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Abstract:
In an effort to elevate the international rule of law, international law scholars, especially since the end of the Cold War, have endeavored to determine how best to induce compliance, that is, how to encourage nations to obey international law. For all its advantages, this focus on compliance obscures the role of noncompliance in the international legal system. In the absence of effective mechanisms for decision and control, States sometimes feel obliged to take actions that formally violate existing norms but may nevertheless reflect current or developing expectations of lawfulness or make existing law effective. This is "operational noncompliance" - noncompliance that keeps an imperfectly effective system, such as international law, operational. Though compliance is and should be the norm, those who discount operational noncompliance disregard the tension, which is acute in the international arena, between the necessity in a legal system of maintaining the principle that the law is to be complied with - because otherwise what does it mean to be a law? - and the role of noncompliance in developing new law and in enforcing current law. This Essay explores that tension, arguing that we should recognize that operational noncompliance is and must be a part of the international legal system, as it is currently constituted, and that, in some cases, acts of operational noncompliance are legitimate. The failure to acknowledge the functions of operational noncompliance mythologizes contemporary international law, limits our ability to achieve community policies, and risks making international law irrelevant. Unless and until we have more effective international institutions, we will need to come to terms with noncompliance's role in the international legal system.

Noncompliance, Compliance, Rule of Law, International Law

Abstract:
Can international criminal courts provide defendants with fair trials? The question can be approached in at least two ways. First, are the substantive rights accorded to the accused by the tribunals' statutes, rules of procedure and evidence, and case law adequate? Second, regardless of the sufficiency of the paper rights accorded the accused, do these international courts have the independence and coercive powers necessary to ensure fair trials? For example, can these courts make certain that the accused is able to obtain the evidence and witnesses necessary for a serious defense? Or do the courts' judges have the independence necessary to withstand political pressure from the states on which their courts depend? In other words, despite the good intentions of the architects of these statutes, and the rights they formalistically contain, might these courts still lack certain essential capacities that criminal courts require in order to fulfill their functions? It is on this second, crucial, but often overlooked, aspect of the fair trial problem that this article focuses. A review of tribunal case law and past practice indicates that international criminal tribunals, as presently constituted, are limited in their ability to provide defendants with fair trials, even if the statutory rights accorded the accused and the positive pronouncements made by these courts are consonant with fair trial standards, because the courts lack the prerequisite power, or its functional equivalent, to make those substantive rights real. In short, the disjunction between authority and control, common to international institutions, is too great to allow for consistently fair criminal adjudication. Whether the structural limitations on the tribunals are fatal, or whether their detrimental effects can be abated, remains to be seen.

International Criminal Courts, Fair Trials, ICTY, ICTR, ICC

Abstract:
This Essay takes issue with the standard view among international law and international relations scholars that States have sufficient and effective tools to constrain international courts. Like international organizations generally, international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their mandates or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates. It also makes States more likely not to consent ex ante to the jurisdiction of international courts, to withdraw from the jurisdiction of courts to which jurisdiction they had previously consented, and to disobey judicial decisions. In other words, weak judicial control mechanisms create weak dispute resolution mechanisms. This is not optimal, as the international system needs greater not fewer opportunities for peaceful dispute settlement. In order to strengthen international courts, we need to think anew about how best to maintain control over them. The answer, though, is not, as some would have it, to decrease judicial independence by increasing direct State control. Instead, this Essay argues that increasing competition among international courts will more effectively constrain international judicial power and, consequently, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better - and perhaps convergent - decisions. Therefore, in contrast to the received wisdom that international courts, as they proliferate, should be more respectful and deferential to each other, this Essay claims that such system-protective doctrines are counterproductive. Instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.

international courts, judicial independence, adjudication, international organizations, international law, competition

Abstract:
There is nothing more fundamental to or characteristic of a constitutional system than the techniques it adopts and employs for the selection of its decision makers, be they executive, legislative, or judicial officials. Such techniques can be based on a variety of principles and can be codified using a number of different forms. In the international system, we have a plethora of possible representative principles – those that treat all States the same, giving them each an equal vote (the sovereign equality principle); those that treat States or groups of States differently and allocate representation on the basis of their relative wealth, military power, amount of exports and imports, or some other distinctive characteristic or interest (the differential responsibilities principle); and those that prioritize region and divvy up positions accordingly (the regionalism principle). We also have a wide array of possible forms for implementing those principles – treaties, resolutions, decisions, and understandings, among many others. In the post-War world, there evolved an operational constitution of representation in which formal and informal arrangements together were employed to reconcile the conflicting principles and interests in play. Though sometimes moderating regional tensions, the operational constitution most often rewarded power – financial, trade, political, military, or otherwise – in order to maintain effective international organization.

This operational regime is currently under stress in two distinct ways. It is being assailed on its own terms as unreflective of contemporary power dynamics. Challenges to the composition of the Security Council and pressure to reallocate voting rights in the International Monetary Fund (IMF) and World Bank are the best examples of this. The operational regime is also being criticized on a more fundamental level by those who would do away with informality and preferences altogether. We see this in the attempt to wrest away the “rights” of the United States and Europe to appoint the heads of the IMF and World Bank. These two critiques of the operational constitution are moves to create an international system that works on radically different terms from that which has existed for the past sixty years. The Article concludes by considering the future of the operational constitution in light of these challenges.

Representation, International Organizations, World Bank, International Monetary Fund, Constitution, Informality, International Agreements

Abstract:
In May 2006, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia granted the requests of the United States and the North Atlantic Treaty Organization and set aside the trial chamber's decision ordering the production of intercepted communications sought by defendant Dragoljub Ojdanic. The appeals chamber held that Rule 54bis of the ICTY Rules of Procedure and Evidence does not require the possessor of intelligence information to produce that information when that state or international organization is not its owner or originator and that an order under Rule 54bis will not issue when a party refuses a state's cooperative efforts to provide information pursuant to Rule 70. By focusing on intercepted communications, which are among the most classified of intelligence information because of the methods by which they are obtained, Ojdanic was obviously seeking a confrontation with the United States for graymail purposes. He could have reformulated his request to focus on the substance of the information sought rather than the method of its collection, but he did not. The appeals chamber could thus have rejected Ojdanic's application in its entirety and remanded the matter to the trial chamber so that it would not center on intercepted communications as such. Instead, the court's decision, though formally upholding the review requests of the United States and NATO, provides a roadmap for defendants to pursue graymail strategies in the future.

cooperation, binding orders, intelligence, national security, fair trials, international criminal courts, ICTY

Abstract:
Wishing to see the trajectory of American history as progressive and democratic, historians have ignored the complexities of suffrage expansion in the nineteenth century - especially the interrelation of exclusion and inclusion. This Note looks at the trajectory of suffrage reform from the late eighteenth century to the adoption of the Fifteenth Amendment and argues that reformers were obsessed with the inner qualities of persons. Whereas the eighteenth century had located a person's capacity for political participation externally (in material things, such as property), the nineteenth century found these qualities internally (in innate and heritable traits, such as intelligence). Both enfranchisement and disenfranchisement reflected this change of perspective, this look within.

suffrage, property, capacity, enfranchisement, disenfranchisement, voting, state constitutions

Abstract:
The proliferation of international law and institutions over the past two decades has produced both excitement and anxiety. Cooperation and coordination - formal and informal - has allowed states and other international actors to get at global and regional problems and facilitate international exchange much more so than in the past. The heightened activities of international organizations and national governments have pertained both to traditional areas, as well as those, such as environmental law, that had hitherto been almost exclusively within the domain of domestic politics and law. Such developments have worried those who believe that decisions taken at the international level are insufficiently reflective of and constrained by democratic politics and basic principles of due process, and unfairly give preferences to powerful states over less powerful ones.

In their article “National Courts, Domestic Democracy, and the Evolution of International Law,” 20 European Journal of International Law 59 (2009), Eyal Benvenisti and George W. Downs argue that national courts are the best device for the control of powerful executive branches and the facilitation of popular participation in international affairs. In this short response, I counter that national courts are unlikely to be as effective as the authors hope and desire. There are considerable doubts that national courts are strong enough to take on these difficult tasks. And there are serious reasons to be suspicious that national courts are to be counted on to do so. My aim, though, is not to dismiss national courts entirely. My point here is simply that the reliance placed by Benvenisti and Downs on domestic judiciaries is too great, even for the best of them. Indeed, those concerned with the transfer of decisionmaking to the international level are, quite strategically, not putting all their eggs in the judicial basket. Instead, we are seeing a complex and contentious constitutive process of adaptation of supervisory techniques.

National Courts, International Courts, Executive Power, International Organizations, Global Governance