The Curious History of the Minerva Reefs: Tracing the Origin of Tongan and Fijian Claims Over the Minerva Reefs

ABSTRACT

This article explores the historical events relating to the competing claims over the Minerva Reefs by Tonga and Fiji. Tonga’s sovereign claim over the Minerva Reefs was prompted by a private group’s laying claim to a 'Republic of Minerva' in 1972. At that time, Fiji, as well as the South Pacific Forum, recognized Tonga as the only possible owner of the Minerva Reefs, but did not explicitly recognize Tonga's claimed sovereign title. Such a position reflected the legal uncertainty in relation to Tonga's claim in 1972. The establishment of the 200?nm Exclusive Economic Zone legal regime in the late 1970s gave rise to Fiji's claim to the Minerva Reefs, whereas subsequent developments in international law have significantly reduced the legal uncertainty in relation to Tonga's claim.     

Must secession be rebellion?

Some constitutional theorists claim that secession is necessarily rebellion and that there cannot be a constitutional right to secession. I (1) try to show that these claims are implausible, (2) explore the non‐legal assumptions about the nature of the state and the citizen which make the acceptance or rejection of these legal claims plausible, (3) consider the desirability of incorporating a provision for secession in the constitution of liberal democratic states.     

Pinochet: The Politics

Against the background of the Pinochet affair, the author considers that a new era of international politics is in the process of being created. The House of Lords' ruling which has allowed extradition procedures against the former Chilean dictator, is understood as a formidable and groundbreaking decision in international law based on the defence of human rights against crimes committed by authoritarian and unlawful rulers. The decision taken under the European Convention on extradition and the setting up of a Permanent International Criminal Court in the summer of 1998 are, according to the author, signs that international law and international politics are moving in the direction of a universal acceptance that violators of human rights must bepunished.
However, the author is also cautious about the tension between the new path opened to international politics and the old power politics based on the absolute and indivisible sovereignty of the state. Double standards will certainly prevail and powerful states, in particular the United States, are reluctant to accept that international law and international politics are in the process of change.     

Secularization,Legal Pluralism,and the Question of Relationship-Recognition Regimes

Abstract

In this article I contend that the re-emergence of religion in Western liberal states is a feature of a much broader phenomenon, namely, the re-establishment of legal pluralism whereby various social actors claim to be the legitimate producers of their own law. To prove this, I first offer an account of secularization as the successful attempt of modern states to dismantle a legal-pluralist system. Based on this, I argue that the reviviscence of religions is the reviviscence of their practical side: religious practices tend to be perceived by religious group members as providing guidance for conduct, one that challenges the rules of the state legal order and its monistic structure. Finally, by exploring the issue of same-sex union recognition, I defend the claim that, in a truly post-secular society, the state should allow a multiplicity of relationship-recognition models that reflect and meet different interests and needs.     

Undoing the global constitution: UN Security Council action on the International Criminal Court

The adoption of the Rome Statute of the International Criminal Court (ICC) adopted in 1998, marked the culmination of the international constitutional law–making of the twentieth century. The Statute reflects a vision of an advanced universal legal order, administered through a process of multilayered international governance. In this article the author examines the key elements of this design, including the doctrine of universality of international criminal jurisdiction, the process of universal law–making and international institution–building. The author places these concepts, and the ICC itself, into the context of the emerging international constitutional order. He also considers the attempts of the United States government to undermine some of the key assumptions that underpin the concept of the ICC. In addition to analysing the objections put by the US government, the author addresses its campaign in the United Nations Security Council to exempt US service personnel and others from the reach of the court. He argues that this episode represents a very important factor in the possible development of two parallel international legal systems: one of universal application, and a special set of rules and exemptions that, it is argued, should only apply to the one remaining superpower.     

The Advantages of Ambiguity? Development,Rule Formation and Property Rights During Transition in China

Legally protected individual private property rights and a constrained state are doctrines of neoclassical economics-derived development theory. But what about China? It lacks strong rule of law, property rights can be collective, contested and ambiguous, and the state is relatively unconstrained and maintains a central role in the economy; yet it has seen impressive economic growth to take it to the world’s second largest economy. I argue that in the absence of legal/rational protections of individual property rights, political and social networks can provide alternative methods of property protection, allowing for economic development – with political protection substituting for legal. The novel claim I make is that ambiguity of property rights can provide opportunities and spaces for development and innovation, with the building of meaning and institutions found in a transitional state, where rules are unclear and contested, and where formal rules can “catch up” if apparent success can be demonstrated.     

Constitutional change in Tuvalu

With constitutional change playing an important role in the evolving political status of the small Pacific island state of Tuvalu, island leaden seeking to protect its indigenous culture and values adopted a new constitution in 1986, eight years after independence. The document's commitment to the Tuvaluan way of life challenges aspects of the democratic ethos, as its phrasing* resonate more closely with Tuvalu's values and nationalism than with Western concepts of individual entitlement. Although divisions persist within the Pacific over the role of custom and tradition in political and legal affairs, developments in Tuvalu suggest one approach for states grappling with comparable political and cultural concerns.     

论历史性权利在海洋划界中的作用

历史性权利在海洋划界中作用的法律基础既包括条约法也包括国际习惯法。历史性权利分属不同的法律基础,使其在海洋划界中发挥不同的作用。以《联合国海洋法公约》为代表的条约法,规定了历史性所有权或历史性海湾在领海划界中的优先作用,明确了历史性所有权、历史性水域在海洋划界争端解决程序中具有任择性例外的作用,并确立了历史性捕鱼权在群岛水域划界中具有特别适用的功能;而国际习惯法确立的历史性权利规则在海洋划界中的作用,虽然目前国际法上尚无明确规定,但在国际实践上,其主要以并行适用方式发挥作用。历史性权利在海洋划界中的不同作用,为未来我国与周边国家尤其是南海周边国家海洋划界提供国际适法导引。     

‘The Sustenance of Salisbury’ in the era of Decolonization: The Portuguese Politics of Neutrality and the Rhodesian Oil Embargo, 1965–7

This article investigates Denmark's international legal status during the Second World War. In exploring this theme it brings together two emergent research perspectives on twentieth-century international political history: (1) a growing interest in small states as actors and active interpreters of international political events in times of crisis and war; and (2) a focus on international law as an independent and so far underexplored research theme. From this double perspective the article highlights and analyses the unprecedented and unparalleled character of the legal relationship between Denmark and Germany after the German occupation of Denmark in April 1940. In doing so it places particular focus on how this situation was viewed and conceptualised by Danish politicians and legal experts. Thus it explores the complex entanglement of politics and law that characterised Danish attempts to bring about and consolidate the particular peaceful and ‘normal’ relationship with Germany as well as efforts to change this relationship and make Denmark a belligerent state. By analysing the four concepts of neutrality, non-belligerence, peaceful occupation, and war the article shows how these legal concepts served as political instruments that were pushed forward by competing and changing understandings of Denmark's international position and interests during the war. But it also shows how these legal conceptualisations were fundamentally structured by the general international legal and political developments of the war (the deterioration of neutrality and the emergence of long-term military occupation and guerrilla warfare throughout Europe). And it demonstrates how they gradually took on a life of their own and came to frame and shape perceptions of Denmark's international position - both among Danish politicians and bureaucrats during the Second World War and among historians to this day.     

“Genocide is Fascism in Action”: Aron Trainin and Soviet Portrayals of Genocide

ABSTRACT

This article examines the Soviet legal scholar Aron Trainin’s evolving writings on international law. Initially, Trainin formulated aspects of his concept of “crimes against peace” as a sort of Soviet alternative to Raphael Lemkin’s crimes of barbarity and vandalism. Crimes against peace both converged with the larger international movement to outlaw aggressive war, provided a Soviet alternative to proposed international crimes that they believed would threaten Soviet sovereignty, and provided a Soviet response to Lemkin’s proposals to outlaw mass killings. During World War II, Trainin articulated the Nazi extermination of the Jews as “crimes against peaceful civilians,” linking the Nazi atrocities to his concept of crimes against peace. Trainin’s concept of “crimes against peaceful civilians” encompassed the atrocities of the Holocaust while also asserting that the Soviet experience of the war – most notably Soviet sacrifice and suffering – meant that the Soviets should determine how international criminal law punished the war’s perpetrators. After World War II, when it became clear that genocide, rather than “crimes against peace” or “crimes against peaceful civilians,” was becoming the primary concept in international law to understand mass killings, Trainin portrayed the concept of genocide according to the perspective of Soviet propaganda, opposing an international criminal court for genocide, supporting the concept of cultural genocide, and portraying genocide as an inevitable outcome of capitalism. At the same time, Trainin and the Soviets never abandoned his concept of “crimes against peace,” portraying capitalism as inherently bound up with war and genocide. Trainin was the most significant genocide scholar in the Soviet Union, and his work exemplifies both the ways in which Soviet approaches to international law converged with other approaches, and the ways in which the Soviet Union diverged from non-Soviet international law.     

The international monetary system: diffusion and ambiguity

This article examines the dynamics of power and rule‐setting in the international monetary system. It begins with a brief discussion of the meaning of power in international monetary relations, distinguishing between two critical dimensions of monetary power: autonomy and influence. Major developments have led to a greater diffusion of power in monetary affairs, both among states and between states and societal actors. But the diffusion of power has mainly been in the dimension of autonomy, rather than influence, meaning that leadership in the system has been dispersed rather than relocated—a pattern of change in the geopolitics of finance that might be called leaierless diffusion. The pattern of leaderless diffusion, in turn, is generating greater ambiguity in prevailing governance structures. Rule‐setting in monetary relations increasingly relies not on negotiations among a few powerful states but, rather, on the evolution of custom and usage among growing numbers of autonomous agents. Impacts on governance structures can be seen on two levels: the individual state and the global system. At the state level, the dispersion of power compels governments to rethink their commitment to national monetary sovereignty. At the systemic level, it compounds the difficulties of bargaining on monetary issues. More and more, formal rules are being superseded by informal norms that emerge, like common law, not from legislation or statutes but from everyday conduct and social convention.     

Explaining compliance with international law: Broadening the agenda for enquiry

Current theoretical understanding of compliance with international law is based on an assumption that international law consists of a finite set of objective, compulsory rules. This image does not match reality but the two can be reconciled through theorising international law as ideology. Such an approach subsumes questions as to why states do or do not obey law and what influence international law has on foreign policy decision making. By placing the relationship of state behaviour to international law in a broader perspective it can account for previously identified determinants of compliance and provide a basis on which to assess their relative significance. At the same time, the research agenda regarding compliance is broadened by the introduction of fresh questions.     

Courtroom to Classroom: Justice Harlan's Lectures at George Washington University Law School

John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law.     

National subjects and subversive subjectivity: Deportation and the paradox of the anarchist citizen in the era of the First Red Scare

According to the Westphalian system of international law, all people are meant to be citizens or subjects of territorially bounded and sovereign nation-states, which in turn guarantee certain rights to, and impose certain duties upon, their members. Anarchism, by contrast, is predicated upon a rejection of the legitimacy of state sovereignty, and a refutation of the justness and practicability of representative government. Anarchists took individual and collective “self-determination” to their logical extremes—and in the process confounded state legal regimes and bureaucracies that understood national belonging and individual rights only in terms of citizenship. From the perspective of the United States, alien anarchists “belonged” back in their countries of origin, but from those European states' perspective, anarchists had no place in their national communities. This article examines how both radicals and governments in the era of America's “First Red Scare” engaged with the rules governing the interstate system. As individual radicals, government functionaries, and international diplomats wrestled to define where anarchists belonged in the international order of nation-states, the solutions they found simultaneously reinforced the boundaries of the Westphalian system and revealed contradictions and fissures within it.     

Killing with kindness: funding the demise of a Palestinian state

This article sets out to show the widening gulf that has emerged between the international community's professed diplomatic endgame to resolve the Israeli-Palestinian conflict following a two-state paradigm, the aid strategy it has put forward since 1993 in support of this political goal, and the developments on the ground in East Jerusalem, the West Bank and the Gaza Strip. Within the context of a volatile Oslo peace process and the intifada, aid to the Palestinians has mainly been used as a substitute for international political will and to compensate for the lack of genuine bilateral negotiations between the parties. Aid, however, cannot buy peace. Not only has the international community's 'aid for peace' strategy failed to attain its stated political and socio-economic objectives, but it is also the central contention of this article that such international intervention has actually been harmful. Donors have ended up financing Israel's continued occupation of the Palestinian territories and its expansionist agenda at the expense of international law, the well-being of the Palestinian population, their right to self-determination, and the international community's own developmental and political goals. Looking ahead, despite the widespread current optimism generated by Gaza disengagement, this does not bode well for the emergence of a viable Palestinian state or the individual and collective security of the Israeli and Palestinian people.     

Left justified: The early campaign for an international law response to Khmer Rouge crimes

In April 1979, a mission of the International Association of Democratic Lawyers made a solidarity visit to Cambodia in the immediate aftermath of Khmer Rouge rule of the country. One of the mission members, John H. E. Fried, a former advisor to the United States' military trials at Nuremberg, was moved to subsequently advocate for United Nations recognition of the then ostracised Cambodian state. The crisis of post-Khmer Rouge Cambodia, and the political justifications made by early visitors there, illuminate late Cold War cultures of progressive international law scholarship and activism through their constitutive affects and material practices. While legal investigation of Khmer Rouge crimes is now largely understood through the frame of ‘transitional justice’, this paper rejects such a framing. It argues instead for attention to Cambodia's early experiences, in which left legal activism – calling for Nuremberg's lessons to be applied to the violence perpetrated in Vietnam and Cambodia – played an important role. For scholars interested in post-1979 Cambodia, the Tuol Sleng Genocide Museum historical visitor books, recently digitised, promise insight into the multiple actors, motivations and understandings of international ‘early responders’ to evidence of Khmer Rouge crimes.     

The Future of International Criminal Evidence in New Wars? The Evolution of the Commission for International Justice and Accountability (CIJA)

This article explores the intellectual formation of the Commission for International Justice and Accountability (CIJA). It illuminates how the development of the CIJA was an attempt by state and non-state actors to affect the course of international criminal justice in Syria and Iraq. First, this article argues that the CIJA was the result of four factors: the UK Foreign Office’s desire to support human rights activists in Syria; lessons learned from previous international criminal tribunals; attempts by non-state legal practitioners to invent new ways to overcome the gaps and limitations of the international criminal justice system; and the willingness of Syrian civil society to risk their lives and use the law to hold those responsible for mass atrocities to account. Second, the article argues that as non-state actors with a focus on evidence management, the CIJA may represent an innovative approach to investigating mass atrocities, particularly for activists and civil society actors who wish to play a role in evidence management in new wars. Lastly, it shows how the CIJA may work in parallel with international mechanisms, such as the International Criminal Court (ICC) and other inter-state actors, to collect evidence of war crimes, crimes against humanity, and genocide in new wars, particularly when the ICC is unable to do so. This study combines qualitative research with empirical analysis and draws on a range of primary and secondary sources, including a number of interviews conducted with CIJA personnel, former ICC practitioners, and other practitioners in international criminal law.     

Japan’s strategic interests in the South China Sea: beyond the horizon?

Japan has a national interest in the South China Sea issue. Although its direct commitment is ultimately limited in a material sense due to a lack of military capabilities, as well as political and constitutional constraints on the Self-Defense Force, Japan has maintained its firm stance to uphold international maritime rules and norms, and nurtured strong diplomatic relations and conducted maritime capacity-building programs with the South-East Asian states, as well as the Association of Southeast Asian Nations. These actions contribute to consolidating the rule of law at sea and provide those claimant states an opportunity to withstand pressures from China. Given the Trump administration’s unclear South China Sea policy and South-East Asia’s strategic uncertainty, Japan is becoming a key player in maintaining regional maritime stability in East Asia through diplomacy.     

Strengthening gender justice in the Asia-Pacific through the Rome Statute

Many conflicts in the Asia-Pacific region have included sexual violence crimes targeted primarily against women. However, in comparison to other regions, Asia-Pacific states have been reluctant to embrace international law innovations to end impunity for such crimes into the future, as evidenced by their unwillingness to become signatories to the Rome Statute of the International Criminal Court. Of the 39 countries constituting the Asia-Pacific region, only 17—less than half—have joined the Rome Statute. This article initially surveys some of the reasons for non-ratification of the Statute. It further examines the role of civil society and the potential normative impact of the Statute to enhance national sexual violence legislation and prosecutions. Finally, it identifies some practical steps that the Australian government could take to encourage regional states to ratify, implement and enforce the Rome Statute in order to further protect all victims of international crimes and bolster the broader Women, Peace and Security framework.