Volume 10, Issue 1 (Spring/Summer 2005)

This volume contains three articles and three comments on current international and comparative law issues. Available online at HeinOnline, Westlaw, or LexisNexis.

Moderating Politics in Post-Conflict States: An Examination of Bosnia and Herzegovina. 10 UCLA J. Int’l L. & For. Aff. 1.

The individuals who negotiated the peace agreement that ended the war in Bosnia and Herzegovina considered ethnicity to be the most salient division within Bosnian society. Consequently they organized Bosnia’s political structure around ethnic representation. While it is doubtful that peace in Bosnia would have been possible without guarantees for ethnic-based political representation, such guarantees have proven insufficient for building a functioning, stable, and cohesive state. This article analyzes the role that Bosnia ‘s political framework, which focuses exclusively on ethnic representation, has played in impeding the development of a significant cadre of moderate political actors and in hindering the success of the existing political moderates. Based on an examination of electoral and institutional approaches for increasing moderate political participation in Bosnia, this article concludes that the electoral alternatives readily available in Bosnia are unlikely to deter the extreme nationalist parties from focusing on ethnic-identity politics or to foster the development of political parties that represent the interests of Bosnians across ethnic lines. This article outlines a structural reform that could enable Bosnia’s current political structure to represent a broader range of Bosnian identities and interests and could facilitate increased participation of moderate political actors.

Minority Rights, Minority Wrongs. 10 UCLA J. Int’l L. & For. Aff. 66.

Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages, and religions. As part of the process of democratization, there has also been an explosion of “national human rights institutions, ” that is, independent government agencies whose purpose is to promote enforcement of human rights. But despite the significance of minority concerns to the stability and success of these new democracies, and despite the relevance of minority rights to the mandates of national human rights institutions, a surprisingly limited number of national human rights institutions have directed programs and resources to addressing minority issues. This article explores the activities of national human rights institutions, identifying regional and content trends in these programs, identifying factors correlating to the existence of such programs, and considering the implications of these patterns for the established legal frameworks for minority and indigenous rights. Finally, this article suggests some productive roles that national human rights institutions might play in protecting the interests of minority groups.

The United Nations Compensation Commission and the Balancing of Rights Between Individual Claimants and the Government of Iraq. 10 UCLA J. Int’l L. & For. Aff. 141.

The UN Compensation Commission (the Commission) in Ge- neva resolved over 2.68 million claims filed by governments, corpo- rations, and individuals seeking more than $350 billion in compen- sation for losses suffered during Iraq’s invasion and occupation of Kuwait in 1990-91. This article focuses on one aspect of the Com- mission ‘s work that has drawn little attention in the body of commen- tary describing the work of the Commission: the challenges involved in establishing a fair process andframeworkfor resolving more than 2.67 million claims filed by the individual victims of war. The Commission struggled to achieve a fine balance between the protection of the rights of individual claimants and the rights of J.D. Harvard Law School; B.A. Washington University (St. Louis); Associate Professor of Law, Roger Williams University (starting Fall 2006). The author was a lawyer in private practice and later a legal officer with the United Nations Compensation Commission. The views expressed in this article are those of the author and do not necessarily reflect any offi- cial position of the Commission.

COMMENT: Creating an ICSID Appellate Body. 10 UCLA J. Int’l L. & For. Aff. 179.

Since the creation of the International Centre for Settlement of Investment Disputes (ICSID) over forty years ago, states have increasingly relied on this body to resolve conflicts in bilateral investment treaties (BITs). In light of such exponential growth in the number of disputes brought to the ICSID, the ICSID Secretariat has proposed the adoption of an optional appellate body to promote “coherence and consistency” in ICSID arbitrations. This comment argues that, given the realities of tribunal decision-making and of the interdependent global economy, states should consider taking steps towards reforming the ICSID system as a way of maximizing their remaining sovereignty and autonomy.

COMMENT: Is Beheading Permissible Under Islamic Law? Comparing Terrorist Jihad and the Saudi Arabian Death Penalty. 10 UCLA J. Int’l L. & For. Aff. 221.

This comment investigates whether beheading is sanctioned un- der Shari ‘a. This comment argues that there is a distinction between the beheading of captives by terrorists and beheading as a form of capital punishment in Saudi Arabia. Beheading by terrorists is analyzed in the context of the Islamic law of war with a close reading of the Qur’an and other legal sources. Beheading as a form of capital punishment is examined within the framework of the Saudi Arabian legal system. An in-depth analysis of the Islamic law of war will focus on the rules and practices of Shari ‘a as embodied through the siyar. The siyar is the Islamic law of war, or, in a broader sense, the Islamic law of nations. This comment contends that beheading per- formed by terrorists is not permissible under Shari ‘a. The second issue addressed is whether Shari ‘a permits beheading in the context of capital punishment as utilized in Saudi Arabia. The concepts of Islamic criminal law are examined in the context of the Saudi Arabian legal system. There is a solid basis in Shari’a for the use of beheading as a form of capital punishment. This comment concludes that beheading as a form of capital punishment is justified under Shari’a. However, beheading of captives by terrorists is not.

COMMENT: The Case for the Legislative Override. 10 UCLA J. Int’l L. & For. Aff. 250.

What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the article explains which institutional and political contexts are hospitable to the override and which are not.

Available online at HeinOnline, Westlaw, or LexisNexis.

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