CIAO DATE: 03/02
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1998 (Volume 09 Issue 3)
The International Court of Justice's 1996 Nuclear Weapons Advisory opinions raise a number of questions relating to the competence of international organizations and the Court's own advisory jurisdiction. The author argues that actions of an international organization directed at achieving the fulfilment of the purposes of the organization and which would promote its effectiveness are within the implied powers of the organization. Thus, the decision that the WHO had no competence to deal with the legality of nuclear weapons (or other hazardous substances) departs from the established law, including the Court's previous jurisprudence. It is argued that a broad, rather than a narrow, competence for international organizations is more consistent with principle and practice as well as with the Court's jurisprudence. In relation to the Court's advisory jurisdiction, the author argues that (contrary to the implications in the WHO opinion) it is always within the competence of UN specialized agencies to seek opinions on the interpretation of their constitutions and that requests from the General Assembly do not have to relate to the work of that organ. The concluding section sets out the circumstances in which the Court ought to exercise its discretion to refuse to render an opinion requested of it. It is argued that the fact that a request relates to an abstract question, unrelated to any particular factual situation, ought not to debar the Court from exercising its jurisdiction. However, the Court ought to decline to provide an opinion where it does not have before it sufficient factual material to enable it to form an opinion or where it is in danger of giving an incomplete answer that can be misconstrued.
Since the early 1990s, human rights have gained increasing importance in the external policies of the European Union (EU) and, in particular, the European Community (EC), the primary focus of this paper. While the precise delimitation of the EC's external human rights competences is still controversial, an analysis of the existing primary sources of Community law (Founding Treaties and case law) and their extension by the Treaty of Amsterdam seems to confirm the emergence of human rights as a 'transversal' Community objective. Moreover, the EC has developed an abundant practice of including human rights aspects in its international agreements (by means of so-called 'human rights clauses'), unilateral trade preference schemes (via 'special incentive arrangements' or 'conditionality requirements'_ and technical or financial assistance programmes ('human rights clauses' and the 'European Initiative for democracy and the protection of human rights'). From a conceptual perspective, the EC's human rights policy seems governed by the principles of universality and indivisibility. However, the specific weight to be attributed to economic, social or minority rights, the EC's capacity to adhere to international human rights conventions and the interplay between 'First Pillar' (EC) and 'Second Pillar' (CFSP/EU) activities all await future clarification.
While the political relevance of the recognition of new states is beyond all doubt, the rules of law which apply to this aspect of public international law remain uncertain. The new practice of recognition of the recently established states of Eastern Europe and the former Soviet Union since 1991 is said to have overridden the traditional principles of public international law regarding recognition. Indeed, the predominant declarative theory cannot explain this new practice convincingly. The integration of a new state in the international community does not take place automatically, but through co-optation; that is, by individual and collective recognition on the part of the already existing states. By the procedure of recognition, these states exercise their prerogative to determine in advance whether the newcomer, in their judgment, is able and willing to carry out all its obligations as a subject of international law, whether it will be a reliable member of the international community. Therefore, the ability and willingness of the new state to respect international law constitute the central criteria of statehood in terms of international law. They are decisive for the conferment of legal capacity under international law.
Article 3 of the European Convention on Human Rights, which prohibits torture and other forms of ill-treatment, does not expressly provide that its terms are absolute. Nevertheless, the idea that Article 3 contains absolute rights is generally accepted. This article explores the concept of absolute rights in Article 3, both with reference to theoretical considerations and in the light of Strasbourg case law. It concludes that the notion of absolute rights is nebulous because it involves an assessment of subjective factors and that it is best understood within the wider context of the Convention as a whole.
One of the objectives of the 1996-1997 Intergovernmental Conference (IGC) was to improve the functioning of the Common Foreign and Security Policy (CFSP). This was expressly foreseen in the Maastricht Treaty with regard to defence problems. The mandate of the IGC was in fact much broader.
The results, however, have been quite limited. To give a quick summary, the intergovernmental nature of the CFSP has not been modified. The Treaty of Amsterdam has rationalized the CFSP instruments. The system of qualified majority voting has been simplified, but still allows the use of national vetoes. It has complicated both the decision-making and implementation processes. Finally, a slightly improved long-term perspective on the integration of defence has been exchanged for an equally slightly improved confirmation of NATO's supremacy in the defence realm.
The first part of this report looks at the stakes of the debate. The solutions adopted are then examined in the second part. This analysis enables us to draw clear conclusions regarding the objectives of the CFSP and the requirements they imply for the Member States.
After the reunification of Germany on 3 October 1990 the German courts were required to deal with charges of homicide against GDR border guards who had killed fugitives trying to escape over the Berlin Wall or across the border separating East from West Germany. According to the Unification Treaty, the law relevant to crimes committed on GDR territory prior to the date of unification was the criminal law of the GDR, unless the law of the Federal Republic of Germany was more favourable to the defendant. Thus, defendants invoked GDR law to establish that their actions had been lawful and could not be held to be criminal. This article demonstrates how international human rights were brought into play by the courts in arguing that the laws of the GDR had to yield to a higher law. It also refers to the reasoning of the Federal Constitutional Court when it addressed the question of ex post facto laws. There the Court's arguments remained exclusively within the sphere of German constitutional law. It is contended that the Court's reasoning would have been more convincing had it also taken into account in this instance the relevant provisions of international human rights instruments.