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Abstract:
Bilateral investment treaties (BITs), which have proliferated at an astonishing pace in the past decade, commonly seek to establish a stable, orderly framework for foreign investment by creating "favorable conditions for greater investment by nationals and companies of one state in the territory of the other state." Unlike their predecessors of an earlier generation, i.e., friendship, commerce, and navigation treaties (FCNs), in the area of foreign investment, BITs require more than the mere prohibition of expropriation without compensation. The BIT generation, weaned on Hayek and navigating amid the detritus of hundreds of well-intentioned but disastrous multilateral and national development programs, has come to appreciate that the profits of the foreign investor, no less than the benefits of the multiplier effect for the host state's economy, require an appropriate normative framework: impartial courts, an efficient and legally restrained bureaucracy, and the measure of transparency in decision that has increasingly been recognized as a control mechanism over governments and a vital component of the international standard of governance. In a BIT regime, the host state must therefore do far more than simply open its doors to foreign investment and refrain from overt expropriation; it must also establish and maintain the legal and normative environment that modern investment theory recognizes as a conditio sine qua non for the success of private enterprise. BITs, in short, consciously seek to approximate in the developing, capital-importing state the minimal legal, administrative, and regulatory framework that fosters and sustains investment in industrialized, capital-exporting states.

Recognizing the need to attract foreign capital and technology, putative capital-importing states do not wish to be perceived as posing a frequent or arbitrary threat of expropriation; and with the eclipse of socialism, direct expropriation has become relatively rare. But the threat of indirect expropriation remains and has probably increased. In particular, in the BIT generation, two principal species of indirect expropriation can be identified and distinguished: creeping and consequential expropriations. A creeping expropriation denotes an expropriation accomplished by a cumulative series of regulatory acts, malfeasance, and omissions (perhaps interspersed with lawful acts) over a prolonged period of time, no one of which can necessarily be identified as the decisive event that deprived the foreign investor of the value of its investment. Consequential expropriations consist in the host state's failure to create, maintain or properly manage the normative framework vouchsafed by the relevant BIT. Neither of these forms of expropriation would have been clearly, if at all, recognized in the FCN generation. Yet both pose acute and novel problems with respect to (i) the determination of liability, i.e., at what stage the host state's regulatory measures or non-feasance should be deemed expropriatory; and (ii) valuation, i.e., as of what date the value of property rights so expropriated should be appraised. We therefore suggest that in certain cases, to respect Chorzów Factory's requirement of restitutio in integrum, tribunals will find it useful and appropriate to disaggregate the "moment of expropriation," which goes to liability, from the "moment of valuation," which goes to damages. Recognition of these forms of indirect expropriation and reflection on the appropriate means for their valuation will contribute in the long term to fortifying the stable and predictable legal environment for foreign investment upon which foreign investors and developing states alike depend in the BIT generation.

Bilateral Investment Treaties, BITs, Friendship-Commerce-and-Navagation Treaties, FCNs, Hayek, restitutio in integrum, moment of expropriation, moment of valuation

Abstract:
The concept of state recognition in public international law has long been mired in a (pejoratively) academic debate between the "declaratory" and "constitutive" schools. This article strives to reappraise and recast recognition through analysis of the history and status of Tibet and its government-in-exile. I argue that, for analytic purposes, we must distinguish three forms of recognition: first, political recognition, the formal acts by which one sovereign recognizes another's claim to statehood or legitimate governance; second, legal recognition, a judgment of recognition based on some set of reasonably objective legal criteria; and third, civil recognition, the force of popular moral opinion, as expressed by civil society through its representative institutions, both governmental and non-governmental. Civil recognition has assumed a subtle, but significant, role in the era of globalization and increasing participation by non-state actors in the processes of international law. The problem with failing to distinguish political recognition from recognition based on legal and civil legitimacy is that, over time, the former begins to obscure the latter. Political recognition confers a veneer of legitimacy on governments and states, which tends, in the long term, to reinforce civil - and ultimately legal - perceptions of legitimacy as well. Yet to conflate these forms of recognition can perpetuate manifest injustices by reference to contemporary international human rights law and, in particular, the foundational right of peoples to political self-determination. Tibet, I argue, is paradigmatic example. It possesses legitimate claims to both statehood and a government based on an act of self-determination by the Tibetan people. Failure to distinguish political, civil, and legal recognition has contributed to the atrophy of the perceived right of Tibet, arguably the world's largest remaining colony, to "external" political self-determination. Recognizing the manifold nature of recognition practices in the modern era would therefore not only bring greater analytical clarity to this area of international law; more generally, it may help to prevent the "self-determination of peoples" from disintegrating into an empty relic of the era of decolonization.

concept of state recognition, Tibet, government-in-exile, political recognition of statehood, legal recognition of statehood, civil recognition of statehood, right of peoples to political self-determination

Abstract:
Much post-9/11 scholarship asks whether modern transnational terrorist networks, the increasing availability of catastrophic weapons to nonstate actors, and other novel threats require changes to either or both of the two traditional branches of the law of war: (i) the jus ad bellum, which governs resort to war, and (ii) the jus in bello, which governs the conduct of hostilities. Scant recent work focuses on the equally vital question whether the relationship between those branches-and, in particular, the traditional axiom that insists on their analytic independence-can and should be preserved in contemporary international law. The issue has been largely neglected since Hersch Lauterpacht, the eminent scholar and former judge of the International Court of Justice, published a seminal article on the topic half a century ago. This Article revisits the issue in the twenty-first century. The standard view, the dualistic axiom, holds that the jus in bello applies equally to all combatants, whatever the ad bellum legality or justice of their resort to force. Yet scrutiny of law and practice alike suggest that politically subjective conceptions of the legality or justice of particular conflicts increasingly erode or blur the boundary between ad bellum and in bello constraints on war. The cost of ad bellum-in bello conflation is high: conflation of the two threatens to compromise the efficacy of each. This Article defends the continuing vitality of the dualistic axiom but also tries to refine our understanding of it. It explains the sources and logic of ad bellum-in bello conflation, illustrates its cost (the neglect or improper application of each), and argues that we must consciously resist the axiom's erosion. To adapt Justice Holmes's maxim, the life of the law of war has not been logic but experience. The dualistic axiom should candidly confront serious, though by no means unassailable, objections raised by recent theorists, but it ultimately remains more firmly grounded in experience and an appreciation of the political and moral reality of war. At the same time, for the axiom to operate most effectively, it must adapt to new geostrategic developments, technological advances, and changes in the nature of warfare. The Article concludes by clarifying how the axiom might be conceived and applied today to best serve the values and policies that underwrite it.

jus ad bellum, jus in bello, law of armed conflict, international humanitarian law, law of war, use of force

Abstract:
Modern international criminal law (ICL) developed in the aftermath of World War II as an alternative to the proposal, espoused by Winston Churchill among others, that major Axis war criminals be summarily executed on sight. Because of this pedigree and the unconscionable nature of the crimes, ICL jurisprudence and scholarship have largely neglected the paramount question fundamental to any criminal justice system: the justifications for and legitimate goals of punishment. Insofar as a coherent jurisprudence of ICL sentencing can be said to exist at all, it remains correspondingly impoverished and unprincipled - comparable in some respects to that of the indeterminate federal sentencing system criticized by Judge Marvin E. Frankel in his famous polemic, Criminal Sentences: Law Without Order (1973).

This Article analyzes the extent to which the conventional goals of punishment in national law can or should be transposed to the distinct legal, moral, and institutional context of ICL. It argues that the expressive capacity of punishment best captures both the nature of international sentencing and its realistic institutional capacity to make a difference in view of the legal, political, and resource constraints that will continue, for the foreseeable future, to afflict ICL. The transposition to ICL of the standard justifications for punishment in national law proves deeply problematic in large part because ICL attempts to combine the paradigms of two very different legal fields: (i) classical international law - a profoundly consensual body of law based on broadly shareable norms among states; and (ii) national criminal law - a profoundly coercive body of law often understood to embody the most fundamental, particularistic norms and values of a local polity.

ICL therefore differs from national criminal law in several respects relevant to the social institution of punishment, including the nature of (i) the community that authorizes ICL, (ii) the crimes addressed by it, and (iii) the perpetrators judged by it. These differences tend to compromise the coherence or efficacy (or both) of conventional crime-control and retributive justifications for punishment. Insofar as these justifications or penal goals remain plausible, it is largely because of the expressive dimensions of punishment.

ICL's ability to contribute to the lofty objectives ascribed to it depends far more on enhancing its value as authoritative expression than on ill-fated efforts to identify "appropriate" punishments for crimes that strain our moral intuitions. For this reason, I urge, among other potential developments in the law and practice of sentencing by international criminal tribunals: (i) the institution of sentencing hearings as an essential component of ICL; (ii) greater attention to social, psychological, and political context and the role of the defendant vis-a-vis collective entities (states, armies, and so forth) as aggravating or mitigating factors; and (iii) a focus on enhancing jurisprudential exchange between national and international criminal justice institutions.

punishment, sentencing, international criminal tribunals, expressivism

Abstract:
The concept of nationality traditionally mediated the relationship between the individual and the state in a bygone era in which international law regarded only the latter as a genuine subject of the law; today, its international legal functions have expanded. Yet, as in the past, it remains unclear whether and how international law limits the otherwise almost plenary competence of states to confer their nationality by their internal laws in a way entitled to international recognition. After the International Court of Justice's ("ICJ") 1955 judgment in Nottebohm, however, lawyers began to express this limit with a kind of doctrinal mantra: a state's national, to be a bona fide national entitled to recognition as such at the international level, must have a "genuine link" to that state. This Article critiques the genuine link theory and proposes a functional account of nationality, which, it argues, is descriptively more accurate and normatively more appealing. Nottebohm is properly read as a narrow decision in which the ICJ tacitly invoked a general principle of law, viz., abuse of rights, to prevent what it saw as a manipulative effort by the claimant to evade a critical part of the law of war. But whatever the merit of this revisionist reading of Nottebohm, the genuine link theory proves anachronistic today in view of profound changes in the manifold functions that nationality serves in contemporary international law. To illustrate, the Article suggests that the abuse-of-rights principle would also be more appropriate and effective than the genuine link theory to regulate nationality in one contemporary context that has provoked debate recently: investorstate arbitration. But the abuse-of-rights principle is no panacea. An atomized conception of nationality, which has been liberated from the genuine link theory and regulated by its functions, would best serve the policies of contemporary international law in diverse subfields.

nationality, international law, International Court of Justice, genuine link, abuse of rights, investor-state arbitration, judidical equality, jus sanguinis, jus soli, Nottebohm, Flegenheimer, Soufraki, Champion Trading, Siag, diplomatic protection, ICSID Convention, functional analysis

Abstract:
This Article attempts to identify and clarify what is genuinely new about the ¿new paradigm¿ of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions - in both the formal and informal senses of that word - onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse ¿party¿ to the conflict both (1) repudiates a predicate axiom of international humanitarian law and (2) exhibits an organizational structure at odds with the one presupposed by the inherited conventions of war.

In particular, modern transnational terrorist networks, unlike most nonstate actors of concern to international humanitarian law in the past (including, for example, francs-tireurs, insurgents, and national liberation movements), characteristically repudiate the conventional, ¿amoral¿ conception of noncombatant immunity and the triad of core international humanitarian law principles - necessity, proportionality, and distinction - that follow from it. Furthermore, the diffuse, decentralized structure of modern transnational terrorist networks - in contradistinction to the hierarchical, linear structure of professional state armies and cognate private armies of past eras - makes them ill-suited for compliance with international humanitarian law. It also renders deterrence and negotiation - the principal historical mechanisms by which states neutralized threats from nonstate actors - frequently ineffective. Coupled with the increasing availability of catastrophic weapons on illicit markets, these features vastly complicate efforts to adapt the inherited war convention to contemporary circumstances - a periodic ritual that has followed major wars and crises since the advent of modern international humanitarian law in the nineteenth century.

For these reasons, international humanitarian law must begin to work out the contours of a voluntarist war convention to govern what is likely to be a prolonged state of episodic armed conflict with this particular genre of twenty-first-century nonstate actor. The conventional regimes governing internal and international armed conflicts should be augmented - but not displaced - by conventions designed for what may be characterized as transnational armed conflict. Several factors, however, counsel Burkean caution and multilateral deliberation before introducing innovations: the continuing vitality of certain instrumentalist rationales for international humanitarian law, its synergy with international human rights law, and the manifest potential for abuse. I therefore conclude that, in the meantime, (1) any proposed modifications should be incremental, transparent, tentative, and subject to revision as the genuine scope of military necessity becomes clear; (2) the burden of persuasion should be on those who urge such modifications; and (3) insofar as existing law does not clearly govern, sound policy rationales generally continue to commend adherence to the inherited conventions of war.

international humanitarian law, global war on terrorism, Al Qaeda, terrorism, terrorist networks, Additional Protocol I, Geneva Conventions, private armies, non-combatant immunity, law of war, law of armed conflict

Abstract:
In State Succession and Commercial Obligations (2006), Tai-Heng Cheng applies the New Haven School methodology to an opaque and unsettled body of international law: that governing the commercial rights and duties of states, creditors, and other participants in the unruly process of state succession. Rather than work within inherited conceptual and doctrinal frameworks, which have seldom proved either helpful or descriptively accurate, Cheng provides a fresh perspective on the issues. He argues that a policy-oriented perspective on state succession ameliorates the "descriptive inaccuracy" and "normative deficit" of inherited theories. Part I of this review considers the former claim; Part II the latter. I find Cheng's analysis of state succession relative to commercial obligations sophisticated, pragmatic, descriptively comprehensive, and for the most part, normatively compelling. But it may be too ambitious. Defining disruptions to global commerce as the indicia of state succession tends to inflect, and at times to bias, the general analysis of the diverse phenomena that fall within the rubric of state succession. This commercial focus can obscure or normatively predispose our understanding and appraisal of equally vital, but non-economic, dimensions of state succession, including the core policy goals - self-determination and global order - that Cheng identifies and recommends. To a certain extent, this compromises the work's descriptive accuracy and normative appeal. But far from "failing to provide the very guidance that real-life decision makers expect from their lawyers," as critics of the New Haven School often charge, Cheng's policy-oriented analysis strikes me as more helpful to practicing lawyers and decision makers than anything that has preceded it.

state succession, self-determination, global order, international commercial obligations, state secession

Abstract:
This Article seeks to provide a new framework, rooted in classical liberalism, for understanding and defending the universality of international human rights. After reviewing the philosophical and historical development of the idea of universality, I argue in Part II that none of the traditional justifications for conceiving of international human rights as universal succeed. Cultural pluralism therefore must be accepted as a descriptive truth. But to acknowledge the cultural contingency of values as a descriptive claim does not, by itself, undermine the normative claim that human rights are, or should be, universal. Instead, it points to the need to justify universality within a framework that acknowledges the descriptive truth of cultural pluralism.

Part III distinguishes two plausible normative claims that a cultural relativist could advance on the basis of the descriptive vindication of cultural pluralism provided in Part II: “narrative relativism” and “crude relativism.” Narrative relativism questions whether it is appropriate and desirable to apply the Western liberal conception of rights to cultures whose traditional narrative frameworks - deeply rooted norms, perceptions, and values - may not be able to accommodate them without upsetting societal institutions in potentially dangerous ways. This raises an issue that undoubtedly merits consideration when applying human rights law internationally. But it does not, I argue, “refute” the universality of international human rights law any more than acknowledging value pluralism within a state refutes the uniform application of domestic law to a state's diverse citizenry. I then argue that crude relativism - the broader normative claim that it is wrong to impose human rights on cultures that claim to reject them - suffers from several deep logical and empirical flaws that undermine its philosophical coherence as an argument and also call into question the sincerity of its proponents' views.

In Part IV, I argue that a distinctively liberal conception of autonomy both underlies and, upon analysis, undermines the central normative assertions of cultural relativism. This is because the liberal imperative to respect the value of autonomy originates in a unique conception of the “self,” which finds expression, among other places, in Isaiah Berlin's classic essay Two Concepts of Liberty. I argue that cultural relativists in fact invoke - and, absent some presently unarticulated alternative, must invoke - the liberal conception of autonomy in any argument that aims to repudiate the universality of international human rights. But because the liberal conception of autonomy is rooted in a distinctive conception of the “self as agent,” a state elite cannot, for example, appeal to the liberal values of autonomy to challenge human rights law as “imperialistic” - for failing to extend adequate tolerance to cultural pluralism - but then conveniently reject these very same values when individuals within their polity invoke them in the form of human rights claims.

Any assertion that cultural groups or political entities also merit tolerance and respect for their autonomy, I suggest, is derivative, not independent, of the rationale for respecting individual autonomy. A cultural elite remains free to repudiate this value. It cannot, however, then demand respect for “cultural autonomy” as a rhetorical device to deflect criticism of its human rights practices. By contrast, to embrace the liberal conception of autonomy is perforce to acknowledge the normative claim to universality that this Article argues international human rights law enjoys. Despite the descriptive truth of cultural pluralism, I therefore conclude that there is a compelling philosophical rationale - beyond the political, historical, and legal approaches conventionally invoked in defense of international human rights - for choosing “rights” as the appropriate and universal functional concept to promote human dignity internationally.

International Human Rights, classical liberalism, cultural pluralism, universal human rights, Isaiah Berlin, liberal conception of autonomy, human rights law

Abstract:
Absent much prescriptive guidance in its Statute or other positive law, the International Criminal Tribunal for Rwanda (ICTR) has been developing, in effect, a 'common law' of sentencing for the most serious international crimes: genocide and crimes against humanity. While it remains, as the Appeals Chamber has said, premature to speak of an emerging 'penal regime', and the coherence in sentencing practice that this denotes, this comment offers some preliminary reflections on the substantive law and process of sentencing as it has evolved through ICTR practice. Above all, I argue, sentencing must, but has not yet, become an integral part of international criminal justice rather than, as it has historically been treated, an 'afterthought'. The lack of sufficient attention to sentencing, evident procedurally in the ICTR's abandonment of distinct sentencing hearings and the expedient of 'transactional sentencing', at times manifests itself in perfunctory sentencing analyses and jurisprudential confusion over the proper role of ostensible sentencing factors including 'gravity of the offence', 'zeal', 'heinous means', 'prior good character', and 'voluntary commission'. Because of the inherent gravity of the crimes, the ICTR's lack of adequate attention to sentencing has not, by and large, led it to impose quantitatively incorrect sentences. But qualitatively, neglect of sentencing inhibits the 'common law' evolution of a mature penal jurisprudence that can contribute to the long-term normative goals of international justice.

sentencing, genocide, Rwanda, ICTR, international criminal tribunals

Abstract:
This brief review of Mark Drumbl's recent work, Atrocity, Punishment, and International Law (2007), explains the author's project and how it fits into the contemporary literature on international criminal law. Marked by prodigious research and rigorous interdisciplinary analysis, Drumbl persuasively critiques the predilection for ICL as the default response to mass atrocity; offers cautionary lessons about the limits and dangers of ICL; and provides an original argument for a more pluralistic, cosmopolitan response to mass atrocity that welcomes diverse, in situ justice modalities, subject to prudent qualifications. I think that he tends to be overly optimistic about those modalities and that the indigenous traditions to which he recommends qualified deference will in practice prove more problematic and subject to abuse than he sometimes seems to suppose. Also, reflection on the penological issues raised by ICL in the strict sense will require more precise and methodical analytic distinctions before they can be genuinely helpful to the ICL sentencing process. But above all, I think, Drumbl's work suggests the limits of ex post legal responses to mass atrocity generally rather than of ICL in particular. ICL's principal goal should be to contribute to a normative climate sufficient to compel genuinely effective international legal responses to prevent or forestall mass atrocity - so that retrospective transitional justice of any sort will be understood as the moral failure it so often reflects.

international criminal law, ICL, mass atrocity, transitional justice, punishment, sentencing

Abstract:
International and constitutional law arguably collide in the legal arrangement between the United States and Puerto Rico. As a matter of international law, it is unclear that this arrangement conforms to customary international and treaty obligations. As a matter of national law, it is unclear that the Constitution permits an arrangement between Puerto Rico and the United States—short of separation (independence as a State) or integration (admission to the Union as a state)—that could conform to these international obligations. In particular, the Appointments Clause and the Constitution’s voting provisions may well be in tension with contemporary international law relative to Puerto Rico. In this article, we seek, partly through an internal dialogue, to clarify several unacknowledged or underappreciated legal tensions in the U.S.-Puerto Rico relationship and to explore ways to resolve them. One of us adopts a plain-meaning, originalist view of the Constitution, which underscores the arguable constitutional defects in the current U.S.-Puerto Rico relationship. The other does not embrace originalism and therefore would not exclude resolution of the tensions between international and constitutional law by means of constitutional interpretation. We agree, however, that those tensions can no longer be neglected in a State committed to the rule of law and that several of the most troubling can be resolved—with a modest amount of political will and creativity—in a manner that effectively elides the oft-intractable debates in modern constitutional theory: substantive, even if not formal, international legal compliance can be uncontroversially established. Above all, we seek to reframe and facilitate a long-overdue discussion about how to reconcile U.S. international obligations toward Puerto Rico with the Constitution.

Puerto Rico, associated state, Appointments Clause, Territories Clause, decolonization, Trusteeship Council, self-determination

Abstract:
This brief essay is the edited transcript of the author’s opening remarks for a panel on jurisprudence in international law at the conference entitled Realistic Idealism in International Law, held at Yale Law School on April 24, 2009, in honor of W. Michael Reisman. It canvasses some of the animating factors and features of the New Haven School of jurisprudence with which Reisman is identified, and it seeks to explain and clarify some of his signature contributions to the School’s methodology.

W. Michael Reisman, jurisprudence, New Haven School, Myres S. McDougal

Abstract:
This is a revised version of introductory remarks to a panel entitled The Scope of Executive Power held on October 12, 2007, at Boston University Law School's symposium, The Role of the President in the 21st Century. It focuses on an argument advanced by Charlie Savage, among others: that the Bush administration has forged a breathtakingly robust view of the scope of executive power by combining (1) the original Unitary Executive thesis, which insists on the "exclusivity" of certain plenary presidential powers; with (2) a new Unitary Executive thesis, which insists on a vastly expanded vision of the "scope" of those powers - powers found nowhere in the Constitution's text or even fairly derived (arguably) from its original public meaning. After clarifying the theoretical distinction and practical upshot of these nominally identical positions, I briefly offer two observations. First, while it would be entirely appropriate to "candidly and transparently" debate whether new perceived threats require an expanded scope of executive power, it is extremely dangerous to cloak the true stakes of this debate with the expedient veneer of a new (and, to most minds, indefensible) monarchical executive theory, which disingenuously claims to be coextensive with the defensible, if controversial, original Unitary Executive theory. Second, the consequences of this constitutional debate for international law remain underappreciated. Because of the nature of the international system - and, in particular, customary international law's acute sensitivity to authoritative assertions of power - what U.S. executives do and say often influences what other states do and say, potentially altering the evolution and shape of international law. Ironically but tragically, the widespread repetition of claims and practices initiated by the current U.S. executive branch may therefore, in the long term, diminish rather than enhance the real power of the United States, including its executive: in certain areas, it already has. In fact, the exercise of an exorbitant scope of supposedly inherent executive power may well (as it did in the aftermath of the Nixon administration) culminate in precisely the sort of reactive statutory constraints and de facto international diplomatic obstacles that proponents of a broad scope of executive power regard as misguided and a threat to U.S. national security in the twenty-first century.

unitary executive, customary international law, executive power, president

Abstract:
This article analyzes the provisional measures order of the International Court of Justice (ICJ) in Avena and Other Mexican Nationals, the first provisional measures order issued by the ICJ after its decision in LaGrand holding that such orders have binding effect. After reviewing the background to Mexico's action, the article focuses on Avena's place in the Court's provisional measures jurisprudence, its international legal significance, its potential effects, if any, on the ICJ's perceived institutional legitimacy and authority, and its legal and political consequences for the United States. In particular, the article examines the domestic legal implications of the Court's order for the United States in the context of developing international norms on capital punishment and the due process standards governing its implementation in states that continue to practice it.

death penalty, International Court of Justice, provisional measures, relationship between international and municipal law, Vienna Convention on Consular Relations

Abstract:
In 1953, the United States ratified the NATO Status of Forces Agreement. The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established a jurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. This result was vital to NATO's operations, for, in democratic host states, popular toleration, if not support, is a political conditio sine qua non for the transnational stationing of foreign military forces. But context is important to understanding and effectively implementing any legal instrument and its jurisdictional regime. The SOFA presumes that the public within NATO states perceives the presence and training exercises of foreign military forces in its midst as serving national security. With the end of the Cold War, the popular perception in many foreign countries of the need for the long-term presence of U.S. forces and the consequent willingness to absorb some of the ineluctable collateral costs appear to have declined. Consequently, the orderly procedure for compensation established by the SOFA may no longer meet the political, as well as the legal, requirements that the SOFA regime serves.

Perhaps no event in recent memory makes this point more clearly than the tragedy inadvertently caused by a U.S. aircraft at Cavalese, Italy, in February 1998. This incident and its aftermath offer a paradigm for rethinking the post-Cold War operation of the SOFA and for understanding how changes in the political context in which it operates may now counsel a more flexible - or, at least, less exclusive - application of its formal terms. These changes may periodically require the development of supplementary strategic compensation procedures for collateral damage caused by foreign military forces stationed abroad. Unquestionably, preserving the legal values of predictability, efficiency, transnational investigative cooperation, and regularity served by the SOFA's compensation scheme remains critical and, from a parochial perspective, perhaps, its exclusive application may be "penny wise." But in the post-Cold War global order, in which popular goodwill in the host state represents, even more than in the past, a condition sine qua non for the continued stationing of U.S. troops in geostrategic allied nations, neglecting its preconditions by focusing solely on the values served by legal formalism could well prove "pound foolish."

North Atlantic Treaty Organization, NATO, Status of Forces Agreement, jurisdictional allocation between sending state and receiving state, collateral damage, civil compensation, jus in bello, law of armed conflict

Abstract:
Absent much prescriptive guidance in its Statute or other positive law, the International Criminal Tribunal for Rwanda (ICTR) has been developing, in effect, a common law of sentencing for the most serious international crimes: genocide and crimes against humanity. While it remains, as the Appeals Chamber has said, premature to speak of an emerging penal regime, and the coherence in sentencing practice that this denotes, this comment offers some preliminary reflections on the substantive law and process of sentencing as it has evolved through ICTR practice. Above all, the author argues, sentencing must, but has not yet, become an integral part of international criminal justice rather than, as it has historically been treated, an afterthought. The lack of sufficient attention to sentencing, evident procedurally in the ICTR's abandonment of distinct sentencing hearings and the expedient of transactional sentencing, at times manifests itself in perfunctory sentencing analyses and jurisprudential confusion over the proper role of ostensible sentencing factors including gravity of the offence, zeal, heinous means, prior good character and voluntary commission. Because of the inherent gravity of the crimes, the ICTR's lack of adequate attention to sentencing has not, by and large, led it to impose quantitatively incorrect sentences. But qualitatively, neglect of sentencing inhibits the common law evolution of a mature penal jurisprudence that can contribute to the long-term normative goals of international justice.