W. Michael Reisman

The Law-in-Action of the International Criminal Court

When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. —Missouri v. Holland (Oliver Wendell Holmes Jr., J.) As the International Criminal Court (ICC) moves from an exhilarating idea to a carefully negotiated document and finally to an operational institution, the cogency of its conception will be tested by the manifold realities of international politics, not the least of which will be the practical and financial limits those realities may place upon investigation and prosecution. The drafters of the Rome Statute benefited from important previous experiments—the Nuremberg Tribunal and the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. But once the Court is launched, the predecessors and prototypes that were so helpful in the drafting stages will be of less and less assistance. The ICC must operate in a substantially different context than the earlier efforts, and the problems it will encounter (and already is encountering) will be different from and may prove more formidable than those facing its prototypes.

Assessing Claims to Revise the Laws of War

For better or worse, participants in a civilization of science and technology are locked in a relentless process of research and a frenzied, competitive drive to apply the results wherever they promise enhanced productivity and profit. Each innovation stimulates further innovations and the juggernaut of development roars on. As for the law that would regulate it all, thanks to its characteristic deliberative and measured methods, it often lags behind the innovations, leaving intervals of legal gap in which authority becomes uncertain. Weapons and their delivery systems are no exception to this dynamic. They, too, evolve inexorably, as do the identity, character, and modus operandi of manifest and latent adversaries. The first imperative of every territorial community—hence the first imperative of the international law that these communities have created—is provision for national defense. That part of the legal regime that establishes the licit means and modes for the maintenance by each community of its national defense is necessarily a response to the common needs and common interests of politically relevant actors in the system. Their felt necessities determine the content of the law and, in its crafting, take account of a wide range of factors, such as the current and projected technology and quanta of weapons; their modes of application; geography and geostrategic implications in specific contexts; and, of course, the characteristics, objectives, and capacities of manifest and latent adversaries. When some of these factors change to the point that communities can no longer assure their defense within the ambit of inherited law, those charged with national defense inevitably demand changes in the law.

The Inter-American Human Rights System.

The Inter-American System and Human Rights the Inter-American Commission on Human Rights the Inter-America Court of Human Rights individual application before the Inter-American commision individual applications before the Inter-American Court of Human Rights the advisory jurisdiction of the inter-American Court of Human Rights the rights protected.

THE MANLEY O. HUDSON LECTURE: WHY REGIME CHANGE IS (ALMOST ALWAYS) A BAD IDEA

Every impulse to protect the weak and help the infirm is noble. The impulse to use the means at our disposal to liberate a people from a government that poses no imminent or prospective threat to us, but is so despotic, violent, and vicious that those suffering under it cannot shake it off, is also noble. The action that gives effect to that impulse may sometimes be internationally lawful. It may sometimes be feasible. It is often—but not always— misconceived.

Regulating covert action : practices, contexts, and policies of covert coercion abroad in international and American law

Covert activity has always been a significant element of international politics. When it has served their interests, governments have secretly disseminated propaganda in other countries, manipulated foreign economies, and abetted coups against their adversaries. What are the circumstances, if any, in which it is lawful, under international law or United States law, to resort to covert action either directly or through local proxies? When is it right to do so? This book is the first to assess the lawfulness of covert action under international law. It includes as well a chapter on United States law and a candid discussion of the implications for democratic states that covert operations pose. W. Michael Reisman and James E. Baker identify different types of covert actions, discussing a variety of cases that include the Trujillo assassination in 1961, the Rainbow Warrior in 1985, and the raid on Libya in 1986. After explaining the complex operations of the international legal system, they explore trends in decision making and the conditions that accounted for them--whether the covert operations were proactive, defensive, or reactive. They examine in detail the procedures followed in the United States to authorize and oversee covert activity and propose guidelines for political leaders who may contemplate using covert techniques. An appendix reviews twenty years of allegations of covert aggression brought to the attention of the United Nations Security Council.

International Arbitration and Sovereignty

THE GREAT revolutions in the opening decades of the last century – in Mexico and then in Russia – installed a new meaning of sovereignty, the modern version of the ‘command economy’. The state, as the putative representative of the people, would hold inalienable title to the wealth of the national community and reserve an exclusive right to organise and, if it wished, to conduct, through the governmental apparatus, the most critical economic activities. Government subsumed the market. If these revolutionary events had occurred in a global system with little cross-border exchange, their significance would have been limited to the internal affairs of the states where they took place. The world would scarcely have taken notice; and if it had, it would not have cared. But the revolutions coincided with growing international trade and investment, facilitated by unprecedented advances in transportation and communications. So private sector actors in the free market systems of the most economically important parts of the rest of the world increasingly found that they were now conducting business, whether trade or direct investment, with governments rather than, as in the past, with private counterparts. If the law and the national courts applying it had treated governments that engaged in commerce like private parties, the fact that trading partners were now agencies of states would not have altered legal equations. Yet the national courts in free market systems still granted a high degree of immunity, if not absolute immunity, to governments. There were reasons for this practice. In the free-market countries, government officials and the commercial sectors had found an accommodation for their various common and cross-purposes in doctrines of sovereign immunity for other governments when they were hailed into foreign courts. Among other things, this avoided politically costly incidents that could be ignited, often at inconvenient …

The art of the possible : diplomatic alternatives in the Middle East

IN this short essay, Professor Reisman tries to stimulate interest in possible ways of decreasing the current level of instability in the Middle East and defusing the Arab-Israeli conflict. He begins with a short analysis of the history of the conflict and of the present crisis (the book was written in 1969), which highlights, rightly, the paradoxes of the relationship between big powers and small ones, in which the latter have much more leverage than might be expected; and the very complex structure of coincidental and interacting conflicts among the indigenous peoples of the Middle East. He points out that the Arab-Israeli conflict is only one of several international clashes in the region and that one can discern particular and different characteristics in the separate sub-conflicts that Israel has with different Arab countries. All this has been discussed already in different publications, but it is still worth re-emphasising and, even more, elaborating upon. This elaboration is missing, and the book goes on to discuss four partial solutions to the conflict.

The Quest for World Order and Human Dignity in the Twenty-first Century

Also available as an e-book This General Course is concerned, first, with understanding and assessing the aggregate performance of the world constitutive process, in present and projected constructs; second, with providing the intellectual tools that can enable those involved in making decisions to be more effective, whether they are operating in islands or offshore; and, third, with inquiring into ways the international legal system might be improved. Reisman identifies the individual as the ultimate actor in international law and explores the dilemmas of meaningful individual commitment to a world order of human dignity amidst interlocking communities and overlapping loyalties.

La New Haven School: Una breve introducción

La New Haven School plantea una aproximacion teleologica al derecho internacional (y eventualmente tambien nacional) a fin de superar las deficiencias del realismo legal norteamericano y como una reaccion frente a la pretendida neutralidad, formalismo y enfoque meramente descriptivo del positivismo. El sistema juridico es visto como como un “proceso de toma de decisiones” y no como algo estatico. Al desplazar la atencion desde las normas formales al modo en que las decisiones son efectivamente tomadas, adquieren especial relevancia los valores a los que da preeminencia el sistema internacional, asi como la interrelacion entre el derecho internacional y otros procesos mundiales, sociales o economicos.

Reflections on the Cogency of Fragmentation: Statutes of Limitation and “Continuing Violations” in Investment and Human Rights Law

Of late, there has been considerable discussion of the so-called problem of fragmentation in international law;1 the term itself implies that diff erential treatment is pathological and resonates with normative legal theory which tends to focus on consistency of rule formulations. We propose to question some of the assumptions of those who have expressed concerns about fragmented treatments in diff erent sectors of international law. Our subject will be statutes of limitation in international agreements and inconsistencies in the application of the judicial invention of the concept of “continuing violations” as a means of circumventing the limitations which time-bars were designed to impose on the jurisdiction of third-party decisionmakers. We are happy to have the opportunity to refl ect on this aspect of fragmentation in a publication dedicated to our dear friend, Rüdiger Wolfrum, whose work in these and other areas has so much enriched international law.