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None of your libraries hold this item. Found at these bookshops Searching - please wait We were unable to find this edition in any bookshop we are able to search. These online bookshops told us they have this item:. Tags What are tags? I then turn to identify some of the most significant second-order questions and how we might begin to address them. During wartime a critical legal question involves the scope of authority to choose whether to kill or capture enemy combatants.
One view maintains that a combatant is lawfully subject to lethal force wherever the person is found — unless and until the individual offers to surrender. In contrast, this article concludes that important restraints on the use of deadly force were a part of the agreement reached by states and codified in the First Additional Protocol to the Geneva Conventions.
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When nations of the world focused their attention on balancing principles of humanity and military necessity, and making higher law, they agreed on two important sets of rules. Under Article 35, states agreed to prohibit the manifestly unnecessary killing of enemy combatants. And, under Article 41, they agreed that combatants who are completely defenceless, at the mercy of enemy forces, shall be considered hors de combat. Nevertheless, the general constraint — and its key components — should be understood to have a solid foundation in the structure, rules, and practices of modern warfare.
In his Reply to my article, Professor Schmitt thoughtfully engages with my analysis. His representation of my argument is fair, and he interrogates the merit of my position squarely.
Human Rights Norm Diffusion in Southeast Asia
In addition, he shows a willingness to modify his earlier positions in light of my research,1 another feature of his writing that demonstrates an extraordinary quality of mind and intellectual character. I am honoured to engage with his ideas in this Rejoinder. First, I discuss Professor Schmitt and my points of agreement and the significance of our shared understanding for the kill-or-capture debate. Secondly, I examine the content and importance of our remaining disagreement.
The article presents information on the concealment and persecution of sexual orientation with reference to the asylum protection of the gay and lesbians refugees and the landmark case HJ Iran v. Secretary of State for the Home Department wherein the plaintiff, a homosexual, went through imprisonment and lashing due to the anti-sodomy laws in Iran and the decision of the Supreme Court of Great Britain regarding the case. The international human rights law defines the meaning and forms such as the psychological form of persecution under the refugee status.
Information on the decisions of the courts of Great Britain and Australia regarding the discretion in the asylum claims of sexual orientation is also presented. According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct.
Roles of Civil Society Organizations (CSOs) in Ending Extrajudicial Killings in the Philippines
This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello.
International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare.
One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. The authors respond to critical remarks made by professor Roda Mushkat about their article "Incomplete Internationalization and Compliance With Human Rights Law," published in a issue. They clarify their point about acculturation, which is that a proper theoretical account of such would improve understanding of international law. They call Mushkat's analysis of China and Taiwan instructive, although there are aspects of her account which suggest that coercion- and persuasion-based explanations of social influence are lacking.
Goodman comments on the legality of the government's detention scheme that has been mired in confusion. The confusion surrounding the current and future direction of US detention policy stems in significant part from those misconceptions or misuses of the law. The Supreme Court, the Obama administration, Congress, and legal advocates now have a new opportunity to decide whether and how to align US legal discourse and policy with longstanding international legal framework.
In earlier work, we argue that acculturation is a distinct social process by which international law influences states and that human rights law might harness this mechanism in designing effective global regimes. In this article, we consider an important objection to our work. The concern is whether acculturation institutionalizes non-compliance.
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The growing body of empirical evidence for global-level acculturation, in part, documents persistent forms of decoupling — suggesting that formal commitments to global culture often fail to change concrete practices of local actors. In the human rights context, this is particularly troubling, given the prevalence of seemingly disingenuous acceptance of human rights instruments by states with poor human rights records. Many critics suggest, and understandably so, that acculturation should not guide the design of international human rights regimes since any such regime would promote only shallow reforms — further entrenching the gap between formal commitments and actual practices.
The problem with human rights law, on this view, is that it is under-enforced — not that it is insufficiently acculturative. In reply, we argue that acculturation generally does not impede progress toward deeper reform and, indeed, will often facilitate it. While we support the empirical study of these phenomena and indeed we rely on many such studies in formulating our critique , we identify several problems with Hathaway's project. We suggest that these problems demonstrate serious deficiencies in her empirical findings, theoretical model, and policy prescriptions.
Scholarship in international law is preoccupied with the structural tension between state sovereignty and international obligation. This preoccupation presupposes that states incur sovereignty costs when entering binding international commitments. In our view, this presupposition requires substantial qualification. In this Article, we propose a sociological model of sovereignty that views states as organizational entities embedded in and reflecting a wider social environment.
Such an approach, we maintain, illuminates the ways in which constraints empower actors including states.
Our claim is not simply that international law helps overcome collective action problems by facilitating cooperation and coordination. Rather, we maintain that the constitutive features of the contemporary nation-state - including its status as a legitimate, sovereign actor - derive from worldwide models constructed and propagated through global cultural and associational processes.
In issue areas ranging from public education to environmental protection to the laws of war, these models: define and legitimate purposes of state action; and shape the organizational structure and policy choices of states. These processes 1 define the organizational form of the modern state; 2 delimit the legitimate purposes of the state; and 3 constitute states as the principal legitimate actors in the world polity.
The institutionalization of world models also helps explain many characteristics of the contemporary state system, such as striking similarity in purposes and organizational structure despite diversity in local resources and cultural traditions, and structural decoupling between functional task demands and persistent state initiatives.
We suggest that the insights generated by this approach recast debates about the utility and prospects of reconciling state sovereignty and international law. Goodman argues that a human rights treaty regime that permits third-party institutions to sever an invalid reservation maximizes state consent.
He draws on empirical studies in international relations and analyzes comparative state treaty practice, concluding by proposing an interpretive presumption for such a treaty regime in light of the available empirical record. Social norms scholarship offers various conceptual models for understanding law's capacity to produce or inhibit particular behaviors. The current literature, however, has inadequately attended to either testing these theories through empirical research or studying law's ancillary effects on social structure and individuals' lives.
In response, this Article undertakes an empirical study of the social effects of an unenforced criminal law: sodomy statutes. The Article examines the constitutive impact these laws have on individual identity, social relations, and conceptions of public space. This aspect of the study is based on ethnographic research conducted in South Africa before and after the country's sodomy laws were abolished.
The findings of this inquiry provide the empirical basis for development of a conceptual model for understanding the process by which laws intersect with informal social surveillance to produce a regime in which lesbians and gays are ultimately encouraged to discipline themselves. In developing this framework, the Article calls for integrating these understandings of micro-level social relations into a macro-sociological perspective on the regulatory effects of law. The Article thus examines the influence exerted by the criminalization of homosexuality on other institutional discourses such as religion and medicine.
These connections are explored as one way of analyzing law's constitutive effects in shaping and remaking social norms. Goodman argues that, in principle, the US's position in defending its use of economic sanctions against Cuba and Burma involves a wholly legitimate definition of "security interests" and that the US stance, rather than representing a retreat from international legal norms, reflects and contributes to them. Based on the legal and social history following WW II, he submits that the US invocation of the particular defense--that another state's severe mistreatment of its citizens threatens US security interests--accords with emergent international norms.
The recent reinstatement of the California Civil Rights Initiative CCRI withdrew many opportunities for racial minorities and women in important public sectors. As a legal matter, the 9th Circuit decision that justified this result - Coalition for Economic Equity v. Wilson - rests on questionable grounds. The appeals employed novel reasoning to distinguish the Supreme Court's "political structure" equal protection precedent - the so-called Hunter doctrine - which invalidates initiatives that obstruct minorities seeking beneficial local legislation.
The 9th Circuit held that the Hunter doctrine provides "equal protection rights against political obstructions to equal protection," not "equal protection rights against political obstructions to preferential treatment. South, New York, NY Faculty Ryan Goodman.
Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions
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