The Relationship of International Criminal Tribunals to Domestic Courts: Towards a New Division of Labor? (L'Articulation Entre Tribunaux Penaux Internationaux Et Juridictions Nationales: Vers Un Nouveau Partage Des Competences Judiciaires?)
International criminal justice claims to challenge the very fundamentals of the international legal order. Yet international criminal justice is also still very much a work in progress. It success will depend on how well it can deal with its great founding dilemmas, while respecting international law and its continuity. No question seems more central yet more ambiguous to international criminal tribunals' existence, in this context, than how they relate to domestic courts. This is an issue which in fact raises anew the very conundrum at the heart of international criminal tribunals' creation and identity. On the one hand, international criminal tribunals can be seen from a "universalist" perspective which argues that they are first and foremost about the emergence of a global public order; on the other hand, they can be conceived from a "sovereignist" angle, which sees their prime duty as working for the benefit of states whose crimes they are judging. It is by putting this problematic relationship back into its overall evolution and, in particular, by focusing on what a "non-functioning" domestic court is under international law, that it will become possible to transcend that ambiguity. It will appear that the issue of what is a domestic court that is either "unwilling" or "unable" is in fact an old international law question whose understanding can be improved by a dynamic reading of the evolution of international law. In final analysis, however, it may be that the International Criminal Court's capacity to emancipate itself entirely from the political will be limited, as the Prosecutor adopts a prosecutorial policy which, in itself, is unlikely to be reducible to law's categories.
Book Review: The U.N. Convention on Torture and the prospects for enforcement
Preface. Abbreviations. 1.The Scope of the Torture Convention. 2. The Nature of the Obligations Incurred by States Under Article 2 of the Torture Convention. 3. The Problems of Enforcement of Human Rights. 4. A Commentary on the Enforcement Mechanisms by the States Parties of the Torture Convention. 5. Commentary on the International Machinery for the Supervision of the Implementation of the Torture Convention. 6. General Conclusions. Bibliography. Appendix I.
The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights
The deprivations with which we are here concerned are those imposed upon individuals on the ground that they do not possess the “nationality” of the imposing state. By nationality we refer to the “characterizations” states make of individuals for the purpose of controlling and protecting them for the many comprehensive concerns of states. Since the larger transnational community honors states in the conferment and withdrawal of “nationality” upon many different grounds—including place of birth, blood relation, subjective identification of individuals, and various activities—these characterizations may bear little relation to the actual facts of particular community membership and, hence, to reasonable differentiations in terms of common interest in the larger community of mankind. It is our thesis that most deprivations imposed through these characterizations are made unlawful, not merely by the historic law of the responsibility of states, but also by a newly emerged general norm of nondiscrimination which seeks to forbid all generic differentiations among people in access to value shaping and sharing for reasons irrelevant to individual capabilities and contribution.