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Abstract:
Emerging applications in the field of biotechnology hold great promise for promoting the health and well-being of the global community, especially in developing states. Yet significant concerns have emerged about biotechnology in the transnational sphere, concerns that no doubt will increase in decades to come. The purpose of the article is to assess the strengths and limits of existing international norms and structures designed to address these concerns, and to suggest a means for augmenting current structures to make them more effective. International law develops and regulates transnational behavior in a manner that goes well beyond the development treaty regimes. International law is driven in large part by the self-interest of states, but they also arise from the social interaction of states and non-state actors, and they ultimately must become grounded in national laws and society in order to become effective. This article accordingly emphasizes the need for coordination at different levels of state and non-state behavior as the law develops over time as well as the need for coordination across different treaty regimes. While states should continue to grapple with concerns in the area of biotechnology through incremental tinkering of existing treaty regimes - seen most recently in the adoption of a Biosafety Protocol to the Convention on Biological Diversity - the article argues that the principal emphasis of the global community on episodic and segmented intergovernmental negotiations as a means for addressing these concerns is misplaced, especially since the science in this area is changing rapidly, the behavior to be regulated is highly commercial and private in nature, and transnational regulation affects a wide variety of state and non-state actors who have complex motivations that change over time. At the same time, the many issues raised by biotechnology in the transnational sphere should not be left to the vagaries of the market, to governments alone, or to the initiatives of a few well-financed interest groups, such as biotechnology companies and environmentalists. Instead they need to be addressed by international society as a whole. One approach would be to establish a transnational forum on biotechnology, which could serve as a relatively informal and non-binding means for the transnational "bargaining" of views among a wide range of relevant non-state actors. Such a forum ultimately may be instrumental in achieving consensus on a coherent and effective legal regime to address concerns with transnational biotechnology, one that balances the tremendous opportunities of biotechnology against its potentially severe and adverse transnational effects.

Abstract:
The recent invasion of Iraq challenges a cornerstone of contemporary international law: the prohibition on the use of force by one state against another state. The conventional wisdom is that the United States embarked on the invasion with little regard for international law or for the attitudes reflected by other nations, including the other members of the UN Security Council. This article disputes that conventional wisdom.

First, the Bush administration could have ignored international law and the Security Council, but in fact deployed a fairly sophisticated legal theory as to why U.S. actions were permissible under international law, a theory that entailed the use of prior Security Council resolutions in combination with the concept of material breach. The article examines that theory in detail and finds that the Bush administration theory is plausible but unpersuasive.

Second, given that the United States invaded Iraq using an unpersuasive legal theory, this article considers whether international law can be said to have had any real influence on the United States at all. In other words, did the United States deploy its legal theory simply as a cover for action it intended to take all along, or did international law play a role in the decision-making process? The article suggests that international law played a role at various points in the decision-making process: within the executive branch, within the congress and public opinion, and in the attitudes of foreign states that were important to the success of the U.S. action.

The article concludes that international law is not well-placed to prevent a major power, such as the United States, from embarking on action deemed central to its national security, but contends that - in the case of the invasion of Iraq - international law played a central role in setting the terms of the discourse within and among states and providing a key forum for the development of global community expectations.

international law, constitutiuonal law

Abstract:
To the extent that the intervention in Iraq in 2003 is regarded as an act of preemptive self-defense, the aftermath of that intervention may presage an era where states resist resorting to large-scale preemptive self-defense. The intervention in Iraq highlighted considerable policy difficulties with the resort to preemptive self-defense: an inability to attract allies; the dangers of faulty intelligence regarding a foreign state's weapons programs and relations with terrorist groups; the political, economic and human costs in pursuing wars of choice; and the resistance of a local populace or radicalized factions to what is viewed as an unwarranted foreign invasion and occupation. Nevertheless, preemptive self-defense may continue to be used by powerful states on a smaller scale, such as missile attacks against weapons facilities or terrorist camps in rogue states. Unfortunately, the views of international lawyers are fractured on whether such conduct is lawful. Most international lawyers appear to fall into schools of thought that reject preemptive self-defense, but the debate is robust and will no doubt continue. As it continues, this essay urges international lawyers to focus more on the theory and methodology they employ in reaching their conclusions, and why their approach is superior to that of other schools of thought. In particular, the discourse among international lawyers regarding how to gauge state practice since 1945 is uneven, not joined, and at times breezy. Only by grappling squarely with issues of theory and methodology will international lawyers be able to achieve a greater level of convergence in their views, thereby providing policy-makers with better guidance and laying the groundwork for more stable international rules on the use of force.

preemptive self-defense, terrorism

Abstract:
Over the course of the past thirty years, numerous non-state actor codes of conduct have emerged that seek to promote socially-responsible conduct of multinational corporations (MNCs), especially in the developing world. The objective of such codes is to prevent harm or mistreatment of persons or things caused by MNC operations (e.g., the existence of unhealthy worker conditions in an MNC factory). Such harm or mistreatment need not be a core concern for the corporate actor. Indeed, the MNC - in theory driven to maximize its profits although in practice driven by various factors - may benefit far more by inflicting the harm or mistreatment than by engaging in socially-responsible behavior. Only in reaction to outrage and discontent by other actors (governments, non-governmental organizations, or civil society groups) might the MNC see a value in developing a code of conduct that, if adhered to, would reduce the harm or mistreatment the MNC inflicts on others.

This essay briefly summarizes the rise of these codes of conduct, with particular attention to certain highly visible examples. Many criticisms have been levied against such codes suggesting that, over the long term, they may not survive in their present form. Consequently, this essay suggests a new approach to thinking about these codes, one that might enhance their legitimacy, effectiveness, and credibility. Greater thought should be given by all stakeholders to an increased role for governments in the development and implementation of such codes. While transforming the codes wholesale into binding law is not politically feasible at this time, and may never be economically desirable, other means of governmental involvement should be considered. For instance, governments can play a better role in bringing stakeholders together to form such codes and do better at identifying what types of codes are effective and which are not. Governments might do better at using national laws and regulations to make adherence to such codes more attractive, such as by using the codes to help reduce regulatory uncertainty and as safe harbors for MNCs against criminal or civil penalties. At the same time, governments might use national laws to regulate better MNC use of the codes, such as by compelling disclosure of information about MNC adherence to the code. The role of governments would not be one of state control of corporate activity but, rather, one of helping empower the individual autonomy of corporations within certain bounds of justice, fairness, and equity.

codes of conduct, multinational corporations, MNC's, social responsibility

Abstract:
To date, U.S. cross-border operations from Afghanistan into Pakistan have taken three forms: the use of Predator drones to target Al Qaeda fighters (although such drones may be launched solely from within Pakistan); the "hot pursuit" of militants who engaged in raids from Pakistan against U.S. and allied forces in Afghanistan, as well as the Afghan government; and the deployment of special operations forces into Pakistan as a means of striking at Al Qaeda. These types of cross-border operations clearly implicate the jus ad bellum, in that they entail one state projecting highly coercive military force into another state. Arguably Pakistan has consented to at least some of these types of cross-border operations, but that consent is poorly documented, suffers from the conflicting and diffuse sources of authority within the Pakistani government, and ultimately may not endure given the vicissitudes of Pakistani domestic politics. As such, though consent is a powerful and useful basis for supporting the legality of U.S. cross-border operations, other justifications should be considered as well.

Assuming Pakistani consent is lacking, other justifications for U.S. cross-border operations must be considered. The U.N. Security Council has on several occasions addressed the legality of foreign forces in Afghanistan. Yet the Security Council's Chapter VII resolutions are best seen as either authorizing the presence of a multinational force designed to stabilize Afghanistan (without having as its mission counter-terrorism operations, let alone operations outside Afghanistan), or simply recognizing the inherent right of self-defense of the United States and its allies. The inherent right of self-defense (individual and collective) does justify U.S. cross-border operations that respond to raids by militants from Pakistan into Afghanistan, so long as the U.S. operations remain necessary and proportionate to the threat of those raids, and so long as the Afghan government consents to the presence of U.S. forces. Such self-defense would also support unilateral uses of U.S. force against Al Qaeda in Pakistan, either in the form of covert operations by special forces units or the launching of Predators from Afghanistan to strike at targets in Pakistan, so long as it can be shown that those Al Qaeda targets are ones that are supporting the cross-border raids into Pakistan, and so long as Pakistan is unwilling or unable to prevent Al Qaeda's support for those raids. A broader right of self-defense against Al Qaeda targets in Pakistan based on the attacks of 9/11, however, is far more problematic, since the requirements of necessity and proportionality likely preclude unilateral uses of force against a third state that was not implicated in those attacks.

jus ad bellum, use of force, U.N. Charter, Pakistan, Afghanistan, cross-border operations, terrorism, self-defense, 9/11, Al Qaeda, Taliban

Abstract:
The purpose of this essay, written in late 2006, is to take stock of the current application of the Geneva Conventions in the global "war on terrorism," including interpretations recently taken by the U.S. Supreme Court in the Hamdan case. The Geneva Conventions and the laws of war more generally comprise a sophisticated regulatory regime whose rules can and should be closely analyzed by lawyers. Yet, like all law, the inevitable imprecision in the rules presents opportunities for governments to exploit gray areas so as to augment governmental authority, and to avoid sensible interpretations that will protect individuals from overreaching governmental power. Such exploitation invariably severs the rules from their ethical foundation and loses sight of their underlying object and purpose.

The events of 9/11 and their aftermath revealed complicated scenarios that do not fit easily into the traditional paradigms of the laws of war, including the 1949 Geneva Conventions. Highly knowledgeable persons in the field have reached diametrically opposite conclusions about certain fundamental issues, such as whether the conflict with Al Qaeda constitutes an "armed conflict" within the meaning of the laws of war, whether it matters if the Taliban wore regular uniforms or operated within a regular command structure, and whether a person who fails to qualify as a prisoner of war under one convention must invariably then qualify as a protected civilian under another. Many of these controversies arise because the two dominant paradigms that operate within the Geneva Conventions - one concerning "international" armed conflict between two or more states, and the other concerning "non-international" (typically understood as internal) armed conflict between a state and non-state actors - do not fit the phenomenon of global terrorism, where the dominant paradigm concerns transnational armed conflict between state and non-state actors.

Yet from their earliest formation, the laws of war have recognized the problem of dealing with irregular forces and the problem of adapting the law to circumstances that change over time. For that reason, built into the 1949 Geneva Conventions and their additional protocols are the means for taking account of areas that are not addressed explicitly or in detail. Rather than trying to exploit such gray areas in the law, lawyers should seek to inject the dictates of humanity into them, in a manner that best reconciles the competing interests during armed conflict of both governments and persons who are at risk. As an example of how one might allow the Geneva Conventions to evolve in a sensible fashion, this essay discusses the rules that should be applied with respect to the termination of the captivity of unprivileged combatants, such as those held at Guantánamo Bay. While the environment for handling such detainees remains fluid, and the norms expressed by the laws of war on these points are far from certain, this essay suggests answers that are legally plausible and that appear consistent with sound policy choices. Similar efforts to fill in the gray areas for other aspects of the law of war as it relates to global terrorism should also be pursued.

International law, Law of War, Geneva Conventions, Terrorism, Guantanomo, Hamdan, Detainees

Abstract:
Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). This chapter addresses certain salient aspects of that relationship. Following an introductory Part I, Part II briefly sets forth three "antinomies" (i.e. equally rational but conflicting principles) in U.S. foreign relations that have had important ramifications for the U.S. relationship with the Court from the outset. First, the United States operates on the basis of conflicting principles with respect to the relevance of international law and institutions for U.S. foreign policy. These conflicting principles have been referred to broadly in international relations theory as "realism" and "institutionalism." Second, the United States operates on the basis of conflicting principles with respect to whether states should be treated as equal sovereigns or as units characterized by inescapable power differentials. Third, the United States operates on the basis of conflicting principles with respect to whether international law should be "embedded" in U.S. law, including the manner in which international courts relate to U.S. law.

Part III suggests that the International Court was initially designed to accommodate such antinomies (which also exist with respect to other states, to varying degrees) by providing the means for mediating between these conflicting principles. These techniques for mediating antinomies are discussed in the context of the history of the U.S. relationship with the Court from its inception to modern times.

Part IV then briefly highlights the unfolding of these antimonies in some of the recent cases of the United States before the Court, with particular attention to the Oil Platforms case, the Israeli Wall advisory opinion, and the Breard/LaGrand/Avena cases. Among other things, Part V suggests that certain formal and informal means for mediating these antimonies may have been forgotten in the past twenty years, leading to a point where the Court readily finds fault in the United States and the United States holds the Court in very low regard. The chapter concludes that these antinomies are unlikely to be resolved through the further development of formal or informal mediating techniques. In the near term, American policymakers will seek to avoid any involvement in matters before the Court, while the Court will embrace opportunities to speak to the legality of U.S. actions.

International Court, World Court, international tribunal, realism, institutionalism, exceptionalism, Israeli Wall, Iran Oil Platforms, Breard, LaGrand, Avena

Abstract:
In July 2004, the International Court of Justice provided an advisory opinion to the U.N. General Assembly regarding the legality of the barrier under construction by Israel in the West Bank. In finding that the construction of the barrier was unlawful, the Court stated that Israel could not justify the barrier as a matter of self-defense under Article 51 of the U.N. Charter, because the terrorist attacks being made upon Israel could not be imputed to a foreign state. While the Security Council had viewed the attacks of September 11, 2001 upon the United States as triggering a right of self-defense even without imputation of those attacks to a state, the Court distinguished that precedent on grounds that the threat to Israel originates within territory under Israeli occupation. Consequently, the Court concluded that Article 51 had no relevance to Israel's situation.

The position taken by the Court with respect to the Article 51 is startling in its brevity and, upon analysis, very unsatisfactory. At best, the position represents imprecise drafting, and thus calls into question whether the advisory opinion process necessarily helps the Court to develop its jurisprudence and to contribute to the progress of international law. At worst, the position conflicts with the language of the UN Charter, its travaux preparatoires, the practice of states and international organizations, and common sense. In addition to the lack of cogent analytical reasoning, the Court's unwillingness to pursue a serious inquiry into the facts underlying Israel's legal position highlights a disquieting aspect of the Court's institutional capabilities: an apparent inability to grapple with complex fact patterns associated with armed conflict. Overall, the Court's peremptory style in addressing the jus ad bellum reflects an unfortunate ipse dixit approach to judicial reasoning; the Court apparently expects others to accept an important interpretation of the law and facts simply because the Court says it is so.

United Nations Article 51, self-defense, travaux préparatoires, jus ad bellum

Abstract:
The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in inter-state relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature.

Protean jus ad bellum acknowledges that, as of 1945, the static view was correct, but that over time-as we approach the 70th anniversary of the United Nations-the jus ad bellum is changing, buffeted in particular by several significant developments: (1) the emergence of weapons of mass destruction of various types potentially controllable by states and non-state actors; (2) the rise of global terrorism as a mechanism for projecting violence against states by non-state actors; (3) the elevation of the person to a central place in the realm of international law, both in terms of being protected and in terms of being accountable for misconduct; (4) the inability of the Security Council to be accepted by all states as a disinterested arbiter willing and capable of acting to address all threats to international peace and security as they arise; and (5) the continuing erosion of the sanctity of the sovereign state, resulting from exposure to myriad effects of globalization, including intrusive transnational rule of law programs, election monitoring, incessant and extensive media coverage, powerful transnational corporations and non-governmental organization, and relatively unrestricted transborder movement of capital, goods, and persons across borders.

This essay suggests that the failure to either formally accept or reject the idea of protean jus ad bellum is likely, over time, to diminish the jus ad bellum's effectiveness as a normative regime. Too often transnational uses of military force are occurring in circumstances that are inconsistent with the idea of a static jus ad bellum: states and non-state actors are, at least in some situations, tolerating certain types of force in response to the overarching developments noted above. As the International Criminal Court moves closer to including aggression within its mandate for indicting and prosecuting persons, government leaders may see greater value in clarifying what uses of force are permissible. Things could continue as they are. But in the long-term, if the jus ad bellum is not to break down, then a more formal way should be found either to reject the notion of protean jus ad bellum or to accept it, and if the latter, then to try to identify the contemporary rules in this area, either through formal amendment of the UN Charter, through authoritative interpretations by the principal organs of the United Nations or regional organizations, or through other means.

military force, U.N. Charter, law of war

Abstract:
The States Parties of the International Criminal Court (ICC) will likely vote in 2010 on whether to amend the Rome Statute to allow the ICC to prosecute the crime of aggression. If a robust amendment is widely ratified by states, and if the mechanism for triggering ICC jurisdiction in a particular situation is the ICC itself, then the ICC may emerge as an important voice in the debate over the legality of humanitarian intervention taken without Security Council authorization. Prosecutions, or at least indictments, of leaders of those interventions would considerably strengthen the hand of those who regard such intervention as illegal. Yet an unwillingness on the part of the ICC to indict and prosecute those leaders - an outcome that seems likely for incidents of true humanitarian intervention - may lend considerable credence to the view that such intervention is lawful, as well as define the conditions that characterize such intervention.

International Criminal Court, Aggression, Humanitarian Intervention, Rome Statute

Abstract:
In its decisions in the LaGrand and Avena cases, the International Court of Justice (I.C.J. or Court) determined that Article 36 of the Vienna Convention on Consular Relations (VCCR) creates "individual rights" (as opposed to just rights of states) and that the United States has an obligation to provide an individual with meaningful access to U.S. courts to vindicate those rights. Based on those determinations, it might be thought that international law generally obligates a state to open its courts for private persons to vindicate rights or benefits that a treaty accords to them, whether or not the treaty expressly provides for such a remedy. Such a proposition, however, is over broad, and does not follow from a close reading of the I.C.J.'s decisions, or from a more general assessment of the international legal system. At present, there is no obligation under general international treaty law, customary international law, or general principles of international law for a state to open its courts for invocation by individuals of treaty norms. Various treaties, however, either expressly or by implication, provide a right for individuals to invoke those treaties in national court systems. The I.C.J.'s decisions in LaGrand and Avena indicate the circumstances in which a right of this kind may be implied in a treaty, but there are also various circumstances that can be postulated for when such a right should not be implied.

International law is changing, particularly under the pressures of globalization. It is possible that one aspect of that change will be the ultimate recognition of a general obligation under international law for states to make their national courts available to individuals seeking interpretation and application of treaty norms that are protective of the individual. While there are reasons to welcome a general obligation of that nature, there are also reasons to be wary of it. The caution evinced by the I.C.J. in the LaGrand and Avena cases should be heeded as states and non-state actors contemplate whether such a general norm should be recognized.

Avena, LaGrand, Breard, Medellin, treaty enforcement, treaties in national courts, human rights

Abstract:
Considerable attention is focused on the use of military force as a means of combating terrorism, whether it be in Afghanistan, Iraq or elsewhere However, the more dominant means for combating terrorism worldwide lies in non-forcible measures undertaken by states. In this realm, states that might otherwise be inclined to pursue unilateral action, such as the United States, are forced to pursue cooperative strategies that rely considerably on international law and international institutions. This essay briefly assesses various non-military initiatives undertaken by the United States - including criminal litigation and the imposition of economic sanctions on states and terrorist groups - so as to consider the broader question of whether, and if so how, international law and institutions are conditioning the behaviour of the United States. It demonstrates that, for various issues, US policy-makers and courts use international law and institutions as a means of advancing US interests, and suggests that in doing so US behaviour is affected by the expectations of the global community as embodied in international legal norms.