CIAO DATE: 11/2008
Volume: 19, Issue: 1
February 2008
Editorial
Vote-trading in International Institutions
Ofer Eldar
There is evidence that countries trade votes among each other in international institutions on a wide range of issues, including the use of force, trade issues, and elections of judges. Vote-trading has been criticized as being a form of corruption, undue influence, and coercion. Contrary to common wisdom, however, I argue in this article that the case for introducing policy measures against vote-trading cannot be made out on the basis of available evidence. This article sets out an analytical framework for analysing vote-trading in international institutions, focusing on three major contexts in which vote-trading may generate benefits and costs: (1) agency costs (collective good), (2) coercive tendering, and (3) agency costs (constituents). The applicability of each context depends primarily on the type of decision in question – i.e. preference-decision or judgement-decision – and the interests that countries are expected to maximize when voting. The analytical framework is applied to evidence of vote-trading in four institutions, the Security Council, the General Assembly, the World Trade Organization, and the International Whaling Commission. The application of the analysis reveals that while vote-trading can create significant costs, there is only equivocal evidence to this effect, and in several cases vote-trading generates important benefits.
The Concept of Appeal in International Dispute Settlement
Noemi Gal-Or
The WTO Appellate Body represents an innovation in international law in that an international adjudication authority now operates as a final instance to hear appeals arising from international arbitral (panel) procedures. It is thereby strongly emulating domestic appellate courts without, however, possessing the characteristics that make appellate courts the institutions of justice that they are. Following this trend in a cutting-edge fashion are several other inter-governmental arrangements that had been either concluded (Central America Free Trade Agreement (CAFTA), the Olivos Protocol in the Southern Common Market (Mercosur)) or proposed (the US Congresses' 2002 Trade Promotion Authority Act, the ICSID Discussion Paper of 22 October 2004, the third draft Free Trade Area for the Americas). They embrace the concept of a permanent international instance for appeal from arbitral awards, particularly regarding investment agreements including also disputes arising between the state (public) and the individual legal person (private).
Status of Forces and Status of Mission Agreements under the ESDP: The EU's Evolving Practice
Aurel Sari
The conduct of EU military and civilian crisis management operations in third states within the context of the European Security and Defence Policy has presented the EU with new administrative and operational challenges in recent years, including the need to define the international legal position of such operations and their personnel during their presence abroad. In some cases, the EU has entered into agreements with host states to determine the legal status of EU crisis management operations, while in other cases the application of already existing arrangements has been extended to them. The status agreements negotiated directly by the EU confer more extensive privileges and immunities on EU operations and their personnel than current international practice in this area would warrant. Despite opposition to this policy within the EU, it has remained in place under the two model status agreements adopted by the Council of the European Union in 2005 to serve as a basis for negotiations with prospective host states in all future EU operations. Even though no norm of international law compels the EU to request only such privileges and immunities as are absolutely necessary for the purposes of an operation, its practice of negotiating extensive privileges and immunities does not sit well with the growing emphasis on the accountability of peace support operations. This article offers an overview of the evolution of the EU's practice of concluding status agreements in the context of the European Security and Defence Policy and examines the key provisions of the two model status agreements.
Import, Export, and Regional Consent in the Inter-American Court of Human Rights
Gerald L. Neuman
The Inter-American Court of Human Rights has elaborated a significant body of human rights jurisprudence through interpretation of regional human rights conventions and the adaptation of European and global precedents and global soft law. The Inter-American Court has also aspired to influence outside its region by offering innovative interpretations of human rights and by identifying norms as jus cogens. The Court's methodology in recent years has appeared to give insufficient consideration to the consent of the regional community of states as a factor in the evolutive interpretation of a human rights treaty. The article illustrates and criticizes that trend, and contends that greater attention to indicia of regional consent could improve the acceptance and effectiveness of the inter-American human rights system.
Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime
Laurence R. Helfer
The European Court of Human Rights (ECtHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECtHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECtHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of ‘embeddedness' in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECtHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECtHR's deference to national decision-makers is appropriate.
The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?
Alexander Orakhelashvili
The principal question in terms of assessing the interaction between human rights applicable both in peacetime and war and humanitarian law applicable only to armed conflicts is whether the protection accorded to individuals under the latter is lower than that under the former. The clarification of this question requires the accurate assessment of the available evidence, and not the preconceived approach that tends to conceive one of these two fields as lex specialis that excludes or curtails the protection under the other field. This contribution examines the various aspects of this problem, such as the general interaction between human rights law and humanitarian law, and the relevance of particular human rights in the context of armed conflicts. The evidence dealt with in the course of this analysis exposes the fallacy of the argument that the humanitarian law protection may be lower than that under human rights law.
The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the ‘War on Terror’
Philip Alston, Jason Morgan-Foster, William Abresch
Since 2003, as part of its ‘war on terror', the United States has taken the position that the UN Commission on Human Rights and its successor, the UN Human Rights Council, as well as the system of ‘special procedures' reporting to both bodies, all lack the competence to examine abuses committed in the context of armed conflicts. The article examines the arguments put forward by the US in the specific context of the work of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The authors conclude that the consistent practice of the human rights organs for almost 25 years, often supported and until 2003 never opposed by the US, runs counter to the current US position. Acceptance of the US position would not only undermine efforts to hold the US accountable but would also have a major impact on the international system of accountability as a whole.
The History of International Legal Theory in Russia: a Civilizational Dialogue with Europe
Lauri Mälksoo
This review essay examines the main breaks and continuities in the history of international legal theory in Russia. In particular, it draws on works by leading Russian international law scholars: Peter Pavlovich Shafirov (1670-1739), Fyodor Fyodorovich Martens (1845-1909), Baron Mikhail Taube (1869-1956), Vladimir Emmanuilovich Hrabar (1865-1956), Fyodor Ivanovich Kozhevnikov (1893-1998) and Grigori Ivanovich Tunkin (1906-1993). The reception of these theoreticians' works in today's Russia is also examined. The history of the discipline in Russia opens itself up as a civilizational dialogue with (Western) Europe. The main questions have been: Is international law universal or fragmented; what is the progressive force in international law? The Russian theory of international law has moved from proving that 'we too are civilized/European' in the early 18th century to an aspiration towards Western European civilization in the 18th and 19th centuries to the break with the West and an affirmation of Russia's own distinctiveness and primacy in the 20th century. Those who hurriedly celebrated Russia's reunion with Europe (and Western liberal theory of international law) following the end of the Cold War should not lose sight of the longer historical perspective and especially the experiment of the 'civilizing'/Europeanizing/liberalizing project in 19th century Russian and Baltic German international law scholarship.
F. F. Martens Sovremennoe mezhdunarodnoe pravo tsivilizovannykh narodov. Moscow: Juridicheski kolledzh MGU, 1996. Pod redaktsiei L. N. Shestakova. (Original 5th edition of Martens, 1904.) Volumes I and II
V. Pustogarov Our Martens. International Lawyer and Architect of Peace. Edited and translated by W. E. Butler. The Hague: Kluwer, 2000. (Original Russian edition, 1993.)
G. Starodubtsev Mezhdunarodno-pravovaya nauka rossiiskoi emigratsii (1918-1939).Moscow: Kniga i Biznes, 2000.
V.E. Hrabar Materialy k istorii literatury mezhdunarodnogo prava v Rossii (1647-1917).Pod redaktsiei W. Butlera i V. A. Tomsinova, Moscow: Zertsalo, 2005. (Original edition of Hrabar, 1958.)
F. I. Kozhevnikov Russkoe gosudarstvo i mezhdunarodnoe pravo (do XX veka). Pod redaktsiei L. N. Shestakova, Moscow: Zertsalo, 2006. (Original edition, 1947.)
A. N. VylegzhaninY. M. Kolosov, E. S. Krivchikova (eds). Rossia i mezhdunarodnoe pravo. Materialy mezhdunarodnoi konferentsii, posvjashenoi 100-letiu F.I. Kozhevnikova (Moscow, 15.10.2004).Moscow: MGIMO-Universitet, 2006.
M. A. Taube 'Zarnitsy': Vospominania o tragicheskoi sud'be predrevolutsionnoi Rossii (1900-1917). Moscow: ROSSPEN, 2007.
G. I. Tunkin Teoria mezhdunarodnogo prava.Pod redaktsiei L. N. Shestakova. Moscow: Zertsalo, 2006.
P. P. Shafirov Rassuzhdenie, kakie zakonnye prichiny Petr I, tsar' i povelitel' vserossiiskii, k nachatiu voiny protiv Karla XII, korolja shvedskogo, v. 1700 godu imel. Redaktor V. A. Tomsinov; vstupitelnaya statya W. E. Butlera. Moscow: Zertsalo, 2008.
Fool Me Twice: Intelligence Failure and Mass Casualty Terrorism
Simon Chesterman
Democracy and International Law, Aldershot, Hampshire
Cécile Vandewoude