Scholarly Articles

With his role as a renowned scholar on peace negotiations and post-conflict constitutions, Dr. Williams has published numerous scholarly articles on various topics ranging from earned sovereignty to peace negotiations.

Article topics:

Earned Sovereignty

Humanitarian Intervention

Justice and Law

Peace Building

Negotiations

Earned Sovereignty Revisited: Creating a Strategic Framework for Managing Self-Determination Based Conflicts

Abstract:      

In order to successfully resolve the persistent and growing number of violent and nonviolent sovereignty-based conflicts, this article calls for the international community to develop a strategic framework to guide resolution of these conflicts. Currently, no comprehensive strategic framework for managing self-determination exists. The status quo promotes a nebulous approach to managing self-determination movements, ultimately fostering an atmosphere of apprehension, instability and uncertainty at the mere mention of potential independence.

Earned Sovereignty: Bridging the Gap Between Sovereignty and Self-Determination

Abstract:      

In Bosnia, 250,000 civilians were killed and over one million displaced in a campaign of genocide carried out by Serbia in response to Bosnia's declaration of independence from the former Yugoslavia. While Serbia and Montenegro, Northern Ireland, Bougainville, and the Western Sahara share sovereignty with a central authority, in the cases of Kosovo and East Timor, the substate entity shares sovereign authority and functions with international organizations during an interim period prior to a determination of final status. This lack of coordination on the part of the international community, particularly the hesitation on the part of the United Nations to transfer authority to the Kosovars and undertake a process for determining final status as required by Resolution 1244 effectively derailed the approach of earned sovereignty, leaving Kosovo with an undefined and stagnant status.

Earned Sovereignty: The Road to Resolving the Conflict Over Kosovo’s Final Status

Abstract:      

This article is the third in a series of three articles which discuss the emerging doctrine of "earned sovereignty." The first article provided a detailed definition of earned sovereignty, and its sub-components, and explained the historical and political basis for the doctrine. The second article set forth the legal basis for the doctrine. This article explores the competition between self-determination and sovereignty in the conflict between Kosovo and Serbia, and tracks the efforts of the international community to rely on the doctrine of earned sovereignty to resolve the conflict.

Earned Sovereignty: An Emerging Conflict Resolution Approach

Abstract:      

The purpose of this article is two-fold. It attempts to first define and add structure to this evolving process and second to spur interest and debate among those involved in the field. Section one provides an overview of the different core and optional elements that make up the earned sovereignty process. Section two outlines fundamental principle that sovereign authority and functions are both plentiful and severable as internal and external autonomous rights rather than an all or nothing grant of independence.

Resolving Sovereignty-Based Conflicts: The Emerging Approach of Earned Sovereignty

Abstract:      

Until recently, most efforts to resolve sovereignty-based conflicts have faltered due to the limited legal and political tools available to policy makers. The two most applicable principles, sovereignty and self-determination have been reduced to little more than legal and political shields behind which states and sub-state entities justify their actions. While these two basic principles of international law may sometimes be reconciled to create a lasting settlement of a sovereignty-based conflict, more frequently they are a recipe for political gridlock and violence.

Earned Sovereignty: The Political Dimension

Abstract:      

There are currently over fifty sovereignty-based conflicts throughout the world, and nearly a third of the Specially Designated Global Terrorists listed by the United States Treasury Department are associated with sovereignty-based conflicts and self-determination movements. To date, the "sovereignty first" international response to these conflicts has been unable to stem the tide of violence, and in many instances may have contributed to further outbreaks of violence. This article will argue that the "sovereignty first" doctrine is slowly being supplemented by a new conflict resolution approach which we dub "earned sovereignty."

Preventing Mass Atrocity Crimes: The Responsibility to Protect and the Syria Crisis

Abstract:     

This article argues that when peaceful measures have been exhausted and the Security Council is deadlocked, Responsibility to Protect (R2P)’s third pillar, timely and decisive response, should allow the use of only those low-intensity military options, such as no-fly zones and humanitarian safe havens, that are focused on protecting populations. This approach would advance R2P’s development by establishing specific criteria that allow for the limited use of force when the Security Council fails to act. In doing so, R2P will be able to fulfill its primary purpose of preventing mass atrocities within a sovereign state, thus preventing humanitarian tragedies similar to those witnessed in Bosnia, Rwanda, Darfur, and now Syria.

Military Intervention and Diplomatic Engagement in Libya: A Collage of Policy, Force and Law

Abstract:      

This chapter examines the role law played in five key political-military decision points relating to the case of Libya. First, should the United States join France and Great Britain in using force to protect the people of Libya? Second, what is the extent of military force that could be used to accomplish this objective? Third, to what extent should Congress be involved in the decision to use force? Fourth, should the United States recognize the National Transitional Council as the legitimate government of Libya? Finally, should the United States and its allies seek a negotiated settlement if the military campaign failed to adequately protect civilians or to prompt a regime change?

Coercive Appeasement: The Flawed International Response to the Serbian Rogue Regime

Abstract:      

In April 1987, Slobodan Milosevic addressed a crowd of Kosovo Serbs outside the Kosovo parliamentary building who had gathered to protest the treatment of the Serb minority by the Kosovar Albanians. Milosevic proclaimed to the crowd that “[n]obody has the right to beat Serbs.” With this simple phrase, Milosevic began a long campaign characterized by the use of ethno-nationalism and ethnic aggression to accomplish his objective of a mono-ethnic greater Serbia. During the course of his war of ethnic aggression, Milosevic was predictably aided in his efforts by radical Serbian intellectuals, nationalist paramilitary organizations, the Yugoslav National Army (JNA), Croatian Serb and Bosnian Serb protégées such as Radovan Karadzic and Ratko Mladic, and a generally passive Serbian population.

President Obama's Approach to the Middle East and North Africa: Strategic Absence

Abstract:      

Based on observations of the White House’s foreign policy decisions over a breadth of seven years, this article argues that The White House does have a clear policy and it is one of Strategic Absence. The author describes the six core tenets of Strategic Absence and demonstrates, through case studies, that the Obama Administration has responded to challenges and threats to the United States’ strategic interests in Iraq, Egypt, Libya, Yemen and Syria according to the parameters of the doctrine of Strategic Absence.

Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR

Abstract:      

The dissolution of the Soviet Union led to a profound political transformation in Central and Eastern Europe during the 1990s. The Case of the Incorporation of the Baltic States by the USSR, by Lauri Malksoo, undertakes a comprehensive analysis of one of the key aspects of the transformation: the preservation of the continuity of the international legal personalities of the Baltic states despite fifty years of Soviet annexation and occupation.

The Functions of Justice and Anti-Justice in the Peace-Building Process

Abstract:      

This article serves as an introduction to The Case Western Reserve Journal of International Law’s “Role of Justice in Building Peace” Symposium Issue by providing a detailed definitional description of the justice norm. In addition, it identifies the variety of functions performed by the norm of justice and the approach of accountability during the peace-building process. This is followed by an examination of the perceived conflict between the approaches of accountability and accommodation, which lies at the core of the common belief that is sometimes necessary to swap justice for peace.

Rethinking the Political Future: An Alternative to the Ethno-Sectarian Division of Iraq

Abstract:      

To address the question of whether the future of Iraq rests with ethno-sectarian division or with multi-ethnic federalism, this Article first addresses the ideas behind ethno-sectarian division and describes the most prominent plans for the division of Iraq along ethno-sectarian lines. This Article then critiques such a division of Iraq by: (1) identifying the overwhelming lack of popular support for such a division; (2) exposing the practical and political difficulties of dividing a state as diverse and heterogeneous as Iraq; (3) discussing the likelihood that ethno-sectarian division will increase violent conflict; (4) highlighting the lessons of prior ethno-sectarian divisionist attempts; (5) noting insurmountable constitutional hurdles; and (6) setting out the significant signs of recent progress and cooperation in the Iraqi political framework.

Establishing a Stable Democratic Constitutional Structure in Iraq: Some Basic Considerations

Abstract:      

The process of reconstituting Iraq’s sovereignty will be highly complex and face many hurdles. The eclectic ethnic and religious make-up of Iraq will require the drafters to develop a sufficiently decentralized unitary state or federal structure that will secure Kurdish participation in the Iraqi state without undermining the functional integrity of Iraq or encouraging further secessionist tendencies. The Kurdish/Arab bargain must be accomplished while accounting for the Sunni/Shi’a split within the Arab community, and without neglecting the needs and aspirations of Iraq’s minority populations such as the Turkomans, Chaldeans, Yezidi, and Assyrians. Some of Iraq’s numerous neighbors want to be assured of Iraq’s territorial integrity, while others must be prevented from actively undermining its integrity or radicalizing its politics. All this must be accomplished while tempering flashpoints such as Mosul, Karbala, Nasiriyah, and Kirkuk, and integrating into the process a politically resurgent Shi’a community.

Report of the Committee of Experts on Nation Rebuilding in Afghanistan

Abstract:      

This report, written by Professors Michael Scharf and Paul Williams, is the product of the November 30 Meeting of Experts. The report should not be taken to reflect the view of any particular participant on the Committee, all of whom served in their individual capacity.

The report is divided into the following sections: relevant facts, the U.S. interest in participating in Afghan nation rebuilding, general goals for nation rebuilding, specific objectives for nation rebuilding, and the role of the concepts of intermediate sovereignty and phased recognition in achieving these goals and objectives.

Drafting in Doha: An Assessment of the Darfur Peace Process and Ceasefire Agreements. By Paul R. Williams and Matthew T. Simpson (Chapter three)

Abstract:      

The story of the Doha Agreements is one of complicated relationships and political motivations. For some stakeholders like the government, they accomplished their goals; temporary documents with limited substance that advertise their participation in the process without actually binding parties to firm commitments. LJM arguably accomplished its goal of establishing itself as a legitimate negotiating block in the process. Other stakeholders accomplished less; the JEM Framework was repeatedly violated early on, and its March 15 deadline for final negotiations seemingly came and went without notice. What cannot be lost in the frenzy of these constantly changing relationships, and what this article has endeavored to establish, is that words matter. Though they were no doubt a positive step in the peace process, the substantive weakness of the Doha Agreements limited their ability to be sustained and implemented in any meaningful way. In particular, the parties and the mediators missed a real opportunity to set the foundation for significant security sector reform and DDR. Greater specificity, more consistency with international state practice, and an increased role for the international community would all have contributed to the likelihood that the agreements would be meaningfully implemented in a sustainable way. Going forward, those responsible for negotiating and drafting subsequent agreements must recognize that the words, when drafted well and in a manner consistent with international state practice, work to bind the parties to the document and its principles in a way that self-interest and motivation cannot break apart.

A Legal Perspective on Yemen’s Attempted Transition from a Unitary to a Federal System of Government

Abstract:      

Yemen’s 2013–2014 National Dialogue Conference paved the way for Yemen to transition from a unitary to federal system of government. This is a common trajectory for States emerging from conflict as federalism offers the hope for greater democratic governance and inclusivity. Nevertheless, there is a danger in assuming that there is an ideal federal model to emulate or that federalism is itself a guaranteed remedy for political dysfunction and authoritarianism. Transitioning to federalism is an arduous, expensive, and technically complicated process. Such transitions can also renew conflict if, prior to the drafting of the federal constitution, key issues related to the design of the new system are not addressed or there is a lack of consensus on how to address those issues. Indeed, this was the case in Yemen. Prior to drafting its new federal constitution, Yemen struggled to reach sufficient political consensus on three key issues: (1) the formation of federal regions; (2) the structure of the new federal system; and (3) how powers were to be distributed in the State, including over natural resources management. This lack of consensus during the National Dialogue Conference resulted in the Constitution Drafting Committee having the responsibility of making highly controversial political decisions about Yemen’s future as a federal State. This article examines how Yemen’s transition to federalism was undermined by the inability to reach sufficient consensus on three key transition issues prior to the drafting of the 2015 federal constitution.

Blood Antiquities: Addressing a Culture of Impunity in the Antiquities Market

Abstract:      

For decades, parties to conflicts have used the cover of war to destroy and loot cultural property and antiquities for financial gain and symbolic victory. The “blood antiquities” excavated in conflict areas and sold mostly in western markets fuel not only continued conflict, but also (as in cases such as Syria and Iraq) terrorism that can reach around the world. The culture of impunity for both buyers and sellers of antiquities allows the blood-antiquities trade to thrive.

A robust international legal framework does exist to ensure accountability for the destruction of cultural heritage. Because looting is a major cause of destruction, it should be included in this framework. The successful prosecution of Ahmad Al Faqi Al Mahdi by the International Criminal Court (ICC) on charges of deliberately attacking historical and cultural monuments bodes well for an end to impunity. Yet, this paper argues that international and domestic systems of regulation and certification are also needed to establish criminal liability and eliminate the willful ignorance of buyers.

State Succession to Debts and Assets: The Modern Law and Policy

Abstract:      

When a state dissolves, or when territorial entities of a state break away and become independent states, those states and other members of the international community are faced with a host of legal questions concerning the continuation of the predecessor state’s treaty obligations, succession to the predecessor state’s membership in various international organizations, and the allocation of its debts and assets. This article addresses the legal rules governing the allocation of debts and assets among successor states, and in particular the role of the creditor states in formulating that allocation.

Creating International Space for Taiwan: The Law and Politics of Recognition

Abstract:      

Is Taiwan an entity with an international legal personality entitling it to a certain degree of international space? Or is it an integral political unit of China? The task of this presentation is to analyze the potential legal and political reaction to an attempt by Taiwan to move its current status over the cusp and into the realm of independence, or an alternative attempt by China to back down Taiwan into a one China with the one system policy.

Can International Legal Principles Promote the Resolution of Central and East European Transboundary Environmental Disputes?

Abstract:      

The fall of communism and the subsequent opening of Central and Eastern Europe (CEE) have revealed a regional ecosystem under serious strain after over forty years of communist stewardship. Although the entire region suffers from an exploited ecosystem, particular destruction has occurred in the border regions of the CEE states. The substantial environmental destruction and continuing degradation in these border regions give rise to a number of transboundary environmental disputes, which must be resolved if the situation is to be alleviated.

Current Legal Status of the Federal Republic of Yugoslavia (FRY), and of Serbia and Montenegro

Abstract:      

The deteriorating relationship between Montenegro and Belgrade has raised the question of whether the Federal Republic of Yugoslavia, with its two constituent republics of Serbia and Montenegro, in fact continues to exist. The answer to this question has immediate relevance to the forthcoming federal elections scheduled for 24 September 2000.

The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement?

Abstract:      

In the following sections, the article will first define the five key elements of coercive appeasement. Then, using examples from the conflicts in Bosnia and Kosovo, it will illustrate how at various points in the conflicts, a greater reliance on the norm of justice could have provided a viable alternative to coercive appeasement. It will also critically examine the extent to which justice failed to adequately constrain the effects of coercive appeasement due to the inability or unwillingness of the Yugoslav Tribunal to effectively carry out its mandate.

Accountability and Judicial Response: Building Mechanisms for Post-Conflict Justice

Abstract:      

The purpose of the thirty-eighth Strategy for Peace, US Foreign Policy Conference, the third in a Stanley Foundation series addressing the role of the international community in post-conflict justice, was to bring together a unique blend of policymakers and practitioners, each with extensive experience in fostering justice and the rule of law internationally, to explore how specifically the United States and other players could better coordinate and rationalize their international activities.

Preemption in the 21st Century: What are the Legal Parameters?

Abstract:      

While there has been significant political discussion as to the utility and/or risks associated with the doctrine of preemption, the legal debate has to date been fairly limited. Few if any have sought to define the legal parameters of the doctrine. The purpose of this article is to help define the appropriate legal parameters for use of the doctrine. This article will first review the strategic rationale for preemption, and a detailed definition of the modern doctrine. This will be followed by a review of the United States’ government’s legal rationale and a review of the emerging legal debate before discussing the applicable parameters. The article will conclude with the argument that in order to guard against the unwarranted application of the doctrine a specific set of clearly defined criteria must be developed for its use.

The Norm of Justice and the Negotiation of the Rambouillet/Paris Peace Accords

Abstract:      

With the creation of the International Criminal Tribunal for the Former Yugoslavia and the imminent creation of a permanent International Criminal Court, as well as the proliferation of public statements by high government officials endorsing the norm of justice, many commentators are hypothesizing that the long running tension between peace and justice may be undergoing a period of reconciliation. A brief review of the efforts to incorporate the norm of justice in the Rambouillet/Paris Accords and UNSC 1244 indicates that only minimal progress has been made in the reconciliation between the quest for a negotiated peace and the norm of justice.

Lawfare: A War Worth Fighting

Abstract:      

There are three similarities between legal mechanisms and processes and warfare that I think support the notion that lawfare is a useful concept. The first is that they often pursue the same objectives; the second is that they have a broadly similar approach for accomplishing these objectives – strategic, operational, and tactical; and the third is that lawfare, as part of a conflict resolution approach, is often times fought before the hot conflict, during the hot conflict, and the hot conflict.

NATO Intervention on Trial: The Legal Case that Was Never Made

Abstract:      

The failure of the NATO countries to articulate a legal basis for their humanitarian intervention in Kosovo is puzzling in that there are in fact several compelling legal arguments that could be made to justify the Kosovo intervention. The reason for this silence may be that each possible legal underpinning carries with it the specter of a practical consequence that the NATO countries traditionally hope to avoid. Unfortunately the policy of silence is a blunt and weak tool for navigating these concerns and, in the long term, frequently exacerbates the concerns and validates the objections to the legitimate use of force for humanitarian intervention.

Bankruptcy in Russia: The Evolution of a Comprehensive Russian Bankruptcy Code

Abstract:      

This article traces the development of the current bankruptcy code, with it origins in the early economic laws of perestroika; explains key provisions of the current law; and comments on the prospects for its effective implementation. The intent of this article is to provide a balanced understanding of the Russian bankruptcy code useful both to the study of the emergence of a market-based economy in Russia and as a bankruptcy primer for individuals or corporations conducting business in Russia.

Trying the Butcher of Omarska

Abstract:      

In 1992, genocide returned to Europe. That summer, the world learned of the existence of Serb-run concentration camps in Bosnia, with conditions reminiscent of the Nazi-run camps of the Second World War. During that bloody summer, a quarter of a million Muslim civilians were killed, two million were driven from their homes, and some 20,000 Muslim women were raped as part of the Serb tactic known euphemistically as “ethnic cleansing.” Six years later, many of the architects of ethnic cleansing and their henchmen are now standing trial before the first international criminal tribunal since the Second World War. The story of the establishment of this tribunal and the prosecution of its first case is the subject of Michael Scharf’s Pulitzer Prize-nominated book, Balkan Justice.

The Politics and Policy of Deep Sea-Bed Mining

Abstract:      

1982 marked the end of the ten-year negotiation of the United Nations Convention on the Law of the Sea (LOS Convention),1 the most complex and comprehensive multilateral agreement ever negotiated. In April 1982, one-hundred and thirty countries voted in favor of the LOS Convention, seventeen abstained, and only four voted against the treaty. The United States was one of the four countries voting against the LOS Convention. Markus Schmidt's Common Heritage or Common Burden? is a comprehensive work that examines the formulation of United States foreign policy, the dynamics of international negotiations, and the United Nations treaty/decision making process.

The Northern Ireland Peace Agreement: Evolving the Principle of Self-Determination

Abstract:      

Central to this article is the evolution of the nature of the principle of self-determination. The main focus will be on the examination of a recent instance of state practice — the Northern Ireland Peace Agreement. In particular, the way in which the Northern Ireland Peace Agreement has given effect to the primary elements of self-determination, including democratic self-government, the protection of human rights, and the protection of minority rights will be discussed.

Achieving a Final Status Settlement for Kosovo

Abstract:      

On November 19, 2002, the Center for Strategic and International Studies (CSIS), the National Albanian American Council, and the Dayton Peace Accords Project held a one-day conference in Washington, D.C., at CSIS, entitled “The Future of Kosovo.” The conference was attended by U.S. policymakers, congressional representatives, regional specialists, nongovernmental organizations (NGOs), business leaders, journalists, as well as key activists and analysts from Kosovo. The vital question of Kosovo’s emerging status was discussed openly with a view to producing a subsequent report offering concrete recommendations to the U.S. administration, U.S. legislators, and major international organizations on the question of Kosovo’s future status.

Simulating Kosovo: Lessons for Final Status Negotiations

Abstract:      

While the United States and its European allies are hesitating about what to do about Kosovo’s final status, there is a need to begin to prepare for the difficult negotiations between Belgrade and Pristina required to determine that status within the next five years or so. Simulated negotiations conducted in the fall and winter of 2001-2002 with mostly American participation suggested that the U.S. government must take a lead role in such negotiations if they are to be successful. Both simulated “Serbs” and “Albanians” looked to the “U.S.” as the power broker, ignoring other elements in the international community like the “UN,” which lacked credibility with both sides. The “Serbs” felt the United Nations had failed to ensure the implementation of UN Security Council resolution 1244, while the “Albanians” sought to minimize the importance of 1244 and saw a UN-led international delegation as an obstacle to resolution of the conflict.

The key to “U.S.” leadership was a strong presence in the negotiations, demonstrated by articulating either an acceptable solution or a substantive position on the final status of Kosovo. Modalities (especially location of the talks, under whose auspices they are conducted, terms of reference, in which delegation the Kosovo Serbs would sit at the table) are likely to be crucial, acting as a surrogate for the most important substantive issues.

Constitutionalizing Globalization: The Postmodern Revival of Confederal Arrangements

Abstract:      

Studies of the emergence and function of international organizations and more informal international regimes are assuming a central place in the discipline of international relations. While this concern appeared at least as early as the work of Hugo Grotius (1583-1642), several recent books have significantly advanced this stream of study. Michael Walzer's Just and Unjust Wars (1992), for instance, employs the notion of a "domestic analogy" to investigate whether a parallel relationship exists between politics within a state, on one hand, and reaching normative consensus among actors within the international system, on the other.' R. B. J. Walker's Inside/Outside (1993) has challenged the validity of theoretical distinctions between politics within and beyond state borders, arguing that the long-understood theoretical distinction between domestic and international politics is an aspect of world politics and not an explanation of them. Finally, Paul Wapner's Environmental Activism and World Civic Politics (1996) has argued for the existence of a global civil society which, along with states, serves to "define and shape [global] public affairs."