CIAO DATE: 03/02
1999 (Volume 10 Issue 4)
The complex bananas litigation could serve as a course in international economic law, as it raises a rich set of issues that arise in a highly contentious circumstance and present difficult issues of legal policy. At the core of this litigation is the question of compliance with law. This comment briefly and selectively reviews the legal manoeuvring in the European Community, the GATT, the World Trade Organization and the US, as a basis for an analysis of the problem of compliance in the GATT/WTO system, and the relation of direct effect to compliance. This comment argues that hard law is not necessarily good law, and that strengthened implementation, including possible direct effect, is not necessarily desirable. This seems obvious once we recognize that, putting aside for a moment transaction costs and strategic costs, states generally have the level of compliance that they want. The correct role for scholars and for lawyers involved with these issues is to help political decision-makers to identify circumstances in which, due to such problems, states have not achieved the desired level of compliance.
As a result of the decision by NATO to use force in response to the Kosovo crisis, issues about the legality and morality of humanitarian intervention have again begun to dominate the international legal agenda. This article explores the ways in which international legal texts about intervention operate at the ideological or representational level. It draws on feminist and post-colonial theories of subjectivity and identification to suggest that the desire to intervene militarily in cases of crisis is a product of the deeper narratives and flows of meaning within which texts about intervention are inserted. The narratives of the new interventionism create a powerful sense of self for those who identify with the hero of the story, be that the international community, the Security Council, NATO or the United States. As a result, these narratives operate not only in the realm of state systems, rationality and facts, but also in the realm of identification, imagination, subjectivity and emotion. The article explores some of the implications for international lawyers of the recognition that their arguments about intervention have effects at this personal and subjective level.
The number of requests for interim orders of protection registered with the International Court of Justice showed a marked increase between 1990 and 1999. Despite the growing resort to this remedy, the full legal significance of ICJ interim measures remains a matter of continuing debate. The recent requests for and responses to ICJ interim measures to protect rights under the Vienna Convention on Consular Relations (Bread and LaGrand cases) have rekindled the debate as to the binding nature of such orders. Through a review of these recent cases, this article argues that the text of Article 41 alone of the Statute of the ICJ, under which interim orders are made, is an insufficient guide to the legal effect of the orders made thereunder. Despite the imprecision of the language of Article 41, there is adequate evidence based on the principles of interpretation to lend weight to the binding nature of ICJ provisional measures. It is clear form the review of the cases that the direct impact of provisional measures on the protection of human rights makes this conclusion a compelling one. The article also reviews the consequences of the United States' response to the ICJ orders.
In recent years, 'trade and' issues - such as trade and labour and trade and environment - have moved from the periphery to the centre for the trade agenda. But meaningful multilateral agreement in many of these areas has proven elusive. Why are these issues so intractable? Can the trade system accommodate these new issues - or do they call into question fundamental premises of the trade regime? This article explores these issues by analysing the challenges that 'trade and' issues pose to the leading economic, game theoretic and political science understandings of the trade regime. I show how, by presenting different and oftentimes novel types of difficulties, 'trade and' issues problematize the accuracy and appropriateness of the assumptions underlying these models. But models and ideas - particularly those embedded in international institutions - often have political implications, and this article outlines some of the political consequences of the efficiency model's triumph. Finally, I argue that World Trade Organization panels risk delegitimizing WTO dispute resolution if they continue to address 'trade and' issues, and detail a strategy that panels can use to advance both the conflicting values present in 'trade and' disputes and the WTO's institutional legitimacy.
The founding fathers of the European Community contributed one of the most exciting chapters to the book of international law in the twentieth century. The 1950s saw three Communities emerge, with a remarkably wide range of activities, procedures and powers, as constituent parts of an international organization. It was the first treaty-based order to be rooted in the rule of law. The European Court of Justice was established in order to provide a forum for adjudication on future disputes in relation to the Community and it rapidly generated the largest bulk of case-law ever seen in international law. However, almost the first word in this developing case-law was a claim that it differed from international law. The making of the 'new legal order' is the subject of a two-sided story. In addition to the popular side of the story, there is the other side - a story which is too important for international lawyers to miss.
A previous article by the author in this Journal suggested that, in the light of the NATO intervention in Kosovo, a new customary rule might be in the process of formation; namely - subject to certain stringent conditions - a rule legitimising the use of forcible countermeasures by groups of states in the event of failure by the UN Security Council to respond to egregious violations of international humanitarian law. By way of a follow-up, this article examines the views of states expressed during and since the Kosovo crisis. The author concludes that many states have conceded the moral and political necessity of the NATO intervention. This, however, stopped short of the view that such conduct was legitimate in terms of existing international law. So far no consistent usus has emerged. By contrast, opinio necessitatis has been widespread and seems to be in the process of crystallizing; however, this has not gone unopposed. Consequently, humanitarian countermeasures outside the Charter framework are still unauthorized by current international law.