James Thuo Gathii - Böcker

Recent wars and conflicts, the 'blood diamond' wars in the Democratic Republic of the Congo, and the wars in Iraq and Afghanistan, as well as asset freezing and blocking in the so called war against terrorism have more than ever before raised questions about the status of private property and contract rights after the outbreak of war. Do invading and occupying powers have the right to destroy and confiscate private property and ignore contract rights? Are residents of a war-torn countries and foreign investors alike protected by international laws that uphold commercial freedom? Who, and on what legal authority, decides cases over contested resources during or after war? As globalization and armed conflicts continue to grow and co-exist, these questions are increasingly in the international spotlight. War, Commerce, and International Law authoritatively explores these questions in the context of the relationship between war and commerce, on one hand, and international law, on the other. This book also places these questions in a historical context. Professor Gathii argues that there are continuities and discontinuities in the ways in which these rules were applied in colonial acquisitions of territory and in the protection of the rights of bond holders in the period before the twentieth century, and the manner in which private property and contract rights are being treated under occupation and during wartime in the contemporary period.This book also offers an original and authoritative framework for appreciating relations between powerful and less powerful States and entities and between public and private power, as well as between peoples from vastly different cultural and racial backgrounds, in the context of war and commerce. It presents authoritative comparisons and contrasts between the protection of rights of foreign and domestic investors under international law in the context of war. In so doing, it debunks the story that commerce has prevailed over wartime deprivations and destructions of private property and contract rights. It shows how wartime effects on private property are a constitutive component of war rather than an aberration of it. Professor Gathii demonstrates that while international legal prohibitions against destruction and confiscation of private property during wartime are important, they have often been disregarded or sacrificed at the alter of claims of liberty and freedom historically as well as in the contemporary period.Most importantly, War, Commerce, and International Law shows that although the doctrines and rules of international law relating to war and commerce guarantee fairness between all states, their application, interpretation, and adjudication in a variety of contexts nevertheless simultaneously carry forward within them the legacy of imperialism and colonial conquest. However, while international law carries within it this legacy, its guarantees of the equality of all states and of the human rights of all individuals, continue to offer hope for poor and weak states and individuals everywhere.

The performance of international courts has traditionally been judged against criteria of compliance and effectiveness. Whilst these are clearly desirable objectives for litigants before Africa's international courts, this book shows that we must look beyond these criteria to fully appreciate the impact of these courts. This book shows how litigants use their participation in international litigation to achieve other objectives: to amplify political disputes with their governments, to build their movement, to educate the public about their cause, and to challenge the status quo. Chapters in this collection show how these courts act as coordination points for opposition political parties to name and shame dominant parties for violation of their organizational rights. Others demonstrate how Africa's international courts serve as transitional justice mechanisms in which truth telling about ongoing conflict and authoritarian governance receives significant attention. This attention serves as a platform to galvanize resistance against continued authoritarian rule, especially from outside the conflict countries. Ultimately, the book shows that these courts must be judged against new and broader criteria, and understood as increasingly important venues for waging political, social, environmental, and legal struggles.

African regional trade integration has grown exponentially in the last decade. This book is the first comprehensive analysis of the legal framework within which it is being pursued. It will fill a huge knowledge gap and serve as an invaluable teaching and research tool for policy makers in the public and private sectors, teachers, researchers and students of African trade and beyond. The author argues that African Regional Trade Agreements (RTAs) are best understood as flexible legal regimes particularly given their commitment to variable geometry and multiple memberships. He analyzes the progress made toward trade liberalization in each region, how the RTAs are financed, their trade remedy and judicial regimes, and how well they measure up to Article XXIV of GATT. The book also covers monetary unions as well as intra-African regional integration, and examines free trade agreements with non-African regions including the Economic Partnership Agreements with the European Union.