The Policies of State Succession: Harmonizing Self-Determination and Global Order in the Twenty-First Century Tai-Heng Cheng, State Succession and Commercial Obligations

I differ with Cheng\u27s appraisal of certain events and think that we need a more sophisticated analysis of the twin policy goals he identifies and embraces--self-determination and global order--before they can offer real policy guidance. But State Succession and Commercial Obligations stands out as a rigorously researched, original, and insightful effort to understand this quite confused and opaque body of international law. Cheng\u27s work will both enable and encourage a more candid, reasoned, and constructive debate about the global policies at stake each time “a state fundamentally changes its structures of power and authority, and an authoritative international response is needed to manage disruptions to international arrangements that may result from that change.” Briefly, I find Cheng\u27s analysis of the dynamics 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 principal 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. And to a certain extent, this compromises the work\u27s descriptive accuracy and normative appeal

The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War

On October 9, 2007, a trial chamber of the Special Court for Sierra Leone (SCSL) sentenced two leaders of the Civil Defence Forces (CDF), one of the parties to Sierra Leone\u27s civil war. The Chamber had convicted them of exceptionally brutal crimes: mutilation, amputation, hacking civilians to death with machetes, and other sadistic killings. Among relevant mitigating factors, however, it noted that the defendants had fought for a legitimate cause : to restore the democratically elected Government of President Kabbah. It held that their sentences should therefore be mitigated significantly, for although their conduct transgressed acceptable limits, they served a cause that is palpably just and defendable : facilitating the restoration of democracy, peace and security in [Sierra Leone] -precisely the objective the Security Council sought to achieve by encouraging the SCSL\u27s establishment. Furthermore, the Chamber opined, absent mitigation, militias in future civil wars might not intervene on behalf of legitimate governments. Their members might fear that they, too, would be judged harshly after the conflict

More Than What Courts Do: Jurisprudence, Decision, and Dignity-In Brief Encounters and Global Affairs

The same, perhaps, may be said of jurisprudence. If so, then, like Spinoza, W. Michael Reisman, this conference\u27s honoree, falls clearly into the latter category. His jurisprudence informs his work and his life-as a scholar, teacher, practitioner, friend, and public citizen. Having been privileged to know or work with him in most of these capacities, I have often been struck by how the methods and injunctions of the New Haven School shape his personal, no less than professional, character traits. He exhibits an acute sensitivity to context, cultivates a studied habit of disengaging from biases, and always reflects on arguments before replying: he responds rather than reacts. Not coincidentally, the New Haven School encourages these traits, and no living scholar or practitioner is identified more closely with it than Reisman. Below, beyond describing some precepts of the School, I want to focus on a few areas in which Reisman made signature contributions to its jurisprudence of realistic idealism

Prologue to a Voluntarist War Convention

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, modem 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 principlesnecessity, proportionality,a nd distinction-thatf ollow 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, in my judgment, 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

The Constitutionality of Decolonization by Associated Statehood: Puerto Rico\u27s Legal Status Reconsidered

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\u27s 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. I always thought that, when we should acquire Canada and Louisiana it would be proper to govern them as provinces, and allow them no voice in our councils. In wording the third section of the fourth article [of the Constitution], I went as far as circumstances would permit to establish the exclusion. —Gouverneur Morri

The Incident at Cavalese and Strategic Compensation

In 1953 the United States ratified the North Atlantic Treaty Organization\u27s Status of Forces Agreement of 1951 (SOFA), which set forth conditions and terms which will control the status of forces sent by one state, party to the Agreement, into the territory of another state, party to the 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. The SOFA\u27s jurisdictional framework protects nationals of a foreign military force from the criminal processes of the alien jurisdiction in which they reside and train, yet permits injured citizens of the host state to pursue civil damages for the tortious acts of foreign forces without fear that their claims might receive prejudicial treatment in the foreign state\u27s local courts

Indirect Expropriation and its Valuation in the BIT Generation

The number of bilateral investment treaties (BITs) has increased dramatically in the past decade. Until the mid-1970s, a bare handful of BITs existed, and the numbers increased only at a slow or moderate pace until the early 1990s. By September 1994, however, some 140 states had concluded more than 700 BITs, by 1999, more than 1300 BITs had entered into force among about 160 stats, and by the end of 2002, 2181 BITs had been signed. Particular provisions of BITs vary from state to state. But certain general features, which respond to the demands of expanding globalization and, as a consequence, the increasing interdependence of national economies, characterize virtually all BITs. BITs seek to establish a stable, orderly framework for investment by creating, as the preamble to a typical United Kingdom BIT states, \u27favourable conditions for greater investment by nationals and companies of one state in the territory of the other state.\u2