Volume 36

Supervised Independence and Post-Conflict Sovereignty:The Dynamics of Hybridity in Kosovo’s New Constitutional Court

Written by Steven Hill & Paul Linden-Retek

In the years since the end of the Cold War, international and domestic actors have increasingly utilized internationalized or hybrid courts as mechanisms to administer justice in post-conflict contexts. As judicial bodies that include both domestic and international or foreign judges, hybrid courts have been seen as sensible and practical ways to strengthen local institutions and to develop the rule of law at the local level. At the same time, these arrangements enable the international community to maintain some kind of link to the domestic judiciary through the presence of international judges. There is, nonetheless, a concern: the very links to the international community that are meant to foster stable and viable local judicial institutions may end up undermining local capacities and legitimacy. In many ways, these tensions lie at the heart of international law. Declaring its intent not only to internationalize but also to universalize the values it promotes, international law nonetheless contains within it a set of impulses that risk appearing to advance the particular interests of the international community’s dominant members to the detriment of local development.


 

Global Administrative Law and the Legitimacy of Sanctions Regimes in International Law

Written by Pascale Hé lè ne Dubois & Aileen Elizabeth Nowlan

Last year the World Bank distributed $58.8 billion in loans and grants around the world. The World Bank’s Articles of Agreement require it to ensure that its funds are used for their intended purposes, since fraud and corruption bleed away resources from poverty reduction efforts. By a conservative estimate, over $1 trillion in bribes are paid around the world each year. The G-20, meeting in 2010 in Toronto, identified corruption as one of two issues that merited ongoing attention between G-20 summits.4 The World Bank in its own operations aims to keep pace with anti-corruption developments around the world, such as the Organization for Economic Cooperation and Development (OECD) Anti-Bribery Convention and stepped-up fraud and corruption prosecutions in member countries. Thus, in order to meet its goal of a world free of poverty and in order to steward its funds, the World Bank has created, reformed, and enforced anticorruption procedures for more than ten years. To date, the World Bank has publicly sanctioned over four hundred firms and individuals. These sanctions include banning them from bidding on any World Bank-financed project indefinitely or for a period of time, non-debarment contingent on improved practices, sending a letter of reprimand, or issuing an order of restitution.


 

Wings over Libya: The No-Fly Zone in Legal Perspective

Written by Michael N. Schmitt

On March 17, 2011, the United Nations Security Council adopted Resolution 1973, which imposed “a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians.” Excluded from the scope of the ban are humanitarian flights, those evacuating foreign nationals from the country, and any other flights authorized by states enforcing the no-fly zone. Going beyond simply banning aerial activity, the Security Council further authorized “Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance.” The reference to “all necessary means” is the standard phrase the Security Council uses to authorize states to act militarily. Pursuant to the Resolution, states can operate alone, in an ad hoc coalition, through a regional organization such as NATO, or a combination thereof.


 

Material Support of Peace? The On-the-Ground Consequences of U.S. and International Material Support of Terrorism Laws and the Need for Greater Legal Precision

Written by Noah Bialostozky

Domestic and international efforts to stem the flow of resources to designated terrorist organizations (DTOs) have resulted in significant legal uncertainties for those who engage with such organizations to promote peace. Both U.S. and international material support of terrorism measures fail to account for the on-the-ground realities of humanitarian and peacemaking work, and thereby create undue liability risks for a variety of public and private actors in conflict situations such as Afghanistan.


 

Officially Immune? A Response to Bradley and Goldsmith

Written by Chimène I. Keitner

It is often tempting to read statutes the way one thinks they ought to have been written. This impulse, though understandable, can create more problems than it solves. Such is the case with applying the Foreign Sovereign Immunities Act of 1976 (FSIA)1 to suits against current and former foreign officials, as Curt Bradley and Jack Goldsmith have recently proposed.