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Vol. V


MASTHEAD

ARTICLES
Globalizing Decency: Responsible Engagement in an Era of Economic Integration by Craig Forcese
Abstract | PDF
When Intent Makes All the Difference in the World: Economic Sanctions on Iraq and the Accusation of Genocide by Joy Gordon
Abstract | PDF
Microcredit: Fulfilling or Belying the Universalist Morality of Globalizing Markets? by Kenneth Anderson
Abstract | PDF
Pursuing the Path of Indigenization in the Era of Emergent International Law Governing the Rights of Indigenous Peoples by Robert B. Porter
Abstract | PDF
Reclaiming Humanity: Economic, Social and Cultural Rights as the Cornerstone of African Human Rights by Shedrack C. Agbakwa
Abstract | PDF

NOTES FROM THE FIELD
Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal by Patricia M. Wald
PDF
Wiwa v. Royal Dutch Petroleum Co.: A New Standard for the Enforcement of International Law in U.S. Courts? by Aaron Xavier Fellmeth
Abstract | PDF

NOTES
From Laggard to Leader: Canadian Lessons on a Role for U.S. States in Making and Implementing Human Rights Treaties by Koren L. Bell
PDF


ARTICLES
Globalizing Decency: Responsible Engagement in an Era of Economic Integration by Craig Forcese
The prevailing view in the foreign policies of many Western countries holds that "constructive" economic engagement with repressive regimes will induce human rights-sensitive development. A very vigorous dissenting position, held by many opponents of "globalization", is that economic engagement and liberalization fuel many of the very human rights abuses they are supposed to cure. The empirical evidence tends to support a nuanced approach to constructive engagement, one that might be termed "responsible engagement". Under a responsible engagement model, there remains an important role for economic sanctions, both as a means of affecting the behavior of nation-states and to stave off the possibility that citizens of one country are contributing to the persistence of the targeted repressive regime. Responsible engagement obliges recourse to "smart sanctions". Yet, the legal apparatus governing economic integration is, on the whole, built without an eye to a "smart sanctions" responsible engagement policy. This Article explores these assertions and concludes a full-fledged strategy of responsible engagement obliges reconsideration and clarification of several facets of the World Trade Organization.

When Intent Makes All the Difference in the World: Economic Sanctions on Iraq and the Accusation of Genocide by Joy Gordon
The U.N. Security Council responded to Iraq's invasion of Kuwait with a comprehensive regime of sanctions. This Article examines the claim that the highly planned policy contains elements of genocide and critically examines the international legal definition of genocide and its central requirement of specific intent. It argues that the conception of genocide contained in the 1948 Genocide Convention ignores whole categories of atrocities, exculpating certain actors who have committed acts of massive human destruction and removing the acts themselves from the sphere of moral judgment and accountability. The Article describes the devastating human costs that the Security Council and the United States have knowingly imposed upon the people of Iraq through the sanctions regime. It suggests that because the policy is justified with claims of international peace and security or denials of moral agency, it cannot meet the Genocide Convention's requirement of specific intent. Drawing upon the work of philosophers such as Arendt and Nietzsche, the Article concludes by charging the Security Council and the U.S. Government with something that will not fit within the Genocide Convention at all, something best described by Plato's concept of "perfect injustice," which occurs when atrocities are made at once invisible and good.

Microcredit: Fulfilling or Belying the Universalist Morality of Globalizing Markets? by Kenneth Anderson
This Article gives an account of the practice of microcredit that reveals its ambivalent relationship to global markets. Microcredit consists in non-profit lending to poor communities, often at subsidized interest rates, to encourage small-scale entrepreneurial activity. Microcredit organizations view themselves, alternatively, as an extension of global markets into poor communities, designed to draw them permanently into the global economy, or as an efficient mechanism for providing aid to compensate the poor for their exclusion from the market. The Article argues that organizations would do well to clarify their relationship to the global market, because that relationship has implications for how they should structure their lending program, whether they can become self-sustainable, and how they should measure their success. It further argues that, at a more general level, some residual ambivalence is unavoidable because the limits of globalization are unclear and microcredit necessarily is both an extension of, and a remedy for, the logic of the global market.

Pursuing the Path of Indigenization in the Era of Emergent International Law Governing the Rights of Indigenous Peoples by Robert B. Porter
This Article argues that the meaningful revitalization of Indigenous nations depends upon engaging in a process of indigenization, the active pursuit of a distinct developmental path, culture, and identity. Significant barriers to indigenization include not only political, economic, and social obstacles, but also psychological reliance upon the colonizing nation, the inability to recall the memory of the colonization process upon one's nation, and the pursuit of remedies to colonization that have the practical effect of promoting rather than alleviating its impact. In light of these barriers, the Article critically examines the extent to which indigenization may be assisted or undermined by efforts to develop international treaty law governing the rights of Indigenous peoples.

Reclaiming Humanity: Economic, Social and Cultural Rights as the Cornerstone of African Human Rights by Shedrack C. Agbakwa
This Article argues that economic, social, and cultural rights are the key to effectively realizing human rights in Africa. It contends that human rights discourse on the indivisible bundle of rights must be put into practice in the African context, where these rights are people's primary means of self-defense. First, the Article argues that African governments' failure to enthrone enforceable socio-economic rights compromises civil and political rights. It then examines the inextricable link between these rights and development, arguing that there is no justification for discriminatory enforcement of human rights. The Article addresses factors inhibiting the realization of these rights. It highlights the broad consequences of the continued marginalization of socio-economic rights. Finally, it urges a rejection of the Western model and explores approaches to improve the fortunes of these rights. It concludes that selective enforcement of human rights in the context of worsening social, economic, civil, and political conditions is a heedless truncation of humanity.

NOTES FROM THE FIELD
Wiwa v. Royal Dutch Petroleum Co.: A New Standard for the Enforcement of International Law in U.S. Courts? by Aaron Xavier Fellmeth
U.S. courts have traditionally been reluctant to exercise jurisdiction over human rights violations committed abroad against foreign persons, often invoking forum non conveniens to dismiss cases. The Second Circuit's ruling in Wiwa v. Royal Dutch Petroleum Company altered the balance of forum non conveniens, making it easier to bring claims based on a foreign human rights violation despite the availability of an alternative forum. The court's reasoning emphasized the interest of the United States in vindicating human rights abroad and would hold wealthy parties to a greater standard of inconvenience than poorer parties. The decision may mark a turning point away from judicial indifference to international human rights law. 

VOL. 5 MASTHEAD

Claudio Aragón
 Business Manager
Benjamin Au
 Executive Editor
Cecily E. Baskir
 Editor-in-Chief
Mette Bastholm
 Articles Editor
Dana Bennett
 Articles Editor
Elizabeth Brundige
 Articles Editor
Alice Clapman
 Articles Editor
Tom-Tsvi Jawetz
 Submissions Editor
Kevin M. Keenan
 Editor-in-Chief
Roland Koenigsgruber
 Technical Editor
Anna Rich
 Notes Editor
Jessica Thorpe
 Articles Editor
Deepa Varadarajan
 Executive Editor
Brent Wible
 Notes from the Field Editor

EDITORS:
Richard Albert, Tico Almeida, Matthew Alsdorf, Claudio Aragón, Nathanael J. Blake, Ryan Bubb, Maura Carney, Darren Cohen, Erin Shannon Conroy, Amina El-Sayad, Allegra Hogan, Julia Kernochan, Kevin Kish, Andee Krasner, Rebecca LeGrand, Ying Ying Li, Susan Lin, C. Scott López, Meron Makonnen, Julia E. Mitchell, Stephen Nafziger, Robert Parker, Rory Phimister, Malcolm Seymour, Lara Slachta, Joyce Sun, Eric Tam, Cori Van Noy Steve Vladeck