State Practice and International Law Journal 1 / 2014 Volume 1 Issue 1 Pp
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SPILJ State Practice and International Law Journal 1 / 2014 Volume 1 Issue 1 pp. 1 – 182 Spring 2014 Editors Professor Benedict Chigara, London, UK (Chair) Professor J. Patrick Kelly, Delaware, USA Professor Annika Rudman, Stellenbosch, RSA About SPILJ “The foremost companion for judges, diplomats, legal practitioners, academics and students on all aspects of public and private international law, SPILJ documents, analyses and evaluates State practice for compliance with international legal standards, and reviews the status of customary international law under the light of emergent, continuing and long-standing State practice.” State Practice and International Law Journal Editors: Professor Ben Chigara, Professor of Law, Brunel University, London, UK Professor J. Patrick Kelly, Professor of Law, Widener Law, Delaware, USA Professor Annika Rudman, Professor of Law, Stellenbosch University, RSA Email: [email protected] Editorial Assistant: Dr. Rossana Deplano, Lecturer in Law, Brunel University, London, UK Book Review Editor: Dr. Khanyisela Moyo, Lecturer, Transitional Justice Institute, Ulster University, UK International Advisory Board: Justice Sir, Christopher Greenwood, Judge of the International Court of Justice, The Hague Justice Abdul G. Koroma, Judge of the International Court of Justice, The Hague Justice Daniel David Ntanda Nsereko, Appeals Chamber, International Criminal Court Justice Tafsir Malick Ndiaye, International Tribunal for the Law of the Sea, Hamburg, Germany Professor David Freestone, Formerly of the World Bank, The George Washington University, USA Professor Mary Footer, Professor of International Economic Law, Nottingham University, UK Professor Muthucumaraswamy Sornarajah, Professor of Law, National University of Singapore Professor Christoff Heinz, Professor of Human Rights, Faculty of Law, University of Pretoria, RSA Professor Malcolm Evans, Professor of Law, Faculty of Law, Bristol University, UK Professor Tiya Maluwa, Director, Penn State School of International Affairs, Pennsylvania, USA Professor Michelo Hansungule, International Commission of Jurists & University of Pretoria, RSA Professor Nigel White, Professor of International Law, Law School, Nottingham University, UK Professor Thilo Marauhn, Professor of International Law, University of Giessen, Germany Professor Abimbola Olowofoyeku, Professor of Public Law, Brunel University, London, UK Professor Evance Kalula, IAPO, University of Cape Town, Republic of South Africa Dr. Edwini Kessie, Council and Trade Negotiations Committee Division, WTO, Switzerland Editorial Board: Professor Dino Kritsiotis, Professor of Law, Law School, Nottingham University, UK Professor Manisuli Ssenyonjo, Professor of International Law & Human Rights, Brunel University Professor Neil Boister, Professor of Law, Faculty of Law, Christchurch, New Zealand Professor Lindsay Moir, Professor of Law, Hull University, UK Professor Richard Frimpong Oppong, Professor of Law, Thompson Rivers University, Canada Professor Johanna Gibson, Professor of Intellectual Property Law, Queen Mary, London, UK Professor Susan Breau, Professor of Law, University of Reading, UK Professor Ademola Abass, Professor of Law, United Nations University, Belgium Professor Robert Cryer, Professor of Law, Birmingham Law School, Birmingham University, UK Professor Frans Vil Joen, Professor of Human Rights, Faculty of Law, University of Pretoria, RSA Professor Duncan French, Professor of Law, Lincoln Law School, University of Lincoln, UK Professor Max Guderzo, Professor of History, University of Florence, Italy Professor A.V. Jose, Fellow - Centre for Development Studies, Trivandrum, Kerala, India Professor Tomoya Obokata, Professor of International Law and Human Rights, Keele University, UK Dr. Yenkong Hodu, Senior Lecturer, Law School, Manchester University, UK Dr. Sven Simon, Assistant Professor, Faculty of Law, University of Giessen, Germany State Practice & International Law Journal (SPILJ) Volume 1 Number 1 Spring 2014 ARTICLES: ‘State Practice as Metaphor: A Reconciliation Approach’ J. PATRICK KELLY 1 ‘Analysing the Impact of the International Criminal Court Investigations and Prosecutions of Kenya’s Serving Senior State Officials’ MANISULI SSENYONJO 17 ‘State Practice, Customary Humanitarian Law and Civilian Casualties of Armed Conflict’ SUSAN BREAU 45 ‘Transferring sentenced persons (offenders) to the United Kingdom: Highlighting some of the human rights issues courts have had to deal with’ JAMIL DDAMULIRA MUJUZI 73 ‘State Practice and the Making and (Re)Making of International Law: The Case of the Legal Rules Relating to Marine Biodiversity in Areas Beyond National Jurisdiction’ DIRE TLADI 97 ‘Emergent State Practice on the creation and practice of Standards on Corporate Social Responsibility’ OLUFEMI AMAO 117 ‘Building a Taxonomy of UN Security Council Decisions: a Biased Compliance with the UN Charter Obligations?’ ROSSANA DEPLANO 139 DIGEST OF INTERNATIONAL LAW: ‘Has Recent State Practice transformed the Law on the Use of Force?’ SVEN SIMON 161 BOOK REVIEWS: Jeremy Waldron, The Rule of Law and the Measure of Property (Chidebe M. Nwankwo) 171 Levitt, J.I., Illegal Peace in Africa: An Inquiry into the Legality of Power Sharing with Warlords, Rebels, and Junta (Aimee Asante) 175 Brett Bowden, Hilary Charlesworth and Jeremy Farrrall (eds), The Role of International Law in Rebuilding Societies after Conflict (Great Expectations) (O.C. Olubokun) 181 J.P. Kelly State Practice as Metaphor SPILJ Vol.1 No.1 (2014) 1-14 ‘State Practice as Metaphor: A Reconciliation Approach’1 J Patrick Kelly* This issue announces a new peer-reviewed truly international law journal devoted to the idea of greater legitimacy and more democratic processes in international law making. Why is such a journal needed at this time? First, international law and legal institutions increasingly matter. The UN Security Council has redefined and expanded its authority to include humanitarian interventions and has exercised what can only be called legislative power.2 The World Trade Organization, the successor to the General Agreement on Tariffs and Trade, has become a sophisticated and nuanced regulatory regime with the authority to regulate trade and intellectual property as well as to effectively adjudicate the legality of domestic legislation. With these developments there is a burgeoning of scholarship raising difficult issues of the authority and legitimacy of many international legal norms and of the international institutions that are increasingly producing them.3 From a historical perspective, several authors, most prominently Antony Anghie, have questioned the use and misuse of legal categories to justify colonial expansion4 and the continuation of unequal relationships into the post-colonial era.5 Implicitly such analysis raises the rather thorny issue of the legitimacy of many customary international law norms that were created in this era and its aftermath. Another group of writers are raising concerns about the more recent development of norms by international institutions6 and international adjudicative bodies.7 Second, the launch of this new law review comes at a fortuitous time in the evolution of political and economic power. Globalization and its attendant spread of economic development have led to the rise of a significant middle class from Brazil to China to South Africa. Rates of economic growth in emerging nations far exceed growth rates in the developed world. From 2000-2010, for example, developing countries grew on average of 6.8% per year whereas high income countries averaged an increase of only 1.8% per year over the same period.8 These widely * Professor Emeritus – Widener. J.D. Harvard University Law School. I am grateful to SPILJ’s independent reviewers for their comments on an earlier draft of this article. 1 In homage to Nelson Mandela who passed away on December 5, 2013. He showed the world the power of reconciliation by blending two societies after an abusive and divided past leading his country toward a more just society. The development of international law is beginning to exhibit a similar trajectory. Many international norms were articulated and imposed based on unequal power relations with little attention to the interests, needs or wishes of less powerful states and societies. We are entering an era where changes in economic power and the need for global solutions to problems may encourage a reconciliation with this past. 2 See Eric Rosand, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?’ (2004) 28 Fordham International Law Journal 542. 3 Jean L Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism (CUP 2012). 4 Anghie, for example, has argued that much of modern international law and legal structures were forged from the colonial encounter with Non-European civilizations with these cultures as the objects of reform. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005) 36-38. 5 See for example, James Thuo Gathii, War, Commerce and International Law (OUP 2010). 6 José E Alvarez, ‘Contemporary International Law: An ‘Empire of Law” or the “Law of Empire”?’ (2009) 24 American University International Law Review 811. 7 On the legitimacy problems of unilateral standards and ‘evolutionary’ interpretation in adjudication, see J Patrick Kelly, ‘The Seduction of the Appellate Body: Shrimp/Sea Turtle I and II and the Proper Roles of States in WTO Governance’ (2005) 38 Cornell Journal of International