Formal Declaration Research Articles

Wars of Disruption: International Competition and Information Technology-Driven Military Organizations

The US military's vigorous development of force multiplying information technologies during the late Cold War period set the stage for the emergence of a new form of warfare, one seen as legitimate even though it lacks the formal declaration of war – ‘wars of disruption’. ‘Wars of disruption’ are not inevitably lethal. Over the 1990s, however, military leaders channeled a traditional emphasis on lethality into many novel operations. New technologies were justified by the proposition that ultimately their test of effectiveness was their contribution to rapid, accurate applications of lethal force. This predilection was unfortunate since today's environment is filled with state and non-state actors whose mix of incentives to act may not be as sensitive to the application of lethal force as they might to a policy response mix of other levers. This piece discusses the evolution and the underlying focus on lethality that was used expediently by military leaders for budgetary purposes but came to dominate the modernization vision. This essay proposes a theory for assessing when actors have sufficient incentive to disrupt the status quo and when major power policies should employ a war of disruption against the recalcitrant actor, and with what degree of lethality.

A Reinterpretation of the Fifth Lateran Council Decree Apostolici regiminis (1513)

The promulgation of the Fifth Lateran Council decree Apostolici regiminis (1513) traditionally is understood as having been motivated by opposition to teachings on the soul, taught by Pietro Pomponazzi and certain secularAristotelian philosophers of the day. The decree is also construed as representing the Catholic church's formal dogmatic declaration of the individual immortality of the rational soul.This article argues that while Pomponazzi and his colleagues are likely to have been the decree's primary antagonists,Apostolici regiminis is not a dogmatic declaration on immortality but rather a dogmatic condemnation of the so-called doctrine of the double truth. Building upon this notion, the article proposes certain revisions to the traditional understanding of the decree and its historical context.

Sierra Leone After the End of the Armed Conflict

Since March 1991, Sierra Leone has experienced continuous civil strife culminat­ing in a protracted civil war, leading to widespread destructions of infrastructures and property, and the death of thousands of people, many more injured and over half of the population displaced. Three peace accords were signed in 1996, 1997 and 1999 in Abidjan, Conakry and Lame respectively. However, these agreements did not bring peace. In this paper, the author situates the reasons and the nature of the conflict, the events leading to both government and rebel leaders declaring in January 2002 the end to conflict. Finally, he looks at Sierra Leone following the formal declaration of an end to the war.

Text and History in the War Powers Debate: A Reply to Professor Yoo

In Textualism and War Powers (TWP),1 I examine the eighteenth-century meanings of declaring in the hope of shedding some textual light on the long-running debate over the Constitution's allocation of war powers. Previously, that debate appeared to have reached an impasse. Advocates of presidential war power seemed to have the better of the textual arguments, as Congress's power is only to war, which, taken to refer only to the issuance of a formal proclamation of did not seem broad enough to cover all power to begin military action. Advocates of congressional war power seemed to have the better of the Framers' intent arguments, because the Constitution's drafting and ratifying history, and the political events and commentary of the 1790s, appeared to assume a leading role for Congress in the decision to commit the nation to war.' TWP argues that close attention to the eighteenth-century meaning of declaring war strengthens the textual argument for Congress and weakens the textual argument for the President. First, declaring war was used in the eighteenth century to mean not just a formal proclamation, but also an act (typically a hostile attack) that marked the beginning of a state of war. Thus, as John Locke said, one might declare by Word or Action. This provides a textual basis for reading Congress's war powers broadly. Second, formal proclamations of war in the eighteenth century were seen as a communicative and rhetorical device, not as the prerequisite to the legal state of war (either domestically or internationally). Presidential advocates have suggested that the Declare War Clause gave Congress the power to decide when to invoke the laws of though not the power to decide when to use military force, because in the eighteenth century a formal proclamation was prerequisite to the former but not the latter.4 This gave the presidential side a persuasive affirmative account of the

Textualism and War Powers

This Article explores the eighteenth-century use of the phrase war, with the goal of shedding some light upon the original understanding of the Constitution's Declare Clause It finds that declaring war in the eighteenth century had a broader meaning than is commonly supposed. Nations could war by formal proclamation, but nations could also declare by action alone. An armed attack showing an intent settle differences between nations by force created a state of war between those nation& Launching such an attack, even in the absence of a formal proclamation, was called declaring war. As the Article explains this provides a textual basis for the common assertion that Congress's constitutional power to War broadly encompasses the power initiate warfare. It also refutes the claim that the President can order military attacks upon foreign powers without Congress's approval so long as no formal declaration is involved. The Article further argues however, that since Congress's constitutional power is only war (by proclamation or by authorizing an attack), presidential actions that do not create a state of war-even if they involve the use of military force or the threat or likelihood of war-do not require congressional authorization.

To Declare War

The transition from peace to war and back again fundamentally alters many legal relationships, whether they are privately ordered through contract or publicly ordered through statutes, common law doctrines, treaties, or even the Constitution. As one would expect from the Vietnam War experience, lawsuits filed by parties, ranging from insurance companies to conscientious objectors, may turn on the question of whether a war may have been lawfully authorized by Congress in the absence of a formal declaration of war. In Part I of this Article, I begin by documenting what is perhaps obvious - that Congress did not declare war against Iraq on January 12, 1991. I agree with Professor Harold Hongju Koh of Yale Law School and his colleagues (whom I call the Koh Signatories), and I disagree with President George H.W. Bush's lawyers in the Department of Justice, that it is a justiciable political question for a federal court to determine whether armed conflict of a certain level or ferocity constitutes war for purposes of the War Clause of the Constitution. To commence warfare on the scale witnessed against Iraq, the President needed to receive a formal declaration of war. He did not. Although there is a category of warfare that the President may initiate without a prior declaration of war, the Persian Gulf War was too mammoth to be characterized as a police action. And although there are cases - poorly reasoned in my view - establishing that Congress may authorize limited war, the Persian Gulf War from its very inception did not fit within this category. Although politically significant, Congress's joint resolutions of January 12, 1991 was a legal nullity, a merely precatory or hortatory gesture. By failing to declare war against Iraq, Congress produced an anomaly in our representative democracy: The Persian Gulf War lacked constitutional legitimacy despite its overwhelming support among the American electorate. Why is Congress more willing to let the country go to war than to declare war? How can the evils of permitting America to wage war be any less that the evils of formally declaring war? In Part II, I argue that, in the interest of enhancing political accountability, Congress should authorize war only through formal declaration. Congress should not be able to implicitly authorize the initiation of war merely by appropriating funds for war purposes. A declaration of war fulfills Congress's representative function because it is more immediately visible to the electorate, less susceptible to ambiguity and disagreement once it is made, and thus more conducive to effective monitoring of the performance of political actors. Further, no legal significance should attach to a joint resolution that members of Congress have represented to be tantamount to a declaration of war. Congress should have a duty to declare war if it favors war and believes that the level of hostilities envisioned requires the President to receive prior congressional authority. It is my purpose in Part II to show that insights into the economics of organization shed light on the genius of the Framers, and counsel us to maintain strict formality in the separation of government functions relating to the decision to go to war. In Part III, I examine the formality of the declaration of war against Japan on December 8, 1941. I show how this brief congressional resolution substantially exceeded the degree of formality required by the letter of the Constitution. The declaration reflected a different, and in my view a superior, conception of the process for the authorization of war than one finds either in the actions of President Bush and Congress in the Iraq crisis or in the recommendations of the Koh Signatories or Professor Stephen L. Carter of Yale Law School. In Part IV, I examine the proposals of Professor Carter and of the Koh Signatories. Although I concede that the prosecution of war could be regulated through either Professor Carter's proposal to use the appropriations process, or through the Koh Signatories' proposal to use the equitable powers of the judiciary to enjoin the President, the degree of political accountability that would correspond to these arrangements would be inferior to that which would accrue under a formal declaration of war. In addition, in Part IV and throughout this Article, I use the circumstances of the Persian Gulf War as an opportunity to assess and to critique the growing body of work on the war powers by Professor John Hart Ely. Although I agree with many of Professor Ely's premises regarding political accountability, I disagree with most of his major conclusions regarding what the Constitution requires, or should require, in matters of war.

War, Liberty, and Enemy Aliens

This article, originally published in 1992 in the aftermath of the Persian Gulf War, has renewed relevance in light of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon, and the Justice Department's subsequent detention of more than 1,000 persons, many of them aliens, suspected of having ties to terrorist organizations. Declaring war is a valuable constitutional ritual. Its formality increases the political and moral accountability of political actors to the electorate for their decision to use military force to achieve the foreign policy objectives of the United States. Further, it makes the threat to use military force more credible in the eyes of other nations because it is difficult, legally as well as politically, for Congress to rescind a declaration of war if the President insists on continuing to prosecute the war. To these two arguments, which I have made before, this Essay adds a third: a formal declaration of war forces Congress to acknowledge publicly, and to accept, that one cost of waging war is that individual liberty in the United States might have to suffer if the nation is to triumph or even merely survive. In Part I of this Essay, I summarize my view of how constitutional formality, including that embodied in a declaration of war, serves individual liberty by discouraging unaccountable political decisions. In Part II, I analyze the Alien Enemy Act of 1798, a harsh statute designed to combat spying and sabotage during wartime by empowering the President, during a declared war, to order summarily the arrest, internment, and removal of enemy aliens. I ask four questions: What triggers the Act's delegation of extraordinary powers to the President? What is their scope? What terminates the delegation? What is the scope of judicial review? I show that there is no significant legal constraint on the President's exercise of these extraordinary powers save the prerequisite of a formal declaration of war. In Part III, I examine whether the harshness of the Act counsels Congress not to use a formal declaration of war to authorize the President to wage war. This antipathy towards formal declarations of war, however, really argues for repealing or amending laws like the Alien Enemy Act, not for eschewing the formality (to say nothing of the candor and moral responsibility) of declaring war when we wage war. I suggest that a declaration of war, more than any purported functional equivalent, serves to acknowledge candidly and collectively that the price of employing military force might be a substantial, and in some respects even permanent, loss of civil and economic liberties.

Nuclear Crisis Stability in South Asia

Relations between India and Pakistan have been fraught with conflict since their emergence from the detritus of the British Indian Empire in 1947. In the British Indian Empire, there were two classes of states. One set of states, those of British India, was directly under the tutelage of the British Crown. The others, the so-called princely states, were nominally independent as long as they accepted the British as the paramount power in the subcontinent. Since their independence from England, India and Pakistan have had markedly divergent concepts of nation building and quickly became embroiled over a territorial dispute involving the former princely state of Jammu and Kashmir. The origins of this conflictual relationship have been discussed at length elsewhere.1 Since 1947, India and Pakistan have fought four wars, in 1947–48, 1965, 1971, and 1999. The last conflict did not see a formal declaration of war but easily met the criteria for a full-scale war. Apart from these engagements, much strife and tension have characterized the Indo-Pakistani relationship. More to the point, bilateral and multilateral efforts to resolve

The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment

This article considers the constitutional case for the impeachability of federal officers after they have left office. As a practical matter, while it may rarely be worthwhile to pursue a late impeachment (as with regular impeachment), this does not change the fact that it can be done, or that certain facts may make it desirable. The article principally argues that: (1) Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required. (2) Structurally, impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him. (3) The precedents are mixed, but the Senate has approved late impeachment. Senate opponents of late impeachment have not prevented late trials, and they cannot alter the formal declaration of a majority of the Senate in one case that officers can indeed be impeached after they have left office.

Embryo/fetal radiation protection: a possible model for comprehensive occupational reproductive health programs

Modern work activities may necessitate the use of a wide variety of potentially hazardous physical, chemical, biological, or radiological agents. The risks associated with exposure to these agents may not be limited to the worker, and in some cases can extend to the offspring of exposed individuals. Potential exposures to such agents introduce a number of interesting health and safety considerations, including the possible establishment of exposure limits that address reproductive health concerns, and the determination of the extent to which an organization will go to accommodate occupationally exposed persons. The radiation safety profession has considered this issue in part through the promulgation of a specific, lowered occupational dose limit for the embryo/fetus in the workplace. Because ionizing radiation is certainly not the only known or suspected teratogenic agent that may be occupationally encountered, the approach used by the radiation protection profession may be used as a model upon which comprehensive occupational reproductive health programs can be developed. The essential elements of such programs include: the initial disclosure of potential reproductive hazards to all employees upon employment, a mechanism for formal voluntary declaration of reproductive status, a codified institutional decision process that establishes the extent to which accommodations will be made, and formal recognition of the rights of the employee regarding all final work-related decisions.

The Not-So-Ideological Origins of the American Revolution in Virginia

In the title and the text of Forced Founders, Woody Holton assumes a consensus among his readers about the meaning of founders and about the secondary role of non-elites in American history. Despite the title intimating that Indians, slaves, and poor whites will be portrayed as founders of the American nation, the book actually presents prominent and wealthy Virginians as the key actors whose formal declaration of independence--the most important decision white Americans ever made (p. 38)-constituted the real founding. Holton's principal focus is not the ordinary people who forced elites to declare independence, but rather the Virginia gentry themselves, whose private correspondence formed the study's base of evidence. In Holton's view, George Washington, Thomas Jefferson, and other elites resorted to independence out of desperation to preserve their place at the top of Virginia's hierarchy. More illuminating as a title, perhaps, is that of the dissertation from which the book was drawn: The Revolt of the Ruling Class.

Canada and War Crimes

AT THE END OF THE SECOND WORLD WAR, Canada found itself in a position to develop for the first time an appropriate role for a middle power in world affairs. Free of a colonialist past and committed to world peace, Canada sought to contribute to the resolution of conflict through moral suasion, mediation, and strong support for justice through international law. An active role in the establishment of the United Nations in 1945, Prime Minister Lester B. Pearson's Nobel Peace Prize for Canadian diplomacy during the Suez crisis in 1956, and Canada's continuing enthusiasm for peacekeeping operations are three examples frequently cited in support of this conventional wisdom. The fact that the one-worldism associated with Pearson and his Ottawa colleagues was moderated by a sharp sense of the realities of power politics is less often mention. In practice, their liberal idealism was tempered behind the scenes with a considerable scepticism about the wisdom of crusades and an emphasis on agreements among sovereign nation states as the basis of international relations. The attempt by the Allied powers to punish the 'arch villains' of the Second World War for 'crimes against humanity' is a case in point.The first warning of what was to come surfaced when Great Britain, under pressure from the governments-in-exile in London, proposed in October 1941 that the Commonwealth and Allied governments issue a formal declaration condemning German atrocities and promising punishment by organized justice: 'brutalities which are being committed in occupied countries are contrary to the dictates of humanity; are a reversion to barbarism and will meet with sure retribution... Careful record is being kept... so that in due time the world may pronounce its judgment. With victory will come retribution.'(1)The American president, Franklin Roosevelt, responded with a guarded public statement condemning what he called the frightful acts of desperate men, which only sowed the seeds of hatred and which would one day bring 'fearful retribution.' Britain's prime minister, Winston Churchill, was less cautious. He immediately declared that 'Retribution for these crimes must henceforward take its place among the major purposes of the war.' Meanwhile, the governments of the occupied countries jointly declared that punishment of those responsible for war crimes was among their principal war aims. With this encouragement, Churchill raised the issue again in his meeting with Roosevelt in July 1942; the Americans suggested establishing a United Nations Commission for the Investigation of War Crimes to investigate atrocities and report from time to time to the Allied governments. On 7 October 1942, Lord Symon, Britains' lord chancellor, announced the establishment of the commission and the determination of the Allies to punish those whose 'actions violated every tenet of humanity.'Canada responded to these initiatives hesitantly and reluctantly. The Cabinet agreed in principle to support an Allied statement condemning atrocities. Vincent Massey, the Canadian high commissioner in London, would be allowed to attend the public signing ceremony for the exiled governments' joint declaration, but strictly as an observer. In general, Ottawa regarded war crimes as a European problem, of concern mainly to the occupied countries. Canada's interest in the issue was slight, at best. Moreover, talk of revenge stirred up memories of the attempt to 'Hang the Kaiser' as the chief war criminal at the end of the First World War - a misguided Imperial policy, the wisdom of which Sir Robert Borden and others had doubted at the time, and, in hindsight, sight, a fiasco.(2) The threat of retribution might have some potential utility as a weapon of political warfare, which could be used to drive a wedge between the Axis leadership and ordinary people. 'By punishing these war criminals, we are trying also to divide the German people and their leaders whom we brand as criminals,' noted one official: 'we hope that when things really start to go bad for the Axis, these people will remember our statements that we are only after the war criminal and that they will get rid of them. …

Neither Hero Nor Villain: The Supreme Court, Race, and the Constitution in the Twentieth Century -- Chapter 1: The Plessy Era

Chapter 1 of my forthcoming book is on the Plessy era. It discusses four sets of issues -- racial segregation, disfranchisement, black exclusion from juries, and the separate-and-unequal issue raised in Cumming (1899). The purpose of the book is to situate Supreme Court decisions within the broader sociopolitical context of the time. My conclusions from this first chapter are as follows. First, the Justices' performance during the Plessy era confirms the limited capacity of the Supreme Court to protect minorities from majoritarian oppression. Second, the text of the Constitution and legal precedent construing it were sufficiently indeterminate to accommodate the Justices' racial inclinations. Third, subconstitutional rules governing issues like the standard of proof for establishing a constitutional violation, conditions of access to federal courts, and standards of federal court review of state court fact findings are as important to the effective enforcement of constitutional rights as are their formal declaration. Fourth, even had the Plessy Court been more committed to the pursuit of racial equality, there were clear limits on how much judicial intervention could have accomplished, given the lack of inclination in the national political branches to enforce aggressive pro-civil rights decisions, the fierce opposition of southern whites, and the underdeveloped bureaucratic capacity of the national government. Fifth, even had the Court broadly defined the constitutional rights of blacks, and these decisions had somehow been enforceable, not much of substance would have changed for southern blacks, since most of Jim Crow's legal apparatus reflected rather than produced a social reality of white supremacy.

A Quality of Service Framework for Object-Oriented Architectures

Most development and system specification languages do not provide facilities for a formal and complete declaration of the expected hardware and software environment for which a system is targeted. This type of information can be used to determine whether a software specification is compatible with a particular computing environment. In this paper we describe an approach, based on a generic "quality of service" framework, that provides such a facility for a broad category of object-oriented architectural definition languages. A formal model of this facility is also provided, including rules for determining compatibility between different computing environments.

The legal status of U.S. negative security assurances to non‐nuclear weapon states

Has the United States committed itself not to use nuclear weapons against countries that forswear them? This article summarizes the gradual change in how this question has been answered from the 1960s, when the United States would not even say that it had no “intention” of using nuclear weapons against such countries, to 1995, when President Clinton made a formal but qualified declaration that it would not do so. It then describes why this declaration (a so-called “negative security assurance”) is binding—“legally binding” to some and “politically binding” to others— and discusses whether it precludes the use of nuclear weapons to counter a biological or chemical weapon attack.

Vers une dimension sociale dans la libéralisation des échanges internationaux : la dialectique O.M.C-O.I.T.

One of the issues underlying the creation of the I.L.O., the question of the link between workers' rights and working conditions and trade liberalization, is now under discussion within the I.L.O. as well as within the W.T.O. The lacunae in empirical knowledge maintain the controversy on the necessity of establishing such a link. Ongoing work, and in particular a series of country case studies, should help to defuse this controversy. In the meantime, the author looks into the problem by reference to the objectives and institutional rules of the two Organizations. From the W.T.O.'s point of view, the question is whether the basic agreements which are silent on the subject could be interpreted or amended in order to include certain guarantees of workers' rights. Even if one can take the view that the rules relating to the liberalization of trade should find their natural prolongation in the guarantee of certain fundamental rules concerning the free functioning of the labour market, it is doubtful that matters could evolve in this direction in the foreseeable future, in view of the outcome of the Ministerial Conference at Singapore and also in view of the need of consensus for the amendment of these agreements. From the I.L.O.'s point of view, the question is whether the liberalization of trade affects its capacity to pursue, through the solely voluntary means available to it, its objectives of social progress despite the intense competition fostered by trade liberalization. From recent discussions, the idea has emerged that universal respect for certain fundamental workers' rights constitutes an essential, if not sufficient, condition if social progress is to advance in parallel with trade to the extent that those rights the people concerned to claim a share in the progress generated such liberalization. The I.L.O. to have the capacity to promote universal respect without leaving constitutional framework through formal Declaration which might adopted in 1998. Other means of incitement to social progress, such as the mobilization consumers through social could also be set up without abandoning the voluntary framework an international labour but there would need to be a political will which is still absent.

FROM CONSCIENCE AND COMMON SENSE TO “FEMINISM FOR MEN” PRO‐FEMINIST MEN'S RHETORICS OF SUPPORT FOR WOMEN'S EQUALITY

Since the late eighteenth century, American men have supported women's equality. (see Kimmel and Mosmiller, 1992). Even before the first Woman's Rights Convention at Seneca Falls, New York heralded the birth of the organized women's movement in 1848, American men had begun to argue in favor of women's rights. That celebrated radical, Thomas Paine, for example, mused in 1775 that any formal declaration of independence from England should include women, since women have, as he put it, “an equal right to virtue.”(Paine, [1775] 1992, 63–66). Other reformers, like Benjamin Rush and John Neal articulated claims for women's entry into schools and public life. Charles Brockden Brown, America's first professional novelist, penned a passionate plea for women's equality in Alcuin(1798).

Towards European Union standards in hospital infection control

Some providers of health care within the European Union (EU)—whether public or private—seem to give little priority to the establishment of quality control and common standards for infection control. Though uniform practice of infection control in hospitals was recommended by The Council of Europe no formal declaration about conformity or quality assessment of this important area seems to have been actively promoted within the EU. This is the setting against which local, and even international infection control protocols are promoted and discussed mainly by dedicated individuals and within informal groups, which may be endorsed by professional societies. So far no definite attempt to formulate European coordination has been recognized apart from initiatives taken by the World Health Organization (WHO) regional office for Europe. We may have a long way to go towards EU standards for infection control even though the benefits of European cooperation in the field of infection control have been recognized, and there are still serious doubts within the medical profession as to the feasibility of harmonization of these activities. EU standards in hospital infection control should be based on the best documented evidence and set at an appropriate level allowing wide participation. The medical profession must be involved and the inclusion of indicators of outcome must be considered.

Descentralización política y federalismo: consideraciones sobre el caso de México

In Mexico, the way of life has touched centralist limit. There are no social, political and economic conditions, and to continue perpetuating the central form of exercising power than at other times was effective. Civil society has reacted and continue to react to prevent the centralist statism occupy spaces which she claims, as well as their public organizations. Depletion of centralism isn’t inertial or casual. Due to circumstances that each country generates and produces. The decentralization is federalism without doctrinal intent. Federalism decentralization without formal declaration of purposes. Consequently, the times that the country is aware that the consolidation of modern democracy is still a way to go. The validity of federalism and political decentralization is key to ensuring democratic governance. The exercise of power must be based on greater consensus and in this task local governments play an important role by others. The governance of the country depends largely on how local governments assume their historical and institutional responsibility.

The History and Development of Multicultural Music Education as Evidenced in the Music Educators Journal, 1967-1992

In 1967, secretary-general of ISME Egon Kraus challenged music educators to become multicultural in their perspective, a challenge spurred on by the Tanglewood Symposium. Music educators in the United States have long been interested in the musics of other cultures. Often they have learned about these musics and how to implement them in the classroom through the pages of the Music Educators Journal (MEJ). The MEJ has covered multicultural perspectives in music through its articles, special issues, book reviews, and reports from MENC conferences and symposia. A study of the MEJ from 1967 to 1992 revealed the growth of multicultural music education. During the 1970s, a greater depth of interest in, and knowledge about, world musics developed. Throughout the 1980s, this initial interest grew steadily into a need for methods and materials for the implementation of multicultural music studies in the classroom, as did the need for teacher training in these musics. A formal declaration of commitment to multicultural music education was adopted at the MENC Multicultural Symposium in 1990, leading to a broad world perspective for music education. The three MEJ special focus issues on multicultural music education epitomized each of these growth areas.