CIAO DATE: 11/2010
Volume: 21, Issue: 2
May 2010
Editorial: Individuals and Rights – The Sour Grapes (PDF)
The first wave, in the 1950s and ’60s, was all about Community Rights and that new legal order. In the 1970s and ’80s it was, ex nihilo, Individual Human Rights. And in the 1990s and this last decade it has been Citizenship Rights, destined, according to the European Court of Justice in case after case, to become the ‘fundamental’ status of European Citizens. (Have you ever wondered, as I have, about the epistemic status of this most recent mantra of the ECJ? Is it a legal realist prediction? A political desideratum? A statement of judicial intent? A revolutionary manifesto – seeing that it flatly contradicts the express provisions of the Treaty which clearly assigns to European Citizenship a mere supplementary or complementary supportive role in the Citizenship arena?) Be that as it may, there can be little argument that The Individual and his or her Rights are the most common, oft cited, self-celebratory clichés in the vocabulary of European legal discourse. In celebrating the Union’s 50th birthday Angela Merkel, speaking for most of us, veritably gushed about Europe’s success in positioning The Individual in the centre of its construct. And so it has. Likewise, if we look for a currency which is impervious to all market vicissitudes, to derivatives, to toxic bundling, it is the currency of Rights – in all three denominations, European, Human and/or Citizenship. It is the ever ready dividend which the Union’s Board of Directors is generous in showering on an ever apathetic citizenry (as evidenced by the demoralizing decline in voter turn out for Euro-Parliament elections) and which is evoked whenever a pep-talk is called for.
Towards a Philosophical Account of Crimes Against Humanity
Christopher Macleod
In this article I discuss the nature of crimes against humanity. The various definitions that have been used, or alluded to, in the legal literature are outlined, and it is suggested that they fall neatly into two camps by interpreting ‘humanity’ differently. It is proposed that any theory which adequately captures the nature of this crime must distinguish it qualitatively from other ‘lower’ crimes, and that only members of one camp can do this. I go on to argue for one particular way of treating the crime – regarding it as a crime which hurts all humanity – and recommend adopting a view under which we would regard all humanity as one entity.
Remedying European Legal Pluralism: The FIAMM and Fedon Litigation and the Judicial Protection of International Trade Bystanders
Marco Dani
In FIAMM and Fedon the European Court of Justice has ruled that Community firms hit by US trade sanctions authorized by the WTO Dispute Settlement Body are not entitled to compensation from EC political institutions. The article discusses the cases in the background of current debates on the attitude of the Court of Justice towards international law and, more broadly, on European legal pluralism. From this standpoint, it provides a critical assessment of the legal issues involved in this litigation – internal status of WTO obligations, scope for manoeuvre of EC political institutions in international trade relations, liability for unlawful and lawful conduct – and offers a comparative analysis of its possible solutions, suggesting that a finding of liability for lawful conduct would have been a preferable outcome in both theoretical and substantive terms.
State Bystander Responsibility
Monica Hakimi
International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework is grounded in international law and intended to guide decisions in concrete cases. So after presenting and justifying the framework, the article applies it to two current debates in human rights law: when must a state protect against third-party harms committed outside its territory? And what must states do to protect women from private acts of violence? The article ends by suggesting how the same framework may inform analogous obligations outside human rights law.
The Legal Dimension of the International Community: How Community Interests Are Protected in International Law
Santiago Villalpando
This article uses the emergence of the protection of community interests in international law as a theoretical framework to explain a number of legal notions and regimes, such as jus cogens, obligations erga omnes, international responsibility towards the international community as a whole, and individual criminal responsibility. With reference to various international conventions, the work of the International Law Commission, and the case law of different international tribunals, it describes how changes in social intercourse at the global level have entailed structural transformations of the international legal order, as well as tensions caused by the concurrent legal protection of community and individual interests. The article further explains how the proposed theoretical framework may be used to address several concrete issues which have arisen in the contemporary legal debate, such as the question of exceptions to the immunity of state officials from foreign criminal jurisdiction, countermeasures by states other than the injured state in international responsibility, the legal regime of jus cogens, etc.
The Nile Basin Cooperative Framework Agreement Negotiations and the Adoption of a 'Water Security' Paradigm: Flight into Obscurity or a Logical Cul-de-sac?
Dereje Zeleke Mekonnen
The restive Nile basin which has long been identified as a flashpoint prone to conflict embarked on a new path of cooperation with the launching of the Nile Basin Initiative (NBI). Anchored in a Shared Vision ‘to achieve sustainable socio-economic development through the equitable utilization of, and benefits from, the common Nile Basin water resources’, the NBI has provided a convenient forum for the negotiation of a Cooperative Framework Agreement (CFA) to set up a permanent, inclusive legal and institutional framework. Negotiation of the CFA has, however, faced a serious impasse as a result of the introduction of the concept of ‘water security’. The introduction of this non-legal, indeterminate, and potentially disruptive concept is, indeed, a regrettable detour to a virtual blind-alley. The justifications for this fateful decision are totally unfounded and specious. The decision rather makes sense as an unwarranted move pushing into further obscurity the already intractable Nile waters question, at best, and a logical cul-de-sac in the decade-long negotiations which have arguably fallen prey to the hegemonic compliance-producing mechanism of ‘securitization’ sneaked in under the veil of ‘water security’, at worst. Resolution of the Nile waters question should thus first be extricated from the morass of ‘water security’ and then be sought nowhere but within the framework of international water law.
Data Protection and Transborder Data Flow in the European and Global Context
Lingjie Kong
Very similar to trade barriers, data protection has been an obstacle to free global data flow. The European legal system on cross-border data flow set up by Directive 95/46/EC prohibits transfer of personal data to third countries which do not have an adequate data protection level. With enormous international implications, such a regionally oriented system is heavily dependent on effective monitoring of cross-border data transfer. Due to a lack of proper supervision on data transfer, it encounters many challenges, which forces the European Commission to adopt the contractual model and the corporate law model. Meanwhile, compared with issues like free trade and environmental protection, not much international consensus has been reached on cross-border data protection. As a result, bilateral, regional, and multilateral collaborations between national sovereignties are to be strengthened, to facilitate transborder data flow and to safeguard individuals’ right to data protection.
Incorporating Traditional Knowledge in an International Regime on Access to Genetic Resources and Benefit Sharing: Problems and Prospects
Gurdial Singh Nijar
The Seventh Meeting of the Conference of the Parties (2004) of the Convention on Biological Diversity established a mandate for the negotiation of an international regime on Access to Genetic Resources and Benefit Sharing arising from their utilization. Negotiations have been proceeding and have entered the final phase. Seven working group meetings have been held to date and there is expectation that an instrument will emerge by the final deadline – the Tenth Meeting of the Conference of the Parties in Nagoya, Japan in October 2010. A key component singled out for inclusion in the international regime relates to the recognition and protection of the rights of indigenous and local communities (ILCs) over their traditional knowledge (TK) associated with genetic resources. The Ninth Meeting of the Conference of the Parties (2008) established a Group of Technical and Legal Experts to assist the Working Group to deal with this issue. The Group met in India in June 2009 and has submitted a report. This article reflects on the key outcomes of this Expert Group report. In particular, it identifies the key issues that need to be considered and resolved for TK associated to genetic resources to form an integral and viable component of the proposed international regime.
The International Law of Economic Migration. Toward the Fourth Freedom (PDF)
Marion Panizzon
Joel P. Trachtman. The International Law of Economic Migration. Toward the Fourth Freedom. Kalamazoo: W.E. Upjohn Institute for Employment Research, 2009. Pp. 416. Paperback. $25. ISBN: 9780880993487. At the outset of the 21st century and most recently since the UN High Level Dialogue on Migration and Development of 2006, the conviction has emerged that ‘migration, if managed carefully, can help to raise the living standards in poor countries’ (at 7). In his new book The International Law of Economic Migration, Joel Trachtman analyses political economic constraints to counter forceful, but ill-founded, evidence against opening borders to migrant workers. The book achieves a quantum leap for labour migration research, as it starts its analysis where most books end theirs.
Weapons and the Law of Armed Conflict (PDF)
Dr. Daniel Heilmann
William Boothby. Weapons and the Law of Armed Conflict. Oxford: Oxford University Press, 2009. Pp. 464. £70. ISBN: 9780199569946. The law concerning the means of warfare (i.e. weapons or weapons systems in armed conflict) is arguably one of the most important areas of ius in bello. In the last 50 years, the issue of controlling the production and prohibiting the use of certain weapons has taken on an increasing urgency since technological and industrial progress has made possible the development of new types of weapons which are far more devastating than any means of warfare which existed in former times. However, there are not as many publications dedicated to this important topic as one might think. William Boothby’s monograph, Weapons and the Law of Armed Conflict takes on the difficult task of giving an overview of all relevant aspects in not much more than 400 pages. The study primarily focuses on the humanitarian law aspects of the use of weapons, but to some extent also touches on aspects concerning disarmament. The dividing line between humanitarian and disarmament rules is increasingly blurred anyway, as is evidenced for example by Article 36 of Additional Protocol I to the Geneva Conventions (AP I), which advocates a preventive approach by requiring contracting parties to determine whether the study, development, or acquisition of a new weapon would be contrary to the provisions of Additional Protocol I.
The Law of Command Responsibility (PDF)
Dr. Daniel Heilmann
Guénaël Mettraux. The Law of Command Responsibility. Oxford: Oxford University Press, 2009. Pp. 307. £60.00. ISBN: 9780199559329. The doctrine of command responsibility is one of the most important concepts which has been developed in international criminal law since the advent of that legal discipline post-World War II. Most of the very problematic issues which had originally been raised have, in the meantime, been resolved by the work of the ad hoc Tribunals and a clear structure of the elements of this mode of criminal liability has evolved. However, some aspects of the doctrine still remain highly disputed. Mettraux, in his book The Law of Command Responsibility, endeavours to give an account of the state of the doctrine in light of the jurisprudence of the International Military Tribunals (Nuremberg and Tokyo), the ad hoc Tribunals (ICTR and ICTY), and the Hybrid Courts (in particular the Special Court for Sierra Leone).
The Gender of Reparations. Unsettling Sexual Hierarchies while Redressing Human Rights Violations (PDF)
Chandra Lekha Sriram
Ruth Rubio-Marìn (ed.). The Gender of Reparations. Unsettling Sexual Hierarchies while Redressing Human Rights Violations. Cambridge: Cambridge University Press, 2009. Pp. 416. $99. ISBN 9780521517928. Reparations are increasingly being offered, or at least recommended, in transitional justice processes, and the literature examining them has grown concomitantly.1 At the same time, 1 P. de Greiff (ed.), The Handbook of Reparations (2006); Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and practitioners of both peacebuilding and transitional justice have begun to recognize that the needs of women and girls have been dealt with inadequately. This volume, edited by Ruth Rubio-Marìn, a foremost expert on gender and reparations, promises to fill a critical gap, with three categories of contributions considering, as the title indicates, ‘the gender of reparations’.2 The first set of chapters examines the ways in which violations during violent conflict are gendered, targeting or incidentally affecting women and girls, but also in some cases specifically designed to emasculate men and boys. The second set of chapters considers the ways in which reparations programmes have to date failed to address the range of harms suffered, largely by females, from such violations. Finally, several of the contributions seek to offer specific recommendations for reparations programmes, including microfinance and symbolic recognition, which could better respond to those harms.
The Effectiveness of Domestic Human Rights NGOs. A Comparative Study (PDF)
Wolfgang S. Heinz
While international human rights treaties define obligations of states and subjective rights of people living under their jurisdiction, and beyond (extraterritorial obligations of human rights treaties), it has become increasingly evident that civil society activities are crucial to helping establish a strong effective human rights system in any given country. NGOs collect critical information, advise victims how to complain, complain themselves publicly about weaknesses of state agencies, and even support legal cases before national, regional, and international expert committees and courts. In a national context, this can lead to political tension with the government in power and state agencies, because human rights issues are sometimes perceived as political or politicized by those in power. In addition questions of accountability, financing, and the internal democracy of NGOs may be critically raised – sometimes to distract from the human rights criticisms initially raised by the NGOs concerned.
Die EU im GATT/WTO-System (PDF)
Dr. Nikolaos Lavranos
The first edition of this book, written by Peter Hilpold, professor at the University of Innsbruck, instantly became an important reference book on the relationship between the EU and the WTO, particularly on the German language market. With this third edition, Hilpold has updated the book without changing its main structure, a decision to be welcomed given that this structure, with each chapter opening with a historical perspective, is fundamental for understanding this complex topic. The book is divided into nine major chapters, which deal with the most important aspects of WTO law and its interaction with Community law. In addition, the book contains several indexes, including a useful index of persons.
The Free Movement of Capital and Foreign Direct Investment. The Scope of Protection in EU Law (PDF)
Fernando Losada Fraga
Despite the fact that it is part of the economic freedoms on which the European integration project is said to be built, free movement of capital has never attracted the attention it deserves – at least as far as the English literature is concerned. This was understandable until the late 1980s, since this freedom was not politically fostered until then. However, two decades later just a couple of monographs are devoted exclusively to the matter,1 and not too many others deal with it within a broader context.2 The monograph under review from now on will be an indispensable reference on the matter: first, because of the depth of Hindelang's effort: it is his purpose to analyse foreign direct investment and fully to explain its scope and breadth. Therefore, he studies in detail the legal regime of the free movement of capital and its recent evolution; in fact, he scrutinizes the European Court of Justice's (ECJ) case law, which constitutes a major contribution to the debate in a field immersed in a series of continuous developments. In addition, the main importance of this book is the fact that it brings to the English literature on free movement of capital the intense and sharp German debate on economic law, and on the legal regime of capital movements in particular; and it does so acutely distinguishing the stances – and their nuances – of each relevant author towards each particular aspect of the legal regime.
The Last Page
Jake Marmer