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  Introduction: The UN's Roles in International Society Since 1945

  Adam Roberts and Benedict Kingsbury

  In the half century since its foundation in 1945, the United Nations has been a central institution in the conduct of international relations. This book is an assessment of the UN's many roles in a world which has remained obstinately divided: roles which have changed over time, and have been the subject of different interpretations, fears, and hopes. It is a study of how, in the era of the UN, international society has been modified, but not totally transformed. It examines the UN's opportunities and difficulties in the new and confused circumstances of the post-Cold War era. Behind all these issues lurks the fear that the UN has by no means overcome the range of problems which have in the past bedevilled efforts at collective security and global organization. The international system over which the UN in some sense presides is historically unique. For the first time in human history, the world has come to consist of nominally equal sovereign states; almost all of them are members of one world organization and subscribe to a single set of principles—those of the UN Charter; there is a functioning global organization which has the capacity to take important decisions, especially in the sphere of security—as was done in the Gulf crisis of 1990-1. Yet despite these elements of uniqueness which distinguish the UN era from earlier times, international society remains ‘anarchical’ in the sense that, even though there is order of a kind and a wide range of international institutions, there is no central authority having the character of a government. 1 The UN era has also been notable for the continuing—and in many respects burgeoning—role in international society of actors other than states. The UN itself has provided a political space for non-governmental organizations, especially in such fields as human rights and environmental protection, and it provides fora in which all manner of non-state groups can articulate demands and pursue their interests. More generally, some have argued that a transnational civil society is beginning to emerge, constructed upon the growing density and ease of cross-border interactions, and characterized by the diffusion or contagion of multi-party democracy, market liberalism, and related political and social values. In this view, power is shifting from increasingly enmeshed states to cross-state groupings or to international institutions; territoriality is declining as a central principle of organization; and state sovereignty is being recast to accommodate human rights, economic aspirations, and internal and external conceptions of legitimacy. Perceptions of national interest are broadening, and normative convergence at the domestic, transnational, and international levels is gathering pace to the extent that these levels are themselves beginning to merge. The European Community has been a popular model for proponents of the thesis that state sovereignty is gradually being transcended and that international civil society is being established by progressive enlargement from a liberal heartland. International society is indeed changing, as are the issues and forms of its politics. Particular states or societies cannot easily remain outside the core institutions of economic, social, and political interaction. There are changes in the nature, forms, and uses of power, some of which result from interdependence or from the asymmetries which frequently accompany interdependence. There are shared norms and values, which the UN both reflects and projects. Not all states work well, and the state is perhaps not quite sacrosanct as the building block of international society in the way it was thought to be at other times during the twentieth century. Nevertheless the state remains the principal institution for achieving domestic order, and the inter-state system continues to provide the skeletal ordering framework for international society. The UN as an organization created and maintained by states is built upon an inter-governmental framework which some find unrealistic or unsatisfactory. Proposals for reshaping the framework, for instance by establishing a nationally-elected parliamentary assembly alongside the General Assembly, may attract greater interest in the future. But for the time being the structures and activities of the UN, while in some tension with the changing circumstances and needs of international society, necessarily continue to reflect the essential role of states and the difficulties of the contemporary states system.

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  European Labor Markets: The Eastern Dimension

  Jasminka Sohinger and Daniel L. Rubinfeld

  The end of the cold war and the sweeping political and economic changes in central and eastern Europe have fundamentally changed the relationship of the European Community (EC) to its international neighbors. One economic segment of the EC that has been sensitive to these events and is likely to remain so is the labor market. The severe political and economic disturbances in the reforming central and eastern Europe countries are having immediate and profound effects on their domestic labor markets. These changes are likely to exert additional supply pressures on the European labor market, especially as the prospects of eventual enlargement of the European Community to include its eastern neighbors come closer to reality. The overall outlook for the EC need not be gloomy, however. It is possible that access to a new source of relatively well educated and highly skilled labor can lead to higher productivity and a higher GDP for EC member countries. This chapter is organized as follows. The first section puts post-1989 east-west European integration into perspective. The next sections begins the analysis of central and eastern European labor markets by concentrating on the effects of the economic reforms. The following section examines the consequences of changes in the labor markets in central and eastern Europe for EC markets.

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  Environmental Contracts and Covenants: A United States Perspective

  Richard B. Stewart

  Published as part of a conference held in Rotterdam, 14-16 October 1992, published by the Institute of Environmental Damages, Erasmus University Rotterdam.

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  Rights

  Jeremy Waldron

  Political philosophy has become an active and central area of research in the past two or three decades. The editors have taken a broad view of the range of issues that are relevant to political philosophy, and the Companion covers the contributions of economics, history, law, political science and sociology as well as philosophy - analytic and continental. In general, political philosophers are not just interested in the routines that govern politics but also in the various systems which politics may be used to shape. They are concerned with all the institutions that help to determine what John Rawls describes as the 'basic structure' of society. To provide a comprehensive guide to current thinking in political philosophy, Robert Goodin and Philip Pettit have divided the book into three parts: Disciplinary Contributions, Major Ideologies and Special Topics. In addition, the Companion's 41 chapters have been contributed by some of today's most distinguished academics, drawn from several different disciplines. The first part of the book consists of a series of extended essays on the contribution that a number of different disciplines have made and are making to current debates. Analyses of political ideologies form the next section, followed by discussions of major concepts ranging from virtue and equality to sociobiology and environmentalism that form the subject matter of philosophical debate.

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  Legal Issues

  José E. Alvarez

  An annual publication of the United Nations Association of the United States of America.

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  Introduction

  Kwame Anthony Appiah

  Things Fall Apart tells two overlapping, intertwining stories, both of which center around Okonkwo, a 'strong man' of an Ibo village in Nigeria. The first of these stories traces Okonkwo's fall from grace with the tribal world in which he lives, and in its classical purity of line and economical beauty it provides us with a powerful fable about the immemorial conflict between the individual and society. The second story, which is as modern as the first is ancient ... concerns the clash of cultures and the destruction of Okonkwo's world through the arrival of aggressive, proselytizing European missionaries

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  Inventing an African Practice in Philosophy: Epistemological Issues

  Kwame Anthony Appiah

  Distinguished scholar V. Y. Mudimbe assembles a lively tribute to Presence Africaine, the landmark African studies journal begun in 1947 Paris. While it celebrates the project’s forty-year history, The Surreptitious Speech does not naively canonize the journal but rather offers a vibrant discussion and critical reading of its context, characteristics, and significance.

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  Computers

  Rochelle C. Dreyfuss and David W. Leebron

  The rapid advance of computer technology has drastically expanded our ability to store, analyze, and disseminate information. This development has implications for three areas of constitutional doctrine: the right of privacy, procedural due process of law, and the freedom of speech and freedom of the press. Because the field is so new, the Supreme Court has not yet had many opportunities to confront these issues. An account of the Court's jurisprudence so far reveals that it is only slowly beginning to recognize in computer technology a danger different in kind from that presented by information technologies supplanted. Thus, in Laird v. Tatum (1972), the earliest of the Court's computer cases, the question presented was whether the Constitution limits the government's right to store publicly available information in computerized form. One of the complaints in Laird was that the storage of such information in army-intelligence data banks for undefined subsequent use had a chilling effect on the expression of those targeted for observation. In finding that the effect was so speculative that the controversy was not ripe for adjudication, the Court in effect held that government storage of personal information in a computer does not in itself give rise to a constitutionally based complaint. Whalen v. Roe (1977) was the first opinion expressly addressing the right of privacy in a computer context. A New York law required centralized computer storage of the names and addresses of persons prescribed certain drugs. The Court acknowledged “the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks.” In a concurring opinion, Justice William J. Brennan noted that the potential for abuse of computerized information might necessitate “some curb on such technology.” Nonetheless, the Court analyzed the law under the same balancing test used in other cases involving government invasions of privacy, balancing the state's interest in collecting drug-use information against the interest in privacy, and upheld the statute. Although the Court emphasized the stringent security measures taken to prevent unnecessary or unauthorized access to New York's computer files, lower courts have given Whalen a narrow reading and placed few constitutional restrictions on government use of computerized data banks. These lower courts have given greater weight to the earlier decision in Paul v. Davis (1976), where the Court had held that alleged libel and public disclosure of arrest records by government officials did not amount to a deprivation of “liberty.” Although the Court seems headed toward a narrow conception of privacy of computerized records as protected by the Constitution, it has embraced a broader view in statutory contexts. In Department of Justice v. Reporters' Committee for Freedom of the Press (1989), for example, the Court upheld a privacy interest against a request by CBS News under the Freedom of Information Act for disclosure of “rap sheets.” Here, the Court noted that “there is a vast difference between public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.”

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  Substantive Due Process (Update)

  Samuel Estreicher

  In the period preceding the New Deal, due process of law meant more than a guaranty of procedural regularity; it also embodied a substantive dimension that curtailed the role of the state in altering the outcomes of private marketplace decisions. This was the era of Lochner v. New York (1905), in which the Supreme Court decreed that government could intervene only to aid parties deemed in special need of paternalistic measures, such as minors and women, or to address externalities (where private bargains impose uncompensated costs on third parties). During a time of considerable social unrest, Lochnerian jurisprudence imposed sharp limits on the domain of ordinary politics while, in many quarters, also placing in question the very legitimacy of judicial review. With the onset of the Great Depression, the growing political demands on government to curb instability in markets, to reduce widespread unemployment, and to bolster consumer demand forced the Court to alter its conception of the role of the state. Thus, in Nebbia v. New York (1934) and West Coast Hotel Co. v. Parrish (1937), the Court rejected Lochner's narrow definition of permissible governmental goals. Legislative efforts to redistribute wealth through social programs or enhance the bargaining positions of weaker parties were now legitimate exercises of power. With the permissible ends of government thus broadened, the Court soon indicated in United States v. Carolene Products Co. (1938) that Lochner's rigorous insistence on a close fit of “ends” and “means” in economic regulation had to yield to a policy of judicial deference to reasonably debatable economic measures. The hands-off approach to economic regulations with a rational basis also extended to decisions narrowly construing the reach of the contract clause and the takings clause. This policy of judicial deference would not necessarily extend beyond the economic sphere, however. Justice Harlan Fiske Stone, in his famous footnote four to Carolene Products, explained that regulations interfering with fundamental personal liberties and burdening disadvantaged minority groups would be subjected to a more demanding level of scrutiny. This dual standard for review allowed the Court in a number of decisions that culminated in Roe v. Wade (1973) to apply strict scrutiny to government action interfering with private decisions within a “zone of privacy” that included the intimate realms of marriage, reproduction, and child rearing. In the years since 1985, without rejecting this dual framework, the Court has confined the privacy interests protected by substantive due process to those that reflect deeply entrenched, widely held traditional values. In Michael H. v. Gerald D. (1989) the state's traditional interest in the “unitary family” prevailed over a natural father's paternity claim where the child was born into an extant marital family. Most prominently, in Bowers v. Hardwick (1986) the Court held that Georgia could criminalize the act of homosexual sodomy between consenting adults committed in the privacy of the home. Justice Byron R. White's opinion for the majority explained that the right to engage in such conduct had no textual support in the constitutional language. Moreover, he said, the claimed right could not be deemed fundamental, given the long-standing proscription of such conduct in state law and the Court's policy of “great resistance to expand[ing] the substantive reach of [the due process clauses of the Fifth Amendment and Fourteenth Amendment], particularly if it requires redefining the category of rights deemed to be fundamental.”

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  Supreme Court's Work Load

  Samuel Estreicher

  With the growth of population and the enormous expansion of federal law in the post-New Deal period, the business of the federal courts has mushroomed. This increase is most striking in the first two tiers of the federal judicial pyramid. In the years 1960-1983, cases filed in United States District Courts more than tripled, from 80,000 to 280,000, but cases docketed in the United States Courts Of Appeals during the same period increased eightfold, from 3,765 to 25,580. To cope with this rise in appeals, Congress more than doubled the number of appellate judgeships. Not surprisingly, a similar growth can be found in Supreme Court filings: decade averages have increased in units of a thousand, from 1,516 per term in the 1950s to 2,639 in the 1960s, to 3,683 in the 1970s, to 4,422 in the 1981 term and 4,806 in the 1988 term. The contrast between this explosion in federal judicial business and the fixed decisional capacity of the Supreme Court—the nine Justices sitting as a full bench hear an average of 150 argued cases per year—has led to persistent calls for enhancing the appellate capacity of the federal system. A number of proposals have emerged since 1970, none resulting in legislation. In 1971 the Study Commission on the Caseload of the Supreme Court, chaired by Paul A. Freund of the Harvard Law School, recommended creation of a National Court of Appeals (NCA) that would assume the Supreme Court's task of selecting cases for review. The Freund committee believed that the selection process consumed time and energy the Justices might better spend in deliberation and opinion writing. This proposal died at birth. In 1972, Congress created the Commission on Revision of the Federal Court Appellate System, chaired by Senator Roman Hruska. The Hruska commission envisioned a mechanism for national resolution of open intercircuit conflicts, recommending an NCA that would hear cases referred to it by the Supreme Court or the United States Courts of Appeals. This NCA was to be a permanent tribunal, with its own institutional identity and personnel. In 1983, Chief Justice Warren E. Burger publicly endorsed proposed legislation to create on an experimental basis an Intercircuit Tribunal of the United State Courts of Appeals (ICT), which would decide cases referred to it by the Supreme Court. The ICT would be comprised of judges drawn from the current courts of appeals who would sit for a specified number of years. This proposal drew faint support. Other proposals have sought to enhance national appellate capacity without establishing new tribunals. The most recent recommendation of this type can be found in the 1990 report of the Federal Courts Study Committee, chaired by Judge Joseph F. Weis, Jr. The report urges Congress to give the Supreme Court authority, for an experimental period, to refer cases presenting unresolved intercircuit conflicts to a randomly selected court of appeals for a ruling by that court's full bench. These en banc determinations would be binding on all other courts, save the Supreme Court. Many of these proposals are conceived as measures to alleviate the Supreme Court's work load. The work load problem is, however, not one of obligatory jurisdiction; the Court's appellate jurisdiction has been largely discretionary as far back as the Judiciary Act of 1925, but even more so after 1988 legislation repealing virtually all mandatory appeals. The Justices do have to screen all of the petitions filed. It is doubtful, though, that any of the recent proposals promise much relief on this score. The Freund committee's NCA did, but received widespread criticism for suggesting delegation of the selection function. It is hard to believe referral to an NCA or a randomly selected court of appeals would reduce the Court's screening burden, for the losing party would still be free to appeal to the High Court. Moreover, the Justices will not likely tolerate nationally binding resolutions with which they disagree. Indeed, the Court's case selection process may be significantly complicated by adoption of any of these proposals.

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  Improving the Process: Case Selection by the Supreme Court

  Samuel Estreicher and John E. Sexton

  We have produced elsewhere our empirical assessment of the case for a new national court of appeals or intercircuit tribunal, concluding on the basis of a study of all the cases granted and denied review by the Supreme Court during the 1982 term that the data do not support creation of a new tier of appellate review interposed between the present courts of appeals and the Supreme Court. We do not propose to retrace that ground here. We do believe, however, that whether or not new courts are ultimately established, there are several reforms that should be put in place to enable the justices to manage better their scarce decisional resources. Most of the reforms we propose here could be effected by the justices themselves; one or two would require congressional action. Each would enable the Court to perform its managerial functions better and to fulfill its role as articulator of authoritative and uniform federal law.

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  Government Secrecy

  Stephen Gillers

  The First Amendment guarantees of freedom of speech and freedom of the press are essential to democratic rule because they protect the right to communicate and receive information needed for self-government. Self-government might seem to require that “the public and the press” also enjoy “rights of access to information about the operation of their government, as Justice John Paul Stevens stated in Richmond Newspapers v. Virginia (1980). Yet, despite its broad protection of speech and the press, the Constitution imposes meager limits on government secrecy. Judicial recognition of a right to know generally has been limited to the right to learn what others may choose to disclose and not a right to know what the government elects to conceal. The most prominent right of access to an official event recognized by the Supreme Court is the right to attend criminal trials and proceedings. Even here, however, early signs were inauspicious. In Gannett Co., Inc. v. Depasquale (1979) a newspaper relied on the Sixth Amendment to require a judge to open pretrial hearings over objections from the accused and prosecutor. The Sixth Amendment guarantees “the accused . . . the right to [a] public trial.” The Court rejected the newspaper's argument on the ground that the amendment gave the public no “right . . . to insist upon a public trial.” A year later, after much criticism, a fragmented Court found such a right in the First Amendment. In Richmond Newspapers the trial judge had closed a murder trial at the defendant's request. Chief Justice Warren E. Burger, writing for himself and Justices Byron R. White and John Paul Stevens, acknowledged that the First Amendment did not explicitly mention a right of access to governmental functions. But he found a right to attend criminal trials “implicit in the guarantees of the First Amendment.” He emphasized that other “unarticulated rights” had been found implicit in the Constitution, including the right of association, the right of privacy, and the right to travel. The Chief Justice also cited the Ninth Amendment, which he said was adopted “to allay . . . fears . . . that expressing certain guarantees could be read as excluding others.” Justice William J. Brennan (joined by Justice Thurgood Marshall) took a broader view of the right to government information, as did Justice Stevens in a separate opinion. For Justice Brennan, the First Amendment had “a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is [the] assumption that valuable public debate . . . must be informed.” His structural analysis extended to “governmental information” generally, not only criminal trials, with the “privilege of access . . . subject to a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality.” Justice William H. Rehnquist alone dissented. The Court has since relied on the First Amendment to invalidate a law that excluded the press and public during the trial testimony of a minor alleged to be the victim of a sexual offense in Globe Newspaper Company v. Superior Court (1982); to overturn a trial court's secret examination of prospective jurors in Press-Enterprise Co. v. Superior Court (1984); and to uphold public access to a pretrial hearing at which the prosecution must prove the existence of probable cause to bring a defendant to trial in Press-Enterprise Co. v. Superior Court (1986). In each case, the Court said that the interest in public access could be outweighed in particular cases by demonstrated need for exclusion.

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  Inter-State Arbitration Since 1945: Overview and Evaluation

  Christine Gray and Benedict Kingsbury

  Promoting and securing peaceful settlement of disputes remains one of the most important—and most difficult—objectives of the international legal system. While Article 33 of the UN Charter lists as methods of peaceful settlement negotiation, enquiry, mediation, conciliation, arbitration, and judicial settlement, this list is not exhaustive, and suggests a precision in classification which is belied by the complexity of dispute settlement practice. Arbitration as a method of inter-state dispute settlement in the modem period is often treated as having been inaugurated in proceedings under the Jay Treaty of 1794. In the subsequent evolution of practice concerning inter-state ‘arbitration’ a number of different interpretations of the term are discernible. The predominant approach is exemplified by the 1899 Hague Convention for the Pacific Settlement of International Disputes: “In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognised by the Signatory Powers as the most effective and at the same time the most equitable means of settling disputes which diplomacy has failed to settle.” A comparable view was expressed by the International Law Commission in 1953, describing arbitration as “a procedure for the settlement of disputes between States by a binding award on the basis of law and as the result of an undertaking voluntarily accepted”, and adding that “the arbitrators chosen should be either freely selected by the parties or, at least, . . . the parties should have been given the opportunity of a free choice of arbitrators.” The focus is thus on legal disputes. Arbitration is seen as an equitable means of settlement, but its object is the settlement of disputes by the application of legal rules, principles, and techniques, and not simply to reach an ‘equitable’ result. An alternative view, that arbitration is a means for settling non-legal disputes not suitable for judicial settlement, has been enshrined in a number of treaties, including the 1957 European Convention for the Peaceful Settlement of Disputes, but has received very little support in actual arbitral practice. In the post-1945 period, arbitration is best understood as a locus of activity rather than a highly precise category, recognised as distinct in practice but not separated by bright lines from adjudication on the one side and conciliation on the other. Thus, for instance, while conciliation is traditionally distinguished from arbitration on the basis that the parties are not obliged to accept the recommendations of a conciliation commission, treaty provisions occasionally provide that such recommendations are binding or at least must be considered in good faith. The United Nations Secretary-General in the 1986 Rainbow Warrior case between New Zealand and France functioned as both conciliator and arbitrator in producing a ruling which was ‘equitable and principled’, which ‘respect[ed] and reconcil[ed]’ the differing positions of the parties, which was informed by diplomatic consultations the Secretary-General had undertaken with each party separately, which did not contain explicit legal reasoning, and which the parties had agreed in advance to accept as binding. Arbitral tribunals have on several occasions been asked to produce non-binding opinions on legal disputes or to attempt to achieve friendly settlement of a dispute in the manner of a mediator or conciliator before issuing a binding ruling. 8 The substantive differences between arbitration and judicial settlement have also become less precise; the ICJ has developed the chambers procedure so as to be comparable in many respects to the procedure of an ad hoc arbitral tribunal, although institutional and other differences remain important. One area of possible difference, to be considered in a preliminary way in the final section of this chapter, concerns the relative importance of arbitral awards and of International Court judgments and opinions in the development of rules and principles of international law. Arbitration as a means of settlement offers considerable flexibility as to the legal status of the parties. The commercial arbitrations between states and non-state entities are well known, as are more unusual arbitrations such as that held in Geneva between Greenpeace and France. The France-UK Channel Tunnel Treaty of 29 July 1987 takes advantage of this flexibility in providing for the reference to arbitral tribunals of disputes between (i) states; (ii) states and concessionaires; and (iii) concessionaires. In accordance with the mandate given to the authors, this chapter will deal only with inter-state arbitration. In light of the continued importance of arbitration in the peaceful settlement of disputes, the purpose of this chapter is to examine the principal features of interstate arbitration in the period since 1945 (Section II), to assess the extent to which arbitration is distinct from conciliation and judicial settlement (Section III), and to evaluate the impact of arbitral decisions on the development of public international law (Section IV).

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  The International Politics of the Environment: An Introduction

  Andrew Hurrell and Benedict Kingsbury

  In addressing the international politics of the environment this book is concerned with the processes by which inter-state agreements on the environment are negotiated; with the rules and regimes established to facilitate environmental co-operation; with the international institutions that have been, or need to be, created to implement those rules; and with the conflicting political forces on whose resolution any successful regional or global environmental initiatives must depend. The global environmental issues discussed in this volume include climate change (chapters by Richardson, Beckerman, Cooper, Shue, Susskind and Ozawa, and Maull), ozone depletion (Bramble and Porter, and Maull), marine dumping (Stairs and Taylor), deforestation (Hurrell, Myers, and Bramble and Porter), and biodiversity (Myers). The objective is not to provide detailed scientific treatment of the nature of the major environmental challenges facing the world, but rather to explore the international political forces that work to complicate the negotiation and implementation of rational environmental policies between states, to analyse the strengths and weaknesses of various institutional mechanisms by which states have sought to co-operate in managing environmental problems, and to assess their relevance for the future. Underlying this analysis is a central question: Can a fragmented and often highly conflictual political system made up of over 170 sovereign states and numerous other actors achieve the high (and historically unprecedented) levels of co-operation and policy coordination needed to manage environmental problems on a global scale? The international dimensions of environmental problems have long been apparent, whether cross-border industrial pollution, the degradation of shared rivers, or the pollution of adjacent seas. Yet the scale and extent of these problems have increased dramatically as a result of the triple processes of population growth, rapid industrialization, and increased fossil fuel consumption. As one recent report points out: “Since 1900, the world's population has multiplied more than three times. Its economy has grown twentyfold. The consumption of fossil fuels has grown by a factor of 30, and industrial production by a factor of 50. Most of that growth, about four-fifths of it, occurred since 1950. Much of it is unsustainable.” The tremendous increase in the scale of human impact on the earth wrought by these developments, together with our increased, although still highly imperfect, understanding of ecological processes, means that the environment can no longer be viewed as a relatively stable background factor. Rather the interaction between continued economic development and the complex and often fragile ecosystems on which that development depends has become a major international political issue. Not only has the number and scope of transborder environmental problems increased, but a new category of global environmental issues has emerged; it is this global character that is the most distinctive feature of the present era. First, and most obviously, humanity is now faced by a range of environmental problems that are global in the strong sense that they affect everyone and can only be effectively managed on the basis of co-operation between all, or at least a very high percentage, of the states of the world: controlling climate change and the emission of greenhouse gases, the protection of the ozone layer, safeguarding biodiversity, protecting special regions such as Antarctica or the Amazon, the management of the sea-bed, and the protection of the high seas are among the principal examples. Second, the increasing scale of many originally regional or local environmental problems, such as extensive urban degradation, deforestation, desertification, salination, denudation, or water or fuel-wood scarcity, now threaten broader international repercussions: by undermining the economic base and social fabric of weak and poor states, by generating or exacerbating intra- or inter-state tensions and conflicts, and by stimulating increased flows of refugees. Environmental degradation in diverse parts of the developing or indeed the industrialized world can in this way come to affect the political and security interests of the developed countries. The third, and in many ways most important, aspect of increased globalization derives from the complex but close relationship between the generation of environmental problems and the workings of the now effectively globalized world economy. On the one hand, there is the range of environmental problems caused by the affluence of the industrialized countries; by the extent to which this affluence has been built upon high and unsustainable levels of energy consumption and natural resource depletion; and by the 'ecological shadow' cast by these economies across the economic system (a theme addressed by Hanns Maull in his chapter below). On the other, there is the widely recognized link between environmental degradation, population pressure, and poverty, given prominence in the Brundtland Report and at the 1992 United Nations Conference on Environment and Development (UNCED) in Brazil and highlighted below in Peter Thacher's examination of the present and future roles of the UN system and in Norman Myers's discussion of the ‘shifted cultivator’. The environmental problems created by both affluence and poverty have focused attention on the need to develop new understandings of sustainable development and new mechanisms for implementing the shift towards sustainability. Sustainable development has become a global issue both because of the high levels of economic interdependence that exist within many parts of the global economy and because it raises fundamental questions concerning the distribution of wealth, power, and resources between North and South.

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  The Supreme Court and Civil Rights: The Warren Court as Moral Prophet

  Burt Neuborne

  Covers the period from 1945 to 1992. Contains basic information on each state as well as essays on political, economic and social issues affecting the country as a whole.

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  Constitutional Liberty, Dignity, and Reasonable Justification

  David A. J. Richards

  American constitutionalism rests on both a political theory of legitimate government and a constitutional theory of political power. The political theory, derived from John Locke, offers and account of the conditions on the legitimate exercise of any form of political power. The constitutional theory offers structures for the exercise of political power that, in light of the propensities of our political psychology, tend to render the exercise of political power consistent with the conditions of Lockean legitimacy. Such a public enterprise of political and constitutional theory and political science has, of course, a rich history; and reflection on that history—so prominent in American constitutional interpretation today—notably feature the attempt better to coordinate the demands of the political and constitutional theory. To name only the most dramatic example, the Reconstruction amendments play the central role they do in our constitutional understanding because they address concurrently intolerable defects in both the political and constitutional theory of the 1787 Constitution (it tolerated, indeed entrenched and protected, a form of political power—slavery—that was illegitimate and its resulting defects in constitutional structure gave powerfully effective political expression to the pathology of political power we call racism). This essay examines the relationship between political and constitutional theory as a historically continuous enterprise centrally motivated by the concern to identify and give expression to values of human dignity through constitutional protections of inalienable human rights and a discourse of reasonable justification for political power appropriate to a polity that treats persons with the dignity required by respect for their moral personality. Constitutionalism is, so I will argue, a kind of generalization of the argument for the limitation of political power required by the respect appropriate to treating persons as bearers of rights, a self-correcting interpretive practice acutely sensitive to the cumulative lessons of history about both abuses of human rights and the ways in which such abuses may be corrected. My argument begins with Locke’s argument for religious toleration and the political theory he generalized from that argument, and then turns to American constitutionalism itself and the conception of reasonable justifiability to all that it imposes of the exercise of political power. The early historical focus of this essay is not of merely antiquarian interest. It is meant to be illustrative of the central motivations of American constitutionalism, namely, a historically informed reflection on both fundamental political deprivations of human rights and constitutional structure more likely to limit such abuses. A constitutional tradition, understood to be so motivated, must be critically sensitive to new insights into further such abuses and constitutionally principled ways to rectify them. The very interpretive integrity of the project of American constitutionalism thus unites a remarkably conservative and progressive public tradition of respect for inalienable human rights. The few great justices who have graced the Supreme Court of the United States throughout its long, noble and sometimes ignoble history have been those, of whom Justice William Brennan was clearly one, whose interpretive practice spoke brilliantly and profoundly with such integrity to the public conscience of the American people. Will our constitutional generation, whose youth profited from such a teacher, be worthy of the interpretive responsibilities of freedom?

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  Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law

  Stephen J. Schulhofer

  The criminal law attributes major significance to the harm actually caused by a defendant's conduct, as distinguished from the harm intended or risked. If, for example, a person attacks his wife and tries to kill her, he will be guilty of assault and attempted murder even if she escapes unharmed. He will also commit a battery if she is injured, mayhem if the injury is of certain especially serious types, and murder if she dies. The applicable penalties generally increase accordingly. Yet both the defendant's state of mind and his actions may have been identical in all four of the cases supposed. The precise location of a knife or gunshot wound, the speed of intervention by neighbors or the police, these and many other factors wholly outside the knowledge or control of the defendant may determine the ultimate result. Accordingly, the differences in legal treatment would seem at first blush inconsistent with such purposes of the criminal law as deterrence, rehabilitation, isolation of the dangerous, and even retribution - in the sense of punishment in accordance with moral blame. The illustration given is nevertheless typical of the many instances in which every American criminal code relates the gravity of the offense to the actual results of conduct. In most states, attempts are punished less severely than the completed crime, and the same pattern of emphasis on harm prevails if the result is greater than that intended.

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  Sentencing

  Stephen J. Schulhofer

  Anomalously, the constitutional law of criminal sentencing is a thinly developed field. Detailed procedural protections and an elaborate body of constitutional doctrine govern the investigation and adjudication of guilt in the pretrial and trial phases of a criminal case. The sentencing phase is just as important; indeed, for most defendants (who plead guilty without trial), the sentencing phase is even more important. Yet, outside the area of capital punishment, sentencing is characterized by the almost complete absence of governing standards of substantive law, an extreme informality in prevailing procedures, and few constitutional restraints. Although we ordinarily think of sentencing as a decision made by the judge after trial, the judge in reality shares sentencing authority with the legislature, the prosecutor, the jury, and the parole board or correctional agency. The division of authority varies widely from one jurisdiction to another and can have great impact upon the questions of constitutionality and fairness that arise. The most important alternatives for the organization of sentencing authority are the mandatory, discretionary, and indeterminate systems. In a mandatory sentencing system, the sentence to be served upon conviction for a given crime is specified in the penal statute as a fixed term of years. Although the legislature ostensibly controls the sentence by defining it in advance, sentencing authority in a mandatory system tends in practice to become centered in the hands of the prosecutor, who decides which charges to file and, in effect, which mandatory sentences to seek. This prosecutorial decision is regarded as a discretionary one and is made without any hearing or other procedural formalities, without any governing standards, and without any opportunities for independent judicial review. In the indeterminate sentencing system, neither the statute nor the judge limits the term to be served. The offender is sent to prison, potentially for life, and the time actually served is determined by the parole board. Usually that decision is based primarily on a judgment about whether an offender's progress toward rehabilitation makes him a good prospect for release. The parole board's decision is subject to few constitutional restraints. Connecticut Board of Pardons v. Dumschat (1981) holds that when a state's statutory regime treats parole as a privilege and creates no expectation of a right to early release, procedural due process requirements do not apply at all. When statutes do create an expectation of release, procedural due process requirements apply, but in Greenholtz v. Inmates (1979) the Supreme Court held that due process was satisfied by an opportunity to be heard and some indication of the reasons for denying parole. There is no right to counsel or right to confront or cross-examine witnesses in this context. In a discretionary sentencing system, the penal statute sets only the boundaries within which the sentence must fall—a maximum sentence and sometimes a minimum sentence. These legislative boundaries typically leave a broad range of choice to the judge, who can choose the time to be served (or the fine or terms of probation) within the applicable limits. In some jurisdictions the judge's discretionary sentencing authority is qualified by legislative or administrative guidelines that require the sentence to fall within a narrow range unless the judge identifies unusual aggravating or mitigating circumstances. But many jurisdictions permit the judge to select any sentence within the broad legislatively authorized range without giving reasons and without facing appellate review. In both mandatory and discretionary systems, sentencing authority is qualified by plea bargaining. The prosecutor may agree either to recommend a sentence or to fix a sentence that the judge must impose if the plea is accepted. The Constitution places few limits on the boundaries of plea negotiation. For example, the Supreme Court held in Brady v. United States (1970) that a guilty plea remains valid even if induced by the defendant's fear of facing the death penalty if he stands trial. On the other hand, the Constitution requires that plea agreements be respected by the government and by the courts. The Supreme Court held in Santobello v. New York (1971) that if a plea agreement is not honored, then the defendant has a constitutional right to withdraw the plea. In many jurisdictions, plea bargaining (with few constitutional restrictions) is in practice the principal mechanism for the determination of sentence.

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  Historic Injustice: Its Remembrance and Supersession

  Jeremy Waldron

  What is sovereignty? Was it ceded to the Crown in the Treaty of Waitangi? If land was unjustly confiscated over a century ago, should it be returned? Is an ecosystem valuable in itself, or only because of its value to people? Does a property right entail a right to destroy? Can collectives (such as tribes) bear moral responsibility? Do they have moral rights? If so, what are the implications for the justice system? These questions are essentially philosophical, yet thoughtful New Zealanders will be keen to see them discussed clearly, rigorously, and dispassionately. This book gathers together essays by eminent philosophers on some of these problems. All of them are New Zealanders or have connections with this region. The problems which this book addressed on aspects of justice and ethics are of concern to all New Zealanders. Students of law, Maori studies, philosophy, politics, and history will find it particularly helpful.

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  The Irrelevance of Moral Objectivity

  Jeremy Waldron

  Natural law theory is enjoying a revival of interest in a variety of scholarly disciplines including law, philosophy, political science, and theology and religious studies. This volume presents twelve original essays by leading natural law theorists and their critics. The contributors discuss natural law theories of morality, law and legal reasoning, politics, and the rule of law. Readers get a clear sense of the wide diversity of viewpoints represented among contemporary theorists, and an opportunity to evaluate the arguments and counterarguments exchanged in the current debates between natural law theorists and their critics. Contributors include Hadley Arkes, Joseph M. Boyle, Jr., John Finnis, Robert P. George, Russell Hittinger, Neil MacCormick, Michael Moore, Jeffrey Stout, Joseph Raz, Jeremy Waldron, Lloyd Weinreb, and Ernest Weinrib.

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  Legal Issues

  José E. Alvarez

  An annual publication of the United Nations Association of the United States of America.

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  Racism and Moral Pollution

  Kwame Anthony Appiah

  This anthology presents the best recent philosophical analyses of moral, political, and legal responsibility of groups and their members. Motivated by reflection on such events as the Holocaust, the exploding Ford Pintos, the My Lai massacre, and apartheid in South Africa, the essays consider two important questions: What collective efforts could have prevented these large-scale social harms? And is some group to blame and, if so, how is blame to be apportioned?

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  Social Forces, ‘Natural’ Kinds

  Kwame Anthony Appiah

  Published for the Centre for Modern African Studies, University of Warwick.

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  Soyinka’s Myth of an African World

  Kwame Anthony Appiah

  Annual selected papers of the ALA [African Literature Association]

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  Tolerable Falsehoods: Agency and the Interests of Theory

  Kwame Anthony Appiah

  In Consequences of Theory, Jonathan Arac and Barbara Johnson bring together scholars from literature, philosophy, religion, history, and law—with specialties in African-American, American, English, European, feminist, and postcolonial studies—to map some of the routes taken by theory in recent years. Anthony Appiah and Donald Pease analyze key tests of the "new historicism" in order to offer alternative models for understanding agency and resistance. Cornel West and Nancy Fraser question the quietist premises of current pragmatism; in contrast they sketch a pragmatism neither of individuals nor of communities, but of movements. Bruce Robbins and Lynn Hunt explore the relations between disciplines and the public, specifying the functions not only of professionalism but also of scandal. Gayatri Chakravorty Spivak and Patricia Williams focus on questions of marginality and minority, and they meditate on the forms and styles necessary to rethink these categories in today's world. With contributors of divergent backgrounds and intersecting interests, Consequences of Theory proposes an agenda for the 1990s that demonstrates the continuing vitality of theoretical questions within the academy and in the public world of culture, politics, and history.