International Law Studies

The International Court of Justice: A Survey of Contentious Cases from 2001 to 2011

2012-04-22T22:00:00.000-04:00

By Alexander H. Hill

Alex Hill, a second year student at Albany Law School, is an associate editor of International Law Studies. He currently works at the Albany Law School Low Income Taxpayers Clinic and spent the last year interning for the Executive Offices of the New York State Department of Financial Services.

He prepared this paper for the Judicial Process Seminar, Fall 2011.

Publication of his associated presentation was previously published by the Center for Judicial Process.

We are haunted by the greatest unfinished task of civilization which is to create a just and peaceful international order. If such a relationship between states is to be realized, we know its foundations will be laid in law, because legal process is the only practical alternative to force.
--Robert H. Jackson, Address to Inter-American Bar Association, 1941.

After the world witnessed the horrors of man exposed in World War II, the Four Powers of the globe (the United States, the United Kingdom, the USSR, and China) collaborated to form an International Court of Justice, keeping in mind the principles of sovereignty and international law. The Four Powers prepared a proposal that was submitted to the United Nations and resulted in the creation, or re-creation, of an international court established with general jurisdiction and the ability to hear complaints between nations, in the hope of bringing and maintaining peace throughout the world.

The court was named International Court of Justice (ICJ). It continues the pursuit of peace through the jurisprudence of international law to this day.

The ICJ is the main judicial organ of the United Nations. Established in 1945, through the Charter of the United Nations, its role is to hear and decide disputes of international law that states submit to, as well as to provide advisory opinions regarding legal inquiries by members of the United Nations and specialized agencies that are authorized to do so. It is the only court in the world that has general jurisdiction over international law.

Given the evolving globalization of the states of the world, as well as the ever growing complex issues that arise internationally, the natural presumption is that the ICJ is a court that would receive and address complex cases involving difficult issues from all over the world, and that the processes utilized by the ICJ would allow for an unbiased decision in such cases. A review of data from the last ten years (2001–2011), however, indicates some issues in that the contentious cases heard by the ICJ are not representative of the globe.

Its role thus appears to be evolving into one of more advisory and procedural, using judicial restraint on an international level to defer more controversial and politically charged issues to other venues such as regional tribunals and the International Criminal Court (ICC), and acting as a guide for these tribunals, both in structure and decision making.*
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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.

African Union: An Effective Cure or Western Caricature?

2012-04-15T00:00:00.000-04:00

By Christina French

Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel.

This paper was prepared for the International Law of War & Crime Seminar, Fall 2011 semester.
Ms. French has also been published by the Center for Judicial Process. (See, e.g., The New York Court of Appeals: Analyzing the Status of Workers’ Rights in New York, March 23, 2012.)

The divisive nature of the African continent dates back to the colonial era and decolonization of the 1950s and 1960s. Artificial borders resulted in artificial states and today internal armed conflict is in all likelihood, the primary impediment to the political, economic, and social development of contemporary Africa. In its search for unity, a regional organization such as the African Union may be Africa’s only hope for ending conflict in the divided African nation-states. This paper will address whether the African Union can effectively resolve internal conflicts as a necessary step in African development.

In order to maximize colonial control, colonialists drew artificial borders within African States without any understanding or interest in the ethnicity and tribalism that existed there. This did not pose a problem so much when the colonialists were there, acting as a centralizing government, providing a central police force, and for some, representing a common enemy. However, when the colonists left, there was a power vacuum.

Rather than returning to pre-colonial status, African states maintained the colonial power structure and merely replaced white imperial leaders with black African leaders. The maintenance of the status quo both in terms of borders and in large part, the leadership, created a situation in which conflict management in Africa was more likely to be within states than between states. In fact, the deadliest post-colonial conflicts were within African states. Conditions of civil unrest demanded that any attempt at conflict management, required an understanding of what was causing the internal conflicts more urgently than an understanding of the causes of external war. In other words, the African “situation” required a different response from the international community.*

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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.

Understanding Child Soldiering

2012-04-09T15:52:00.001-04:00

The Issue and Its Ramifications

By Bayti Chen

Bayti Chen, a third year student at Albany Law School, is the Vice President of the Asian Pacific American Law Student Association. She has interned at the New York State Assembly as a Legislative Assistant to Assemblyman Vito Lopez.

Ms. Chen's paper addresses how children become soldiers and what efforts are needed to save them from losing their childhood to war. She prepared the paper for Professor Grahn-Farley's course, International Child's Rights, Spring 2011.

Wars have transpired since the existence of human life. Originally, adults were the soldiers of war, but since World War II, children began participating in wars and armed conflicts. A recurring pressing matter and trend is the use of child soldiers in armed conflicts. A child is defined as anyone under the age of eighteen. The meaning of “child soldier” has a broader definition than the typical definition of “soldiers” we know today, namely those who join the armed forces and handle machineries and/or are in direct confrontation with enemies. Child soldiers are “associated with any kind of regular or irregular armed group” that participates in all kinds of activities ranging from messengers, porters, sexual purposes, cooks, to front line combatant battles with land mines, bombs, and guns. They are not limited to just fighting in war or using militia weaponry.

Despite the vast amount of laws pertaining to child soldiers and its prevention, there remains the question of why are children still participating in armed conflicts? A majority of the countries that actively use child soldiers are particularly prominent in third world countries. As of today, it was found that more than twenty countries or territories actively involve children in armed conflicts both in government forces and non-state armed groups. Some countries includes Afghanistan, Burundi, Central African Republic, Chad, Columbia, Côte d’Ivoire, Democratic Republic of Congo, Guinea, India, Indonesia, Iraq, Israel, Liberia, Myanmar, Nepal, Philippines, Sierra Leone, Sri Lanka, Sudan, Rwanda, Thailand and Uganda. The underlying causes for the use of child soldiers and the appeal for enlistment ranges from poverty issues and a sense of belonging, to threats of force and death.*

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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

African Union: Current Issues

2012-03-23T12:35:00.000-04:00

By Gizem Basbug

Gizem Basbug, a third year student at Albany Law School, is a Senior Editor of International Law Studies. A native of Turkey, she is a graduate of the University of Virginia.

She prepared this presentation for the International Law of War and Crime Seminar, Fall 2011.

(click to enlarge on all slides)

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For the entire presentation, open HERE.
(It is then best to download the presentation and view it from there.)

The Gaza Blockade and Flotilla Incident

2012-03-05T00:00:00.000-05:00

International Legal Considerations

By Daniel M. Bernstein

Dan Bernstein is a third year student at Albany Law School and a Senior Editor for the Albany Law Review.

This paper was prepared for the International War and Crime Seminar, Fall 2011.

On May 30, 2010, six civilian ships sailed toward Gaza in an effort to breach a three-year Israeli naval blockade. When Israel’s warnings to change course went unheeded, Israeli commandos intercepted and boarded the ships. A violent confrontation ensued and eleven flotilla passengers were killed.

In response to the flotilla incident, the UN commissioned a panel to advise the international community regarding the Gaza blockade, the violent confrontation, and diplomatic considerations for avoiding future conflicts. The UN’s report was published in September 2011. This paper discusses the history of Israel’s blockade; the organization and execution of the flotilla mission; the events of May 30 and May 31, 2010; the relevant international law for blockades; and the UN report’s critique of Israel’s blockade and the flotilla incident.

Background to Israel’s Naval Blockade

Following Israel’s 2005 withdrawal from Gaza, disputes between Israel and her Palestinian neighbors resulted in increasing cross-border hostilities in the form of rocket attacks, military reprisals, state-approved shelling of civilians, and large-scale air and ground invasions. In Israel’s southernmost town of Sderot, more than 6,000 mortar bombs and rockets from Palestinian resistance groups posed a steady threat to the civilian population.The attacks brought “panic, destruction and occasionally death” to the town, where targets that were hit included residential homes, a school bus, and a high school.

Israel began efforts to weaken Hamas through economic sanctions and imposed new security measures including increased security checks at crossings between Israel and the Gaza Strip and restrictions on the movement of Hamas officials. The Israeli military and the Egyptian government also worked to eliminate a series of tunnels between Egypt and Gaza that were used to smuggle militants, weapons, and explosives.

However, rocket fire into Southern Israel continued, and in June 2007, militants from Hamas and allied groups used tunnels to cross into Israel and kidnap an Israeli soldier.

Israel reacted by ordering a full cargo blockade of the Gaza Strip. As part of its enforcement of the blockade, no boat – civilian or enemy – was permitted to enter the blockaded area, and Israel warned that “[a]ny vessel that violates or attempts to violate a maritime blockade may be captured or even attacked under international law.”*

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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Use of Force for Humanitarian Intervention

2012-02-28T00:00:00.000-05:00

Permissibility Under the United Nations Charter
By Rajiv R. Haté
Rajiv Haté, a third year student at Albany Law School, is a senior editor for International Legal Studies. He is from Toronto, Canada and is a graduate of the University of Toronto.
He prepared this paper for the International Law of War and Crime Seminar, Fall 2011.

Prior to 1945 there was no customary international law prohibiting a state’s unilateral resort to force. This changed in 1945 when international politics was introduced to the Charter of the United Nations (UN), in which Article 2(4) prohibited states from the unilateral resort to force. When the Charter was adopted, States agreed to refrain from the use of force or the threat of force in their international relations and instead consented to an obligation to settle all disputes by peaceful means.

The use of force for humanitarian intervention is one circumstance in which the stringent UN restrictions on the use of force comes into question. Humanitarian intervention is the use of force by a foreign nation in the internal conflict of another state for the purpose of preventing and/or stopping large-scale atrocities or acute deprivations, such as genocide and crimes against humanity. Humanitarian intervention only arises when effective peaceful measures have been exhausted, meaning that before the use of force for humanitarian purposes can be invoked, it must be demonstrated that such use of force is absolutely necessary to prevent whatever human rights violations are occurring.

However, since the UN strictly restricts the use of force unless it meets one of the two exceptions of self-defense or the authorized use of force by the Security Council, technically the use of force for humanitarian purposes is illegal unless it is authorized by the Security Council. The problem with this is that, to reach an agreement to take forceful action on a state for humanitarian purposes is extremely difficult considering that some evidence may be ambiguous, some will argue it is an internal conflict that foreign countries should not get involved in, and in any given case there may be major powers resisting such an attempt at intervention.

On the other hand, to wait until there is enough evidence or until a consensus is reached or until the Security Council authorizes the use of force for humanitarian purposes, is likely to result in the loss of thousands of lives which could have been saved had the use of force been authorized earlier.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Non-State Actors and Transnational Conflicts

2012-02-22T14:18:00.000-05:00

The Changing State of International Warfare

By Tschika McBean-Hammoumi

Tschika McBean-Hammoumi, a co-Executive Editor of International Law Studies, is an LL.M candidate in International Law at Albany Law School. She is a graduate of the College of Law of Loyola University New Orleans. In addition to the United States, she has studied international law in Austria and Costa Rica. Her writings have appeared in publications such as the NYU Gallatin Literacy Project and Ithaca College’s academic journal. She was the president of the International Law Society at Loyola and she has interned or worked in several human rights organizations, including the Tompkins County Human Rights Commission, Citizens for Global Solutions, the Advancement Society and the New Orleans Family Justice Center. She has lived in five countries, spanning from Guyana to Morocco, and is currently working as a research assistant for Albany Law School's Distinguished Professor James Gathii.

This paper, like her presentation on Darfur that was published on this site earlier this year, was prepared for the International Law of War and Crime Seminar, Fall 2011.

The trend in global warfare, whereby States are forced to combat non-state actors such as Al Qaida and other armed groups who may or may not be supported by another State, is a pressing issue that necessitates a review of the current laws governing international warfare. In other words, the nature of fighting international conflicts has changed and the laws governing these conflicts must evolve as well. This is especially true in relations to securing accountability for the actions of rogue non-state groups that are independent of State support.

Furthermore, it is inarguable that present day international wars have moved beyond the confines of the Geneva Conventions, whereby the main actors (states, military combatants and civilians), their rights and responsibilities are clearly defined. By contrast, non-state actors, such as Private Military Security Contractors (PMSC), mercenaries and independent and State sponsored terrorists groups, are radically changing this equation. Many States are becoming increasing dependent on these groups to fight their wars, while the rights and responsibilities of these non-state actors remain nebulous.*

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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.

Impermissible Subsidization of State-Owned Enterprises (SOE's)

2012-02-13T12:10:00.000-05:00

Alternative Methods of Assessing in the WTO Dispute Settlement Body

By John R. Forbush

John Forbush, a third year student at Albany Law School, is a senior editor on the Albany Law Review. He is a graduate of Union College and Carnegie Mellon's Heinz School.

He prepared this paper for Professor James Gathii's course, International Business Transactions,Fall 2011.

A March 2011 World Trade Organization (WTO) Appellate Body decision, overturning the United States’ issuance of countervailing duties on specific Chinese imports, established that a mere showing of a firm’s majority “state-owned” status is not, on its own, sufficient to justify the imposition of countervailing measures. The prominence of state-owned enterprises (SOEs) in the Chinese economy presents challenges to established methods for deciphering, calculating, and punishing foreign subsidization of U.S.-bound imports.

Although the decision wisely accommodates the existence of state-owned enterprises, this evidentiary standard is devoid of guidance in terms of delineating when state ownership and support of firms “crosses the line” and becomes “actionable” by way of countervailing measures. For countries seeking to impose countervailing measures on SOE imports, the lack of transparency that characterizes many SOEs poses significant challenges in assessing when an SOE is being impermissibly subsidized and used as an instrumentality of the state.

This paper examines how application of alternative legal standards might produce different and, ideally, more satisfactory results for the United States in efforts to defend the future imposition of countervailing measures against subsidized state-owned enterprises.
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To read the entire paper, open HERE.

Indicia of Civilization

2012-02-06T00:00:00.000-05:00

A Foundational Principle in International Law

By Nicole Nielson

Nicole Nielson, a third year student at Albany Law School, is a member of the Albany Law Review, the student Executive Editor of the Law Review's annual State Constitutional Commentary issue, and a Senior Editor of the Center for Judicial Process.

She originally prepared this paper on the concept of "civilization" for the International Law of War and Crime Seminar, Fall 2011.

The term “Civilization” is imbued with deeply subjective meaning. Individuals define the term anecdotally, in relation to and with respect to their own experiences and perspectives, not at all unlike the way that countries, political and geographical entities give the term meaning. As such, given the multitude of perspectives and numerous cultures on our planet, absent substantial consideration and study, civilization is a term ill-suited to a single definition and thus frequently misunderstood. At the core of what civilization means is its application, particularly with respect to notions of sovereignty of a country or political or geographical entity. Classification as a civilized entity carries the benefit of the presumption of sovereignty. This presumption accords deference with respect to the sovereign’s decisions and actions inside its borders.

The tension of civilization and sovereignty are pervasive in the establishment and enforcement of international laws because voluntary and collective agreement through treaty, legislation or agreement otherwise, about what is just and what is permissible are what comprise international law. Thus, international law rests on the relationships built through recognition of sovereignty; recognition predicated on having met a standard of civilization.

The issue with civilization as the foundational principle for international law is that its definition and application are heavily weighted in favor of the lens of western culture, which does not often afford legitimacy to inevitably divergent lenses of multiple civilizations. The inability to accommodate cultural pluralism in international law, and the persistence of the western perspective, is a barrier to the effectiveness of international law and the establishment and maintenance of international relationships.*

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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.

The International Criminal Court: A Primer [presentation]

2012-01-30T00:00:00.000-05:00

By
Daniel M. Bernstein and Alyssa E. Conlin
Dan Bernstein is a third year student at Albany Law School and a senior editor for the Albany Law Review.
Alyssa Conlin is a third year student at Albany Law School and the Selections Editor of the Albany Law School Journal of Science and Technology.

Originally prepared for the International Law of War and Crime Seminar, Fall 2011, this slide presentation summarizes the composition and powers of the International Criminal Court, and briefly explores the Court’s early investigations in the Democratic Republic of the Congo, Kenya, Sudan, and the Central African Republic.

(click to enlarge on all slides)

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For the entire presentation, open HERE.
(It is then best to download the presentation and view it from there.)

McBean-Hammoumi on Developments in Darfur & Mumford on 'Genocide' in Cambodia

2012-01-21T16:35:00.000-05:00

International Law Studies is pleased to present its first publications.

These two works, prepared respectively by this year's student Executive Editors, deal with a pair of international legal and humanitarian crises.

Darfur: Update on Developments, a presentation

By Tschika McBean-Hammoumi

LL.M. Student, Albany Law School

continue

Genocide in Cambodia? A Look at the ‘Protected Groups’ in the 1948 Genocide Convention

By Anna R. Mumford

Albany Law School, Class of 2012

continue

Genocide In Cambodia?

2012-01-21T16:34:00.000-05:00

A Look at the ‘Protected Groups’ in the 1948 Genocide Convention

By Anna R. Mumford

Anna Mumford, a third year student at Albany Law School with an interest in international criminal law, is a co-Executive Editor of International Law Studies. She has studied international law at the courts in the Hague, and she has worked as a legal associate with DC-Cam in Phnom Penh, Cambodia, an NGO which provides evidence to the Extraordinary Chambers in the Courts of Cambodia (ECCC). She is currently the Managing Editor for Business & Production for the Albany Government Law Review.
This paper was prepared for the International Law of War and Crime Seminar, Fall 2011.

The definition of genocide in the 1948 Convention for the Prevention and Punishment of the Crime of Genocide is narrow: it is a crime committed with the intent to destroy, in whole or in part, an enumerated group of people. While there have been many cases of targeted mass killings over the past half century—e.g., Nuremberg, Srebrenica, Cambodia, Rwanda, Darfur—some fail to satisfy the crime’s strict definitional elements.

Significantly, the mass atrocities in Cambodia from 1975–1979 have often been referred to as a genocide, yet most of the acts committed during that time do not legally constitute genocide under international law. While the perpetrators of these mass atrocities possessed the requisite intent to destroy, the vast majority of victims are not members of one of the protected groups.

This paper explores the legal definition of genocide, as outlined in the Genocide Convention, with an emphasis on the four specific protected groups. This paper seeks to show how the limitations of the definition of genocide have prevented prosecution of this crime in Cambodia.*

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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Darfur

2012-01-21T16:32:00.000-05:00

Update on Developments, a presentation

By Tschika McBean-Hammoumi

Tschika McBean-Hammoumi, a co-Executive Editor of International Law Studies, is an LL.M candidate in International Law at Albany Law School. She is a graduate of the College of Law of Loyola University New Orleans. In addition to the United States, she has studied international law in Austria and Costa Rica. Her writings have appeared in publications such as the NYU Gallatin Literacy Project and Ithaca College’s academic journal. She was the president of the International Law Society at Loyola and she has interned or worked in several human rights organizations, including the Tompkins County Human Rights Commission, Citizens for Global Solutions, the Advancement Society and the New Orleans Family Justice Center. She has lived in five countries, spanning from Guyana to Morocco, and is currently working as a research assistant for Albany Law School's Distinguished Professor James Gathii.
This presentation was prepared for the International Law of War and Crime Seminar, Fall 2011.

(click to enlarge on all slides)

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For the entire presentation, open HERE.
(It is then best to download the presentation and view it from there.)

Mission Statement

2012-01-18T22:50:00.000-05:00

International Law Studies (ILS) is an independent, online, academic forum for the publication of international law and comparative law research papers, presentations, and other projects.

ILS is dedicated to sharing scholarship which explores, among other things, the prevailing theories of international law, the impact of international law on societies, comparative law, and the intersection of current global issues and the field of international law. Further, ILS provides a forum for research projects that conceive the trajectory of the discipline, in the legal context of examining solutions to current problems and issues in international relations. The goal is to promote innovative, insightful, and contemporary research and study of the broad spectrum of international and comparative law, especially by law students, but also by their professors, as well as by students and professors in related graduate school disciplines.

The founder and Director of ILS, Vincent Martin Bonventre, is a professor at Albany Law School, as is the Co-Director, Alexandra R. Harrington. The staff members are students of that institution. The research papers and other projects for which ILS provides a forum are primarily authored by students at Albany Law School. However, holding the belief that the study of international and comparative law encourages and accommodates originative ideas, and ILS being a platform for sharing reformative research, the work of students from both domestic and international law and graduate institutions is highly encouraged and welcomed.

Aware that great ideas are not limited to the academy or to any particular discipline or geography, ILS also welcomes the advice and suggestions of academics, jurists, and practicing attorneys, regardless of institutional or national affiliation. Ultimately, ILS aims to publish, in one space, interesting and forward-thinking research and studies in international and comparative law that will serve as an educational tool for the academic community, international law professionals, the bench, journalists, and the public at large.

Tschika McBean-Hammoumi and Anna R. Mumford

Executive Editors, ILS

January 2012

International Law Studies (ILS) Staff

2012-01-17T22:49:00.000-05:00

Faculty Directors

Vincent M. Bonventre

Alexandra R. Harrington

Student Editorial Board

Executive Editors

Tschika McBean-Hammoumi

Anna R. Mumford

Senior Editors

Gizem Basbug
Rajiv Hate

John Hodge

Associate Editors

Nadia Arginteanu

Kristen Boyert

Nicole Camuti

Katherine Fina

Alexander Hill

Katerina Kramarchyk

The Executive Editors, 2011-12

2012-01-17T00:00:00.000-05:00

Executive Editor Tschika McBean-Hammoumi is an LL.M candidate in International Law at Albany Law School. She is a graduate of Ithaca College and the College of Law of Loyola University New Orleans. In addition to the United States, she has studied international law in Austria and Costa Rica. Her writings have appeared in publications such as the NYU Gallatin Literacy Project and Ithaca College’s academic journal. She was the president of the International Law Society at Loyola and has interned or worked in several human rights organizations, including the Tompkins County Human Rights Commission, Citizens for Global Solutions, the Advancement Society and the New Orleans Family Justice Center. She has lived in five countries, spanning from Guyana to Morocco, and is currently working as a research assistant for Albany Law School's Distinguished Professor James Gathii.

Executive Editor Anna R. Mumford is a third year student at Albany Law School, with an interest in international criminal law. She earned a Bachelor's Degree in accounting from Lousiana State University. Since coming to law school, she has studied international law at the courts in the Hague. Following her second year, she was a legal associate with DC-Cam in Phnom Penh, Cambodia, a NGO which provides evidence to the ECCC. She has completed internships with the Honorable Margaret T. Walsh at Albany County Family Court and with the Alternate Public Defender's Office in Albany. She is currently the Managing Editor for Business & Production for the Albany Government Law Review.