Richard B. Bilder

The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Book)

Preface Note on sources and style List of abbreviations Table of cases Introduction Responsibility of States for Internationally Wrongful Acts: Part I. The Internationally Wrongful Act of a State: 1. General principles 2. Attribution of conduct to a state 3. Breach of an international obligation 4. Responsibility of a state in connection with the act of another state 5. Circumstances precluding wrongfulness Part II. Content of the International Responsibility of a State: 6. General principles 7. Reparation for injury 8. Serious breaches of obligations under peremptory norms of general international law Part III. The Implementation of the International Responsibility of a State: 9. Invocation of the responsibility of a state 10. Countermeasures Part IV. General Provisions Appendix 1: drafting history Appendix 2: Draft articles on state responsibility provisionally adopted by the International Law Commission on first reading (1996) Appendix 3: table of equivalent articles Select bibliography Index.

Peoples and minorities in international law

Preface. Table of Abbreviations. Part One: Evolution. Postmodern Tribalism and the Right to Secession T.M. Franck. Postmodern Tribalism and the Right to Secession, Comments R. Higgins. Africa: Lost between Self-Determination and Uti Possidetis J. Klabbers, R. Lefeber. The Evolution of Minority Rights in International Law N. Lerner. The Evolution of Minority Rights in International Law, Comments M. Nowak. Third Generation Rights J. Donnelly. Part Two: Levels of Identification and Protection. The Emergence of New Minorities as a Result of Migration R. Wolfrum. The European Communities and its Minorities B. de Witte. Indigenous Peoples C.M. Broelmann, M.Y.A. Zieck. The Degree of Self-Rule in Unitarian and Federal States Y. Dinstein. Part Three: Means of Enforcement. Fact-Finding into the Problems of Minorities B.G. Ramcharan. The International Judicial Protection of Peoples and Minorities A.M. de Zayas. The Legitimacy of the Use of Force to Protect Peoples and Minorities M. Bothe. International Representation of Peoples and Minorities A.C. Zoller. The Position of the UNPO in the International Legal Order M. van Walt van Praag. The Second Amsterdam International Law Conference. Synthesis H. Hannum. Table and Index of Treaties and Other International Instruments. Index.

Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions

This beautifully illustrated book considers the physical appearance of the Hebrew Bible as it has changed over time within the various communities of Judaism. Based on Stern’s Samuel Stroum Lectures, The Jewish Bible reads clearly and makes a strong case for the intellectual value of observing and thinking about the form that books take as well as their contents. Its many color pictures are closely integrated with the text and allow readers to see the argument for themselves. (Although, as is the case in many other similar books, little thought has been given to conveying a sense of the size of objects, so that scraps of papyrus are reproduced without comment as if they were as large as the biggest parchment Torah scrolls.) Stern begins his account with a survey of the Torah scroll as it has developed for the use of the synagogue from the Second Temple period until today, according to the different needs and aesthetic sensibilities of a variety of traditions of Judaism. He writes compellingly about the emergence of parchment as a medium for conveying the text and thinks hard about the differences produced by alternative methods of writing (pen or brush, for example) as well as by variations in ways of reading aloud. He is alert to the external appearance of the scroll, its storage and clothing, and brings out particularly well how this has been used as a means of religious expression across a range of communities in the Sephardic world. Stern then turns to the textual history and representation of the Hebrew Bible in the manuscript tradition deriving from the Aleppo Codex. He considers the development of what later became known as the masorah, explaining the role in its genesis of ideological debates in communities influenced by Karaism, and the resulting implications for the form of the biblical text for Rabbanite users. He describes the importance of the manuscript tradition of the Sephardic world of North Africa and the western Mediterranean, showing the significance of both text and decoration in the heyday of Iberian Jewry. Distinguishing between codices for liturgical use and for private study, Stern sets out the variety of Sephardic and Ashkenazic scribal practices and the role of illustration, in particular in manuscripts produced for Jewish communities in late medieval and Renaissance Italy. His discussion of the influences on the material form of the Jewish Bible might, however, had paid more attention to the traditions of the Islamic book, not least in the development of decorative forms for the page. In this context, he might also have benefitted from thinking about the surviving evidence for the binding of books as well as for the writing of their texts. AJS Review 43:1 (April 2019), 189–262

On human rights

* Introduction Stephen Shute and Susan Hurley * Five Fables About Human Rights Steven Lukes * The Law of Peoples John Rawls * Crimes of War, Crimes of Peace Catharine A. MacKinnon * Human Rights, Rationality, and Sentimentality Richard Rorty * The Others Rights Jean-Franois Lyotard * The Limits to Natural Law and the Paradox of Evil Agnes Heller * Majority Rule and Individual Rights John Elster

Law and war : an American story

Introduction1. Law and War: An American Story2. The Changing Rules of War and Peace3. The American War Crimes Program4. Shifting Priorities5. Nuremberg: A Cold War Conflict of Interest6. The War Criminals and the Restoration of West German SovereigntyConclusionGlossary

The Role of States and Cities in Foreign Relations

A major purpose of the U.S. Constitution was to place control of foreign relations firmly in the hands of the national government. Yet reports indicate than more that 1000 U.S. state and local governments are participating in foreign affairs. This article describes the current situation and indicates and discusses some of the legal and policy factors relevant to assessing the propriety of state and local government involvement in foreign affairs. The article first describes the U.S. constitutional and legal prescriptions and constraints on state and local involvement in matters relating to foreign affairs and, in contrast, those areas in which such activities are – at least, unless pre-empted by Congress or the Executive – constitutionally permissible. Then, with respect to those areas where such state and local participation is arguably permissible, it presents the arguments for and against such participation. The arguments against such participation include: (1) the need for our nation to have a unified and coherent foreign policy – to “speak with one voice”; (2) the possibility that state or local activities may impede, frustrate or embarrass our foreign relations; (3) the inconsistency of such locally determined activities or policies with our over-all national democratic tradition; and (4) state and local governments’ likely lack of expertise, information and resources to make sensible judgments about complex international relations issues. The arguments for such participation include: (1) the public interest in allowing state and local governments and their constituents to promote legitimate local concerns and interests and to express their views on foreign policy issues of relevance and importance to them; (2) the fact that most such activities under discussion are not intended to and do not have any significant effect on foreign governments or their citizens or U. S. foreign relations; (3) the argument that such local involvement arguably strengthens rather than weakens our democratic process; and (4) the probability that the kinds of international issues with which state or local governments are concerned do not usually require special expertise or information. The article, concludes by suggesting that: (1) state and local activities relating to foreign affairs vary greatly and need to be analyzed and assessed separately; (2) in practice, few such activities have a purpose, significance or continuity likely to cause serious foreign relations problems; (3) at least some of these issues may implicate significant freedom of speech and petition values; (4) if state or local action threatens or causes serious interference with foreign relations, it should be, in the first instance at least, for Congress and the President to decide whether to pre-empt it; (5) as a practical matter, state and local governments themselves should take principal responsibility for ensuring that their activities stay within constitutionally permissible and appropriate bounds; and (6) as the Constitution enters its third century, there seems room for a more tolerant, flexible and cooperative attitude toward state and local involvement in foreign relations, and for ordinary citizens, through the governments closest to them, to participate more meaningfully in the formation and carrying out of foreign policies that deeply affect their lives.

The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea

On June 17, 1970, the Canadian Parliament approved the Arctic Waters Pollution Prevention Act which asserts Canada’s jurisdiction to regulate all shipping in zones up to 100 nautical miles off its Arctic coasts in order to guard against pollution of the regions coastal and marine resources. The United States promptly protested Canada’s enactment of this legislation, taking the position that international law provides no basis for such unilateral extensions of jurisdiction on the high seas.The Canadian Arctic Waters Pollution Prevention Act raises complex and controversial questions of international law and policy regarding the legal regime of Arctic water, the concept of contiguous areas, the status of waters when archipelagos, and the doctrines of innocent passage and international straits. It also illustrates the strong pressures within coastal states for unilateral action to protect what they regard as their legitimate interests – particularly against the threat of ocean pollution, and suggests the difficult issues involved in attempting to reach an international agreement on a regulatory regime adequate to prevent such pollution. Finally, the diplomatic interactions between the U.S. and Canada with respect to Canada’s passage of the Act offer an instructive study of the international legal process in action.This article analyzes and discusses each of these issues and, in particular, Canada’s claim to sovereignty and jurisdiction over substantial portions of the waters of the Northwest Passage, concluding that an agreed solution to these problems between the U.S. and Canada will not be easily reached.

Controlling Great Lakes Pollution: A Study in United States - Canadian Environmental Cooperation

This article is a study of the then proposed 1971 U.S.-Canada Great Lakes Water Quality Agreement and the long history of developing U.S.- Canadian cooperation that preceded it. The article suggests that this experience: (1) offers guidance for the solution of problems that other programs of international environmental cooperation may face, including questions of framework and approach, institutional organization and function and authority; (2) demonstrates the important contribution that can be made by bilateral and regional cooperative arrangements to the management of international environmental problems; and (3) indicates some of the limitations as well as potentialities of the concept of international environmental cooperation.The article first describes the background and setting of U.S.-Canadian cooperation regarding Great Lakes and other boundary water pollution problems and, in particular, the 1909 U.S.-Canada Boundary Waters Treaty, the U.S.-Canada International Joint Commission and its procedures, the Commission’s activities regarding pollution prior to 1971, and the proposed Great Lakes Water Quality Agreement. It then discusses, in detail some particular aspects of the U.S.- Canadian experience in attempting to deal jointly with Great Lakes and other boundary water pollution and other problems including: (1) the need for international cooperation; (2) the role of legal prohibitions and remedies; (3) institutional structure; (4) determining objectives; (5) apportioning burdens; and (6) coordination and implementation.The article concludes with a discussion of prospects and problems relating to the proposed agreement and future U.S.- Canadian environmental cooperation as well as some tentative lessons that might be drawn from this experience. These suggested lessons include: (1) large scale environmental problems such as Great Lakes pollution often transcend mere scientific and technological treatment, engage strongly competing interests, become deeply involved in the political process, and consequently can become extremely difficult to solve; (2) where environmental problems are largely localized, as is often the case, they can usually best be addressed by primarily national or bilateral or regional arrangements rather than broader international measures; (3) governments will be reluctant to subject their flexibility and freedom of action regarding their environmental policies to international constraints; (4) even where countries do accept international environmental constraints, they may do so only at the lowest common denominator level of obligations, although again, bilateral or regional arrangements may be more attainable than broader commitments; (5) governments will often prefer loose cooperative international environmental arrangements to techniques of formal legal prohibition; (6), the possibilities for successful environmental cooperation on particular problems may however, be enhanced by a formal acknowledgment of their international character, such as in the 1909 Boundary Waters treaty; (7) the U.S.-Canadian experience demonstrates that international environmental cooperation can, if well crafted, yield useful dividends at relatively low costs and with limited political risks; (8) some of the functions involved in international environmental cooperation, such as monitoring, surveillance, and the presentation of technical objectives and options, seem best performed by institutions acting in a relatively expert and apolitical capacity; (9) even limited patterns of cooperation may produce useful secondary effects, with the work of the expert boards or other joint institutions resulting in continuing contacts and relationships among working level officials and the establishment of important informal channels of communication, coordination and influence; and (10) since the problem of Great Lakes pollution has much in common with similar problems in many other areas of the world, international initiatives to promote the exchange of experience in this regard will be useful and appropriate.

The Arbitration Mechanism of the International Center for the Settlement of Investment Disputes.

1. Arbitration in International Investment Disputes. 2. The International Centre for the Settlement of Investment Disputes. 3. The Jurisdiction of the Centre for the Settlement of Investment Disputes. 4. The Applicable Law in the Arbitration Proceedings of the Centre.

The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs

As “house counsel” to the U.S. Department of State, the Office of the Legal Adviser exerts a major influence on the conduct of international relations by the United States and, in particular, the views and policies of the U.S. Government concerning international law. It also plays a significant role with respect to a broad range of domestic law matters related to the international dealings of the U.S. and its citizens. Nevertheless, few people are aware of the Office’s importance and what it does or, more generally, of the ways in which foreign office lawyers, such as those in the office of the Legal Adviser, serve to shape, develop and implement international law.This article, written by an attorney in the Office of Legal Adviser, is intended to provide more widespread public knowledge in these respects. It describes the organization, functions and operations of the Office as of the time of its writing; the Office’s role within the Department of State; its relations with private practitioners, other government agencies and the courts; and the ways in which the Office and its attorneys influence U.S. foreign policy and both domestic and international law. More broadly, the article seeks to focus greater attention on the center of the international law stage – the actual operations of foreign offices and their legal staffs – and to bring the attention of practitioners and scholars to bear on the practical procedures, problems and accommodations involved in the process of attempting to subject nations’ interactions and inter-relations to the governance of rules.This article is also included in L. Gross (Ed): INTERNATIONAL LAW IN THE TWENTIETH CENTURY (1969), the American Society of International Law’s Sixtieth Anniversary Anthology of Selected Articles published in American Journal of International Law during that period.