Steven R. Ratner

Drawing a Better Line: UTI Possidetis and the Borders of New States

It is now conventional wisdom that the proliferation of ethnic-based violence constitutes the greatest threat to public order and human rights since the lifting of the Iron Curtain. The eruption of hatreds, whether suppressed or ignored for a half century or newly arisen, has unleashed centrifugal forces that are pulling states apart from Africa to Europe to South and Central Asia. To date, the response of the effective decision makers in the international community has been ambiguous and inconstant: the United Nations member states reiterate the importance of the unity of all states, but they accept accomplished breakups after the fact, all the while insisting on the protection of minorities within states. Political philosophers struggle with the circumstances under which secession and dissolution are desirable; international law declares the lack of either a blanket right to, or prohibition against, secession and seemingly relegates its achievement to a pure power calculus.

Belgium's War Crimes Statute: A Postmortem

particularly in defiance of established rules, historically generates resistance. As is suggested by the backlash generated by actions taken by other possible agents of global HIL (such as the International Monetary Fund), global HIL, even when it generates resistance, may undermine the legitimacy of the collective institutions deemed responsible, thus making it harder to manage multilateral solutions. Global HIL is more insidious than unilateral HIL precisely because blame for it is shared. The third lesson is that, particularly when it is legislating (but not only then), the Security Council would be well-advised to be sure that what it does reflects the will of the international community as a whole, including states not represented on the Council and members of international civil society. This is so for the same reasons good legislators the world over consult relevant constituencies: to secure the benefits of a diversity of insights and viewpoints, improve the quality of legislation, and avoid repeating mistakes. Consultation and participation may require institutionalized mechanisms—such as Michael Reismans suggestion of a Chapter VII Consultation Committee for Council/General Assembly interaction—as well as less formal approaches, such as greater attempts at transparency. Such mechanisms are also essential to securing continued multilateral cooperation in the future, whenever the hegemon and others require such cooperation. The Council will not forever remain a legitimate body for collective action if it is perceived as acting in accord with Morgenthaus words at the beginning of this Comment. Recognizing global HIL also urges caution with respect to recipes for reform that might make the Council only more subject to hegemonic capture. The Councils actions surveyed here remain works in progress. The Council may yet recognize human rights and other limits on its counterterrorism efforts, refuse to acquiesce in overly expansive readings of inherent self-defense, or exercise greater control over Iraqs future. As the Councils tempering of the harshest aspects of its counterterrorism sanctions and the annual review imposed on the Authority in Iraq suggest, even in an increasingly unipolar world, the collective can influence what the hegemon can achieve through the Council and it behooves the hegemon to permit itself to be influenced—if it wants to have a legitimating and effective Council around for a long time to come.

Regulatory Takings in Institutional Context: Beyond the Fear of Fragmented International Law

The last decade has witnessed a rebirth of popular and academic interest in the international norms governing expropriation. Debate has centered on the competing claims of corporations, host states, nongovernmental organizations (NGOs), and other actors over the extent to which governments may regulate their economies in a manner that affects foreign investment without compensating investors for resulting economic harm. The current controversy over regulatory takings represents the second act in international law’s expropriation battles; whereas the first act comprised the long dispute between North and South over compensation after an overt nationalization, today’s dispute turns on whether a governmental regulation is an expropriation in the first place. This issue is not new to international law, as old diplomatic intercourse and arbitrations demonstrate; but the range of actors making claims, the venues for their resolution, and the outcomes of these processes are more diverse, particular attention having been generated by the case law of arbitrations under the North American Free Trade Agreement (NAFTA) and bilateral investment treaties (BITs). Complaints have concerned both the outcomes of disputes and the processes involved in their resolution.

The thin justice of international law : a moral reckoning of the law of nations

PART I: THE FRAMEWORK OF THIN JUSTICE PART II: THE JUSTICE OF CORE NORMS ON STATEHOOD PART III: THE JUSTICE OF TERRITORIALLY BASED PROTECTIONS OF HUMAN RIGHTS PART IV: THE JUSTICE OF CORE NORMS ON THE GLOBAL ECONOMY PART V: LIMITATIONS AND ASPIRATIONS

Ethics and International Law: Integrating the Global Justice Project(s)

Academic discourse on global justice is at an all-time high. Within ethics and international law, scholars are undertaking new inquiries into age-old questions of building a just world order. Ethics – political and moral philosophy – poses fundamental questions about responsibilities at the global level and produces a tightly reasoned set of frameworks regarding world order. International law, with its focus on legal norms and institutional arrangements, provides a path, as well as illuminates the obstacles, to implementing theories of the right or of the good. Yet despite the complementarity of these two projects, neither is drawing what it should from the other. The result is ethical scholarship that often avoids, or even misinterprets, the law; and law that marginalizes ethics even as it recognizes the importance of justice. The cost of this avoidance is a set of missed opportunities for both fields. This article seeks to help transform the limited dialogue between philosophers and international lawyers into a meaningful collaboration. Through a critical stocktaking of the contributions of the two disciplines, examining where they do and do not engage with the other, it offers an appraisal of the causes and costs of separation and an argument for an interdisciplinary approach.

Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction

For much of the last century, global actors have sparred over the international legal rules governing the compensation a state should pay a foreign investor when it expropriates the latters property. The competing claims have had many dimensions, including the content of customary international law and the line between bona fide regulations and expropriations. In the modern age of international investment agreements (IIAs), a debate continues over another key issue: When a state expropriates a foreign investment in violation of an IIA, where should a tribunal look for the standard of compensation—to the amount the treaty requires the state to pay when it expropriates, or to an external standard for violations of international law generally? Each is alluring to a tribunal for its legal visibility—one spelled out in the very text under examination, and one stemming from a venerable international court case. But they may point to significantly different results for the investor and the host state. And investor-state tribunals remain wildly inconsistent, even incoherent, in their choice and use of those standards. It remains a significant source of disagreement in contemporary investor-state arbitration.

Compliant Rebels: Rebel Groups and International Law in World Politics. By Hyeran Jo. Cambridge: Cambridge University Press, 2015. Pp. xxii, 331. Index.

coalesced are rules of customary international law, although in some cases they may be. But it shows that if one wants to look to see how particular cross-border issues are regulated in fact, it will not be sufficient to look at what states have agreed to by treaty or what constitutes customary international law. Transnational Legal Orders can be read as an important intellectual contribution to the notion of formal and informal legal orders that transcend borders—a rich interdisciplinary work that provides a framework for understanding how the formal and the informal interact and that shows the importance of focusing on behavior in order to understand law. But, it goes further than that. It questions assumptions about normativity and indicates that normativity is a spectrum and not an either/or proposition, as the labels of hard law and soft law would suggest. The relative normativity that Prosper Weil warned against some forty years ago3 is a reality. Transnational Legal Orders also questions notions of fragmentation and demonstrates that regulation comes and goes in different issue areas, rather than indicating the fracturing of a coherent legal order. Fragmentation or disintegration, the authors warn, may be the result of seeking to deal with globalization through single, universal TLOs. Needs may be better met through multiple and competing TLOs. Transnational legal orders stand alongside, or are integrated with, treaty regimes. They develop, they settle, they become institutionalized, they ebb and wane and regrow. Traditional ways of thinking about international law that do not readily accommodate such ideas run the danger that they will lose touch with what is happening in fact. Focusing on what states, international organizations, nongovernmental organizations, and national and local institutions are doing in creating frameworks for ordering of behavior across borders may be a more productive way of understanding both social and legal regulation in the international sphere than thinking just in terms of the formal sources of law.

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List of Tables - List of Acronyms - PART 1: CONSTRUCTING THE NEW PARADIGM - Introduction: A Generation of Peacekeeping - An Old Word, A New Meaning - Setting the Scene: Conceptual Underpinnings of the New Peacekeeping - The Players - PART 2: A LOOK BACK - Fits and Starts: The Leagues and UNs Early Efforts at the New Peacekeeping - The Second Generation Comes into its Own - PART 3: THE CAMBODIA EXPERIENCE - Unending Conflict, Novel Solution - UNTAC in Action - Tackling UNTAC: A Model Operation? - The New Imperatives for the New Peacekeeping - Conclusions