CIAO DATE: 03/02
|
|
|
|
1998 (Volume 09 Issue 4)
Inequality within and between societies has been a neglected issue in the contemporary theory of international law. The concept of sovereignty makes this neglect possible in traditional international law, as analysis of Oppenheim's 1905 textbook demonstrates. Globalization and democratization are placing state sovereignty under strain, as international rules and institutions appear to become more intrusive, transnational civil society more active, and unitary state control less pronounced. State sovereignty as a normative concept is increasingly challenged, especially by a functional view in which the state loses its normative priority and competes with supranational, private, and local actors in the optimal allocation of regulatory authority. But discarding sovereignty in favour of a functional approach will intensify inequality, weakening restraints on coercive intervention, diminishing critical roles of the state as a locus of identity and an autonomous zone of politics, and redividing the world into zones. The traditional normative concept of sovereignty is strained and flawed, but in the absence of better means to manage inequality it remains preferable to any of the alternatives on offer.
The European Court of Justice has long been criticized for consistently holding that the General Agreement on Tariffs and Trade (GATT) does not have direct effect. The end of the GATT Uruguay Round prompted a renewed analysis of direct effect by Kees Jan Kuilwik. In his book, The European Court of Justice and the GATT Dilemma, Kuilwijk argues that the continued denial of direct effect to the GATT 94 not only proves that the ECJ has protectionist motives but also that it is unconcerned with individual rights. In addition to updating the traditional critique of the Court's doctrine, Kuilwijk's book illustrates the tendency of that critique to fail to acknowledge the full complexity of the direct effect question. Thus, a more measured and thorough exploration of the legal, political and economic issues involved in analysing the issue of direct effect may prove useful. This paper attempts such an analysis. Its purpose is not to advocate a particular position but merely to illustrate the gaps in the traditional critique.
While the EU is a staunch defender of human rights in both its internal and external policies, it lacks a comprehensive or coherent policy at either level. This discrepancy is even less sustainable in 1999 than it was just a few years ago. Monetary union, enlargement, a need to match growing powers with effective human rights scrutiny, and various other developments all necessitate a far more developed human rights policy. Existing institutional arrangements are especially unsatisfactory and the article puts forward a wide range of measures that should be explored in relation to the role of the Council, Commission, Parliament and Court, as well as Member States.
In December 1997 the International Court of Justice issued an order, for the first time, allowing a counter-claim. The Court found that the counter-claim submitted by Yugoslavia in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide was admissible under Article 80 para. 1 of the rules. This raised the question whether a counter-claim may be presented in a case concerning the violation of an erga omnes obligation. The nature of counter-claims and their admissibility are analysed in this comment in relation to such cases. It is argued that counter-claims should be admitted before the Court only if built on defences on the merits and if strictly connected with the merits of the case in which they are raised. The author concludes that these conditions for the admissibility of a counter-claim cannot be fulfilled when the violation of an erga omnes obligation is alleged. The defensive character cannot be maintained as the Respondent State cannot invoke a previous violation of its rights committed by the Applicant in order to justify conduct that infringes an erga omnes obligation. Furthermore, connection in fact and in law is also lacking.
Article J.7 of the Amsterdam Treaty, which amends the Treaty on European Union, establishes that the Western European Union shall provide the European Union with access to an operational capability for 'humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking'. Making reference to the 1992 WEU Petersberg Declaration, these tasks are commonly known as Petersberg operations. This provision constitutes the integration of a part of the 'WEU acquis' into the framework of the European Union, even though there is no institutional integration between the two organizations or legal interweave between their constituent treaties. The decision-making mechanism for Petersberg operations must be considered in relation to the new CFSP set of acts and involves considerable interplay between the European Council, the Council and WEU Council of Ministers. Several problems might arise from the different voting systems of these institutions and a specific question is posed by the more restricted composition of the WEU with respect to the EU, namely the five EU Member States which are not fully-fledged WEU members. The development of an EU crisis management capability could have a number of positive consequences, both on an inter-European level and externally.
This article responds to a paper Philip Alston published in a recent issue of this Journal. Alston gently chided international lawyers for not having paid greater attention to the possible impacts on international law of globalization. The timeless of the wake-up call would be hard to dispute, but Alston's discussion of globalization serves to highlight the difficulty international lawyers face in assessing contemporary political developments given the inadequacy of dominant frameworks within which to understand how international law relates to the political and economic context in which it operates. International lawyers will need to be able to enunciate just what part international law has played in the globalization process as it has taken place to date before they can play a meaningful role in policy debates regarding the future of globalization.
This report on current developments in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia ('Tribunal') covers three main issues: the Tribunal's subject matter jurisdiction; the elements of certain crimes within the Tribunal's jurisdiction; and the Tribunal's authority to order states and individuals to provide evidence.