CIAO DATE: 08/2009
Volume: 19, Issue: 5
November 2008
Editorial (PDF)
Preface (PDF)
The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law
Jochen von Bernstorff
The article explores the genesis of the Universal Declaration of Human Rights and the turn to rights in international law. To this end, it focuses on how international lawyers have received the Declaration in their contemporary doctrinal and political contexts. The fact that the political and moral importance of the Declaration from the very beginning outweighed its concrete legal significance invited intriguing scholarly reflections on the symbolic dimension of the document. Despite early sceptical voices about its legal and moral value, international lawyers welcomed and reaffirmed its significance during the 1960s and 1970s. While attention turned to human rights treaty law in the 1980s, the Declaration embodied the hope for a new era of human rights protection after the end of the Cold War. Throughout the 1990s a new scholarly defence of the universal character of the Declaration could be observed, later being accompanied by new insecurity and soul-searching in the face of institutional limitations. In general, the Declaration became synonymous with the turn to individual rights in international law, and whenever there was a sense of crisis because of institutional blockades or challenged foundations, the Declaration received new and increased attention. It symbolized unity in an increasingly fragmented and contentious institutional and political environment for international human rights protection. The story of its scholarly reception is therefore also a story of the failed and perhaps unattainable attempt fully to institutionalize international human rights in a cosmopolitan legal order.
Justice and Human Rights: Reflections on the Address of Pope Benedict to the UN (PDF)
Mary Ann Glendon
The topic of human rights was prominent in Pope Benedict ’ s address to the United Nations General Assembly in the year of the Universal Declaration’s 60th anniversary. As with many of Pope Benedict’s speeches, his 18 April address to the United Nations is one in which some rather complex ideas are expressed in a very condensed fashion. It is a speech that needs, as they say, to be ‘ unpacked ’ . Today, the UDHR has become the single most important common reference point for cross-national discussions of decent human behaviour, and the language of rights has become the principal language for carrying on those discussions. Pope Benedict took those facts as his starting point, noting that ‘ Human rights are increasingly being presented as the common language and ethical substratum of international relations. ’
Human Dignity and Judicial Interpretation of Human Rights: A Reply (PDF)
Paolo G. Carozza
Human dignity and human rights are not lived as abstract concepts. They have tangible meaning and weight in the context and crucible of concrete human experience – history, freedom, reason, and community. This gap between universal and particular is the heart of the problem with which Christopher McCrudden’s ‘ Human Dignity and Judicial Interpretation of Human Rights ’ wrestles, as well as the fulcrum of the earlier article of mine to which, in part, his work responds. The diffi culty is of course not unique to the concept of human dignity. It is common to all of the large and general principles involved in the interpretation and adjudication of human rights: for instance, foundational aspirations like equality, justice, and peace; criteria of limitation such as the necessities of ‘ a democratic society ’ ; judicial tests of reasonableness or proportionality; structural principles like subsidiarity or the common good. All these concepts have a multiplicity of possible valences and implications which can diverge signifi cantly in context, and their underdetermined meanings make them susceptible to the risks of substantial manipulation. Still, the concept of dignity does have a pre-eminent place in the collection of ideas and principles applicable in the field of human rights. As McCrudden shows exhaustively, the idea of human dignity serves as the single most widely recognized and invoked basis for grounding the idea of human rights generally, and simultaneously as an exceptionally widespread tool in judicial discourse about the content and scope of specific rights.
Human Rights, International Economic Law and Constitutional Justice: A Reply (PDF)
Robert Howse
Together with developments in international criminal justice and humanitarian law, the human rights revolution in international law has had a profound structural effect on the international legal order as a whole; we are today only beginning to discern and to digest this effect, to say nothing of the broader consequences for global politics. New actors have been empowered in the international legal system (not only individuals but various kinds of non-state collectivities as well); conceptions of responsibility have been altered; classic notions, such as territorial sovereignty and recognition of statehood, have sometimes subtly and sometimes radically been reshaped or adapted; and the balance of institutional actors charged with interpreting and applying international law has shifted towards courts and tribunals (a major theme of Petersmann) and away from diplomats and their ministers.
Human Rights, International Economic Law and Constitutional Justice: A Rejoinder (PDF)
Ernst-Ulrich Petersmann
All academics learn from discussion and criticism of their published views. Hence, I congratulated the EJIL editors, Alston in 2002 and Weiler in 2008, when they invited a response to my articles in EJIL . Following the insulting EJIL comments by Alston in 2002, this is the second time in my 37 years of academic teaching that a ‘ commentator ’ has imputed to me intoxicating views which I never expressed. Six years after the confabulations by Alston and Howse, Howse remains committed to misrepresenting rather than discussing my legal arguments. Clarifying, in fewer than 2,500 words, the reasons for this ‘ Alice in Wonderland non-discussion ’ would have been more enlightening if my Australian and Canadian commentators had respected correct academic citation before publicly putting forth their aggressive legal phantasms. Here I want to suggest ways in which such an exchange may be more constructive.
Private Military Contractors and International Law: An Introduction (PDF)
Francesco Francioni
A recent survey of young Europeans ’ opinions of national institutions has revealed, quite surprisingly, that armed forces enjoy the highest level of trust and prestige in a number of major European countries, well above parliaments, the judiciary, the church, political parties and business enterprises. The profound motivations underlying this assessment remain unknown – one can only conjecture that they are related to the increasing sense of insecurity among young generations and perhaps with the politics of fear – fear of terrorism, of immigrants, environmental disasters, of fi nancial doom, and of the unknown – that have become widespread at the beginning of the 21st century. What is clear, however, is that in the perception of young generations, the armed forces still embody the core function of the state as guarantor of the security of citizens within the national territory.
EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility (PDF)
Nigel D. White, Sorcha MacLeod
The European Union has developed its security competence since 1992, thus putting pressure on its Member States to provide troops for the increasing number of EU peace operations being deployed to different areas of the globe. But with national militaries being rationalized and contracted the EU will inevitably follow the lead of the US, the UK, and the UN and start to use Private Military Contractors to undertake some of the functions of peace operations. This article explores the consequences of this trend from the perspective of the accountability and responsibility of both the corporation and the institution when the employees of PMCs commit violations of human rights law and, if applicable, international humanitarian law.
Passing the Buck: State Responsibility for Private Military Companies (PDF)
Carsten Hoppe
States hire private military or security companies [PMSCs/contractors] in armed confl ict and occupation to fulfi l tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission’s Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to prevent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of ‘ persons forming part of its armed forces ’ in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory gap.
Individual Liability of Private Military Personnel under International Criminal Law (PDF)
Chia Lehnardt
The article examines the present status of private military personnel under international criminal law. Perpetrators of international crimes are frequently integrated into a hierarchically structured collective, such as an army or police force. The system of order and obedience essential to the functioning of these entities, the existence of which underlies a number of principles of international criminal law, cannot be simply presumed to exist within a private military company (PMC) or between a PMC and the hiring state. As a consequence, the private nature of the company may become an issue, particularly when one considers the capacity of their personnel to commit war crimes or to incur superior or command responsibility. The article also considers problems of implementation and jurisdiction and touches briefl y on the question of corporate criminal responsibility of the PMC itself. It will be argued that, in theory, international criminal law can be an effi cient part of the legal regime governing the use and conduct of private military companies, although many of the legal issues discussed remain to be tested.
Litigating Abuses Committed by Private Military Companies (PDF)
Cedric Ryngaert
One of the main tools for ‘ socializing ’ private military contractors (PMCs) is litigation. The threat of litigation may encourage contractors to set up their own corporate social responsibility and accountability mechanisms with a view to preventing them being hauled before courts. The article identifi es the jurisdictional opportunities and pitfalls of criminal (public law) and civil/tort (private law) litigation against PMCs in domestic courts. The focus lies on litigation for human rights abuses, with special emphasis on US proceedings, the US being the home and hiring state of the majority of PMCs active in overseas confl ict zones. It is argued that, because the chances of success of tort litigation are, in fact, rather limited in the US, given the many procedural obstacles, the criminal law avenue may prove to be more promising, if at least prosecutors show more leadership in bringing cases. Also at a deeper accountability level, criminal litigation may be preferable on the ground that criminal punishment sends a stronger accountability and deterrence signal than a mere money judgment.
Simon Chesterman
Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. The recent confi rmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain ‘ inherently governmental ’ . The article surveys outsourcing in electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to three challenges to accountability: the necessary secrecy that limits oversight; the different incentives that exist for private rather than public employees; and the uncertainty as to what functions should be regarded as ‘ inherently governmental ’ and thus inappropriate for delegation to private actors.
Softness in International Law: A Self-Serving Quest for New Legal Materials (PDF)
Jean d'Aspremont
The concept of soft law which rests on the idea that the binary nature of law is ill suited to accommodate the growing complexity of contemporary international relations has been endorsed by a large number of scholars. It has however remained under the attack of those who are commonly portrayed as positivists. Although it does not seek to rehabilitate positivism as a whole, this article will try to offer a refreshed and modernized account of the positivist objection to soft law. It will accordingly distinguish several types of softness. Such a dichotomy will help to unravel the underlying agenda of some of the staunchest supporters of the concept of soft law. The article will ultimately expound on the proneness of international legal scholars to stretch the limit of their object of study by constantly seizing materials outside the realm of international law in order to alleviate the strain inherent in the contemporary proliferation of international legal thinking.
Wolfgang S. Heinz
Exploring Social Rights: Between Theory and Practice (PDF)
Ana Paula Barbosa
Chiara Ragni
Caoimhín MacMaoláin
Droit administratif européen (PDF)
Stephan Neidhardt
Books Received (PDF)