CIAO DATE: 03/02
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1999 (Volume 10 Issue 3)
International agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties play an important role in international relations. Often states prefer non-treaty obligations as a simpler and more flexible foundation for their future relations. The difference lies mainly in the parties' wish to model their relationship in a way that excludes the application of treaty or customary law on the consequences of a breach of obligations. This restriction does not justify discarding such agreements as being of a 'political' or 'moral' nature only. It would appear more appropriate to consider the extent to which the parties chose to bind themselves and what legal consequences they wanted to attach to their agreement, even though non-treaty agreements are not a source of law in the sense of Article 38 para. 1 of the Statue of the International Court of Justice. The relationship may best be described as a self-contained regime whose characteristics depend on the parties' intentions in the specific case. The introduction of some of the rules of treaty law and general principles of law into that regime may be appropriate. Considerations of good faith may also help to supplement the parties' agreement.
Unlike any previous case, the Lockerbie affair has raised questions about the nature and extent of the Security Council's powers under Chapter VII of the UN Charter. Due to the recent surrender of the suspects in the 1988 Lockerbie bombing, the International Court of Justice may no longer be in a position to pronounce itself on the validity of the resolutions adopted by the Council in this matter. However, the question of whether Security Council resolutions can be subjected to judicial review by the Court remains of crucial importance for the constitutional system of the United Nations. The article reviews the Court's orders and judgments in the Lockerbie cases and assesses the circumstances under which judicial review might occur in the context of the UN system. The article then turns to the substantive questions left unanswered by the Court, focusing on three main issues: the binding nature of the UN Charter for the Council; the nature and extent of the Council's power of determination under Article 39 of the Charter; and the Council's position with respect to general international law. Overall, the article proposes a textual approach to Article 39, the wording of which contains all the necessary elements for a workable delimitation of the Council's powers.
International law has traditionally been based on the principle of sovereign equality of states. As a consequence, treaties have normally provided for similar obligations for all states. In recent decades, the expansion of the international community and the globalization of environmental and economic issues have led to the search for new legal tools to take into account existing disparities and inequalities among states and to foster a better implementation of international agreements. Differential treatment, which refers to instances where the principle of sovereign equality is sidelined to accommodate extraneous factors, such as divergences in levels of economic development or unequal capacities to tackle a given problem, constitutes one possible avenue to make international law more responsive to these new challenges and to foster substantive equality among states. This article first examines the conceptual issues underlying the development of differentiation among states. It further surveys the development of differential treatment and examines its current status in international law, especially with regard to recent developments in international environmental law.
The purpose of this article is to explore the theoretical basis for, and nature of, the discovery process in transnational litigation. In particular, the article examines the case-law interpreting 28 U.S.C. § 1782, a provision of American federal procedure authorizing the discovery of documents and the deposition of witnesses in aid of foreign litigation where the relevant documents or witnesses are located in the United States. The central doctrinal question is whether the evidence that is the subject of the US-based discovery must be 'discoverable' in the jurisdiction of the litigation itself, or must only be discoverable under the typically more lenient US procedural rules. This debate over doctrine, in turn, raises a debate on the level of theory: Are civil procedure rules rooted in the jurisdiction in which they arise, or do they potentially span jurisdictions in a way which detaches them from any specific political/legal system? Moreover, why does the answer to this question vary from court to court? The article examines the parallels between an existentialist theory of personality and the operation of procedural rules, concluding that there is 'no exit' from the debate over the relationship between competing jurisdictions' rules and thus no pre-determined outcome for the given doctrinal controversy.
The European Community is increasingly entering into international agreements as a party. These agreements are Community law to the extent to which they are covered by Community competence. Member state liability for the breach of Community law, as established by the Court of Justice, is a conditio sine qua non to ensure the effectiveness of Community law. This situation leads to the question whether an individual can also hold a Member State liable for the breach of an international agreement. As the Community's external relations are characterized by specific legal and political conditions, the answer to this question very much depends on the Court's will to uphold its past jurisprudence as well as its concern for the Community's position in the international political arena.