CIAO DATE: 11/2008
Volume: 18, Issue: 5
November 2007
Editorial
Philip Alston
Twentieth Century Internationalism in Law
Ole Spiermann
The 20th century saw the transformation of international law into a legal discipline concerned with the practical application of law. It was fuelled by a manifold variety of treaties, procedures and institutions. Still, international lawyers persisted in conceiving and judging their discipline against a background coloured by national legal traditions. International lawyers did not overcome the optimist and evolutionary tradition based on the assumption that international law is but an ever closer approximation of national legal systems; nor did lawyers escape the flip side of this tradition, i.e., doubt and insecurity about international law and its basis. Rather than facilitating international law as a practical discipline, a superficial understanding of internationalism reinforced fetishisms of the discipline's theoretical past, not least the axiom that states only are proper subjects of international law. To a degree, international law has expanded at the price of becoming less separate from national law and national legal traditions.
Jurisdiction and Compliance in Recent Decisions of the International Court of Justice
Aloysius P. Llamzon
International institutions are plagued by too many expectations and too little power. One striking example is the International Court of Justice. Its malcontents criticize the Court as an ineffective player in achieving international peace and security, largely because of its perceived inability to control state behaviour. Scholars have long blamed this on the ICJ's ‘flawed' jurisdictional architecture, which is based entirely on consent. Anything less than a clear indication of consent by the defendant state in a given case is thought to run serious non-compliance risks. This article takes issue with that assessment. By analysing the ICJ's final decisions since the landmark case of Nicaragua v. US, one finds that the manner in which the ICJ was seised of jurisdiction is actually a poor predictor of subsequent compliance. Rather, through complex mechanisms of authority signal and the political inertia induced by those decisions, almost all of the Court's decisions have achieved substantial, albeit imperfect, compliance. Thus, despite the likelihood that states will continue to reduce the scope of the ICJ's compulsory jurisdiction, the World Court will remain a vital, if limited, tool in resolving inter-state disputes and a force for world public order.
The Effect of Jus Cogens Norms: Whoever Opened Pandora's Box, Did You Ever Think About the Consequences?
Ulf Linderfalk
This article forms a contribution to the ongoing scholarly debate on the possible effect of jus cogens norms. For the purpose of the article, it is assumed that peremptory norms certainly exist in positive international law. According to the argument, even if we limit the effects of jus cogens norms to those described in the 1969 Vienna Convention, the jus cogens concept takes us farther than most commentators seem to realize. This is due partly to the power potential invested in the jus cogens concept, partly to the intricate structure typical of legal norms. In fact, as argued in this article, if we take the existence of peremptory international law to its logical consequence, it will carry too far: most actors on the international arena will consider the effects unacceptable. Using as an example the jus cogens norm most often referred to in the literature - the principle of non-use of force - it is a purpose of the present article to establish this proposition as valid. A second purpose is to attract attention to what appears to be the really crucial question for further discussion: How should the effects of jus cogens be limited? Whoever opened the Pandora's Box that once contained the jus cogens concept obviously did not fully realize the consequences that this would have for international law in general. How can this situation be remedied?
Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict
Michel Bourbonnière, Ricky J. Lee
The Bush Administration of the United States recently released a revised National Space Policy. Although the revised National Space Policy can be interpreted as a step towards the weaponization of space, it does not necessarily weaponize space. It nonetheless brings to the forefront important legal issues concerning the basing of conventional weapons in space. The present international law matrix on the issue of space-based weapons is to be found in international space law, principally in the Outer Space Treaty, where certain prohibitions apply to nuclear weapons and to weapons of mass destruction. Space must also be used for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Space objects must be registered in accordance with the Registration Convention. The UN collective security system and the customary right of self-defence govern the use of force or jus ad bellum. The means and methods through which self-defence is exercised are in turn governed by international humanitarian law. Should space be weaponized the basing of these weapons and their use will be subject not only to international space law but also to the UN Charter and to international humanitarian law. The interface between these legal regimes consequently gains in importance, possibly forcing a reinterpretation of certain space treaties along with a correction in state practice.
Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty
Lorna McGregor
In recent judgments, the claim has been made that immunity, as a procedural rule, does not affect substantive norms but merely diverts the claim to an alternative forum. As such, the claim is made that immunity does not equate to impunity. Yet, within a context in which the courts of the state in which the torture allegedly took place are very often unavailable and diplomatic protection does not amount to an alternative means of settlement, the provision of immunity in foreign courts contributes to, justifies, and may even constitute the resulting impunity. At the same time, the framework within which immunity is addressed tends to lend itself to such a result. Courts routinely cite sovereign equality, par in parem non habet jurisdictionem, dignity, and comity as legitimate bases on which to grant immunity without considering the evolution of these doctrines. As a result, the contemporary application of immunity is premised on 1648 understandings of doctrines such as sovereignty, thus positioning the state above the law, a result which renders the prohibition of torture impotent.
The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad
Christopher Keith Hall
The universal criminal jurisdiction provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the Convention’) which require each state party to extradite or submit any case involving a foreigner in territory subject to its jurisdiction suspected of torture committed abroad against another foreigner to its competent authorities for the purpose of prosecution. What is not generally known is that Article 14 of the Convention, which contains no geographic restriction, requires each state party to ensure in its legal system that any victim of an act of torture, regardless of where it occurred, obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. Despite two recent decisions, one by a Canadian court and the other by the House of Lords, which erroneously asserted the contrary, an authoritative interpretation by the Committee against Torture, the ordinary meaning of the wording of Article 14, the structure of the Convention, and the drafting history all confirm that Article 14 applies to torture committed abroad regardless of the nationality of the perpetrator or the victim.
Immunity for Torture: Lessons from Bouzari v. Iran
Noah Benjamin Novogrodsky
This article assesses the implications of the Canadian case of Bouzari v. Islamic Republic of Iran in which sovereign immunity barred recovery against a foreign state for acts of torture. Part 2 describes the case and the courts' rejection of arguments centred on the hierarchy of jus cogens norms, implied waiver and common law principles. Part 3 evaluates parallel developments in the United States and demonstrates the commonalities and differences associated with efforts to overcome immunity in the two countries. Part 4 examines potential amendments to Canada's State Immunity Act with a view to balancing considerations of comity with a just and workable means of holding states accountable for grave human rights abuses.
State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong
Alexander Orakhelashvili
The proper way of addressing the impact of normative hierarchy on state immunity is to adopt the normative-evidentiary approach cleansed of preconceptions motivated by certain risk factors that possess only theoretical significance. The European Court stated in Al-Adsani on the hierarchy of norms issue without properly examining most of its crucial aspects. The Joint Dissenting Opinion of six judges has exposed the weaknesses in the Court's reasoning. Still, some national courts, especially the House of Lords in Jones v. Saudi Arabia, have taken the Al-Adsani ruling as axiomatic, and accepted its outcome without enquiring into whether the line of reasoning the European Court had pursued was consistent or supported with evidence. The outcome is an unfortunate thread of judicial decisions, which do not properly examine the impact of the hierarchy of norms on State immunity, and consistently uphold the impunity of the perpetrators of torture as well as the denial to victims of the only available remedy.
All Things to All People? The International Court of Justice and its Commentators
Jörg Kammerhofer, André de Hoogh
Despite the technical prowess of both the editors and the contributors to this unique and comprehensive commentary on the Statute of the ICJ, a book of this nature cannot be all things to all people. The practitioner will miss a closer reading of the Court's jurisprudence and a more exhaustive bibliography; the theoretician will lament the lack of theoretical foundations for many of the dogmatic arguments put forward. But this volume is as good as they come, both in terms of the medium and format chosen. The commentary fulfils most of the demands made of it by practitioners and scholars alike.
Zimmermann, Andreas, Tomuschat, Christian, and Oellers-Frahm, Karin (eds). The Statute of the International Court of Justice. A Commentary. Oxford: Oxford University Press, 2006. Pp lxxxiv, 1577. ISBN: 978-0-19-926177-2