Machiko Kanetake

Whose Zero Tolerance Counts? Reassessing a Zero Tolerance Policy Against Sexual Exploitation and Abuse by UN Peacekeepers

The UNs commitment to zero tolerance for sexual exploitation and abuse, which has been strengthened ever since the Secretary-Generals 2003 ‘Bulletin’, must be understood against the general publics non-tolerance of sexual misconduct by peacekeepers. While the UN has devoted its energy to restoring the publics confidence, the implementation of the policy cannot be effective, due to the limits of the UNs command authority, without the adoption of the same policy in contingent-contributing countries, who assume even greater roles under the revised model memorandum of understanding in 2007. Furthermore, not all victims approve the UNs zero tolerance pledge, out of fear that they may lose their only recourse to making a living. While it will likely take time to alleviate existing obstacles to align all the actors involved, the general public may not be tolerant enough to allow a further moratorium.

The Application of Informal International Instruments Before Domestic Courts

The rigidity associated with formal international law has induced states and international organizations to resort to declarations, comments, guidelines, and other “informal” international instruments. Despite their informality, many of these non-treaty instruments have prompted actions at the domestic level, including before domestic courts. This article analyzes on what basis domestic courts apply informal international instruments. Given that the “bindingness” is not always available as an explanatory factor, the normative basis for giving effect to informal instruments has to be found in the persuasiveness of instruments. Yet, what makes a particular instrument persuasive in the eyes of a domestic court remains unclear. The uncertainty in the notion of persuasiveness on the one hand empowers domestic courts in the development of international norms. On the other hand, the uncertainty renders unstable the legitimacy of judicial engagement and generates the varied judicial amenability to informal international instruments.

Blind Spots in International Law

This editorial aims to foster debate on the possible roles of implicit social cognition in international law. The editorial is in part inspired by a book entitled Blindspot: Hidden Biases of Good People, written by Banaji and Greenwald, researchers of social psychology. According to them, a large set of implicit biases reside in our minds, which may influence our behaviour towards ourselves and others. It is safe to argue that international judges, arbitrators, diplomats, domestic officials who apply international law, and international legal scholars are not immune from implicit bias. Within international legal scholarship, some relevant experiments have already been conducted in unveiling decision makers’ intuitive and automatic thinking. While implicit bias is hard to identify and remedy, this editorial encourages international legal practitioners and scholars to diversify their own experiences and engage in the imagination of counter-stereotypes.

UN Human Rights Treaty Monitoring Bodies Before Domestic Courts

This article analyses both cooperative and confrontational interactions between domestic judges and UN human rights treaty monitoring bodies. Based on a number of cases collected through multiple databases, this article addresses the basis on which the monitoring bodies encourage the domestic acceptance of their views, general comments, and reports; how domestic courts engage with these findings; on what basis; and why some courts are more willing to engage with these findings. A key argument is that judicial accommodation is highly selective; domestic judges occasionally avoid, discount, and contest the interpretation put forward by the treaty monitoring bodies and thereby pose a challenge to their legitimacy.

Balancing Innovation, Development, and Security : Dual-Use Concepts in Export Control Laws

Dual-use export control is a field of law that regulates the export of items that serve both civilian and military purposes. In fact, a variety of materials, products, facilities, technologies and information which are critical for sustaining our civilian lives could also be mobilised for strengthening the military capabilities of the governments as well as non-state armed groups and terrorists. This paper aims at unveiling multi-faceted duality in the regulation of the cross-border transfer of dual-use items. International, EU and national laws concerning the export control of dual-use items involve a critical choice and weighting of potentially contradictory normative perspectives. While the area of law is sometimes perceived as technical, the export control of dual-use items is normatively charged as well as deeply political.

Symposium Introduction. Transnational Standards in the Domestic Legal Order: Authority and Legitimacy

ABSTRACT Transnational standard-setting bodies, which guide the conduct of states and non-state actors in multiple fields of global governance, affect the content of domestic law in a manner that may reduce domestic input. This journal symposium approaches the evolving interactions between transnational standards and domestic legal orders through questions of authority and legitimacy. Jaye Ellis’ piece sheds light on the role of law in mediating democratic legitimation and scientific rationales. Vesco Paskale examines how food safety standard-setting advances the notion of epistemic subsidiarity, and thereby leaves autonomous decision-making space for state authorities. Finally, Ka Lok Yip’s article highlights variables in the field of humanitarian law which facilitate and hinder the domestic acceptance of guidance and standards.

The UN Security Council and Domestic Actors: Distance in International Law

This book analyses the exercise of authority by the UN Security Council and its subsidiary organs over individuals. The UN Security Council was created in 1945 as an outcome of World War II under the predominant assumption that it exercises its authority against states. Under this assumption, the UN Security Council and those individuals were ‘distanced’ by the presence of member states that intermediate between the Security Council’s international commands and those individuals that are subject to member states’ domestic law. However, in practice, the UN Security Council’s exercise of authority has incrementally removed the presence of state intermediaries and reduced the Security Council’s distance to individuals.

The Dual Vulnerability of Transnational Science-Based Standards in the National Legal Order

ABSTRACT This paper highlights the scientific and political vulnerability of transnational science-based standards. This paper focuses on radiation standards formulated by the decentralised web of expert committees and inter-governmental forums. Transnational science-based standards are beset with scientific fragility, precisely because they provide certain regulatory stability in the scientifically uncertain areas. This scientific fragility is accompanied by political vulnerability. Transnational science-based standards are often formulated without the involvement of those private entities and individuals on whom the standards have visible consequences. This paper exposes the domestic neglect of dual vulnerability by analysing the Japanese stories after Hiroshima–Nagasaki (1945) and Fukushima (2011). While this paper discusses a specific scenario, the issue of dual vulnerability would likely arise in many other science-based standards which are formulated transnationally and absorbed into the domestic legal order on the basis that they are scientifically authoritative with little need for political input.

Chinese and Japanese perspectives on UN sanctions

This chapter analyzes how the methodological transition of the UN Security Council’s sanctions regimes has necessitated, as well as justified, greater changes in domestic law. This chapter examines the cases of two East Asian countries, the People’s of Republic of China (PRC) and Japan. The combined efforts to depict the two countries’ political and legal positions highlight the relevance of domestic political and legal contexts in ensuring the implementation of the UN Security Council’s international sanctions.

Catching up with Society - What, How, and Why: The Regulation of the UN Security Council’s Targeted Sanctions

Professor Ryuichi Ida’s contributions in the study of international law have been guided by his underlying conviction that law, or more precisely, law-makers, will be catching up to a social change. For Professor Ida, the identity of “law” is the “substantive binding force”. The substantive bindingness is sustained by social practice, deliberation, and understanding that a specific norm ought to be followed. In order not to lose its own identity, law cannot be distanced too much from social transitions. This chapter attempts to situate Professor Ida’s observations in the specific context of the UN Security Council’s targeted sanctions. This chapter analyses the following three inter-related questions: what transitions have international law and law-makers encountered in the context of the UN’s targeted sanctions, how international law has caught up with social transitions, and why it has done so.