CIAO DATE: 02/2011
Volume: 2, Issue: 3
December 2010
Unilateral Interpretation of Security Council Resolutions: UK Practice (PDF)
Alexander Orakhelashvili
Unilateral interpretation of UN Security Council resolutions takes place where, due to political considerations of the day, one or more States attempt construing the resolution in question as falling short of, or exceeding, the agreement between the Council's Member States that the resolution on its face suggests. Whether unilateral interpretation indeed takes place depends on what the content of the resolution actually is, which question in its turn depends on the use of transparent methods of interpretation applicable to resolutions. After examining the applicability of the 1969 Vienna Convention in this process, the article turns to four instances of unilateral interpretation from the UK practice, and to reactions to the attempts of unilateral interpretation. These four instances demonstrate that the consistent use of interpretation methods, coupled with the reaction by other States to that effect, can help maintaining the adherence to the resolution's meaning. Where the national or international courts are available as forums to challenge unilateral interpretation, they can further enhance the maintenance of proper meaning of these instruments
Markus Kaltenborn
The global development partnerships of the European Union are embedded in a legal context which provides several constraints for stakeholders in Brussels. This legal framework consists both of the rules and principles of public international law and of the ‘supranational’ law of the European Union. After a short survey of the activities of the European Union referring to North-South relations, some of the prevailing legal problems of the Union’s development policy as well as its contribution to the international law of development are discussed in this Article.
Defending the Emergence of the Superior Orders Defense in the Contemporary Context (PDF)
Jessica Liang
The defense of superior orders is one of the most controversial defenses to be pleaded under criminal law. In effect, it condones ignorance of the law and allows a subordinate to escape criminal liability on a basis other than culpability. It may therefore come as a surprise that sixty years after the Nuremberg and Tokyo trials, the resort to superior orders has re-emerged as a complete defense for certain types of crimes. I argue that this defense is based on sound policy reasons of military necessity, and should be made available on the condition that the order is not ‘manifestly illegal’. In contrast to blunt absolutist approaches, the manifest illegality doctrine presents the most workable test for distinguishing between the culpability of conduct committed by soldiers in circumstances of exigency. This ‘middle-way’ successfully balances the dichotomous ends of legality and military efficiency and should be the preferred test under international law.
The Post 9/11 Discourse Revisited - Self-Image on the International Legal Scietific Discipline (PDF)
Ulf Linderfalk
A few years ago, the legality of Operation Enduring Freedom (OEF) was a topic much discussed in the international legal literature. This article approaches the problem from a new angle. Rather than investigating the relevant issue of legal substance – whether or not OEF was ever consistent with international law – the article focuses attention on the general scholarly performance in dealing with this issue. Scrutinizing the literature published immediately following upon the events of 11 September 2001, the author suggests that overall, the scholarly debate on the legality of OEF did not live up to the standards normally applied in serious legal analysis, and that hence, the debate should be characterized as poor science. The article presents this criticism in further detail. With said criticism as a basis, in a concluding part of this article, the author takes the investigation one step further. As he suggests, when scholars engaged in the post-9/11 discourse, there was something about the whole situation that greatly constrained them. They were obviously hesitant to conclude that in circumstances like those of 9/11, there would still not be any right of self-defense to exercise. So much did they hesitate that they thought the opposite conclusion worth the prize of far-reaching infringements of the most basic of scientific quality standards. Why this hesitation, the article asks. What force or forces are compelling international legal scientists? As the author suggests, this question bears directly on the particular self-image of the legal scientific discipline and the role it envisages for itself in the international community. He concludes the article by initiating a discussion on this very delicate issue specifically, introducing for this purpose a description of the international legal scientist as archetype.
Marie-Jose Domesticimet
Throughout three issues of the Goettingen Journal of International Law we are trying and answering the same question: with the recognition of responsibility to protect, is humanitarian action at last guaranteed? Will this concept avoid some avoidable deaths and lack of rescue? Our first issue was devoted to the long quest for a legal regime in favor of humanitarian action effective delivery. After a step by step review of the many solutions which have been tried, the paper ended with the “discovery” of physical protection. After mentioning the Kosovo (and Serbia) air strikes and the 3rd millennium UN field missions, the paper ended with a worrying assessment: no device over the past 150 years has succeeded in guarantying neither assistance’ provision nor protection. And we raised the issue of responsibility to protect (R to P) as a possible help to solution. Our today’s paper goes down this way.
The Rise of Self-Determination Versus the Rise of Democracy (PDF)
Cecile Vandewoude
This article challenges the traditional conception that the right to self-determination does not require a certain outcome. This article examines what restrictions international law imposes on peoples’ choice to freely determine their political status. This article concludes that the right to self-determination calls for the installment of a form of government which is based on the consent of the governed, is substantially representative of all distinct groups in the country and respects human rights. Regardless of these duties imposed on governments one may only conclude from state practice that it is not observed by many states. As such the rise of self-determination may not automatically be equated to the rise of democracy.
From Kosovo to Catalonia: Separatism and Integration in Europe (PDF)
Christopher Borgen
In July 2010 the International Court of Justice rendered its Advisory Opinion on the legality of Kosovo’s declaration of independence and the Constitutional Court of Spain rendered an opinion concerning the autonomy of Catalonia. Two very different cases, from very different places, decided by very different courts. Nonetheless, they each provide insights on the issue of separatism in the midst of European integration. Does the Kosovo opinion open the door for other separatist groups? Does the process of European integration increase or undercut separatism? In addressing these questions, this article proceeds in three main parts. Part A briefly recaps the legal issues involved in the Kosovo Advisory Opinion. Part B discusses the relationship between self-determination and EU institutions and practices with a particular focus on Catalonia and the Basque country. Finally, part C assesses the seemingly contradictory impulses of separatism and European integration.
Michael Riegner
This article discusses the concept of the internationalized pouvoir constituant with regard to the ICJ’s Advisory Opinion on Kosovo. It argues that independence and constitution-making under external influence in Kosovo represent two faces of the same internationalized constituent power aspiring for self-determination. It is submitted here that the ICJ’s Opinion implicitly recognizes the constitutional law concept of pouvoir constituant and its relevance in international law. While the Court’s reasoning is limited to the legality of the declaration of independence, international involvement in constitution-making in Kosovo equally raises questions of legality and legitimacy under international law. The paper discusses some of these questions by drawing from constitutional law and theory. In order to do so, the article briefly sets out the historical and political context, before describing how the two faces of the internationalized pouvoir constituant evolved during the period of international administration in Kosovo. In the next step, it analyzes the treatment of the constituent power in the ICJ’s Advisory Opinion, and then attempts to assess the legality of international involvement in constitution-making in Kosovo. Finally, it discusses some potential standards of legitimacy for the internationalized pouvoir constituant.
Volker Roben
In its Advisory Opinion of 22 July 2010, the International Court of Justice concluded that the declaration of independence in respect of Kosovo in its precise historical circumstances "did not violate any applicable rule of international law". In its reasoning, the Opinion is concerned with territorial integrity, self-determination and Security Council competence under Chapter VII UN Charter. The Court’s Opinion – its reasoning and outcome – can be assessed from several angles. Adopting instead the perspective of legal theory, our concern will be what we can learn from the Opinion about the normative structure of international law in general, and as applied in the context of secessions in a non-colonial context. The paper will argue that the approach of the International Court of Justice to international law, as evidenced in the case at hand, may be labeled rule-oriented. After reconstructing the main planks of the Court’s reasoning, the paper will set out an alternative conceptual framework, arguing for a shift from a rule-centered to a principle-based approach to international law in the interest of legal certainty. It will then explore what room there is for such an approach to secessionist situations based on the understanding of self-determination as principle.
Recent Developments in Legal Assistance in Criminal Matters (PDF)
Peter Rackow, Cornelius Birr
The field of legal assistance in criminal matters is deeply influenced by, and intertwined with, international law. However legal assistance in criminal matters, which accordingly has been traditionally ruled by conventional tools of mutual legal assistance, is beginning to change: Heretofore, legal assistance in criminal matters has been rendered in compliance with basic principles which reflect the international law parity of the interacting states while being open to modifications by way of bilateral or multilateral treaties between individual states. Now, far-reaching changes seem to be well underway: The European Union is gaining ground as a global player, aiming to implement an “Area of Freedom, Security and Justice”. In order to reach this ambitious goal, a most important trend in criminal policy from a European perspective is to extend the principle of mutual recognition, which originally stems from the common market, to the area of criminal law. Taking an international perspective it is a remarkable evolution to see the European Union as an (arguably) idiosyncratic entity to commit its individual members to the fulfilment of obligations towards other non-member states which the member states themselves have not chosen. While both new approaches may be deemed more easily applicable beyond the realms of criminal law matters, namely in a commercial context, they indeed appear to be big steps in the sensitive area of criminal law which has traditionally been the sole responsibility of the sovereign state itself. Therefore the ongoing developments are bound to have international law repercussions. The following essay deals with these new developments in the field of legal assistance in criminal matters from a combined international and European perspective. We will be focusing specifically on the principle of mutual recognition since its implementation provides a litmus test for the state of procedural rights in the area of legal assistance in criminal law as well as its application within a reference-system previously governed by international law ultimately will modify international law. After describing foundational principles of legal assistance in criminal matters the ground will be prepared for further considerations by having a look at exemplary present application difficulties of mutual recognition, delve into the perspective of a rather radical simplification of transnational evidence gathering by application of the principle of mutual recognition. To give a complete picture we will examine the Intercontinental dynamics of legal assistance which has been put into effect under the rule of the European Union.
Marie von Engelhardt
In September 2010, the heads of State and government of over 140 countries gathered at the United Nations Millennium Summit in New York, to review progress made towards the Millennium Development Goals (MDGs). Adopted in 2000, the 8 concrete and time-bound MDGs that have become the shared development agenda of the international community are reminiscent of economic and social rights, but contain no explicit reference to human rights. With five years to go to the MDGs target date of 2015, the Millennium Summit adopted the Outcome Document “Keeping the Promise”, that serves here as a test case to assess the current state of the debate over human rights and development. Although human rights rhetoric has increasingly entered into the development discourse, its influence on development practice remains limited, and human rights come second on an agenda increasingly dominated by the aid effectiveness concept and its vocabulary.