• Selected
• Entire List

Abstract:
The rule of law is almost universally supported at the national and international level. The extraordinary support for the rule of law in theory, however, is possible only because of widely divergent views of what it means in practice. Disparate national traditions posed few problems while operating in parallel, but efforts to promote the rule of law through international organizations have necessitated a reassessment of this pluralism. This article proposes a core definition of the rule of law as a political ideal and argues that its applicability to the international level will depend on that ideal being seen as a means rather than an end, as serving a function rather than defining a status. Such a vision of the rule of law more accurately reflects the development of the rule of law in national jurisdictions and appropriately highlights the political work that must be done if power is to be channeled through law.

rule of law, international law, international organizations, United Nations, Security Council

Abstract:
Norway's Global Pension Fund, a sovereign wealth fund worth over $300 billion, is the second largest in the world. Beginning in 2004 it adopted ethical guidelines intended to promote sustainable development and, in particular, to minimize the risk of complicity in serious human rights violations. The turn to ethical investment strategies to promote corporate social responsibility can be seen as an important supplement to emerging regulation of multinational corporations - or as an admission that regulation has failed. In the case of Norway, it has seen controversial decisions such as disinvestment from Wal-Mart and a decision not to disinvest from companies operating in Myanmar (Burma). This article discusses the creation and work of the Council on Ethics, focusing on the ambiguous legal and ethical meanings of complicity and the uncertain impact that disinvestment has on behavior. The turn to ethics offers an opportunity but also an opportunity cost: ethics can be a means of generating legal norms, through changing the reference points of the market and providing a language for the articulation of rights; yet they can also be a substitute for generating those norms, providing illusory rather than genuine accountability.

ethics, multinational corporations, sovereign wealth funds, disinvestment, divestment, Norway

Abstract:
From urban protesters against the World Trade Organization to African nations barred from importing generic HIV drugs, globalization is seen as either capitalism red in tooth and claw or a new and more efficient form of colonialism. But a body of rules is emerging that may both constrain and improve the decisions of the new global bureaucrats. From the United Nations to the Basel Committee of national bank regulators, accountability is on the march.

global governance, global administrative law, World Trade Organization, Security Council, United Nations, international law, rule of law, accountability

Abstract:
Frequently characterized as either mercenaries in modern guise or the market's response to security gaps, private military companies - commercial firms offering military services ranging from combat and military training and advice to logistical support - play an increasingly important role in armed conflicts, UN peace operations, and providing security in unstable states. Executive Outcomes turned around an orphaned conflict in Sierra Leone in the mid-1990s; Military Professional Resources Incorporated (MPRI) was instrumental in shifting the balance of power in the Balkans, enabling the Croatian military to defeat Serb forces and clear the way for the Dayton negotiations; in Iraq, estimates of the number of private contractors on the ground are in the tens of thousands. As they assume more responsibilities in conflict and post-conflict settings, their growing significance raises fundamental questions about their nature, their role in different regions and contexts, and their regulation. This volume examines these issues with a focus on governance, in particular the interaction between regulation and market forces. It analyzes the current legal framework and the needs and possibilities for regulation in the years ahead. The book as a whole is organized around four sets of questions, which reflect the four parts of the book. First, why and how is regulation of PMCs now a challenging issue? Secondly, how have problems leading to a call for regulation manifested in different regions and contexts? Third, what regulatory norms and institutions currently exist and how effective are they? And, fourth, what role has the market to play in regulation?

mercenaries, private military companies (PMCs), private security companies (PSCs), use of force, Iraq, Africa, international humanitarian law

Abstract:
The UN Security Council is the most powerful multilateral political institution. It has grown well beyond its initial function as a political forum and serves important legal functions. Traditionally, this included determining that a threat to the peace, breach of the peace, or act of aggression had occurred and prescribing specific, legally binding obligations on Member States under Chapter VII of the UN Charter. Today it embraces establishing complex regimes to enforce its decisions and passing resolutions of general rather than specific application. These expanded powers can facilitate swift and decisive action, but have raised questions about the legal context within which the Council operates and the extent to which the Council itself adheres to the rule of law.

This report, circulated as a document of the United Nations in all UN languages, draws on a series of meetings convened by New York University School of Law and the Permanent Mission of Austria to the United Nations and are intended to advance debate on the Council's role in strengthening a rules-based international system and maintaining international peace and security under the rule of law.

United Nations, Security Council, rule of law, resolutions, terrorism, weapons of mass destruction, WMD, counter-proliferation, accountability

Abstract:
Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. Controversy over government reliance on outsourcing in this area frequently coalesces around issues of cost, brain-drain, and periodic allegations of self-dealing and other forms of corruption. More recently, however, the confirmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain inherently governmental. (This is, of course, separate from whether such activities should be carried out in the first place - a topic that is not the focus of this paper.) The paper surveys the manner in which U.S. intelligence functions have been outsourced in collection activities such as electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to accountability issues raised by this new phenomenon, focusing on three areas: first, the necessary secrecy that limits oversight of intelligence and thus militates against further removal of such activities from democratic structures; secondly, the different incentives that exist for private rather than public employees; and finally the uncertainty as to what functions should be regarded as inherently governmental and thus inappropriate for delegation to private actors.

intelligence, privatization, outsourcing, surveillance, rendition, interrogation, inherently governmental

Abstract:
Reform of the international security architecture tends to be driven by crisis: the First World War made possible the creation of the League of Nations; its failure to prevent a Second World War laid the foundations for a new United Nations. For some, the 2003 war in Iraq was a similar challenge not merely to the institutions but to the very idea of international order. This article examines efforts to understand and respond to that challenge, focusing on the effort to develop a shared understanding of threats, design institutions to respond to those threats, and manage the unequal capacity that enables some states to undertake coercive action unilaterally. These competing claims to legitimacy, effectiveness, and power illustrate the limitations of collective security through an organisation like the United Nations as well as why such an organisation is indispensable.

United Nations, Reform, Security Council, Peacebuilding Commission

Abstract:
This article focuses on the exceptional circumstances where the United Nations assumes some or all sovereign powers. Whether such operations are an appropriate activity for the United Nations remains controversial, but the expanding practice through the 1990s and early 2000s suggests that even if greater capacity is not developed the demand is unlikely to diminish. The first section highlights some of the difficulties inherent in such a political project of thrusting democracy and good governance on a population; section two then outlines the prospects for improvement, with particular reference to the proposed Peacebuilding Commission of the United Nations. A survey of the practice shows significant improvement in technical areas such as staging elections; the Peacebuilding Commission may remedy some of the coordination problems and funding gaps that plague post-conflict operations. It is far from clear, however, that the political contradictions inherent in such operations are being adequately understood let alone addressed.

peacekeeping, United Nations, state-building, peace-building, state failure

Abstract:
Is it possible for law to regulate activities that, by definition, must take place covertly? This question has bedeviled domestic constraints on intelligence gathering and is even more challenging to the prospect of an international regime on intelligence activities. International law has traditionally had little to say directly about intelligence, with state practice (widespread espionage, wiretapping, etc) contradicting ostensible opinio juris (routine denunciation of foreign intelligence activities).

This article will consider the prospects for a rule of law-based approach to intelligence activities more generally, focusing on the question of covertness. In particular, it will examine the debate over how law should deal with crisis, epitomized by the ticking time-bomb hypothetical. On the one hand, some call for pragmatic recognition that, in extremis, public officials may be required to act outside the law and should seek after the fact ratification of their extra-legal measures; against this, others argue that the embrace of extra-legal measures misconceives the rule of law, underestimates the capacity of constitutional orders to deal with crisis, and overestimates the ability and willingness of skittish publics to reign in officials.

The article draws on three cases in extra-legal measures have been adopted by the United States: the use of aggressive interrogation techniques that push the limits of torture, secret detention and extraordinary rendition of suspects, and warrantless electronic surveillance. The third section presents an alternative lens through which to view assertions - whether publicly debated or not - that illegal conduct was justified: not as calls for ex post ratification of the conduct but for mitigation in the imposition of penalties. The conclusion points to further challenges for the rule of law given apparent incentives in extreme situations not merely to circumvent the law but to remain silent about it.

intelligence, rule of law, covert operations, warrantless surveillance, wiretapping, United States

Abstract:
The language of 'ownership' is commonly used in statebuilding operations, but it is not clear that the term has either consistency or substance. It certainly does not have its literal meaning, in the sense of rights of possession either of property or a formal stake in an organization, such as shares in a corporation. Instead ownership tends to be used figuratively - much as 'buy-in' in this context usually does not suggest an actual financial transaction - to refer in a more vague way to the relationship between stakeholders, with meanings ranging from a sense of attachment to a programme or operation, to (rarely) actual controlling authority. This essay explores how ownership emerged as a shibboleth of the development community and how it has influenced UN statebuilding operations. The emphasis will be on rule of law institutions, but the critique of ownership applies to post-conflict operations more generally.

development, ownership, post-conflict reconstruction, statebuilding, United Nations peace operations

Abstract:
The activities of Blackwater and other private contractors in Iraq have focused public attention on the post-Cold War trend towards outsourcing of military services. Are such scandals proof of the impossibility of holding modern mercenaries to account, or evidence that the market for force is beginning to mature?

private military companies, private security companies, private military and security companies, PMCs, PMSCs, mercenaries, regulation, Blackwater, Iraq, Afghanistan, Nisour Square, UCMJ, MEJA

Abstract:
Can the justice of a post-conflict settlement be anything other than victor's justice? This article will examine that question through the lens of military occupation. Long an accepted element of war at a time when war itself was not illegal, complicated rules outlining the rights and responsibilities of an occupying power developed over the nineteenth century. By the middle of the twentieth century, however, the prohibition of the use of force enshrined in the UN Charter made occupation law something of an embarrassment. Though the latter part of that century was not noted for the absence of conflict, occupation law itself was rarely invoked. The abolition of colonialism and the condemnation of occupation in the 1970 Declaration on Friendly Relations led some to question whether occupation law had fallen into desuetude. The article first surveys the law of military occupation before briefly examining the role of the UN Security Council in post-conflict administration. It then turns to the ambiguous responsibilities accorded to the United States and Britain as occupying powers in Iraq from 2003. Though the series of operations through the 1990s suggests that the Council has the power to modify the traditional obligations of occupying powers, the provisions adopted in relation to Iraq in 2003 evince some uncertainty as to whether these operations have changed occupation law itself. The underlying problem is that international law continues to presume the inappropriateness in all circumstances of the coercive use of force to effect political change in another state. Though it is undesirable to modify this general principle, there is some evidence that where the use of force takes place in contravention of the norm, there may nevertheless be an emerging obligation to contribute to reconstruction that goes beyond providing for the humanitarian needs of the civilian population.

occupation law, United Nations, Iraq, United States, post-conflict reconstruction, state-building, nation-building

Abstract:
The ASEAN Charter, which entered into force on 15 December 2008, asserts in Article 3 that ASEAN "as an inter-governmental organisation, is hereby conferred legal personality". This essay examines the legal status of the Association, as well as the political question of whether the whole is greater than (or perhaps less than) the sum of its parts. The argument presented is that legal personality at the international level is less a status than it is a capacity: the fact that ASEAN now claims international legal personality in the Charter does not mean it lacked it previously, nor that it now possesses it in any meaningful way. Rather, the key question is what specific powers have been granted to ASEAN and how those powers are used. On these questions, the Charter is largely silent.

ASEAN, international legal personality, regional organizations

Abstract:
Regulating the activities of multinational corporations, especially oil companies, represents a fundamental challenge to the international legal order, which is premised on the centrality of states. The fact that the largest multinationals now dwarf the economies of many countries and frequently mobilize greater political influence is suggestive of their importance. Nevertheless, far more consideration has gone into analyzing the international legal status of natural persons - especially in the context of international criminal law - than their juridical counterparts. This Article will survey attempts to fit corporations into the state-based international order in three discrete jurisdictions. First, and most obviously, it is appropriate to regulate the activities of a corporation through mechanisms in the jurisdiction within which it is actually operating. Sometimes this may not be possible, however. A state may be unable or unwilling to regulate the activities of an entity with an operating budget substantially greater than that of the country itself. Alternatively, the government itself may be perpetrating abuses in which a corporation is complicit. Second, therefore, attempts are sometimes made to pursue legal remedies in the home jurisdiction of a multinational corporation - especially when that jurisdiction is the United States. A third jurisdiction in which legal remedies may be pursued is that of international law as such, particularly through the emerging discourse of international criminal law.

multinational corporations, corporate social responsibility (CSR), United Nations, Global Compact, international criminal law, International Criminal Court

Abstract:
International law has traditionally had little to say on the subject of intelligence — in large part because outraged rhetoric has long been contradicted by widespread practice. This article surveys efforts to regulate the collection of intelligence in international law before turning to more recent checks on the manner in which intelligence has been invoked in international organizations. Long a "dirty word" within the United Nations, intelligence is now being used to justify military strikes, target financial sanctions, and indict war criminals. While there is little prospect for limiting collection of intelligence beyond activities that can be physically intercepted or prevented, increasing recourse to intelligence in multilateral forums is beginning to impose procedural constraints on the purposes for which that intelligence may be employed.

Intelligence, International Law, United Nations, Terrorism, Weapons of Mass Destruction, Sanctions, International Criminal Law

Abstract:
In the wealth of literature on state failure, surprisingly little attention has been paid to the question of what constitutes state success and what enables a state to succeed. This book - a joint project of the International Peace Academy and the United Nations University - examines the strategies and tactics of international actors, local political elites, and civil society groups, to build or rebuild public institutions before they reach the point of failure: to make the state work.
It is frequently assumed that the collapse of state structures, whether through defeat by an external power or as a result of internal chaos, leads to a vacuum of political power. This is rarely the case. The mechanisms through which political power are exercised may be less formalized or consistent, but basic questions of how best to ensure the physical and economic security of oneself and one's dependants do not simply disappear when the institutions of the state break down. Non-state actors in such situations may exercise varying degrees of political power over local populations, at times providing basic social services from education to medical care. Even where non-state actors exist as parasites on local populations, political life goes on.

How to engage in such an environment is a particular problem for policymakers in intergovernmental organizations and donor governments. But it poses far greater difficulties for the embattled state institutions and the populations of such territories. Making States Work examines how these various actors have responded to crises in the legitimacy and viability of state institutions, with a particular emphasis on those situations in which the state has been salvaged or at least kept afloat.

nation-building, state-building, post-conflict reconstruction, United Nations, colonialism

Abstract:
Is collective security possible when evaluating and responding to threats depend on access to intelligence that, by its nature, cannot be shared openly? Debates over whether the United States should share intelligence with and through the United Nations have arisen in every administration and been won each time by those who showed that it was in the U.S. interest to do so. The question is no longer whether intelligence should be shared, but rather how and to what effect.

United Nations, intelligence, Secretary-General

Abstract:
The type of problem confronting human rights today is not Kosovo but Rwanda. Put differently, the problem is not the legitimacy of humanitarian intervention, but the overwhelming prevalence of inhumanitarian non-intervention. Empowering the United Nations, in this context, requires mobilizing the political will of member states as much as it does the creation of new legal rules. In this context, the rhetorical shift adopted by the International Commission on Intervention and State Sovereignty - from a right of intervention to the responsibility to protect - may mark the strongest advance in this contested area of international relations. Nevertheless, as recent years have demonstrated, enthusiasm about intervention can be - to say the least - a mixed blessing.

responsibility to protect, Kosovo, Rwanda, prevention, humanitarian intervention

Abstract:
Is collective security possible when the evaluation of and response to threats depend on access to intelligence that cannot be shared openly? This Lowy Paper examines the role national intelligence does and could play in addressing threats to international peace and security, with particular reference to the contemporary threats of terrorism and proliferation of weapons of mass destruction.

The issue is important to those who believe that multilateral responses to emerging threats are inherently more legitimate than and therefore preferable to unilateral action. But it is also relevant to those who are wary of entrusting a nation's security to an international organisation: debates over whether the United States should share intelligence with and through the United Nations, for example, have arisen in many administrations and been won on every occasion by those who showed that it was in the US interest to do so. The question is no longer whether intelligence should be shared, but rather how and to what effect.

Improving the ability of collective security institutions to handle intelligence will enhance international cooperation to combat terrorism and strengthen verification regimes to prevent the spread of weapons of mass destruction. It may also increase the ability of such institutions to prevent conflict and ameliorate natural and man-made disasters. It will not guarantee good policy. More effective use of information should, however, make it harder to ignore emerging crises or adopt unworkable policies. It may also facilitate cooperation between states to address threats that no one state can address alone.

Intelligence, United Nations, Terrorism, Weapons of Mass Destruction, Sanctions, International Criminal Law

Abstract:
This examines the changing nature of justifications for the use of force through the 1990s and early 2000s. In particular, the paper will consider the increased activism of the UN Security Council through the 1990s and its effect on the manner in which force is now justified. Recourse to quasi-just war language at the level of cause was not tempered by right-authority at the level of process. In the transformed security environment after September 11, this has minimized the constraints on the Great Power(s) to use force, but may have laid the foundations for an obligation to rebuild conquered territory.

just war, Iraq, United Nations, war on terror, international law, Security Council

Abstract:
Frequent agreement on the rule of law in theory is possible in large part because of divergent views on what it means in practice. This essay briefly addresses the content of the rule of law at the international level before discussing the challenge to this idea presently posed by the United Nations Security Council - the one international body with the power to enforce the law, but which is nevertheless loath to submit to it.

rule of law, Security Council, Kadi, Yusuf, sanctions

Abstract:
Review essay of Sharpening Strategic Intelligence: Why the CIA Gets It Wrong and What Needs to Be Done to Get It Right by Richard L. Russell (Cambridge University Press, 2007); Spying Blind: The CIA, the FBI, and the Origins of 9/11 by Amy B. Zegart (Princeton University Press, 2007); Dealing with Dictators: Dilemmas of U.S. Diplomacy and Intelligence Analysis, 1945-1990 edited by Ernest R. May and Philip D. Zelikow (MIT Press, 2006); The Quest for Absolute Security: The Failed Relations Among U.S. Intelligence Agencies by Athan Theoharis (Ivan R. Dee, 2007); and Democratic Control of Intelligence Services: Containing Rogue Elephants edited by Hans Born and Marina Caparini (Ashgate, 2007).

intelligence, Central Intelligence Agency, Iraq, 9/11

Abstract:
Following the establishment of ad hoc tribunals for the former Yugoslavia and Rwanda in 1993 and 1994, and the adoption in 1998 of the Rome Statute of the International Criminal Court, much has been written on the history and the future of international criminal law. The present chapter focuses on the specific questions of whether individual criminal responsibility should be pursued as part of the resolution to a conflict, and the extent to which the international community can and should be involved in any such proceedings.

transitional justice, war crimes, international criminal tribunal, victor's justice, peace

Abstract:
In the wake of the establishment of ad hoc tribunals for the former Yugoslavia and Rwanda in 1993 and 1994 and the July 1998 adoption of the Rome Statute of the International Criminal Court, much has been written on the history and the future of international criminal law. This Article attempts the more modest task of selecting one category of international criminal law - crimes against humanity - and examining the efforts to define the elements of the various offenses encompassed within the category's reach. This task is particularly relevant given the ongoing work of the Preparatory Commission for the Establishment of an International Criminal Court (PrepCom), which is scheduled to prepare a draft text of the elements of crimes against humanity by June 30, 2000. Additionally, this Article attempts to contribute to the jurisprudence of the international criminal tribunals currently in existence, with particular emphasis on the often-overlooked work of the International Criminal Tribunal for Rwanda.

Part II of this Article provides an overview of the three definitions of crimes against humanity elaborated in the statutes of the two ad hoc Tribunals and the Rome Statute. Part III then considers the general requirements that elevate an act to a crime against humanity. Part IV examines the elements of specific offenses, focusing on the three acts that have received particular judicial consideration: murder, extermination, and rape. The Article concludes by observing that the divergent approaches adopted in the three fora under consideration here - the two ad hoc Tribunals and the conferences on the permanent Court - expose distinct and sometimes inconsistent underlying policy goals.

Abstract:
A unique new course book demonstrating the interaction of law and politics in United Nations practice.

Law and Practice of the United Nations: Documents and Commentary presents primary materials with expert commentary, demonstrating the interaction between law and practice in the UN organization, and also discusses the possibilities and limitations of multilateral institutions in general. Each chapter begins with a short introductory essay by the authors that describes how the documents that follow illustrate a set of legal, institutional, and political issues relevant to the practice of diplomacy and the development of public international law through the United Nations.

By emphasizing primary materials, the authors enable students to form a realistic idea of the work of international diplomacy, as the negotiation and interpretation of such texts is an important part of what actually takes place at the United Nations and other international organizations. The text presents a wide variety of documents, each of which must be read differently: treaties and resolutions based on political compromises, judicial opinions that are based on legal reasoning, policy documents intended to justify specific actions, and advocacy intended to pursue a national or other interest. Students will develop the ability to read these documents critically, parsing not only the meaning but the politics behind them.

Law and Practice of the United Nations is ideal for courses on the United Nations or International Organizations, taught in both Law and International Relations programs.

Abstract:
This paper examines the use of the rule of law at the international level as a tool - and its application to those who wield it - with a particular emphasis on UN operations in Asia, notably Timor-Leste (East Timor) and Afghanistan. Section one examines the ways in which the rule of law has been used to stabilize conflict zones, focusing on the activities of the UN Security Council from the mid-1990s onwards and in particular on Timor-Leste. Section two considers the extent to which the rule of law has constrained the decisions and actions of the Council, focusing on accountability issues and the apparent compromise of these principles in Afghanistan. A concluding section will consider what light (if any) these operations shed on larger questions raised by the book, such as whether there are discernibly 'Western' or 'Asian' approaches to the role law plays in times of crisis. Of particular interest is the extent to which the United Nations can be said to reflect Western values, as is frequently alleged. A tentative conclusion is that there may be some rhetorical merit to this claim: Western states do largely set the agenda for the human rights framework that is commonly used to judge state actions. Nevertheless, the United Nations and the international system wield executive authority so infrequently and inconstantly that broad conclusions are not yet possible. More interesting, for the purposes of this book, is the manner in which internationally-administered 'emergency' powers demonstrate the willingness of even established democracies to invoke the rule of law instrumentally, as a tool to provide stability - and thus implicitly to compromise rule of law principles in the name of security.

rule of law, emergency powers, East Timor, Timor-Leste, Afghanistan, United Nations

Abstract:
This article seeks to open up the question of the foundation of human rights by reference not to their philosophical origins but their political function. I argue that attempts to ground human rights in objective fact (such as "human nature") or in pure reason (as "self-evident") are futile, but more importantly are unhelpful in the broader project of protecting those rights that are recognised as "universal". A more useful approach is to conceptualise human rights as a discourse in which the human being is constituted and reconstituted as the subject of rights. Allied with this theoretical analysis is the political project of establishing the conditions for meaningful conversation about human rights. More than any philosophical insight, this is the ultimate precondition for their recognition.

human rights

Abstract:
The Secretary-General of the United Nations is a unique figure in world politics. At once civil servant and the world's diplomat, lackey of the UN Security Council and commander-in-chief of up to a hundred thousand peacekeepers, he or she depends on states for both the legitimacy and resources that enable the United Nations to function. The tension between these roles - of being secretary or general - has challenged every incumbent.

This book brings together the insights of senior UN staff, diplomats, and scholars to examine the normative and political factors that shape the role of the Secretary-General, with particular emphasis on how that role has evolved in response to changing circumstances after the end of the Cold War and the beginning of the "war on terror". Such geopolitical transformations define the contours of the Secretary-General's universe - a universe shaped also by the economic forces of globalization, and increasingly by tensions between the industrialized North and the developing South. Across these various influences, the difficulties experienced by each Secretary-General reflect the profound ambivalence of states towards entrusting their security, interests, or resources to an intergovernmental body. The ambiguities in the job description are far from accidental.

United Nations, Secretary-General, Kofi Annan, Ban Ki-moon

Abstract:
Private actors are increasingly taking on roles traditionally arrogated to the state. Both in the industrialized North and the developing South, functions essential to external and internal security and to the satisfaction of basic human needs are routinely contracted out to non-state agents. In the area of privatization of security functions, attention by academics and policy makers tends to focus on the activities of private military and security companies, especially in the context of armed conflicts, and their impact on human rights and post-conflict stability and reconstruction. The first edited volume emerging from New York University School of Law's Institute for International Justice project on private military and security companies, "From Mercenaries to Market: The Rise and Regulation of Private Military Companies" broadened this debate to situate the private military phenomenon in the context of moves towards the regulation of activities through market and non-market mechanisms.

Where that first volume looked at the emerging market for use of force, this second volume looks at the transformations in the nature of state authority. Drawing on insights from work on privatization, regulation, and accountability in the emerging field of global administrative law, the book examines private military and security companies through the wider lens of private actors performing public functions. In the past two decades, the responsibilities delegated to such actors - especially but not only in the United States - have grown exponentially. The central question of this volume is whether there should be any limits on government capacity to outsource traditionally "public" functions. Can and should a government put out to private tender the fulfilment of military, intelligence, and prison services? Can and should it transfer control of utilities essential to life, such as the supply of water? This discussion incorporates numerous perspectives on regulatory and governance issues in the private provision of public functions, but focuses primarily on private actors offering services that impact the fundamental rights of the affected population.

private military companies, private security companies, private military and security companies, PMCs, PMSCs, mercenaries, regulation, Blackwater, Xe, privatization, outsourcing

Abstract:
Efforts to address global governance deficits approach the problem at a strategic or tactical level. Strategic efforts would reshape the politics or institutions of global order; tactical efforts focus on the processes of governance, either seeking to utilize informal networks for improved outcomes, or to formalize the processes themselves for greater accountability. This paper considers the last approach and the claims that “global administrative law” could remedy at least some accountability deficits at the global level. Recent challenges to the UN Security Council in the area of targeted financial sanctions are discussed, before sketching out what global administrative law might offer the governance challenges posed in the areas of energy, public health, and finance.

global governance, global administrative law, UN Security Council, targeted financial sanctions

Abstract:
In 1944, Judge Learned Hand spoke at a ceremony in Central Park, New York, to swear in 150,000 naturalized citizens. "Liberty lies in the hearts of men and women," he observed, "when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it." Building or rebuilding faith in the idea of the state requires a similar transformation in mentality as much as it does in the formal laws that govern political relations. Any effort to generate a rigid template for constructing the institutions of law and order in a post-conflict environment is therefore likely to fail. As Judge Hand recognized, the major transformation required is in the hearts of the general population; any foreign involvement must therefore be sensitive to the particularities of that population both at the level of form and of substance.

Reconciling this need for sensitivity with the circumstances in which international actors have assumed responsibility for constitutional processes in post-conflict territories has led to difficulties. Two types of problem have arisen. First, the rationale for international engagement is typically the malevolence or incapacity of existing governance structures: intervention is premised precisely on the need to transform or build those structures, rather than to maintain them. Second, the limited timeframe within which resources tend to be available to post-conflict territories leads to problems in sequencing. In the absence of ongoing strategic interest, such as the European Union's ties to the Balkans, the window of opportunity for sustained attention by international actors and large scale reconstruction efforts appears to range from about one to three years. By the end of this period, control of the territory will have passed to national hands and the time for "sensitivity" will have elapsed.

state-building, Iraq, constitution, constitutions, constitutionalism, post-conflict reconstruction, nation-building

Abstract:
The prospect of the United Nations or any other international organisation developing an independent intelligence collection capacity is remote. This is due to the understandable wariness on the part of states about authorising a body to spy on them, though the United Nations itself has been reluctant to assume functions that might undermine its actual or perceived impartiality. At the same time, however, this position reflects a larger anomaly in the status of intelligence under international law as an activity commonly denounced but almost universally practised: empowering an international organisation to engage in espionage might give the lie to this example of diplomatic doublethink.

Efforts to address the threats posed by terrorism and weapons of mass destruction have led to a reconsideration of how intelligence can and should be used in bodies such as the United Nations. Understanding the threat posed and calibrating a response depends on access to national intelligence; if that response is to be multilateral, the legitimacy of any action taken may depend on sharing that intelligence. In the case of terrorist financing, this has led to legal challenges to the bases on which individuals’ assets are frozen, a topic addressed in this volume by Iain Cameron. Weapons inspections in Iraq through the 1990s and elsewhere have quietly drawn upon the assistance of “friendly” intelligence agencies, though the spectacular failure in Iraq severely undermined the credibility of this assistance. In a separate development, moves to pursue international criminal prosecutions through the 1990s in the Balkans and, to a lesser extent, Rwanda, required information that - in the absence of a meaningful investigative capacity - came from the intelligence services of governments.

This chapter will examine the use of intelligence in three areas - peacekeeping, weapons inspection, and international criminal prosecution - with a view to considering the accountability challenges posed by such cooperation.

United Nations, intelligence, peacekeeping, weapons of mass destruction, international criminal law

Abstract:
Do sanctions work? The jury remains out on this question, but two preliminary issues bear further examination also. What are sanctions intended to achieve? And do states actually want sanctions to work? These essentially political questions depend on two discrete dynamics that are the subject of this article, which focuses on sanctions imposed by the UN Security Council. The first is the political context of the Council and how the intentions of key actors are channelled into sanctions regimes. The second is the political economy in which those sanctions operate. Through a survey of UN practice over the past decade the two areas are examined in turn, followed by an examination of how to advance debate both inside and outside the United Nations.

sanctions, United Nations

Abstract:
This article examines the evolution of legal education as it has moved through international, transnational, and now global paradigms. It explores these paradigms by reference to practice, pedagogy, and research. Internationalisation saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied; transnationalisation saw the world as a patchwork, with greater need for familiarity across jurisdictions and hence a growth in exchanges and collaborations; globalisation is now seeing the world as a web in more ways than one, with lawyers needing to be comfortable in multiple jurisdictions.

legal education, globalisation, globalization, pedagogy

Abstract:
The prosecution of war crimes - the invocation of law as validating order - marks a crucial point of contestation in the contemporary international legal system. In this article, I seek to examine this relationship between law and order by reference to the structure and function of war crimes. I argue that war crimes trials commonly rely on gendered conceptions of order and morality, defined by their 'public' face. They have traditionally had little to say about women's experiences in war, except in so far as those experiences could be moulded into suitable 'stories' for male consumption (as pornography, as propaganda). In this light, the Tribunal for the former Yugoslavia marks a decidedly uncertain step forward in the development of international criminal law in general, and the protection of women's (human) rights in particular. The Tribunal has given unprecedented prominence to the war crime of rape, but it remains unclear whether this act of recognition will sterilise the gendered nature of the crime and the 'order' into which it is appropriated.

war crimes, international criminal law, rape

Abstract:
This article considers the legal status of end of life decisions at the close of the twentieth century. In particular, I consider the two major argu-ments against legalising active voluntary euthanasia: the 'sanctity of life' argument that intentionally killing an individual as part of his or her medical care is always wrong, and the 'slippery slope' argument that al-lowing a narrow exception to this rule will inevitably lead to undesired or unforeseen consequences. I argue that reducing the complex of issues raised by euthanasia to a black and white question of whether or not so-ciety should sanction intentional killing ignores prevailing attitudes to-wards patient autonomy and existing medical practice. I discuss the ex-amples of the Netherlands and the Northern Territory of Australia, and argue that the legislative framework adopted by the latter provides better safeguards than the case law that governs Dutch acceptance of the prac-tice. Now that this landmark legislation has been overridden by Federal legislation, it leaves a legal vacuum that will have to be filled by the incre-mental and unsatisfactory process of judicial law-making.

euthanasia

Abstract:
This article examines the evolution of legal education as it has moved through international, transnational, and now global paradigms. It explores these paradigms by reference to practice, pedagogy, and research. Internationalization saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied; transnationalization saw the world as a patchwork, with greater need for familiarity across jurisdictions and hence a growth in exchanges and collaborations; globalization is now seeing the world as a web in more ways than one, with lawyers needing to be comfortable in multiple jurisdictions.

Legal education, Transnationalization, Internationalization, Globalization

Abstract:
This presentation offers a legal and ethical framework for evaluating industry support to air operations. Such support needs to be viewed in the context of larger debates about the relationship between the military and private contractors more generally. Reasons for turning to the private sector include considerations of cost and flexibility; reasons for being wary of outsourcing include problems of accountability and diverging incentives. Where industry support is sought, lessons from past experience can assist in maximizing the benefits and minimizing the risks through ensuring transparency, participation, and review.

private military and security companies, PMCs, PSCs, mercenaries, Blackwater, Xe, air force, air operations, UAVs, global administrative law

Abstract:
Testimony at the Swiss Security Policy hearings, April 17, 2009. In Switzerland, terms such as 'integral neutrality' and 'active neutrality' have been adopted in political discourse. However, I am not sure this is helpful in clarifying the meaning of neutrality and, to an outsider at least, this appears to be hanging political policies on legal clothes hooks. Everyone in Switzerland seems to agree that neutrality is important and vital, but everyone seems to understand the term differently. Speaking as a lawyer, I would therefore separate the legal concept of neutrality from political policies which we might term, for example, 'isolationism' or 'engagement'. For your security you should have a security policy and not a neutrality policy. I would accept that international armed conflict in Europe is unlikely, but to rule it out completely seems to be a mistake. An important part of conflict resolution and peacebuilding is a military component. Given the extensive involvement of Switzerland in mediation and humanitarian assistance, these efforts would be best supported by robust military support. From an efficiency perspective, it would therefore seem to make sense for Switzerland to play a role in that, so that its efforts are not wasted.

Switzerland, security policy, neutrality, peace operations, United Nations, international law

Abstract:
Book Review: The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, by Gareth Evans

Responsibility to Protect

Abstract:
Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. The recent confirmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain ‘inherently governmental’. The article surveys outsourcing in electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to three challenges to accountability: the necessary secrecy that limits oversight; the different incentives that exist for private rather than public employees; and the uncertainty as to what functions should be regarded as ‘inherently governmental’ and thus inappropriate for delegation to private actors.