Interaction between Domestic Law and International Humanitarian Law at the Extraordinary Chambers in the Courts of Cambodia.- Applying the Laws of Armed Conflict in Swiss Courts.- International Humanitarian Law in the Courts of Australia.- Aut Deportare Aut Judicare: Current Topics in International Humanitarian Law in Canada.- International Humanitarian Law in Indian Courts: Application, Misapplication and Non-Application.- Interpretations of IHL in Tribunals of the United States.- The International Commission of Inquiry on Darfur and the Application of International Humanitarian Norms.- The Mavi Marmara Incident and the Application of International Humanitarian Law by Quasi-Judicial Bodies.

Introducing International Humanitarian Law to Judicial and Quasi-Judicial Bodies

During the last decade, international humanitarian law has acquired a new vigor in the jurisprudence of international and domestic courts and tribunals. Alongside standard application in cases concerning refugees or war crimes prosecutions, recent jurisprudence has seen international humanitarian law acquiring an assertive stance on highly debated and complex issues, relating to the conduct of warfare. This chapter will map the judicial as well as institutional and thematic expansions international humanitarian law has undertaken during the last years, attempting to project also the field’s preponderance in international and domestic jurisprudence also in the future. In this respect, the role of quasi-judicial bodies will be also stressed.

The 21st Century Space Arms Race: Curtailing Heavenly Thunderbolts Through the Shield of the ‘Peaceful Purposes’ Mantra

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. This article seeks to revisit the intersection of the principal international treaties governing the use and exploration of outer space - primarily the Outer Space Treaty - and the United Nations Charter, in the light of contemporary developments. It outlines recent events in the emerging spaces arms race, which highlight even more the need both to emphasize the centrality of the ‘peaceful purposes’ mantra that underpins the exploration and use of space and to understand its operational rubrics and legal dynamics. It concludes by noting that the future of space security will depend on how effectively all States strive for the ‘de-weaponization’ of outer space by adhering to the peaceful purposes principle.

The State, Control of Violence, and the Private Military Corporation

This chapter examines nation-states and PMCs in the domestic context. It conceptualizes the PMC somewhat differently in that the PMC in the literature follows a taxonomy focusing exclusively on problems associated with foreign activity. While to do so is both heuristically sound and reflective of the majority of concerns about the PMC, to a certain extent it ignores the 8001b gorilla in the room. This chapter conceptualizes the PMC as an organized, armed, well-financed private group in its home state. Such groups are usually referred to as paramilitary, which indeed they are, just as the PMC is. While paramilitaries may have different motivations in addition to profit, they are engaged in the same fundamental activities of changing the distributions of the spoils of war and other violence. The chapter begins with a review of the nation-state and related notions of sovereignty, including the monopoly of violence. It then turns to examine in detail the Rule of Law and constitutional limitations. Next, it reviews the privatization of defense and issues surrounding domestic accountability. Finally, it turns to examine the nation-state’s use of PMCs extraterritorially. Assimilated into this analysis is the role of the PMC as a foreign policy tool. The analysis will be underpinned by five case studies in the contemporary international context: Iraq—Supplementing unilateral action, Sudan—Avoiding public scrutiny, East Timor—Honoring international commitments, Equatorial Guinea—Advancing domestic values on the international stage, and the Balkans—Achieving conflicting objectives by sleight of hand.