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Abstract:
This article examines the humanitarian premise on which refugee law rests and finds it tragically inadequate for our time. It observes that contemporary refugee law is primarily human rights law and was designed to relieve victims of defunct regimes. Today, however, the persecutors are existing governments, able to insist on the prerogatives of sovereignty while creating or helping to generate refugee crises, and likely to castigate as politically motivated the human rights claims made against them. Censuring these governments as persecutors often exacerbates a refugee crisis because it diminishes the opportunity to gain their necessary cooperation.

This article promotes the more traditional concept of international law (as dealing with inter-state rights and obligations) as a key to the problem of the refugee. Its thesis is that the humanitarian premise of refugee law seriously limits, and even undermines, constructive response to the problem of the refugee, and that the problem becomes more manageable the more it is treated as a problem of relations and obligations among states. This article calls for a new foundation for refugee law built upon the fundamental principle of international law that every state is obligated to respect the territorial integrity and rights of other states. Territorial sovereignty includes both a state's right to exercise exclusive jurisdiction over its own territory and its legal obligation to prevent its subjects from committing acts which violate another state's sovereignty. Mass expulsions clearly run against the principle of territorial sovereignty because of the burden cast on receiving states. This article's new formulation of refugee law is designed to take advantage of the politics of sovereignty and articulates inter-state obligation as the basic foundation for international refugee protection and relief, replacing human rights principles at center stage. The goal is not to eliminate the humanitarian aspect, but to identify mass exodus as a matter of international legal responsibility, not just a violation of human rights ideals that states can denigrate on the basis of national sovereignty. This approach would avoid the moral judgments of humanitarianism and preserve and advance opportunity for negotiated resolution.

international law, refugee law, human rights, inter-state obligation, mass expulsion, territorial sovereignty, Vietnam, Uganda

Abstract:
This article examines the definition of "aggression," - a definition framing "aggression" as a delictual and juridical term to be used to identify a wrongdoer in international law - formulated by the United Nations in General Assembly Resolution 3314. The term "aggression" is consistently at the center of debate concerning coercive confrontations between States, and the goal of those seeking a definition of "aggression" has been to establish a legal standard for distinguishing legitimate from illegitimate action in such confrontations, as well as in more serious situations when war or peace is the immediate issue.

This article argues that the U.N. definition of "aggression" is essentially misconceived and, as a consequence, is incompatible with the effective operation of the United Nations. In essence, the definition, as an a priori classification in the context of a legal structure designed to achieve collective security, undermines rather than promotes the greater ordering of international behavior through law. The critical shortcoming of the definition is its failure to accommodate the common interest of the membership of the Security Council in achieving relative stability in a world in which nuclear apocalypse is the final stage of instability. Through a priori definition a term that offers little potential for effective application to contemporary politico-military realities has become a ready vehicle for undermining negotiation and conciliation. The article asserts that instead of seeking to achieve collective security by rulemaking through definition, the focus should be upon the processes of international decision and their development through the structures and procedures of pacification.

international law, aggression, collective security, United Nations, Security Council, General Assembly Resolution 3314

Abstract:
This article examines the dispute resolution process embodied in NAFTA's Side Agreements as a modality in international trade law for reconciling trade values with social and environmental values. It explores the political considerations underlying the Side Agreement dispute resolution process, and notes particularly the provision for consultations between the parties, and for mediation before, during and after arbitration, that allows a many-layered opportunity to modify behavior and avoid the imposition of sanctions. The article also assesses the Side Agreements' capacity for promotion of the trade values of predictability and reliability, and their responsiveness to quality-of-life concerns. It concludes that the Side Agreements constitute a profound disjunction with the past regime of the law of international trade, in particular the GATT, and that the Side Agreements, by incorporating goals other than trade liberalization, can be a model for international trade agreement dispute resolution.

North American Free Trade Agreement, North American Agreement on Labor Cooperation, North American Agreement on Environmental Cooperation, side agreements, international trade, regional free trade agreements, dispute resolution, environmental protection, labor standards, linkage

Abstract:
Observing that the United Nations Emergency Force (UNEF) has become the archetype for peacekeeping based on the "consent" of the state on whose territory a United Nations force is stationed and that this concept of consent has become the central characteristic of United Nations peacekeeping, this article analyzes the concept of host state consent in light of the 1956 Good Faith Accord between the United Nations and the United Arab Republic, and the circumstances of the 1967 withdrawal of UNEF.

The article asserts that in the context of the establishment of a peacekeeping force, and as it was used in the case of UNEF, "consent" is used metaphorically, and that Egypt's consent, rather than reflecting a state of mind, represented part of a multinational political arrangement founded on the availability of UNEF as a buffer. In this arrangement, the invading Powers' agreement to withdraw was the consideration for which Egypt's "consent" was the quid pro quo. The article further asserts that, under the proper interpretation of the Good Faith Accord, the response to a host state's demand for withdrawal should be an insistence that withdrawal could be legally secured only by the process of negotiation and bilateral adjustment embodied in the Accord. The insistence would not be that withdrawal could not be secured, but rather that the host state was legally obligated to work through an established procedure of negotiation.

The article argues that the 1967 United Nations response to United Arab Republic's demand for withdrawal of UNEF applied an overly formalistic conception of "consent," failed to take advantage of procedures for negotiation (and hence for the sort of delay that might create space for a relief of tensions and for settlement) built into the Good Faith Accord, and set a damaging precedent for future peacekeeping.

peacekeeping, United Nations, United Nations Emergency Force, Good Faith Accord, host state consent

Abstract:
Acknowledging the special difficulty of managing the politically critical linkage of free trade with labor welfare and environmental protection across the Pacific Basin, this Article argues that, despite the differences between various regional free trade groupings, regional development of this linkage presents distinct advantages over the GATT model of global, multilateral standards. It examines the regional model that evolved as a product of controversies over NAFTA (and particularly the dispute resolution model originated in the NAFTA Side Agreements). The Article demonstrates how this model can be drawn upon to facilitate constructive linkage of trade liberalization with environmental and labor welfare, to meet the challenges for developing a Pacific Basin free trade area.

international trade, regional free trade agreements, dispute resolution, environmental protection, labor standards, linkage, ASEAN Free Trade Area, North American Free Trade Agreement, side agreements

Abstract:
This article argues that, although separation of the powers doctrine is some of the best wisdom the United States professes to offer the international democratic revolution of the late twentieth century, in international civil litigation - the domestic judicial arena closest to international legal development - separation of powers fails fundamentally as a description of the relationship of the judicial and the "political" branches. The article asserts that in international cases United States courts adjudicate the foreign relations of the United States frequently, aggressively, and importantly.

The article explores the areas of sovereign immunity, the act of state doctrine, and the "interest balancing" areas of forum non-conveniens and extraterritorial jurisdiction. It finds a body of case law and statutory authority that purports to keep the courts out of foreign policy, while injecting foreign policy judgments through a refined set of intellectual manipulations, and it discerns a remarkable and intriguing refusal of U.S. jurisprudence to acknowledge the courts' involvement in foreign policy-making.

separation of powers, foreign policy, international civil litigation, sovereign immunity, act of state doctrine, forum non conveniens, extraterritorial jurisdiction

Abstract:
This article addresses the question of whether the adoption of the UNCITRAL Model Law on Commercial Arbitration in the United States should be through state law, through federal law, or through some parallel of state and federal law. It argues that the law regulating international arbitration in the United States should be federal law, asserting that to the extent state enactment of the Model Law is pursued, it creates a federal-state duality in the law of international arbitration that significantly undermines the purposes of uniformity and predictability that the Model Law is designed to achieve, and gives rise to a variety of complex, litigation-generating problems.

international commercial arbitration, UNCITRAL Model Law on Commercial Arbitration, federalism

Abstract:
The public protests concerning globalization and Congress' refusal to renew fast-track negotiating authority for the President were generated by the same concerns - the environmental and labor welfare implications of free trade. This article addresses the linkage of trade liberalization and environmental and labor concerns. The analysis seeks instruction through understanding the deficiencies of the conventional approaches to managing linkage. Building on this understanding, this article sets forth a new approach to managing linkage through recasting the relationship of congressional oversight and executive fast-track authority to negotiate trade agreements.

The proposal is to include in any regional free trade agreement to which the United States is party, a reciprocal authorization between the state parties, to regulate extraterritorially within the particular free trade regime, companies owned or controlled by the nationals of the regulating state. Pursuant to this proposal, the U.S. Congress would seek to ensure basic levels of protection for the environment and workers in the subject companies. The article explains how this allows revival of the fast-track authority of the Executive, securing its advantages for the negotiation of freer trade, while transforming the current frustration in congressional oversight to effective regulation and preserving the competitiveness of U.S. businesses operating abroad.

international trade, regional free trade agreements, fast-track negotiating authority, extraterritorial regulation, environmental protection, labor standards, linkage, North American Free Trade Agreement, side agreements

Abstract:
This article examines the Proliferation Security Initiative (PSI), a recent US nonproliferation initiative for the interdiction of cargo shipments involving weapons of mass destruction (WMD). The PSI is analysed in the context of current US foreign policy`s avoidance of traditional international institutional organisation in favour of reliance on the so-called coalitions of the willing, characterised by the Bush Administration as the new multilateralism. The author examines the interaction between the PSI and the United Nations (UN) Law of the Sea Convention and looks to situations of potential international nuclear conflict, for assessing the PSI and the potential role of law and international organisation. It is argued that the PSI approach unnecessarily undermines the legitimacy and effectiveness of interdiction and that the distinctiveness of the threat, involving both state and non-state actors, requires rather than negates the advantages of institutional organisation. It is institutional process, the article explains, that can provide the necessary capacity for intelligence sharing, mutual critique and maximisation of political consensus. This difference in approach would ground the international community`s response to the interdiction challenge on a more solid legal, practical and political foundation, leading to a more effective and comprehensive modality for countering the most serious threat of our time.

Abstract:
This essay asserts that the structure of international aid to the Palestinian refugees, perpetuated since the origin of the refugee problem, should be reconceived and a new formulation created, and it argues that a new approach the refugee problem can have positive significance for the broader problem of peace in the Middle East.

The essay identifies UNRWA (The United Nations Relief and Works Agency) as a contributor to the permanency of the refugee problem and its exacerbation, in that its presence has allowed host state governmental authorities to minimize their duty to address the needs of Palestinian refugees, while enabling these authorities to exercise full control over the life of the refugees and to erect the specific and debilitating constraints under which UNRWA struggles to operate.

The essay proposes a restructuring (to be promoted by the United States and its allies, and administered under a new international trustee) that would convert refugee camps to self-sustaining communities. Political constraints imposed by official and unofficial opposition to any change suggesting integration or resettlement could be overcome by creating a community development program that would be attractive enough for refugees to adopt as their own (thus enlisting the individual refugee's motivation to improve his family's standard of living), and that would not require as a precondition that refugees abandon their political claims. By reducing the distress, frustration, and sense of injustice of the people at the heart of the conflict, the new program could reduce the level of tension, reduce insecurities, and improve the atmosphere and conditions for political resolution. It could also serve to resurrect the alternative of compensation - the relatively unexplored and only viable alternative presented by U.N. General Assembly Resolution 194.

Palestinian refugees, humanitarian law, United Nations Relief and Works Agency, Middle East conflict

Abstract:
This article addresses the question whether legal mechanisms developed for dealing with trade disputes elsewhere in the world may be appropriate and helpful in constructing a free trade regime in the Middle East, observing that such a free trade regime (and the increased foreign investment that would accompany it) would lead to the economic development between Israel and the Palestinian Territories that is necessary to bring the region out of the peace process and into peace. This article focuses on regional free trade dispute resolution, and considers whether certain dynamics of regional free trade dispute resolution can be identified as relevant and constructive, whatever the particular evolution and stage of regional market integration. It argues that mechanisms of dispute resolution which have been tested elsewhere (such as international arbitration process to which the investor has access, provisional relief and interim measures, and investigatory and fact-finding power) offer significant potential for moving the legal and economic structure of the Middle East in the direction of a truly secure peace.

Middle East peace process, regional free trade agreements, international trade, dispute resolution

Abstract:
This article identifies an underground to international law consisting in part of harassment of and even attacks on, and assassinations of, emigres or their attorneys. In addition to its clear violation of domestic laws, this underground operates contrary to several international legal norms: the fundamental principle of territorial sovereignty that restricts the reach of the police forces of one sovereign into the territorial jurisdiction of another; the long standing recognition of rights of emigration; and recently developed and now widely accepted human rights principles.

This article proposes an avenue of redress for political emigres residing in the United States who are attacked by agents from their nation of citizenship. It argues that civil process in the United States federal courts provides the greatest promise for an effective remedy and that the remedy should be provided through the development of a statute-based federal common law of international tort - specifically an international tort of emigre repression. It further discusses the problems and practicalities of litigation to implement this tort remedy. The article concludes that the international tort model provides a basis for remedy that can develop through the common law, and yet, by relying upon international law as the source of standards for defining the delict, avoids the parochialism that is characteristically the failing of domestic adjudication as an instrument of international legal order. The international tort model is promising as a means to constrain the underground system because it rests on legal norms supported by international consensus. In addition, the international tort model allows for a remedy that is sensitive to foreign policy interests. Finally, it is a remedy that can be based on existing legislation, and it is compatible with the present American law of sovereign immunity.

international law, human rights, political emigres, federal common law, international tort, Banco Nacional de Cuba v. Sabbatino, Alien Tort Claims Act, Foreign Sovereign Immunities Act of 1976

Abstract:
This essay argues in favor of a major elaboration of the legal responsibilities of the state of origin in international refugee law. It takes note of the increasing social, economic, and political burdens felt by resettlement states, and the perception that major refugee flows in recent years have been encouraged or even instigated by governments of states of origin as premeditated and malicious acts of deliberate policy. In light of these realities, an emphasis on the principles of human rights law, and the attempt to address "root causes" of refugee flow are both inadequate, and, by fastening on the internal situation of the state of origin and thus irritating the political interests of that state, may both exacerbate the situation.

The essay proposes a shift in emphasis to the legal obligations of one state not to harm other states by imposing the burdens of unmanaged refugee flow, arguing that this responsibility is firmly supported by the established principle of international law that a state is obligated to avoid the generation across its borders of damage to other states. The essay sets forth guidelines for assessing the responsibilities of the state of origin with respect to mass movement from its territory, and determining how that responsibility might be implemented. The essay proposes: that the international community avoid the "root cause" approach as well as complete dependence on human rights principles; that the thrust of the substantive principles should be cooperative, rather than prohibitive (focusing on obligations to cooperate in preventing the flow, in ameliorating and managing the flow, and in securing voluntary repatriation); that assistance to refugees should be secondary to a solution; that institutionalization of engagement of the state of origin must be at least as important as the development of substantive principles of responsibility; and that the concept of legal responsibility of the state of origin for the burden imposed on other states can be elaborated as substantive principles and procedures for compensation.

asylum, refugee law, international law, inter-state obligation, Convention Relating to the Status of Refugees

Abstract:
The new architecture for the non-proliferation of nuclear weapons proposed here is a mandatory regime under Chapter VII of the United Nations Charter, building upon the current consensual regime, but remedying its deficiencies. This article examines the operation of the Nuclear Non-Proliferation Treaty in relation to current nuclear policy dynamics, explaining why the treaty regime has become increasingly inadequate to meet the proliferation challenge, and even counter-productive. The recent confrontations over nuclear policy with Iran, Saddam Hussein's Iraq and North Korea are drawn upon as illustrations and support for the new architecture's foundation - a Security Council Resolution declaring nuclear weapons proliferation, whether generated by states or non-state actors, a threat to the peace. The new architecture, while integrating key elements of the present non-proliferation framework, would be prescriptive, not merely reactive and ad hoc, the difference arising from its basis in a statement of principle under Chapter VII of the Charter. The article explains how this would engage a design similar to post 9/11 anti-terrorism innovation in the Security Council to achieve a more promising dimension of deterrence, political legitimacy and effectiveness in negotiation of non-proliferation. The new architecture includes the so-called targeted sanctions , a new tool already proven meritorious for anti-terrorism and counter-proliferation efforts. In conclusion, the article evaluates evidence demonstrating that the necessary political will is available to achieve the proposed new architecture and frames the essential policy choice.

Abstract:
The new architecture for the non-proliferation of nuclear weapons proposed here is a mandatory regime under Chapter VII of the United Nations Charter, building upon the current consensual regime, but remedying its deficiencies. This article examines the operation of the Nuclear Non-Proliferation Treaty in relation to current nuclear policy dynamics, explaining why the treaty regime has become increasingly inadequate to meet the proliferation challenge, and even counter-productive. The recent confrontations over nuclear policy with Iran, Saddam Hussein's Iraq and North Korea are drawn upon as illustrations and support for the new architecture's foundation - a Security Council Resolution declaring nuclear weapons proliferation, whether generated by states or non-state actors, a threat to the peace. The new architecture, while integrating key elements of the present non-proliferation framework, would be prescriptive, not merely reactive and ad hoc, the difference arising from its basis in a statement of principle under Chapter VII of the Charter. The article explains how this would engage a design similar to post 9/11 anti-terrorism innovation in the Security Council to achieve a more promising dimension of deterrence, political legitimacy and effectiveness in negotiation of non-proliferation. The new architecture includes the so-called 'targeted sanctions,' a new tool already proven meritorious for anti-terrorism and counter-proliferation efforts. In conclusion, the article evaluates evidence demonstrating that the necessary political will is available to achieve the proposed new architecture and frames the essential policy choice.

nuclear weapons, Nuclear Non-Proliferation Treaty, United Nations, United Nations Charter Chapter VII, targeted sanctions, international law