CIAO DATE: 10/2011
Volume: 3, Issue: 2
September 2011
The Politics of Deformalization in International Law (PDF)
Jean d'Aspremont
Confronted with the pluralization of the exercise of public authority at the international level and the retreat of international law as a regulatory instrument, international legal scholars have engaged in two survival strategies. On the one hand, there are international legal scholars who have tried to constitutionalize traditional international law with a view to enhancing its appeal and promoting its use by global actors. On the other hand, there are scholars who, considering any charm offensive to induce global actors to cast their norms under the aegis of classical international a lost battle, have embarked on a deformalization of international law that has led them to loosen the meshed fabric through which they make sense of reality. This deformalization of international law has sometimes materialized in a radical abandonment of theories of sources. The constitutionalist strategy has already been extensively discussed in the literature. The second approach has thrived almost unnoticed. It is this second scholarly strategy to the pluralization of the exercise of public authority that this article seeks to critically evaluate. After describing the most prominent manifestations of deformalization in the theory of international law and examining its agenda, the paper considers some of the hazards of deformalization. This paper simultaneously demonstrates that formalism has not entirely vanished, as it has continued to enjoy some support, albeit in different forms. These variations between deformalization and the persistence of formalism, this paper concludes, are the result of political choices which international legal scholars are not always fully aware of.
The Myth of 'International Crimes': Dialectics and International Criminal Law (PDF)
Mayeul Hiéramente
The label of ‘international crime’ for genocide, crimes against humanity and war crimes appears to be universally or at least widely accepted and casting doubt regarding this determination is considered a near transgression for an international (criminal) lawyer. The way international (criminal) lawyers label a crime influences the way they present it, their readers perceive it and the academic community reproduces it. Ultimately, repeated references to the presupposed ‘international nature’ influence the evolution of international (customary) law, blur the line between the ‘international’ and the ‘national’ and create an amalgam of wishful thinking, political aspirations, prosecutorial necessities and the evolution of substantive (criminal) law. This article scrutinizes why the current doctrine singles out a certain category of criminalized human rights abuses as ‘international’ and questions if genocide, crimes against humanity and war crimes should really be viewed as ‘international crimes’, while murder, theft or sexual abuse are largely being considered as ‘national crimes’ or ‘ordinary crimes’. It concludes that there is no substantive reason for classifying these crimes as ‘international’: they are per se no threat to peace; they don’t share a contextual element; war crimes and genocide are not per se determined by the scale of the abuses; implication of the state or state-like entities is typical for human rights abuses in general and not only the so-called ‘international crimes’. However, common to all three crimes is the (perceived) need and wish for an international response to the commission of the crimes in question. If the state is implicated in the commission and the cover-up of some of atrocities, the ‘international community’ has reason to fear that accountability for and punishment of these crimes cannot be achieved on the national level. ‘International prosecutions’ of ‘national crimes’ can therefore be considered legal and legitimate under limited circumstances.
Alexander R. J. Murray
This article argues that the crime of genocide is now a redundant crime in international law given the advances that have been made in the case law and application of crimes against humanity. It does this by providing an historical analysis of the two crimes before going on to consider four separate crimes against humanity and corresponding acts of genocide. The primary argument leveled against genocide is the difficulties that stem from proving the intent in the mind of the perpetrator to destroy a particular group in contrast to the less demanding category of crimes against humanity. It argues for a pragmatic rather than philosophical approach to international justice for the benefit of the victims and the prevention of criminal acts in the future.
Christopher Peters
The present Article considers and compares the subsequent practice of the parties according to Art. 31 (3) (b) VCLT and established practice amounting to rules of an international organization (Art. 5 VCLT). The significance of these concepts lies in their potential to contribute to the adaptation of constituent instruments of international organizations to changing factual and normative circumstances. Established practice can serve as a hinge between the general law of treaties and the law of international organizations. The paper argues that both concepts are not two sides of the same coin, but that they have to be distinguished. Whereas subsequent practice primarily serves in interpretation, established practice amounting to a rule of the organization is quasi-customary law specific to the respective organization. It can even influence the preconditions for and significance of subsequent practice in the application of constituent instruments. Thus, the requirements for the agreement of the parties in accordance with Art. 31 (3) (b) VCLT can be relaxed and tacit consent can be recognized more easily. In some cases even organ practice which is independent from (all) Member States can create subsequent practice. However, these informal mechanisms of change raise problems of legitimacy.
Ranieri Lima Resende
As legal subjects, international organizations are seen as apt for both active and passive participation in the international judicial area and, in this regard, are regulated according to a specific responsibility regime, as established by the United Nations International Law Commission, in its latest reports on this matter. The challenge here lies on testing this regime as to its applicability in relation to the World Trade Organization, in view of the fact that this organization’s conduct may potentially produce internationally illicit acts. After asserting the WTO’s juridical nature, normative parameters to which the entity is submitted are established in the general international law based on the acknowledgement of its horizontal and vertical relations with the so-called WTO Law. From this point onwards, it is possible to assert that international illicitness in the World Trade Organization’s practice becomes legally verifiable through an institutional performance capacity analysis of its organs and agents, with special focus on its countermeasures system.
A System of Collective Defense of Democracy: the Case of the Inter-American Democratic Charter (PDF)
Vasiliki Saranti
In the years that followed the end of the Cold War, the international community showed a growing interest in the democratic legitimacy of governments. With regard to the Western Hemisphere, the Organization of American States has been particularly pioneering in this respect, since it initiated a mechanism of intervention by peaceful means, once the democratic stability in a state was threatened, a process which culminated with the approval of the Inter-American Democratic Charter. The present article will evaluate the developments on democratization at the universal and regional level with particular focus on the Americas, as well as studying the effectiveness of the Inter-American Democratic Charter using as case study the constitutional turmoil in Honduras (2009) and will purport to formulate suggestions for other international institutions building on OAS best practices. The protection, promotion, consolidation, and ultimately the collective defense of democracy as an important feature of the OAS could serve as a helpful paradigm for other regional institutions as well as for the United Nations in conflict prevention and in the operationalization of the “responsibility to protect” doctrine.
Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem (PDF)
Killian S. O'Brien
Following in the aftermath of the Arab Spring, Europe’s southern marine borders have been the showplace of human tragedies previously unseen on this scale and the issue of refugees on the high seas has assumed a newfound importance. This article examines the flawed system provided by the ‘Constitution of the Oceans’, the UN Convention on the Law of the Sea for the protection of the lives of migrants at sea. It submits that international refugee law is well-equipped to assume a greater responsibility in ensuring the protection of those involved. Although the concept of non-refoulement cannot be stretched ad absurdum, it may still be reasonably interpreted as providing a temporary right to disembark for the purpose of processing possible asylum applications. In the long-term, a system of burden-sharing and permanent, yet flexible, reception agreements remain the only sustainable solution.
Julian M. Lehmann
In light of recent events causing people’s movement into Europe, continued misuse of the term “migrant” in policy making and public discourse, and at the occasion of events celebrating the international regime of refugee protection, the human rights protection of irregular migrants is explored in relation to irregular migrants’ entry/admission and expulsion/deportation. The term “migrant” has, in contrast to the term “refugee”, no bearing on whether or not an international migrant has a need for international protection. While many irregular migrants have no such need, other migrants may be refugees or be in need of international protection “outside” the framework of the 1951 Convention relating to the Status of Refugees. The paper analyses the international human rights law framework applying to individuals with and without need for international protection, when their claims have a socio-economic dimension. The principle of non-refoulement remains the most important source of protection for irregular migrants; it is not concerned with the irregular status of a migrant and also has a bearing on procedural rights in status determination. Socio-economic motivations for flight are not a bar to being a refugee within the meaning of the 1951 Convention, if their underlying cause is persecution, or if motives are mixed. Refugee law can accommodate such claims and overcome a strict dichotomy but is currently only rarely and restrictively applied in this regard. In expulsion cases, virtually only the prohibition of torture, inhuman or degrading treatment is relevant. For individuals that have no need for international protection there are mitigating individual circumstances which a state has to take into account. All pertinent norms of international human rights law apply without distinction and irregular migrants may have, just as refugees may have, humanitarian needs that states should meet.
Vladislava Stoyanova
The international legal framework regulating the problem of human trafficking contains the presumption that the return of victims of human trafficking to their countries of origin is the standard resolution for their cases. However, victims might have legitimate reasons for not wanting to go back. For those victims, resort to the legal framework of the European Convention on Human Rights could be a solution. I elaborate on the protection capacity of Article 3 when upon return victims face dangers of re-trafficking, retaliation, rejection by family and/or community and when upon return to the country of origin victims could be subjected to degrading treatment due to unavailability of social and medical assistance. In light of the Rantsev v. Cyprus and Russia case, I develop an argument under Article 4 that states cannot send victims to those countries which do not meet the positive obligations standard as established in the case. Article 8 could be relevant: first, when the level of feared harm in the country of origin does not reach the severity of Article 3 but is sufficiently grave to be in breach of the right to private life and engage the non-refoulement principle, and second, when the victim has developed social ties within the receiving state and the removal will lead to their disruption.
Editorial (PDF)