Our New Summer Issue (43:4)

October 10, 2011

Our summer 2011 issue is now available online at our official NYU website.

Also check out our book annotations.


Issue: Fall 2010

April 17, 2011

The Fall 2010 issue of the Journal of International Law and Politics is available at our official NYU website.  The contents are as follows:

The new issue also comes with our usual batch of book annotations.  In this issue, our staff reviews books by Burrus M. Carnahan, Michael Gross, Peter Jan Honigsburg, Franziska Humbert, David Kinley, James L. Nolan, Jr., Michael Scharf & Paul Williams, and Siobhan Wills.  We also cover several new edited volumes: Avant, Finnemore, and Sell’s study of global governance; Bowden, Charlesworth, and Farrall’s volume on post-conflict issues; and Steven Roach’s volume on the International Criminal Court.


The Amendment of Spain’s Arbitration Act: A Promising But Unfinished Agenda

March 15, 2011
By Guillermo Bayas Fernández
Attorney-at-law in Spain
Fundación Rafael del Pino scholar
NYU LL.M. Candidate, Class of 2011

Abstract

Last September, the Spanish Government sent to the Parliament a bill (the Bill) to reform the current Spanish Arbitration Act (Ley 60/2003, de 23 de diciembre, de Arbitraje), which is now being discussed in Congress. The Bill improves different aspects of the existing regulation, mainly those concerning the action to set aside the award, arbitrators’ liability, arbitration of corporate disputes and the effect of insolvency proceedings on arbitration agreements. However, the possible suppression of dissenting opinions prejudices arbitration and the regulation on challenge of judicial jurisdiction favors frivolous attempts to avoid abiding by arbitration agreements. respective  Additionally, the proposed assignment of functions among judicial bodies in arbitration issues lacks coherence and does not create a long-demanded unification appeal on arbitration matters. While this article welcomes some of the intended modifications, it raises concerns that Spain might be losing a unique opportunity to adopt a modern regulation that would advance its chances of becoming a prime international arbitration seat.

Read the rest of this entry »


Further Developing the ‘Playstation Mentality’

November 28, 2010

By Graham Dumas (J.D. Candidate 2011)

Philip Alston famously described the use of drones by the U.S. military and the CIA as potentially leading to a “playstation mentality,” in which the human and capital costs of strikes are so decreased from the perspective of the striking force that fewer precautions are taken in conducting such strikes. The criticism is valid, although it has been refuted by government lawyers from Harold Koh on down.

Yet reduced costs may not have universally negative results. Michael Walzer, in his seminal work Just and Unjust Wars, wrote about the moral duty on combatants to expose themselves to further risk in order to save the lives of civilians caught in combat zones. With drones, however, especially the land-based models described recently in the New York Times, the reduction or even elimination of risk to the human operator could make it easier for the military to warn effectively the civilian population ahead of or during operations. What is more, the moral ambiguity of using human soldiers as tools for the aim of reducing civilian casualties, which arises from the government’s duty to ensure (as far as possible) the right to life of its own forces, all but disappears with the use of drones.

One of the most effective uses of robotic vehicles in combat, then, may not be to kill the enemy, but to warn the innocent. The “playstation mentality” may thus reduce the apparent costs of giving effective advance warning to non-combatants–forces will be more willing to go farther to warn, just as they have been in executing strikes. Taking it a step further, there could be a legitimate argument that, as militaries acquire drone technology, they could become bound by article 57 of Additional Protocol I to use those drones to ascertain the status of potential targets and to ensure that civilians are not threatened during operations.

This is, of course, not to exonerate or justify the use of drones in warfare; the position I take is neutral and without prejudice to, for example, the U.S. military’s campaign of Predator strikes in the Af-Pak region.


Louis Henkin in JILP

November 16, 2010

In memory of Louis Henkin, who died last month in New York, I recently took to the archives, to see whether any of his work had found its way into the NYU Journal of International Law and Politics.  While Henkin’s byline never appeared in any of JILP’s forty-two volumes, his work nevertheless left a mark on our pages.

In the seventh volume of JILP, a review of Henkin’s Foreign Affairs and the Constitution recognized the supreme importance of this work to the field of U.S. foreign relations law.  (7 N.Y.U. J. Int’l L. & Pol. 203.)  Henkin, Stanley Futterman wrote, spoke with “the natural modesty and courage of the true teacher.”  But our reviewer soon takes  a more critical stance in light of Henkin’s discussion of Vietnam. Read the rest of this entry »


Prisoners’ voting rights: a success story for the enforceability of the ECHR?

November 9, 2010

By Emily MacKenzie, NYU School of Law, (LL.M Candidate, 2011)

The last week has seen a tense discourse in political and legal circles in the UK centering on prisoners’ voting rights. This discussion in some sense represents the culmination of five years of debate about the enforceability of judgments made by the European Court of Human Rights (ECtHR). In March 2004 the ECtHR held unanimously in Hirst v UK that the UK’s blanket ban on prisoners voting violated Article 3 Protocol 1 of the European Convention on Human Rights (ECHR). Despite the rejection of the UK’s appeal to the Grand Chamber, and the obligation under Article 46 ECHR to enforce Strasbourg judgments, the government has to date failed to enact legal reform to implement this decision. Whilst there has been an ongoing consultation, it is not overly cynical to describe the process as merely ‘going through the motions.’ The unexplained delays, refusal to entertain the option of allowing all prisoners to vote, and the government’s consistent expression of its disagreement with the ruling all attest to this conclusion.

Repeated criticisms by the Council of Europe came to a head when the government failed to act on any of the proposals in time to allow prisoners to vote in the June 2010 election.  Last week, however, UK newspapers reported that the new coalition government is finally going to implement the judgment. (See coverage by The Guardian here.)  The exact program and timescale of reform remain unclear, but it seems to be generally accepted that a change is in the offing. The governmental attitude remains, however, that such reform is something imposed on the UK by Europe, that it is not something that the government wants, and that they will apply it as restrictively as possible. In light of this continued reticence, one may ask: why after five years of stalling is the government finally giving in? Read the rest of this entry »


Waldron on Vagueness, the Rule of Law, and Torture

November 7, 2010

This week, Professor Lawrence Solum’s Legal Theory Blog features Vagueness and the Guidance of Action by Jeremy Waldron (NYU Law).  The paper is relevant to this blog not only for its general discussion on rule of law values, but also because its final pages focus specifically on the U.S. torture statute.  The abstract:

This paper is part of a more general argument I am pursuing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not always be conceived as the rule of rules (as opposed – sometimes – to the rule of standards). The objection to standards is that, because they use predicates like “reasonable” or “excessive,” they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she stands so far as the law’s application is concerned. And these are thought to be affronts to the Rule of Law. In this essay, I attempt to address those objections, using as a paradigm the “reasonable speed” statute considered in State v. Schaeffer 96 Ohio St. 215; 117 N.E. 220 (1917). I argue that standards do provide guidance for action: they guide the use of our practical reasoning not just to apply a given rule but to figure out what kind of action is appropriate in varying circumstances. In that sense they are as respectful of our dignity and our capacity for agency as rules are (in their different way). (These questions are pursued partly in the context of Joseph Raz’s conception of authority.) I also consider issues about fairness and the possible chilling effect of using rules, taking my lead from comment of the court in State v. Schaeffer that it was precisely the intention of the Ohio statute in question to chill the enthusiastic and aggressive driving of (what the court called) “[t]he reckless, wanton speed maniac.” Finally some of the insights of this essay are applied to issues about the interpretation of statutes prohibiting torture, and the possible vagueness of those prohibitions.