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Volume III Issue 4 (October 2016)

1. The New International Law of Arms Trade: A Critical Analysis of the Arms Trade Treaty from the Human Rights Perspective by Jamil Balga of Independent Scholar, at 583-649;

On December 24, 2014, the Arms Trade Treaty (“ATT” or “Treaty”) entered into force. This constituted an historic moment, as the ATT is the first legally binding global treaty addressing both the illicit and licit international arms trade. It is a compromise agreement aimed at balancing human security and humanitarian interests, such as preventing human rights violations and State security and economic interests, including self-defense and protecting the legal arms industry. Aimed to be adopted by consensus, serious compromises had to be made regarding the Treaty’s most important provisions, namely its scope, transfer prohibitions, export restrictions, and enforcement and monitoring mechanisms. As the negative human rights and humanitarian consequences of the international arms trade played a crucial role in creating the ATT from the very beginning, this article critically analyzes the aforementioned provisions and the core issues from the perspective of human rights. The main research question constitutes whether these provisions are strong, specific, and unambiguous enough to fulfill one of the Treaty’s main objectives, which is to reduce human suffering by substantially contributing to the prevention and ending of serious human rights violations. It focuses on the narrow scope of the Treaty, the limited transfer prohibitions, the ambiguity within the export authorization provision, and the weak enforcement and lack of proper monitoring mechanisms. It also provides suggestions on how to remedy the aforementioned shortcomings of the Treaty.

Keywords: Arms Trade Treaty, human rights, international arms trade, international humanitarian law, war crimes, crimes against humanity, genocide. 

2. Death Before Dishonor: Judging Duress as An Affirmative Defense in International Criminal Law according to Lex Naturalis by Joshua Carback of University of Maryland Francis King Cary School of Law, at 651-703;

Should duress be a complete defense to homicide? Nowhere is the importance of this legal question more pronounced than in Prosecutor v. Erdemovic. In Erdemovic, the defendant, a Serbian soldier, stood before the International Criminal Tribunal for the former Yugoslavia accused of committing crimes against humanity. The defendant’s position was that his actions of helping to butcher Bosnian Muslims should be legally excused because his superiors threatened him with death if he did not join the slaughter. This article disputes the adequacy of this defense, and answers the question posed above in the negative. This article is novel in, for the first time, advocating for a disposition in Erdemovic that accords with natural law. The article breaks fresh ground in examining the duress issue in Erdemovic through the lens of three different worldviews: Kantianism, utilitarianism, and natural law. The rigor of this article inheres in contrasting the deontological, consequentialist, and teleological frameworks for analyzing the duress issue and assessing the merits and flaws of each position respectively. This article concludes that the natural law position is correct. It further highlights the striking contrast in approaches to the acceptability of duress as an affirmative defense to homicide between common law and civil law jurisdictions: duress is not a complete defense to homicide at common law, but in civil law jurisdictions and according to the Model Penal Code it is. The importance of this article lies not only in its contribution to the philosophical debate over the acceptability of duress as a defense to homicide in criminal law, and but also in exploring this issue as a flashpoint in comparativist discourse as well. Finally, this article uses the duress issue in Erdemovic to illuminate how the clash between positivist and transcendental ethical theories of human rights impacts international law. 

Keywords: International Criminal Law, International Humanitarian Law, Legal Reasoning, Jurisprudence, Self-Defence, Human Rights.

3. The Myths and Math of Domestic Provisional Remedies for Domestic and Offshore Arbitrations by David J. Cook of Cook Collection Attorneys, PLC., at 705-78;

Unlike the United Kingdom, the U.S. federal rules decline to authorize the federal courts to “freeze” a debtor’s assets pending the outcome of a lawsuit for money damages absent an independent statutory basis. Over the past 40-plus years, individual states have revamped their provisional remedies based on the U.S. Supreme Court’s rulings that due process must be provided when a collection plaintiff seeks provisional remedies. This article reconciles the statutory mechanics of provisional remedies (i.e., pre-judgment attachments and claim and delivery) with the common limitations in offshore arbitration between an offshore vendor and a U.S. customer that empowers only the arbitrator to issue provisional relief. As the offshore vendor often invokes this relief on the eve of the defaulted U.S. customer’s financial demise, understanding this apparent gap between law and practice is not academic, but vitally important. Failure to attach the debtor’s assets, which frames the creditor as unsecured, is fatal to any recovery given a debtor’s assets are encumbered by other creditors. The conclusion of this article is that it is futile to repose sole power to issue provisional remedies with the arbitrator offshore because provisional relief can only come from a sitting judge (federal or state) relying on the relief provided by state law.

Keywords: International Commercial Law, International Sales Law, International Arbitration, Transnational Enforcement Law, Conflict of Laws, Comparative Contract Law.

4. Mass Circumcision Campaigns in sub-Saharan Africa: A Disaster in Disguise? by Ashley N. Arrington of Attorney at Law, at 779-97;

The World Health Organization and UNAIDS began endorsing male circumcision as an effective strategy for HIV prevention in countries with a high HIV prevalence and a low male circumcision prevalence in 2007. Four years later, such organizations, along with a host of U.S. and Western NGOs, went on to further promote the scale-up of male circumcision for HIV prevention in Eastern and Southern Africa. In the years since the implementation of the resulting mass circumcision campaigns, numerous countries, including Botswana, Kenya, Malawi, Uganda, Zimbabwe, and more, have specifically complained that such campaigns operate to promote increased risky sexual behaviors and thus do not reduce HIV as claimed. In response to such complaints, this paper will seek to assess the outcomes of mass circumcision campaigns and to examine whether such campaigns are an effective and acceptable method of attacking the HIV pandemic sub-Saharan Africa currently faces. Additionally, through evaluating HIV-related human rights principles and the state obligations thereunder, this paper seeks to determine whether the mass circumcision campaigns promoted by the U.S. and other Western NGOs constitute a violation of human rights.

Keywords: human right to health, international law, women rights, religious freedom, cultural relativism, reproductive health.  

Book Review

5. Democracy and International Law in the Post Colonial WorldInternational Democracy Documents: A Compilation of Treaties and Other Instruments, edited by Frithjof Ehm & Christian Walter, Martinus Nijhoff 2015 by Pranoto Iskandar, at 799-806.

Index at 807