CIAO DATE: 11/2010
Volume: 21, Issue: 1
February 2010
Editorial: Lautsi: Crucifix in the Classroom Redux (PDF)
There are few legal issues which still manage to evoke civic passion in the wider population. Increasingly, and sometimes for the wrong reasons, the place of religion in our public spaces has become one of them. In the age of the internet and Google we can safely assume that all readers of this Journal will have either read the Lautsi decision of the European Court of Human Rights or have read about it, thus obviating the need for the usual preliminaries. As is known, a Chamber of the Court held that the displaying in Italian public schools of the crucifix was a violation of the European Convention on Human Rights.
Symposium: The Human Dimension of International Law: Introduction
Paola Gaeta
This symposium comprises the contributions presented by five distinguished international lawyers at the European University Institute in Florence in October 2008 on a very special occasion. Antonio Cassese (‘Nino’ to his friends and colleagues) had recently celebrated his 70th birthday and, as is customary in many European countries, a group of his former students and friends chose this occasion to celebrate his academic and professional career with the publication of a selection of his most important writings on the three branches of public international law he has most influenced – international humanitarian law, international human rights law, and international criminal law. The outcome was a book, The Human Dimension of International Law, published in summer 2008 by Oxford University Press, the intention of which is to shed light on Nino's intellectual approach to these three areas of public international law.1 The publication of this volume also provided an excellent occasion to convene a small number of friends and colleagues as a token of appreciation and admiration for his many achievements as an international lawyer. As Nino shies away from any personal limelight (indeed, I am certain he will be troubled by these few lines about him), it was decided that this meeting at the …
The Position of Individuals in International Law: An ILC Perspective
Giorgio Gaja
According to the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, any state to which an erga omnes obligation is owed may claim reparation in the interest of an individual who is the victim of an infringement and the beneficiary of the obligation. The ILC Articles on Diplomatic Protection should have specified that also the state of nationality may seek reparation only in the interest of the injured individual when his or her rights have been infringed.
Human Rights and International Humanitarian Law
Christian Tomuschat
It is recognized today that human rights law is not generally displaced in times of armed conflict by international humanitarian law (IHL). Yet in large part this new insight remains to be particularized as to its actual consequences. In particular, IHL is still predominantly under the influence of the concept of military necessity.
The Role of the Individual in International Law
Andrew Clapham
This contribution reminds us that as individuals we play a role in the formation and understanding of international law. After recalling the key steps in the acknowledgement of international rights and obligations for individuals the article goes on to ask if the time has come to acknowledge that individuals can have obligations under international law that go beyond international crimes. In other words might there be international civil law obligations for the individual?
Some Thoughts about the Optimistic Pessimism of a Good International Lawyer
Luigi Condorelli
The author presents various critical comments on several developments of international law in fields which have been particularly studied and practised by Antonio Cassese. Some final reflections focus on the question whether international lawyers can realistically cherish feelings of optimism as to the development of international law in a humane direction, or whether instead the study of the past and the present ought not rather to impel one towards disillusioned pessimism.
International Human Rights in an Environmental Horizon
Francesco Francioni
This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing ‘individualistic’ perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation.
Prolegomena to a Class Approach to International Law
B.S. Chimni
This article offers an introduction to a class approach to international law. It challenges the ‘death of class’ thesis and argues for the continued relevance of the category of ‘class’. Among other things, the contention is that the category of ‘class’ subsumes without erasing the gender and race divides. Noting the emergence of a global social formation the article claims that a transnational capitalist class is shaping international laws and institutions in the era of globalization. It calls for the linking of the class critique of contemporary laws and institutions with the idea and practices of resistance, and considers in this setting the meaning of internationalism and class struggle today for an emerging transnational oppressed class. The article concludes by schematically outlining the advantages of a class approach to international law.
The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques
Mario Mendez
It has been clear since a seminal ECJ ruling in the 1970s that the European Community is attached to a model of automatic treaty incorporation whereby the full panoply of Community law enforcement tools are available for the enforcement of Community Agreements. In the decades since, a rich body of case law has emerged concerning this growing body of treaty law to which the Community has become party. Much of this jurisprudence is testament to a maximalist approach to treaty enforcement which shares parallels with the approach to internal Community law. Most recently, however, the Intertanko ruling indicates that the ECJ is not averse to employing judicial avoidance techniques to preclude review where it is Community action that is challenged. The current trajectory of treaty enforcement is thus indicative of a twin-track approach whereby the ECJ is reluctant to transpose the maximalist approach to treaty enforcement which characterizes its contribution where action at the Member State level is challenged. Such a trajectory, built in accordance with the defensive submissions of the Community's political institutions, raises significant questions about the EU's much-vaunted commitment to international law.
The Requirement of 'Belonging' under International Humanitarian Law
Katherine Del Mar
This article argues that the notion of ‘belonging to a Party’ to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of ‘belonging’ demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state's behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to ‘belong’ under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as ‘international’. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.
Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?
Carlo Focarelli
Common Article 1 of the 1949 Geneva Conventions is today generally seen as a ‘quasi-constitutional’ international law rule, premised on the doctrine of obligations erga omnes and imposing on all contracting states an obligation to take a variety of measures in order to induce not only state organs and private individuals but also other contracting states to comply with the Conventions. The phrases ‘ensure respect’ and ‘in all circumstances’ contained therein, in particular, have been understood to imply a ‘state-compliance’ meaning, drawing basically upon the ICRC Commentaries to the 1949 Geneva Conventions and to the 1977 Additional Protocols. However, expressions similar to ‘ensure respect’ in human rights treaties, in other provisions of the Geneva Conventions themselves, and in military manuals have been given an exclusive ‘individual-compliance’ meaning. Lists of measures available to contracting states against other contracting states deemed to be in breach of the Conventions have been suggested without investigation of whether such measures were per se lawful or unlawful and whether their adoption was legally required, or authorized, or merely recommended under common Article 1. Measures the adoption of which is expressly required or authorized by ad hoc provisions of the Geneva Conventions have been redundantly linked to Article 1. The phrase ‘in all circumstances’ too has a variety of meanings already found in ad hoc provisions other than Article 1. Ultimately, the purported ‘quasi-constitutional’ character of common Article 1 has proved a subject of speculation. Common Article 1 is a reminder of obligations, negative and positive, to ‘respect’ the Geneva Conventions (according to the general pacta sunt servanda rule) which has progressively been given the meaning of a mere recommendation to adopt lawful measures to induce transgressors to comply with the Conventions.
Customary International Law in the 21st Century: Old Challenges and New Debates
Roozbeh (Rudy) B. Baker
This article will survey the new non-traditional scholarship which has emerged in international law to challenge the two long-established sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer are. The new question, the new debate, will be over what the implications of this shift in the traditional building blocks of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national (domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years the jurisprudence of these international tribunals has, aside from finding its way into customary international law, also begun to seep into the domestic (mainly criminal) law of several countries.
Will Climate Change Alter the NPT Political Balance? New Challenges for the Non-proliferation Regime
Milagros Álvarez-Verdugo
This article focuses on the possibilities of implementing a valid multilateral system for uranium enrichment and nuclear fuel-recycling activities. The contribution to the literature is twofold. First, I identify the economic, political, and legal tensions which should be overcome in order to establish such a multilateral system: enterprises’ interests in keeping their economic advantages; mistrust among states as well as mistrust in the current non-proliferation verification system; the necessity of redefining the content of the states’ right to use nuclear energy for peaceful purposes. And, last but not least, the willingness to cooperate of the states currently developing those activities of enrichment and recycling. Based on that analysis, the second contribution is the definition of those formulae for cooperation which would be the most appropriate for tackling the problems detected, as they could pave the way to the transition towards a multilateral system of worldwide reach.
Conceptualizing the Administration of Territory by International Actors
Lindsey Cameron, Rebecca Everly
This article reviews five major recent works on the phenomenon of the administration of territory by international actors. Covering both legal and policy elements of the works, it delves into how the scholars treat the purported legitimacy deficit often associated with this activity. It then addresses the authors’ approaches to the key international law questions, including the legal status of internationally administered territories, the legal basis for administration, the legal framework governing administrators’ acts, and, finally, the accountability of the international actors involved.
Walter Kälin and Jörg Künzli. The Law of International Human Rights Protection (PDF)
Wolfgang S. Heinz
Two renowned scholars of international human rights protection from the University of Berne offer this excellent volume which is based on and expands the second edition of their book Universeller Menschenrechtsschutz (2008). Professor Walter Kälin was representative of the UN Secretary General on the Human Rights of Internally Displaced Persons, and from 2003 to 2008 a member of the UN Human Rights Committee. Jörg Künzli is Associate Professor of Law at the University of Berne.
Mia Swart
Sometimes, one can judge a book by its cover. The strikingly beautiful cover of this book on justice and reconciliation in South Africa is more than a mere decoration. As the editors of this exciting collection on transitional justice explain, the artwork on the cover was created by modern San artist Andry Kashivi and depicts the struggle for acceptance and belonging, ‘for citizenship and reconciliation’ in the new South Africa. The San communities of the !Xun and Khwe live on the margins of South Africa and on the brink of poverty. In the introduction to the book, the editors take trouble to explain the symbolic link between the marginalization of the San people and the quest for legal and political transformation in South Africa. The book's emphasis on the art of transformation extends beyond the description of the artwork. In quite a literal sense the book addresses (among other themes) the transformative function of art in the chapter by Carrol Clarkson entitled ‘Drawing the Line: Justice and the Art of Reconciliation’. Clarkson analyses post-apartheid South African art, and in doing so she illustrates and explains the re-drawing of lines, specifically the ‘lines that reconfigure the margins of exposure of one to the other’ (at 288). The inclusion of this chapter adds freshness and originality to a collection of chapters on transitional justice, a field which cannot always be said to be characterized by great originality (or intellectual vigour).
Hazel Fox QC. The Law of State Immunity (PDF)
Paul David Mora
Over a distinguished career, Lady Hazel Fox CMG QC has come to be recognized as one of the leading publicists in the law of state immunity. In the introductory chapter to the second edition of her monograph, Lady Fox recognizes that the law in this area is simply not static. Since the initial publication of the monograph in 2002, two significant developments have taken place and the revised second edition provides an excellent up-to-date and authoritative account of both.
Simon Chesterman and Chia Lehnardt (eds). From Mercenaries to Market. The Rise and Regulation of Private Military Companies
Ebrahim Afsah
Currently prevailing notions of the state have been considerably shaped by Max Weber's definition which distinguished the state from other socio-political communities through its monopoly on the use of legitimate violence to enforce its administrative decisions. In order to make this normative claim effective, the state needs to have the necessary coercive instruments (military, police, penitentiaries, etc.) at its disposal.1 At least in the industrialized nations there has therefore been a linear increase in the strength and reach of the state.2 This seemingly perennial increase in the ability of the state to engineer social outcomes, if necessary through the use of coercive means, was fuelled by a steady increase in economic production and a corresponding enlargement of the relative share of public spending. The lasting recessions in the aftermath of 1973, however, dramatically altered this overall picture. The end of full employment, seemingly unlimited economic growth, and attendant tax revenue exposed fundamental structural limits of statehood. This set in motion an ongoing academic and public discourse on the appropriate functional scope of a weakening state in an increasingly globalizing world which appeared far less amenable to deliberate political control, given pressures towards greater efficiency, competitiveness, and rationalization.3
David Vine. Island of Shame. The Secret History of the U.S. Military Base on Diego Garcia (PDF)
Ebrahim Afsah
Almost in the middle of the Indian Ocean lies the Chagos Archipelago, a place which visually comes fairly close to the image most people have of paradise. Unfortunately for its inhabitants, the islands are also very conveniently located, a fact which led the United States and United Kingdom to expel these people from their apparent paradise into abject destitution in order to turn the place into one of the world's most important military bases. Vine's book is the best account of this sordid tale so far.
Aaron Fellmeth
This book presents an engaging and thorough study of a seemingly intractable international trade dispute, primarily between the United States and Europe, over the dissemination of genetically engineered foods. The United States and several other countries have increasingly approved transgenic (also known as ‘genetically modified’ or ‘GM’) foods for public consumption, while the European Community (EC) has strongly resisted the introduction of this new technology. From 1998 to 2004, the EC imposed a moratorium on approvals for the marketing of transgenic foods in the EC. It continues to approve new marketing requests desultorily and to pursue an effective moratorium on the cultivation of transgenic species today, despite losing a challenge before the WTO Dispute Settlement Body brought by the United States.
Nellie Munin
Since its establishment in 1957, the European Union or, to be more precise, the European Economic Community was motivated by the vision of a single market, where the peoples of Europe would be able to conduct economic transactions without suffering from barriers to trade. EU law, EU legislation, and its interpretation by the European Court of Justice (ECJ) are aimed at promoting the single market vision, based on the four freedoms, one of which is the free movement of persons. These legally-established freedoms aim at removing obstacles to trade. Obstacles to the free movement of persons may include direct or indirect discrimination of employees at work. Discrimination may be based on grounds of religion, race, or sex. This book concentrates on the last.
Samantha Currie. Migration, Work and Citizenship in the Enlarged European Union (PDF)
Dimitry Kochenov
Michael Gazzaniga's brilliant study of neuropsychology of split-brain patients was based on the analysis of the condition of a tiny sample of subjects. Some aphasia studies produce convincing results working with two or three subjects: more are simply difficult to find. It is generally accepted, however, that in order to reach sound conclusions a representative sample of subjects is usually needed. Samantha Currie's book, claiming to be ‘of a socio-legal nature’ (at 4) uses a sample of 44 Poles working in the UK (at 211) to back ‘socio-legal research’ on the condition of half a billion European citizens, should one judge the book by what is on the cover. Constant references to the ‘empirical data generated for the research which forms the basis of this book’ (at 38), i.e. references to the 44 interviews conducted, sound like misplaced irony when used to agree with the findings based on infinitely more substantial samples, like UK Government statistics including 715,000 registrations (at 69).
Stefan Martini
Arranging the newly arrived items, the bookseller is confronted with the conundrum of where to place the books under review here. At first glance, both dwell on similar subjects: rule of law here, rule of law there. Indeed, they deal with related questions: how can the rule of law be conceptualized and how is it put into meaningful practice within the conglomerate of European institutions? Furthermore, what is the specific role of this ‘elusive’ (Wennerström, at 41) concept? Both contribute to the emerging field of research on the rule of law.1 They enrich the debate on cross-fertilization of legal regimes2 as well as on how to balance commonality and difference in European cooperation.3 Moreover, both books promise the reader an insider's insight, Francis G. Jacobs being a former Advocate General at the ECJ, and Erik O. Wennerström having worked at the European Commission.
The Last Page
Laura Coyne