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New International Legal Process

Published online by Cambridge University Press:  27 February 2017

Mary Ellen O’Connell
Mary Ellen O’Connell*
Affiliation:
University of Cincinnati College of Law
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Extract

International legal process (ILP) emphasizes understanding how international law works. It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy. It is a more limited methodology than some others discussed in the symposium in that it did not, as originally developed, expose the normative values of the methodology, or how the methodology could be used to achieve those values. Nevertheless, ILP, as a study of international law in its actual operation and the consideration of how international law could work better, has had a significant influence on American international law scholarship.

Type
Symposium on Method in International Law
Information
American Journal of International Law , Volume 93 , Issue 2 , April 1999 , pp. 334 - 351
Copyright
Copyright © American Society of International Law 1999

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References

1 Abram Chayes, Thomas Ehrlich & Andreas F. Lowenfeld, International Legal Process: Materials for an Introductory Course (1968).

2 Id. at xxi.

3 See William N. Eskridge, Jr., & Philip P. Frickey, An Historical and Critical Introduction to the Legal Process, in Henry M. Hart, Jr., & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law at li (William N. Eskridge, Jr., & Philip P. Frickey eds., 1994).

4 See Hart & Sacks, supra note 3; William N. Eskridge, Jr., & Gary Peller, The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 Mich. L. Rev. 707 (1991); Daniel B. Rodriguez, The Substance of the New Legal Process, 77 Cal. L. Rev. 919 (1989).

5 Harold Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599 (1997) [hereinafter Koh, Nations]; Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996) [hereinafter Koh, Transnational]; Harold Hongju Koh, Transnational Public Law Litigation, 100 Yale L.J. 2347, 2400 (1991) [hereinafter Koh, Public Law].

6 Koh, Public Law, supra note 5, at 2394.

7 Hart & Sacks, supra note 3, at liv.

8 Id. at lix–lxii.

9 Id. at lviii.

10 Id. at lxxix–lxxx (quoting Hart’s Legislation Notes (1946–47), Oct. 29, 1946, at 8–9).

11 Id. at civ.

12 Id.

13 Hart & Sacks, supra note 3, at lxxxiii (quoting Henry Melvin Hart, Jr., Notes and Other Materials for the Study of Legislation (1950)).

14 Id. at xci.

15 See Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205, 213 (1993).

16 Chayes, Ehrlich & Lowenfeld, supra note 1, at xi.

17 Hart and Sacks had called on their students to consider three corollaries: first,

no social question can be intelligently studied without a sensitive regard to the distinctive character of the institutional system within which the particular question arises.…

The second corollary is … attention to the constant improvement of all of the procedures.…

The third corollary is …. [k]nowledge of the …. various procedures of official and private settlement, and the principal doctrines and practices which govern their operation and determine their effect.

Hart & Sacks, supra note 3, at 5-6.

18 Chayes, Ehrlich & Lowenfeld, supra note 1, at xii.

19 Koh, Transnational, supra note 5, at 189.

20 Abram Chayes, The Cuban Missile Crisis (International Crises and the Role of Law, 1974); Thomas Ehrlich, Cyprus 1958–1967 (International Crises and the Role of Law, 1974). Both books were part of a series sponsored by the American Society of International Law. Other titles in the series included Robert R. Bowie, Suez 1956 (International Crises and the Role of Law, 1974); and Georges Abi-Saab, The United Nations Operation in the Congo 1960–1964 (International Crises and the Role of Law, 1978).

21 Discussion with Professor Abram Chayes, Baltimore, Md. (Oct. 9, 1998). But see Koh, Nations, supra note 5, at 2618.

22 Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995).

23 Thomas Ehrlich & Mary Ellen O’Connell, International Law and the Use of Force (1993).

24 See Andreas F. Lowenfeld, International Litigation and Arbitration (1993); Andreas F. Lowenfeld, Remedies Along with Rights: Institutional Reform in the New GATT, 88 AJIL 477 (1994).

25 Koh, Nations, supra note 5, at 2620, states that “few international legal scholars openly affiliated themselves with the international legal process school.” But later he writes, “Yet in the United States, the study of legal process continued to dominate the study of international law.” Id. at 2625–26.

26 See Hart & Sacks, supra note 3, at cxiii–cxxv.

27 On dynamic decision making, see, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479, 1496–97 (1987).

28 Eskridge & Peller, supra note 4, at 707; Rodriguez, supra note 4, at 919.

29 Hart & Sacks, supra note 3, at cxxvi.

30 Koh, Transnational, supra note 5, at 188.

31 Koh, Public Law, supra note 5, at 2400.

32 Koh, Transnational, supra note 5, at 181.

33 See, e.g., James N. Rosenau, Along the Domestic-Foreign Frontier: Exploring Governance in a Turbulent World 182 (1997).

34 Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. Pa. L. Rev. 687, 715 (1998).

35 Adam Roberts, The Laws of War: Problems of Implementation in Contemporary Conflicts, 6 Duke J. Comp. & Int’l L. 11, 13 (1995).

36 Amberin Zaman, Turkey’s Alienated Kurds; Government Raids, U.S. Policies Cited as Reasons for Backing Rebels, Wash. Post, Feb. 16, 1999, at All.

37 Chayes, Ehrlich & Lowenfeld, supra note 1, at xii.

38 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Order, 1993 ICJ Rep. 3 (Apr. 8).

39 SC Res, 764 (July 13, 1992).

40 Roberts, supra note 35, at 56–57.

41 See William Drozdiak, Bosnian Serb Gets Life in Massacre of Muslims, Int’l Herald Trib., Sept. 27–28, 1997, at 2.

42 Bosnischer Muslim beteuert seine Unschuld, Süddeutsche Zeitung, Aug. 12/13, 1995, at 6.

43 Id.

44 Director of Public Prosecutions v. T (E. High Ct., 3d Div. Den., Nov. 22, 1994) (Danish Ministry of Foreign Affairs, Legal Service, unofficial trans.) (on file with author) [hereinafter D.P.P. v. T.].

45 See, e.g., Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 146, 6 UST 3516, 75 UNTS 287.

46 Id., Article 2 provides:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

47 D.P.P. v. T., supra note 44.

48 See Drozdiak, supra note 41.

49 Judiciary Act of 1789, ch. 20, §9b, 28 U.S.C. §1350 (1994).

50 Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); see also Xuncss. v. Gramajor, 886 F. Supp. 162 (D. Mass. 1995) (a case by Guatemalans against a former Guatemalan Defense Minister under the Alien Tort Statute).

51 Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AJIL 461, 464 (1989).

52 Jose E. Alvarez, Rush to Closure: Lessons of the Tadić Judgment, 96 Mich. L. Rev. 2031, 2100 (1998). Compare, however, fact-finding commissions, such as the one sent by the Security Council to the former Yugoslavia to investigate human rights abuse prior to the establishment of the international tribunal.

53 See Mireya Navarro, Guatemala Study Accuses the Army and Cites U.S. Role, N.Y. Times, Feb. 26, 1999, at Al.

54 See id.

55 Antonio Cassese, Reflections on International Criminal Prosecution and Punishment of Violations of Humanitarian Law, in Politics, Values and Functions: International Law in the 21st Century 261 (Jonathan I. Charney et al. eds., 1997).

56 Abram Chayes & Antonia Handler Chayes, After the End, in The World and Yugoslavia’s Wars 215 (Richard H. Ullman ed., 1996).

57 The Rome Statute of the International Criminal Court extends individual responsibility to violations of the prohibitions of Additional Protocol II to the Geneva Conventions applicable to armed conflict not of an international character. The statute refers to these as “within the established framework of international law.” Rome Statute of the International Criminal Court, July 17, 1998, Art. 8, UN Doc. A/CONF.183/9*, reprinted in 37 ILM 999 (1998). See also Leila Sadat Wexler & S. Richard Carden, A First Look at the 1998 Rome Statute for a Permanent International Criminal Court: Jurisdiction, Definition of Crimes, Structure and Referrals to the Court (Working Paper Series No. 98-10-1, Washington University School of Law). The statute maintains, however, the limitation of the application of the grave breaches provisions to international conflicts.

58 Alvarez, supra note 52.

59 Id. at 2031–32.

60 Prosecutor v. Tadić, Jurisdiction, No. 1T-94-1-T (Aug. 10, 1995) [hereinafter Tadić Trial Chamber]; Prosecutor v. Tadić, Appeal on Jurisdiction, No. 1T-94-1-AR72 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996) [hereinafter Tadić Appeals Chamber]. These decisions are also available at <http://www.un.org/icty>.

61 Alvarez, supra note 52, at 2035.

62 See Roberts, supra note 35, at 57.

63 Richard Holbrooke, To End a War 261 (1998).

64 Id. at 338.

65 Roberts, supra note 35, at 73.

66 Id. at 17.

67 Crimes against humanity are denned in Article 5 of the Statute of the ICTY as including murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds, and other inhumane acts “when committed in armed conflict, whether international or internal in character, and directed against any civilian population.” Statute of the International Tribunal for the former Yugoslavia, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993).

68 Tadić Appeals Chamber, supra note 60, para. 80.

69 International Committee of the Red Cross, Some Preliminary Remarks on the Setting-Up of an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed on the Territory of the Former Yugoslavia, Doc. DDM/JUR/422b, at 2 (Mar. 25, 1993). See also Geoffrey R. Watson, The Humanitarian Law of the Yugoslavia War Crimes Tribunal: Jurisdiction in Prosecutor v. Tadic, 36 Va. J. Int’l L. 687, 714 (1996).

70 Elsewhere I have supported the maintenance of the distinction for purposes of determining the legality of third-party intervention in armed conflict. The rule on nonintervention has different purposes than humanitarian rules, however, and so no conflict is seen with the argument that maintaining the distinction for human rights and humanitarian obligations makes little sense today. See Mary Ellen O’Connell, Regulating the Use of Force in the 21st Century: The Continuing Importance of State Autonomy, in Politics, Values and Functions, supra note 55, at 443.

71 Article 2 of the Statute of the ICTY provides:

The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;

(b) torture or inhuman treatment, including biological experiments;

(c) wilfully causing great suffering or serious injury to body or health;

(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

(g) unlawful deportation or transfer or unlawful confinement of a civilian;

(h) taking civilians as hostages.

ICTY Statute, supra note 67, Art. 2.

72 Tadić Appeals Chamber, supra note 60, para. 86.

73 Id., para. 79.

74 Id., para. 83.

75 Id.

76 See Louis Henkin, International Law: Politics, Values and Functions, 216 Recueil des Cours (1989 IV), revised and republished as International Law: Politics and Values 13, 24–25 (1995).

77 The Tribunal cites only three examples where no nexus between crimes against humanity and armed conflict is mentioned to support the proposition that the Tribunal can hold individuals responsible for such crimes regardless of the existence of an armed conflict or the nature of the conflict—international or internal. The references are to Control Council Law No. 10 of December 20, 1945, and the international conventions against genocide and apartheid. Tadić Appeals Chamber, supra note 60, para. 140. The Tribunal also cites two examples of state practice contrary to its conclusion: the Nuremberg Charter, which first mentions the crime but requires a connection to an armed conflict (the conflict with which the Nuremberg Tribunal was concerned was certainly international in nature); and the General Assembly resolution affirming the Nuremberg Charter, which carried over the requirement of a connection to an international armed conflict. The Tribunal dismisses these counterexamples as without “logical or legal basis” for the requirement of a connection. Id.

78 Tadić Appeals Chamber, supra note 60, para. 83.

79 D.P.P. v. T., supra note 44.

80 Tadić Appeals Chamber, supra note 60, paras. 127, 134.

81 Id., Separate Opinion of Judge Abi-Saab, at 6 (on file with author).

82 See Douglas M. Zang, Frozen in Time: The Antarctic Mineral Resource Convention, 76 Cornell L. Rev. 722, 735 (1991):

A precondition to the existence of any legal order is recognized authority. Whether the authority comes from a formalized “rule of recognition,” or from a fluid set of shared community values, the existence of some basic norm from which all valid legal principles originate distinguishes a legal order from a system based upon the arbitrary exercise of power. In international law the fundamental source of authority is consensus in the recognition of the legitimacy of a legal norm.

83 See, e.g., Anthony Carty, The Decay of International Law? (1986).

84 See Symposium, McDougal’s Jurisprudence: Utility, Influence, Controversy, 79 ASIL Proc. 266, 271 (1985) (Remarks of Oscar Schachter), cited in Koh, Nations, supra note 5, at 2623.

85 See Hilary Charlesworth, Feminist Methods in International Law, 93 AJIL 379, 381 (1999).

86 See Jeffrey L. Dunoff & Joel P. Trachtman, The Law and Economics of Humanitarian Law Violations in Internal Conflict, 93 AJIL 394, 399 (1999).

87 See Kenneth Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AJIL 361, 362 (1999).