U.S. Recognition Practice: Realism, Legitimacy, or Pragmatism?

This Article analyzes recent United States\u27 recognition practice and attempts to decipher the United States\u27 apparent shift in its recognition practice toward a realist approach and/or toward focusing on recognizing new borders. As outlined below, this Article concludes that United States\u27 recognition practice, toward both new regimes as well as borders, seems to be driven by pragmatic concerns rooted in American foreign policy as well as American political and strategic interests in a given country or region. Thus, it may be inaccurate to discuss such recognition practices as realist or legitimacy-based in any normative sense; instead, it may be more prudent to approach recognition through the lens of foreign policy, pragmatism, and international politics. In Part II, this Article discusses the concept of recognition by focusing on what recognition entails and why it matters. In Part III, this Article discusses the United States\u27 history of recognition practices, including the so-called legitimacy-based approach and the realist or de facto approaches to recognition. In Part IV, this Article analyzes the United States\u27 recognition practice in the context of the Israeli-Arab conflict. In this section, the Article distinguishes between recognition of governments and recognition of borders to assess whether the United States has moved toward a more uniform realist approach toward the latter. This Article concludes that the U.S. recognition policy—whether of governments or borders—is rooted in pragmatism and foreign policy. In fact, the United States has recognized governments and borders when this has been consistent with American foreign policy toward the particular country or region. Thus, the United States\u27 recognition policy seems to have oscillated between legitimacy and realism in cases of both government and border recognition practices. As this Article concludes, it would be incorrect to argue that the United States has adopted a realist approach toward recognition because of any normative values; instead, the various recognition approaches adopted by the United States, including the most recent one by the Trump Administration, have been driven by foreign policy interests and pragmatism

Katyn Forest Massacre: Of Genocide, State Lies, and Secrecy

The Soviet secret police murdered thousands of Poles near the Katyn Forest, just outside the Russian city of Smolensk, in the early spring of 1940. The Soviets targeted members of the Polish intelligentsia-military officers, doctors, engineers, police officers, and teachers-which Stalin, the Soviet leader, sought to eradicate preventively. At the start of World War II, the Soviet Union viewed Poland as attractive territory, to be conquered and potentially annexed after the war. The Katyn massacre was not discovered until 1943, by the Germans, who instantly blamed the Soviets. The latter, however, blamed the Germans, and the Western Allies begrudgingly accepted this untruthful claim. The Katyn Forest Massacre remained taboo for many years, and it has only attracted significant scholarly, historical and political interest in the last two decades, following the fall of the Iron Curtain. This Article seeks to decipher the Katyn myth by describing in Part II the events that led to the Katyn Forest Massacre as well as the killings themselves. In Part III, this Article focuses on subsequent investigations into Katyn, including the US. congressional inquiry in 1952, as well as post-Cold War revelations about Katyn, permitting to officially inflict responsibility on the Soviet Union. In Part IV, the Article examines the Katyn killings in light of international law, concludes that the killings constitute war crimes and, crimes against humanity, and that they may perhaps constitute genocide, under a more expansive reading of the Genocide Convention. Finally, Part V concludes that the admission of guilt by Russia about its role at Katyn is necessary and plays a crucial role in the thawing of Russian-Polish relations

Piracy Off the Coast of Somalia: The Argument for Pirate Prosecutions in the National Courts of Kenya, The Seychelles, and Mauritius

This article will argue that, in order to combat the rise of Somali piracy, major maritime nations should rely on national prosecutions of Somali pirates in the courts of stable regional partners, such as Kenya, the Seychelles and Mauritius. A systematic transfer program and prosecutions in the national courts of several regional partners would preclude the possibility of pirate catch-and-release, and could ultimately provide enough deterrence to seriously dissuade young Somali men from engaging in piracy. The Somali pirates, enemies of all mankind, may find potent foes in the form of Kenyan, Seychellois and Mauritian prosecutors, who will subject pirates to prosecutions on behalf of all mankind

Clash of the Titans: Collisions of Economic Regulations and the Need to Harmonize Prescriptive Jurisdiction Rules

Part I of this article describes regulatory clashes involving different states\u27 public laws, and then focuses on certain areas of law, including antitrust, securities, and Internet commerce and publishing, where such clashes are most likely to take place. Part II focuses on the different solutions to this regulatory puzzle invoked by scholars, advocating either territorial-based or substance-based approaches. Part III then critiques the two approaches, while emphasizing the need to address the issue from a global perspective, that is, by seeking to harmonize jurisdiction-allocating rules on an international level

The Applicability of the Humanitarian Intervention \u27Exception\u27 to the Middle Eastern Refugee Crisis: Why the International Community Should Intervene Against ISIS

The refugee crises in Iraq and Syria, which has been evolving over the past decade as a result of both ongoing conflict in these countries and the recent surge of Islamic State-led violence, has morphed into a true humanitarian catastrophe. Tens of thousands of refugees have been subjected to violence and have been dispersed and forced to live under dire conditions; such massive population flows have destabilized the entire region and have threatened the stability of neighboring countries. The United States and several other countries have been engaged in a military air strike campaign against the Islamic State, but the international community has otherwise not authorized a multilateral military action against the Islamic State in order to alleviate refugee and other humanitarian suffering. This Article argues that in light of such a tremendous humanitarian crisis, reflected in the current refugee crisis, international law authorizes states to intervene through the paradigm of humanitarian intervention. The Article argues that if international law embraces the concept of humanitarian intervention as an evolving norm of customary law, then this norm encompasses intervention in situations of a humanitarian refugee crisis, such as the one that has unfolded in Iraq and Syria

Sequencing Peace and Justice in Syria

Since 2011, the conflict in Syria has caused the death of hundreds of thousands of individuals and the displacement of millions. Efforts to refer the Syrian situation to the International Criminal Court (ICC) have consistently failed despite well-documented reports about the commission of serious crimes in Syria, including the use of chemical weapons against civilians, torture, the use of child soldiers, and crimes of sexual violence. This Article explores whether the dual goals of peace and justice can be reconciled in the Syrian context and how these goals may be properly sequenced in order to potentially achieve long-lasting peace in Syria without sacrificing justice. Part I explores the tension between the dual goals of peace and justice in both a theoretical manner as well as in the Syrian context. Part II describes existing accountability models in the international community and how these may be applicable in the Syrian situation, and Part III focuses on the work of the Mechanism, an already established model of preliminary accountability for Syria. The Article concludes that peace and justice may appear irreconcilable in some contexts, but that such goals may coexist if properly sequenced and applied to a particular situation, such as Syria

A Grotian Moment: Changes in the Legal Theory of Statehood

This article examines the Grotian Moment theory and its practical application toward the legal theory of statehood. To that effect, this article describes, in Part II, the notion of a Grotian Moment. In Part III, it examines the legal theory of statehood in its traditional form. Part IV describes changes in the legal theory of statehood brought about by the forces of globalization in a Grotian Moment manner. These changes include a new notion of state sovereignty and the accompanying right to intervention, the emergence of human and minority rights that sometimes affect state territorial integrity, the existence of de facto states, like Northern Cyprus and Republika Srpska, and the concept of state inter-connectivity and the proliferation of regional and international norms and organizations. The article concludes that all these changes, caused by globalization, have affected the legal theory of statehood in a Grotian Moment

Humanitarian Intervention Post-Syria: A Grotian Moment

Grotian Moment is a term that signifies a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. A Grotian Moment is thus an instance in which a fundamental change in the exiting international system happens, thereby provoking the emergence of a new principle of customary law with outstanding speed. Professor Richard Falk invented the term Grotian Moment in 1985. Since then, the term has been employed by experts in a variety of ways. Here, I will adopt the following meaning of Grotian Moment as proposed by Professor Michael Scharf: a transformative development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. This article examines whether the concept of humanitarian intervention, developed over the past two decades, constitutes an instance of a Grotian Moment. In particular, this article focuses on Syria and the recent arguments in favor of humanitarian intervention in this region, and poses the question of whether Syria constitutes a law-creating moment. The article concludes that Syria may contribute to the shaping of a new Grotian Moment: the development of humanitarian intervention as a norm of customary law

The Somali Piracy Problem: A Global Puzzle Necessitating A Global Solution

Over the past few years, piracy has exploded off the coast of Somalia. The Somali pirates congregate on a mother ship and then divide into smaller groups that sail out on tiny skiffs. Using potent weapons like AK-47’s and hand-propelled grenades, the Somali pirates then attack civilian ships carrying cargo through the Gulf of Aden, toward South Africa or Asia. Once they have overtaken the victim vessel, pirates typically hijack the vessel’s cargo and crewmembers. The former is often resold to willing buyers (some of which include terrorist organizations like Al Qaeda). The latter are taken to the Somali shore and kept hostage, until multi-million dollar ransoms are paid by either the hostages’ home country or the ship owners themselves. In most instances, crew members have been released unharmed, but those held hostage by the Somali pirates describe a horrific ordeal, and specify that they were held at gun point during most of their captivity. The pirates themselves routinely go unpunished: once they release the hostages, they simply return to their ships to plan yet another lucrative capture. The reasons for such a high success rate for the Somali pirates are relatively simple. First, the Somali pirates operate for the most part in the Gulf of Aden, a narrow strait of water where thousands of ships sail every year; thus, the number of potential victim vessels is higher in these waters than elsewhere. Second, because these pirates operate in such a narrow body of water, they are able to haul captured cargo and victims quickly and easily onto the Somali mainland. Thus, pirates do not have to risk capture by sailing for long stretches of time on open seas with the hijacked cargo and crewmembers on their own ships, which would be the case if they operated elsewhere. Third, Somalia is a failed state with no central government and no effective police force; thus, pirates are able to operate with impunity from Somali coastal towns. In fact, news accounts confirm that entire towns on the coast of Somalia happily live off the proceeds of piracy. Fourth, piracy is a lucrative business: reports indicate that a single seizure of a ship can earn each individual pirate up to $150,000! In a country like Somalia, where average yearly earnings amount to about$600, this amount seems more than staggering. Finally, piracy in Somalia has been thriving because of a lack of global cooperation in suppressing pirate attacks. Pirates work at a supra-national level: they attack a vessel owned by a company headquartered in country A, which flies the flag of country B and employs crewmembers coming from countries C, D, E, and F. Thus, no particular country’s interests are harmed through the pirate attack. Moreover, crewmembers typically come from the developing world, and the major maritime powers like the United States and the United Kingdom have shown relatively little interest in working toward the release of pirate-held non-native hostages. The lack of global cooperation in terms of law enforcement as well as prosecution of the detained pirates has significantly contributed to the high success rate of the Somali pirates. Shipping companies themselves, despite being the most affected by pirate attacks, have done nothing to solve the problem. Instead, through paying increasingly high ransoms to the pirates in exchange for the release of kidnapped crewmembers, shipping companies have exacerbated the problem. This Article argues that the true solution to the Somali piracy problem consists of a globally coordinated effort among major maritime powers, regional countries, and shipping companies themselves to share information, to jointly collect data, to cooperate in maritime patrols and surveillance operations off the Somali coast, to establish jurisdictional networks to ensure that pirates are always prosecuted, and to provide for stiff penalties for apprehended pirates. If Somali piracy continues to thrive, it could dangerously undermine East African regional stability, contribute to the rise of terrorism, further endanger the financial stability of the shipping business, and impose burdensome human and monetary costs on all the parties involved, including major maritime countries like the United States or the United Kingdom. Because of the potential global danger that the Somali piracy poses, any responses thereto must be of a global scale. In order to further address this important issue, this Article describes in Part II why fighting piracy is crucial in today’s volatile world. Part III outlines the existing laws available in the fight against piracy, including domestic criminal statute as well as major international treaties. Part IV describes some of the already existing practical responses to the piracy problem, focusing on the successful solutions that littoral states in Southeast Asia adopted when faced with the rise in piracy incidents in the Malacca Straits. Finally, Part V presents both legal as well as practical solutions, based on the Southeast Asian model, which could be adopted for the resolution of the Somali piracy crisis. This Article concludes that the Somali piracy will continue to thrive unless a true global network of law enforcement and jurisdictional efforts by all the relevant players is established and applied to this region