CIAO DATE: 03/02
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1998 (Volume 09 Issue 1)
The essays published in these pages form part of an ongoing symposium. The Institut des Hautes Etudes Internationales and the European Journal of International Law convened a conference on 'The Changing Structure of International Law Revisited' in March 1997, bringing together a group of European and American scholars to discuss the current state of international law in the light of changes that have occurred, both on doctrinal and practical levels, in recent decades. The symposium identified four areas of investigation: The state between fragmentation and globalization; Is there a hierarchy of norms in international law? Is international law moving towards criminalization? and; Where does the international community stand? Papers on the first two themes appeared in EJIL volumes 8, issues 3 and 4. The remaining part will be published in the next issue of the journal.
This article focuses on the problems of, and prospects for, the enforcement of international humanitarian law through the prosecution and punishment of individuals accused of violations of international humanitarian law by international or national tribunals. The author first examines the factors that historically prevented the development of international tribunals and then looks at recent events, namely the end of the Cold War and the subsequent unleashing of unparalleled forces of nationalism and fundamentalism in different parts of the world, which have created an increased willingness on the part of states to institute mechanisms, both at the international and domestic levels, for international criminal justice. With the establishment of the ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda, the enforcement of international humanitarian law has moved into a new and more effective phase. Yet, the clear merits of individual criminal prosecution by international tribunals cannot simply override the very real problems and obstacles they face. The author examines these problems, arguing that state sovereignty is a major obstacle to the effective enforcement of international criminal justice. Nevertheless, the author concludes that justice can be done at the international level and that international criminal tribunals are vital in the struggle to uphold the rule of law.
The International Criminal Tribunals for the former Yugoslavia and for Rwanda reflect an increasing criminalization law. This article surveys developments in criminal responsibility for breaches of international law, including acts of corporates and states. The primary focus, however, is on the responsibility of individuals in both international and non-international armed conflicts. While the position during international armed conflicts is generally well developed, that of actions not covered by the Geneva Conventions remains unclear, as exemplified by the questions of responsibility under treaties relating to the use of land mines and the use of blinding laser weapons. Non-international conflicts are discussed in most detail, particularly strategies for expanding the obligations arising under international law in relation to ostensibly internal conflicts. The author argues that not only is there a clear trend toward the criminalization of international law, but that the trend is supported by the simultaneous expansion of jurisdiction to prosecute crimes arising from both international and non-international conflicts, in both international and domestic tribunals, which in turn has been spurred by recent developments in customary law.
This article analyses the conflict between trade values and other values ('trade and ... problems'), such as environmental protection, labour rights or free competition, as it is addressed by the principal legal devices available to address such conflicts ('trade-off devices') in the dispute resolution context in the European Union, the GATT/World Trade Organization system and in the United States federal system. These trade-off devices include anti-discrimination rules, simple means-ends rationality tests, least trade restrictive alternative tests, proportionality tests, balancing tests and cost-benefit analysis. A separate cost-benefit analysis methodology is developed to choose among these devices in particular circumstances. From the simple standpoint of maximization of the sum of benefits of trade and of regulation, cost-benefit analysis would, tautologically, be selected. However, full cost-benefit analysis is nowhere in use as a trade-off device. This paper begins to explain this apparent paradox by suggesting reasons, including administrative, distributive, moral and theoretical concerns, why this approach is not applied. It then explores these reasons in order to evaluate retreats from full cost-benefit analysis to the trade-off devises actually in use. Finally, the author seeks to comprehend these trade-off devices as determinants of the allocation of regulatory jurisdiction between central and component governments: of subsidiarity.
In the first half-decade after the fall of the Berlin Wall, the UN Security Council repeatedly decreed mandatory economic sanctions programmes under Chapter VII of the UN Charter. Some of the programmes were severely criticized for their allegedly disproportionate effects on the populations of target states. The authors identify economic sanctions as a coercive instrument and assess the applicability of international law standards, including the traditional criteria of necessity, proportionality and discrimination, to mandatory UN economic sanctions programmes. After an overview of the theory of economic sanctions and their place among strategic instruments of enforcement, the authors review the instances of mandatory UN economic sanctions programmes, assessing their effects on the populations of the target states and the extent of the Council's consideration of international legal norms in designing and carrying out sanctions. Concluding that the Council has given inadequate consideration to international law standards in implementing these programmes, the authors propose five legal principles for mandatory economic sanctions programmes: that highly coercive sanctions follow prescribed contingencies; that they be necessary and proportionate; that the sanctioners reasonably maximize discrimination between combatants and non-combatants; that sanctions programmes be periodically assessed; and that relief be provided to injured third parties.
Although in recent years the issue of state succession has once again assumed a prominence in international legal practice, there remains considerable doubt and confusion as to the content and application of relevant rules and principles. The problem, it is argued, is not so much the lack of state practice, but a failure to appreciate fully the conceptual problems that underlie the construction of doctrine. In an attempt to clarify matters, this article reflects upon two categories of problems that raise continuing difficulties: problems of substance and methodology, and problems of analytical structure. In each case it is argued that the heart of the problem lies in the approach taken as regards the creation, assumption or imposition of legal obligation in international law, and in the 'construction' of the legal subject. It is the latter point which is taken up in the final section, where an attempt is made to illustrate why international law needs to incorporate within its terms a substantive, rather than merely a formal, conception of the state, and to show how otherwise it is incapable of explaining legal continuity in times of radical change.
This article argues that Article 19 of the Draft on State Responsibility, first adopted in 1976, presents a number of substantial problems relating to the definition of crimes of state, the appropriate organ for making decisions on when a crime of state has been committed, and the consequences of such a crime. The International Law Commission, in seeking to adopt a series of articles spelling out the consequences of Article 19 during its 1995 and 1996 sessions, recognized those inherent difficulties. A controversial debate ensued. The purpose of this paper is to set out and clarify the issues involved in this debate so that the question of if and how the concept of 'crimes of state' should be accommodated in the new Draft Articles on State Responsibility may be effectively and conclusively answered.
This paper considers whether the NATO-led multinational force in Bosnia and Herzegovina is authorized to arrest persons indicated by the International Criminal Tribunal for the Former Yugoslavia and, if so, whether it is also obliged to carry out arrests. After critically scrutinizing views put forward on this topic in the legal literature, the author concludes that the multinational force is legally entitled to execute arrest warrants in the territory of Bosnia and Herzegovina, on the strength of Article VI, para 4, of Annex 1-A to the Dayton Peace Accord, as implemented by the North Atlantic Council through a resolution adopted on 16 December 1995. The author argues that two consequences follow from this view. Firstly, the power of arrest may be exercised concurrently with that of Bosnia and Herzegovina and the two Entities making up this state. Secondly, regarding cooperation with the Tribunal, the NATO-led force has so far only been empowered to execute arrest warrants, while it has not yet been authorized to execute other Tribunal orders. The author submits that, by contrast, the NATO-led force is not obliged to arrest persons indicated by the ICTY, nor is such an obligation incumbent upon individual troop-contributing states qua states.