Tag Archive for international law

Engaging the Dragon Through Peaceful Deterrence: Japan’s Need to Recalibrate Its Strategy of Accommodation with China

“Engaging the Dragon Through Peaceful Deterrence: Japan’s Need to Recalibrate Its Strategy of Accommodation with China” by Kapok Tree Diplomacy

© Kapok Tree Diplomacy. Oct 2012. All rights reserved. Jeff Dwiggins. 

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Theoretical Framework

The grand strategies and values of Japan and China will be evaluated from a “Balance of Threat” and “Defensive Realism” theoretical framework.  This essay posits that given China’s rise and Japan’s moment of opportunity to counter, it is important to gauge the feasibility of a values-based concert of democracies within this theoretical framework. Stephen Walt argues that states tend to balance or bandwagon with a rising power depending on their assessment of the perceived threat.[1] Japan’s past, present and future behavior towards China is thus assessed within the parameters of defensive realism which point to Japanese formation of strategic alliances to deal with the anarchy and security dilemma that characterize the international system and create uncertainty of intentions and inadvertent mistrust and conflict.[2] Read more

Blind Man’s Bluff: Kazakhstan’s Mirage of Compliance with International Obligations to Uphold the Freedom of Expression and Freedom of Assembly and Association

“Blind Man’s Bluff: Kazakhstan’s Mirage of Compliance with International Obligations to Uphold the Freedom of Expression and Freedom of Assembly and Association” by Kapok Tree Diplomacy

© Kapok Tree Diplomacy. May 2011. All rights reserved. Jeff Dwiggins.

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Section One – The Right to Freedom of Expression

ICCPR Principles and Obligations. The Universal Declaration of Human Rights (UDHR), though not legally binding, declares that “Everyone has the right to freedom of opinion and expression … and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Art. 19).The ICCPR, which Kazakhstan ratified in 2006 (UN Treaty Collection), expands upon this definition and binds state parties “in accordance with its terms and with international law” (Steiner, Alston and Goodman (SAG) 152). Treaty obligations are to be governed by the Vienna Convention’s Article 26 fundamental principle of pacta sunt servanda which states, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (Dunoff, Ratner & Wippman (DRW) 58). Article 19 of the ICCPR declares:        Read more

Were the rulings of the International Military Tribunal (IMT) more dependent upon customary or statutory international law?

(C) Kapok Tree Diplomacy. 2011. All rights reserved. Jeff Dwiggins. FREE CONTENT

Customary international law (IL) derives from a “combination of ‘state practice’ and opinio juris, the belief that a certain type of conduct under IL is an obligation (Byers 4).  According to Byers, new rules require “widespread support” before they become part of customary IL (4). Cerone adds that the Martens Clause of the Hague Conventions binds IMT“belligerents to remain under the protection and the rule of the principles of the law of nations” until such time as custom becomes statutory in some form or fashion (qtd. in Mertus & Helsing 219-220). Thus, custom serves as a “gap-filling” measure that universally binds all states and may apply to scenarios where IL has not yet been formalized into statutes (Mertus & Helsing 220). Read more

Challenges Facing Outside Actors in Balancing Punitive and Reconciliatory Measures in Nation/State-Building and the Optimum Division of Labor to Overcome Them

“Challenges Facing Outside Actors in Balancing Punitive and Reconciliatory Measures in Nation/State-Building and the Optimum Division of Labor to Overcome Them” by Kapok Tree Diplomacy

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I.    Punitive and Reconciliatory Measures Available in Nation/State-Building

A.    Definitions

B.     Tasks of Nation/State Building (NSB)

C.     Punitive and Reconciliatory Measures Available in NSB Processes

1.     Military Security

2.     Political

3.     Economic

4.     Justice and Reconciliation

II.    Challenges Facing Outside Actors in Nation/State Building

A.    Military/Security Pillar – Challenges Facing IOs, Coalitions and MNFs, and  States

B.    Political and Governance Pillar – Challenges Facing IOs, Coalitions and MNFs, and States

C.    Economic Pillar – Challenges Facing IOs, Coalitions and MNFs, and States

D.    Justice and Reconciliation Pillar – Challenges Facing IOs, Coalitions and MNFs, and States

III.    Section Three – Optimum Division of Labor to Meet NSB Challenges

A.    Proper Mix – International, Regional, Local, Multilateral & Bilateral

B.    Military/Economic/Political Division of Labor

IV.    Summary

Section One – Punitive and Reconciliatory Measures Available in Nation/State-Building

DefinitionsNation-building and state-building are similar but not identical concepts with context often determining which term is applicable. Mary Thida Lun defines nation-building as “the indigenous and domestic creation and reinforcement of the complex social and cultural identities that relate to and define citizenship within the territory of the state” (v).   Read more

Is International Law Genuine ‘Law’?

(C) Kapok Tree Diplomacy. 2011. All rights reserved. Jeff Dwiggins. FREE CONTENT

In answering this question, I must first appeal to the American Law Institute’s “Restatement of the Law, Third, Foreign Relations Law of the United States.” In Section 101 it defines international law as follows: “international law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”

Section 102 of this document refers to the sources as “customary law,” “international agreement,” and “derivation from general principles common to the major legal systems of the world.” Section 103 refers to the evidence of international law being “judgments and opinions of international judicial and arbitral tribunals;” “judgments and opinions of national judicial tribunals;” “the writings of scholars;” and “pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.”

Thus, to answer the question of whether international law is law, one must look at its rules and principles inherent in its definition, its sources, and its evidence to make a determination as to its strength, validity, coherence and legitimacy. I would submit that the whole point of law is to bring about justice as a vehicle for truth and liberty. Does international law result in justice? Do its sources and evidences comport with truth and equality? Read more

The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy

“The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy” by Kapok Tree Diplomacy

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Section One – History, Structure and Mandate of the ICC

Background.  The United States has supported bringing human rights violators to justice for many decades. After World War I, the Allies charged Kaiser Wilhelm II of Germany in the Versailles Treaty with “a supreme offense against international morality and the sanctity of treaties,” a first in holding a head of state accountable for his actions (Feinstein & Lindberg 23). The Nuremberg and Far East tribunals affirmed “individual culpability for crimes against peace” following World War II by indicting several senior officials in a multinational setting (Fletcher 235).  The UN General Assembly subsequently charged the International Law Commission (ILC) in 1948 with drafting a statute for an international criminal court (Murphy 4). Read more

International Law’s Expansion into Individual Affairs: A Tug of War over Tradition, Jurisdiction and Universal Human Rights

Introduction – (C) Kapok Tree Diplomacy, July 2010, All rights reserved. Jeff Dwiggins, author.

FREE CONTENTFort Derussy Park, Honolulu

As international law extends beyond traditional state-to-state interactions into matters directly involving the rights and wrongs of individuals, its pervasive encroachment directly collides with domestic law on important issues of supremacy, customary norms, jurisdiction, human rights and sovereign immunity. Courts often struggle to navigate the chasm between the two realms of international and domestic law and produce cogent, universally accepted decisions that fall within uncontested limitations and clear jurisdictions.

This paper will explore the challenges, benefits and trade-offs of a non-traditional application of international law in cases involving individuals where the dynamics of tradition, jurisdiction and human rights interact in overlapping spheres of domestic and international law, producing a compelling tug of war between competing interests.  I’ll begin by examining the issue of international and universal human rights.

The posts, views and opinions expressed on this site are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

Section One – International Human Rights v. The Interests of States

The Preamble of the United Nations (UN) Charter calls upon member states to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,” while Articles 55 encourages member states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (“Preamble” and “Chapter IX”). A thorough reading of the Charter, however, doesn’t uncover any definition or mandate for human rights which has complicated a universal embrace of uniform standards for human rights. Read more

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