CIAO DATE: 02/2014
Volume: 24, Issue: 4
February 2014
When I studied international law as a student close to 40 years ago at Cambridge (East), Naulilaa was still a central case in the study of jus ad bellum. It would be found in many a ‘casebook’ or course pack. I am pretty sure that at least some of the younger readers of this Editorial will be googling at this very moment – Naulilaa, what’s that? This is significant, for it has largely vanished from casebooks and course packs, only appearing, if at all, in a footnote. What accounts for that demise? Was it superseded by other cases? Not exactly. For the truth is that it should really have been expunged from those early books, or appeared at best as a relic of the pre-Charter era – a relic with an unpleasant colonial odour. Already then it was very difficult to square Naulilaa with the Charter regime concerning the legitimate use of force. Where is the armed attack? Could that punitive raid plausibly be called self defence? One would have to engage in some serious lexical violence towards either the case or the Charter or both in order to square one with the other. Why was it there then? Inertia is one, not implausible, possibility. It takes the demise of a generation, as we learnt from Thomas Kuhn, for a paradigm truly to shift. Another intriguing possibility is that the Charter notwithstanding, it reflected an occasional but persistent state practice. What does one do in the face of an illegal use of force falling short of an armed attack? We all remember the tortured reasoning of the ICJ in Nicaragua, trying to address what might count as a legitimate response to such. To talk of punishment or reprisal, which is what Naulilaa really was about, was of course taboo. So it was squeezed into the ill-fitting jacket of self-defence, though as a bastard son with, for example, no recourse to collective self-defence in this instance. It was not only the ICJ that was discomfited: the late Sir Derek Bowett, one of my teachers at the time, spoke (and wrote) illuminatingly about the seemingly contradictory Security Council responses to Israeli reprisal raids in the 1960s. There have been other similar uses over the years in other arenas. The surface language of the justification offered over the decades for that type of use of force was the same rubbery rendition of self-defence. Naulilaa represents their real deep structure.
International Organizations and the Frankenstein Problem (PDF)
Andrew Guzman
In the classic novel, Frankenstein, Doctor Frankenstein creates a living creature in the hope of cheating death. The monster turns against Doctor Frankenstein and kills several people, causing the doctor to regret his decision to make the monster in the first place. When states establish an international organization (IO), they create an institution with a life of its own. In doing so, states risk the institution becoming a monster and acting contrary to their interests. In contrast to Frankenstein, however, states are aware of this risk and are able to guard against it. This article explains that much of the existing landscape of international organizations has been formed by the state response to this ‘Frankenstein problem’. The effort by states to avoid creating a monster explains, among other things, why there are so many IOs, why they vary so widely in scope, and the manner in which they are permitted (and not permitted) to affect international law and international relations. The article also identifies the four types of activities that IOs are typically allowed to undertake and explains how states choose which activities to place within which organizations. In addition to providing a new analytical perspective on IOs and how states use them, the article advances the normative argument that states have been too conservative. As if they learned the lessons of Frankenstein too well, states have been reluctant to give IOs the authority necessary to make progress on important global issues. Though there is a trade-off between the preservation of state control over the international system and the creation of effective and productive IOs, states have placed far too much weight on the former and not nearly enough on the latter
Gerardo Vidigal
Among the innovations accompanying the transformation of GATT into the WTO was the remarkable strengthening of multilateral institutions. While the paradigmatic change brought about by the institutionalization of the multilateral trading system has been generally acknowledged, its impact on WTO law-making has been largely overlooked. Much of the debate has concentrated on whether and to what extent ‘external’ international legal rules should be taken into account by WTO adjudicators. An analysis of the WTO jurisprudence, however, evidences a different approach. The interpretation (and, to some extent, modification) of WTO rules depends not on the bilateral relations between the parties to a particular dispute, which may affect the application as between them of the multilateral rules, but on the establishment – through subsequent agreement, subsequent practice, or broader normative evolution – of a ‘common understanding’ of the membership. Once established, a new interpretation is not limited to the context of a particular dispute, but affects the WTO rights and obligations of all members. As a result, the bilateral logic that ordinarily determines legal relations between states based on individual consent gives way to a multilateral logic, which allows a degree of normative change while preserving the integrity of the WTO legal system.
Reservations to Treaties: An Introduction (PDF)
Marko Milanovic, Linos-Alexander Sicilianos
This Symposium examines the International Law Commission’s work on reservations, specifically its recently completed Guide to Practice on Reservations to Treaties.1 The topic is very technical and the Guide itself gigantic, standing, together with its commentaries, at over 600 pages. The topic of reservations to treaties has been on the ILC’s agenda since 1993; its Special Rapporteur, Professor Alain Pellet, produced 17 reports with many addenda and annexes. The ILC’s work was so seemingly endless that it inspired (gentle and good-natured) parody.2 But now it has indeed come to an end. It needs to be assessed, and the purpose of this Symposium is to initiate that debate. The law of treaties with regard to reservations is, in our experience, one of the hardest areas of law to grasp, teach, or condense and simplify without loss of accuracy. The Guide will thus inevitably be of the greatest interest to those among us who deal with reservations regularly, for instance legal advisers in ministries of foreign affairs. The Guide will probably not be of fundamental importance to the work of practically every international lawyer out there. But this is not to say that its importance for the non-specialist should be underestimated; there are many lessons to be absorbed from the Guide and the process through which it was created.
Alain Pellet
The purpose of this article is to revisit the long saga of the ILC Guide to Practice on Reservations to Treaties, as the Special Rapporteur has lived it for nearly 18 years and 16 reports. In its first part, the article recounts the elaboration procedure, pointing in particular to the elements of innovation and flexibility introduced in the process. The main one is the very type of instrument adopted, namely a Guide to Practice, and not a set of draft Articles that would eventually become a convention. In the second part, the main issues having retained the attention of the ILC, as well as of the other international bodies and of the academic community, are briefly recalled: the question of the unity or diversity of regimes, the permissibility of reservation and the status of the author of an impermissible reservation were among the most debated issues. Finally, the article explains the structure of the Guide to Practice.
Institutional Aspects of the Guide to Practice on Reservations (PDF)
Michael Wood
The aim of the Guide to Practice on Reservations to Treaties is to assist practitioners of international law, who are often faced with sensitive problems concerning, in particular, the validity and effects of reservations to treaties, and interpretative declarations. The chief interest in the Guide will be in the light it shines on the many difficult substantive and procedural issues concerning reservations and declarations left open by the Vienna Conventions. But the institutional aspects are also of considerable practical interest. The present contribution considers some of the institutional or cooperative bodies that may assist practitioners: depositaries; treaty monitoring bodies; the reservations dialogue; and ‘mechanisms of assistance’. The first two are well-established. The third and fourth are innovative, and it remains to be seen whether they will be adopted by states and, if so, how useful they will be. In any event, the Special Rapporteur has shown considerable foresight in proposing what became the annex to the Guide to Practice on the reservations dialogue, as well as the Commission’s resolution on ‘mechanisms of assistance’.
Reservations and Time: Is There Only One Right Moment to Formulate and to React to Reservations? (PDF)
Daniel Muller
Time is an important element in the process of reservations to treaties and, consequently, in the legal regime established by the Vienna Conventions for reservations and reactions thereto. The very definition of reservations, embodied in Article 2(1)(d) of the 1969 and 1986 Vienna Conventions, as well as in Article 2(1)(j) of the 1978 Vienna Convention, and incorporated in the definition adopted by the International Law Commission in its Guide to Practice, includes precise indications and limits concerning the moment in time for a reservation to be formulated. In practice, however, reservations have been made before and after this peculiar moment. The work of the International Law Commission has shown that these are still reservations, even if they are not contemplated by the Vienna regime. But they can nevertheless deploy their purported effects under some additional conditions. The same holds true with regard to objections to reservations which can be formulated prematurely or late. They are still objections even if their concrete legal effects may be affected. Whereas time is important for the legal consequences attached to reservations and reactions thereto, it plays a less important role in the overall process of reservations dialogue.
Reservations to Human Rights Treaties: From Draft Guideline 3.1.12 to Guideline 3.1.5.6 (PDF)
Ineta Ziemele, Lasma Liede
This article addresses the issue of reservations to human rights treaties in the light of the
work done by the International Law Commission and its Special Rapporteur, Mr Alain Pellet.
Section 1 gives a short historical background for the topic. Section 2 provides a concise overview of the variety of arguments that have been raised in the debate on the character of
human rights treaties and the permissibility of reservations to those treaties, as well as their
relationship with the reservations regime established under the Vienna Convention on the
Law of Treaties. Section 3 gives a number of specific examples of reservations permitted
under the human rights treaties and describes the approach taken by some human rights
treaty bodies in that respect. It also depicts the manner in which some of these bodies have
dealt with the intricate issue of the consequences of impermissible reservations. Section 4
analyses the guidelines adopted by the ILC and offers some reflection on their contribution to
the development of international treaty law on this topic. Section 5 concludes by praising the
comprehensive work of the ILC on the subject.
Roaming Charges: Places of Destruction and Rebirth: A Remnant of the Kraków Ghetto Wall (PDF)
We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution and all other manner of photojournalism. ‘Roaming’, ‘Charges’, and those irritating ‘Roaming Charges’ – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photographs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring. Take a moment – enjoy, reflect. If you are online, pause before the next click. Photos from our readers should be sent to ejil@eui.eu.
The European Convention on Human Rights, the EU and the UK: Confronting a Heresy (PDF)
Andrew Williams
The orthodox view of the ECHR and its Court as regime in the context of both the EU and UK has been that it has considerable value albeit with systemic flaws. The purpose of this article is to challenge this orthodoxy. Four inter-related submissions are made: that the ECHR has failed human rights conceptually (1); ‘good’ or lauded decisions of the ECtHR cannot remedy or sufficiently counter-balance this conceptual failure (2); ‘bad’ decisions further expose and exacerbate the failure (3); the procedural problems of the ECHR regime may contribute to the underlying failure of concept but their resolution cannot solve it (4). These submissions are to provoke a more intense assessment of value and how such value could be enhanced. It may be too late to see any influence on the accession process but this does not reduce the relevance of the critique for the future of human rights in both the EU and the UK. Ultimately an approach to the ECHR system needs to determine whether it continues to be lauded or its influence resisted (thus seeking reform or replacement – the alternative candidates being the EU Charter and/or a national Bill of Rights) and retained only as an iconic scheme of moral importance.
Stelios Andreadakis
This reaction piece responds to the article by Andrew Williams entitled ‘The European Convention on Human Rights, the EU and the UK: Confronting a Heresy’. In his article, Williams contends that we should not further support the ‘orthodox’ view that the Convention (ECHR) has been very successful in protecting and promoting human rights across Europe, offering four submissions to that end. It will be argued that Dr Williams’ submissions regarding the ECHR’s success and the European Court of Human Rights (ECtHR)’s role are not well supported and justified. The relationship between the ECHR and a future UK Bill of Rights will also be explored in the piece, as there is no sufficient link between the author’s arguments about the ECHR regime and the UK legal system, making it rather artificial to refer to the UK as a possible model for human rights.
Horizontal Review between International Organizations: A Reply to Abigail C. Deshman (PDF)
Rosa Rafaelli
This short article aims to further the discussion over horizontal review between international organizations started by Deshman in her analysis of the role of the Parliamentary Assembly of the Council of Europe after the H1N1 pandemic. The article compares the historical evolution of the European Parliament to that of the Parliamentary Assembly and examines how the EP’s involvement with issues such as human rights and international relations served to build its identity, to gain international recognition, and to obtain more formal powers. It suggests possible additional reasons explaining the PA’s willingness to perform horizontal review over action carried out by the WHO, and potential paths for future developments.
Horizontal Review between International Organizations: A Rejoinder to Rosa Raffaelli (PDF)
Abigial C. Deshman
Dr. Raffaelli’s Reply to my article1 highlights some very useful areas for further exploration in the realm of global administrative law and inter-institutional interactions. Calling this a rejoinder may be a bit of a misnomer since I believe we are actually in broad agreement. In the spirit of debate, I will first draw out one apparent point of divergence – whether this is actually an instance of horizontal review – before canvassing our substantive areas of agreement. Raffaelli asserts that, strictly speaking, the Parliamentary Assembly’s (PA’s) review of the World Health Organization (WHO) cannot be seen as an exercise of horizontal review between international organizations. She rightly points out that, according to the Statute, the PA is simply the ‘deliberative’ arm of the Council of Europe, with the power to make recommendations to the Committee of Ministers. The PA’s resolution, it is reasoned, therefore has only ‘internal relevance’, and ‘does not express the position of the Council of Europe at the international level’.
Gurdial Singh Nijar
Traditional knowledge systems of indigenous and local communities have been of immense value over millennia. They have filled the breadbasket that has fed the world, provided medicines that have healed the world, and provided for the sustainable management of resources, including biodiversity. In short, these knowledge systems have fed, clothed, and healed the world. They may yet hold the key to dealing with the risks posed by climate change. Yet today they are in danger of being marginalized. This article identifies the threats, the inadequacy of the international legal architecture, and the faltering national attempts to reassert their role. It identifies the varying interests and elements and assesses their influence in the marginalization and resuscitation of traditional knowledge systems; and finally argues for the emancipation of these systems and their restoration to the plurality of knowledge systems to provide sustainable solutions to natural resource management.
Commentaries on the Law of Treaties: A Review Essay Reflecting on the Genre of Commentaries (PDF)
Christian Djeffal
Commentaries on international law abound and proliferate. To reflect upon this trend in international legal scholarship, three commentaries on the Vienna Convention on the Law of Treaties are reviewed. They are compared with regard to the ways in which they deal with three pertinent issues in the law of treaties: the ascertainment of jus cogens norms, the notion of object and purpose and grounds of invalidity, termination, and suspension. As a scholarly genre, commentaries form part of the legal culture of legal systems. So the review discusses their function in the past, in the present, and in their possible future. Their roots lie in the schools working on Roman law in the Middle Ages. They gained importance for international legal scholarship when international law entered the process of codification. Today, commentaries fulfil several functions in international legal discourse, the most important of which is that they structure this discourse. Digitization will seriously impact on all fields of scholarly publishing. The review concludes by discussing the possible changes in this scholarly genre. Those are accessibility, layout, referencing, inclusion of other media, and the possibility of enhanced discourse within the commentary.
Duncan B. Hollis (ed.). The Oxford Guide To Treaties (PDF)
Tim Staal
In the words of editor Duncan Hollis, The Oxford Guide to Treaties ‘is a big book’ (at vii). Yet, it is relatively small and accessible considering its ambition to ‘explore treaty questions from theoretical, doctrinal, and practical perspectives’ (at 4). The Guide stands out from its potential competitors in several ways. To start with, it is an edited volume, not a single scholar’s work, such as Anthony Aust’s Modern Treaty Law and Practice. Secondly, it is not rigidly focused on the Vienna Convention on the Law of Treaties (1969) (VCLT) (unlike the commentaries reviewed by Christian Djeffal in this issue), even though it certainly takes the treaty of treaties seriously. By contrast to those works that dissect the VCLT from beginning to end, Hollis’ approach allows for consideration of issues important for modern treaty-making but not covered by the VCLT, including treaty-making by subjects of international law other than states, alternatives to treaties, normative fragmentation, the role of NGOs, and the domestic application of treaties. Moreover, as Hollis rightly points out in his introduction, many of the VCLT’s provisions ‘leave a false impression of actual practice’ (at 3). Thirdly, the Guide contains a worthwhile final section with sample treaty clauses, which serve as illustrations to the individual chapters, as well as providing creative or innovative examples to those who work with treaties.
Jean L. Cohen. Globalization and Sovereignty. Rethinking Legality, Legitimacy and Constitutionalism (PDF)
Grainne de Burca
The intersection of constitutional ideas and international law has been the subject of a significant wave of scholarship in recent years. This monograph, written not by a lawyer but by a political theorist at Columbia University, addresses these themes in an engaging and rigorous way. And although it is a deeply scholarly work, it is also very much a politically engaged book, grappling with many fundamental questions of international law and governance today while trying to argue for ‘realistic-utopian’ reform. While the book is not always an easy read, it is nonetheless a rich and rewarding one which does many things at once. It illuminates and critically analyses several bodies of literature from distinct though related fields – political theory, legal theory, constitutional law, and international law. Unusually in a cross-disciplinary book of this kind, Jean Cohen manages to do justice to each of these bodies of work, presenting the arguments fairly and meticulously before proceeding to critique them in a deft and nuanced way. She highlights points of agreement and disagreement, weaving specific strands of analysis from different bodies of scholarship into her own distinctive and powerful argument as the book proceeds.
Loveday Hodson
Her normative prescriptions, in other words, by insisting on a framework of constitutional pluralism and rejecting other forms of legal pluralism, leave aside the many other powerful global institutions and bodies that generate rules and norms, other than the UN Security Council or other UN bodies on which the book concentrates. While it is clear that the UN is the predominant global security organization, and the one with military power at its service, there are also many other organizations and bodies which have morphed or are morphing, as Cohen puts it in the book, into global governance institutions. Yet the book’s focus on the need for political communities which participate in an overarching ‘political community of communities’ seems to leave many of these other important sites of legal and political authority out of the picture, and to reject as inadequate some of the more modest but perhaps also more currently feasible legal reform proposals which have been made.
Erika George
Two recent publications present a defence of the right to health as it is articulated in international law and also provide insights into the array of impediments to realizing the health right. Despite a perceived conceptual lack of coherence and a limited appreciation of its relevance among health care professionals identified in these two books, the right to health has nevertheless succeeded in capturing greater attention in global policy circles. Local health care system reform initiatives around the globe increasingly make reference to the right to health. Both books are particularly helpful additions to the literature in light of recent advances in the development of the health right.1 Yet, each offers a very different assessment of its present status and prognosis for its future development. John Harrington and Maria Stuttaford’s edited volume brings together a variety of internationally renowned scholars of law, philosophy, and health policy to offer an interdisciplinary exploration of the ‘development of rights-based approaches to health’ (at i). John Tobin’s book also draws from a range of different disciplines and offers a truly outstanding and comprehensive examination of the health right. From the history of its inclusion in the corpus of international law, to its conceptual foundations and substantive content, to measures required to secure it, Tobin’s text on the right to health could well be the most helpful to date. It provides an accessible overview to readers interested in understanding obligations arising from the right to health under international law and impediments to implementation
Panos Koutrakos. The EU Common Security and Defence Policy (PDF)
Julia Schmidt
The European Union has gone through a profound development as an international crisis management actor. It was only in 2003 that the common security and defence policy became operational. Since then, the EU has conducted more than 25 civilian and military crisis management missions in many parts of the world. These missions are carried out in the name of the EU whose international legal personality has been formally recognized by the Treaty of Lisbon (Article 47 TEU). At the same time, the EU depends on capable and willing Member States to launch and to carry out an operation under the auspices of its common security and defence policy. The development of the EU as a military actor is remarkable in the light of the EU’s historical evolution. In the 1950s, it started as a peace project that was based on economic integration. To prevent the emergence of a new war on the European continent, Robert Schuman proposed linking the coal and steel industries of France and Germany together ‘within the framework of an organization open to the participation of the other countries of Europe’.1 Attempts to create a European army within the European Defence Community failed in 1954. Today, Europe has moved away from being merely a civilian power. When confronted with its inability adequately to respond to the Balkan crisis in its neighbourhood in the 1990s, the Cologne European Council of 1999 marked the birth of the EU’s common security and defence policy.2 A process was put in motion that equipped the EU with the legal capacity and the civilian and military means to engage in ‘missions outside the Union for peace-keeping, conflict prevention and strengthening international security’ (Article 42(1) TEU). Civilian and military means may be used by the EU to fulfil the socalled Petersberg tasks, that include ‘joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation’ (Article 43(1) TEU). In political statements such as the European Security Strategy the EU has expressed great ambitions as a global security actor and has spoken of its responsibility to contribute to international security.3
Cashmere from Rachungkaru (PDF)
Gregory Shaffer
Cashmere from Rachungkaru Where there was only shadow and brownish red and reddish brown crumbling stone against the sky now a sheen descends the folding slopes