CIAO DATE: 03/02
2000 (Volume 11 Issue 3)
The purpose of this article is to explore a question that is commonly posed, but infrequently answered: what is the nature of the relationship between conventional human rights law, and general principles governing treaty law? In its broadest sense the question, as posed, is part of wider ongoing debate as to the potential 'fragmentation' of international law a debate which has been encouraged particularly by the development of specific legal regimes with dedicated mechanisms for dispute resolution. More narrowly, the question is concerned with the compatibility of the existing treaty law framework for those legal instruments that purport to protect legal interests other than those of the contracting states. The central point of focus is upon the role and significance of reciprocity in the conceptual structure of human rights 'treaties'. It is argued that, whilst it is possible to maintain that human rights treaties are constructed on the basis of reciprocity, doing so has certain theoretical and practical costs which are not necessarily outweighed by the envisaged harm of understanding them as legal instruments possessing certain distinct characteristics.
The prohibition of retroactive punishments, known by the Latin expression nulla poenas sine lege, is a component of the principle of legality. Out of the concerns with retroactive sentencing and to enhance the fundamental rights of the accused, the statutes of the ad hoc tribunals for Rwanda and the Former Yugoslavia require judges to establish prison terms in the light of national practice in the place where the crimes took place. These provisions have proven difficult to apply. It is unclear whether reference should be made to the prison terms set out in penal statutes or to the actual practice of local courts, and at what point in time. Furthermore, because both Yugoslav and Rwandan law have provided for capital punishment, attempts to draw parallels are necessarily distorted. As a result, judges at the Yugoslav Tribunal have found the provisions to be of marginal relevance. Judges at the Rwanda Tribunal have applied the provision in support of harsh sentencing, suggesting that those convicted are being treated favourably compared with those judged by Rwandan courts, where sentencing options include the death penalty. Thus, a legal provision intended to protect the accused from abusive punishment has been twisted into an additional argument in favour of severity.
This article examines the question whether it is within the Security Council's powers to adopt resolutions which authorize member states to use force. This question has gained importance since the end of the Cold War as such authorization resolutions have become the primary instrument through which the Security Council has acted in situations where the use of military force is considered necessary. The provisional conclusion is drawn that it is an implied power of the Council to adopt such resolutions. However, it is also argued that both the Charter system and principles of delegation reject carte blanche delegations and favour authorizations which respect the authority and responsibility of the Security Council in the United Nations collective security system. Before reaching final conclusions, the author examines the views of the member states and the practice of the Security Council. Member states find the model of authorization resolutions as such generally acceptable, although some states have expressed a concern for greater UN control. In its practice, the Council has to a considerable extent responded to this concern. Three specific aspects are discussed: the mandate and the duration of authorized operations, and reporting requirements. There is a clear tendency towards greater control by the Security Council in relation to all three of these aspects.
The debate as to the nature of the legal system established by the International Criminal Tribunal for the former Yugoslavia's Statute and Rules of Procedure and Evidence is ultimately unproductive and unnecessary; it is neither common law accusatorial nor civil law inquisitorial, nor even an amalga of both; it is sui generis. The key to the application of the Statute and the Rules is the use of the appropriate interpretative technique (which gives due weight to the four principles set out in Article 31 (1) of the Vienna Convention on the Law of Treaties). Although a Rule may have a common law or civil law origin, it is peculiar to the Tribunal, and though recourse may be had to its domestic origin, at the level of the Tribunal it must not be interpreted and applied having regard to the context in which the Tribunal is placed in the prosecution of persons responsible for serious violations of international humanitarian law, and in the light of the fundamental object and purpose of the Tribunal to ensure a fair and expeditious trial. The requirements for fair and expeditious trials are cumulative. A trial may proceed expeditiously, but not fairly. However, a trial cannot be fair if it is not expeditious. Fairness, therefore, remains the overarching requirement, of which an expeditious trial is but one element. After an examination of various techniques for expediting trials, the article highlights the generic and organic relationship between hearsay, cross-examination and expeditiousness which can be exploited in the search for time-saving procedures.
The 1991 Protocol on Environmental Protection to the Antarctic Treaty has created for the first time an integrated environmental protection regime in Antarctica. Negotiated at a time when there was considerable debate over whether mining should be permitted in Antarctica and not long after the Treaty parties had concluded negotiations for a specific Antarctic minerals regime, its entry into force in 1998 is a testament to the international goodwill to cooperatively manage Antarctica and the robustness of the Antarctic Treaty system. The Protocol is also another milestone in the international management of Antarctica and generally for international environmental law. While the 1959 Antarctic Treaty initially sought to neutralise sovereignty and promote scientific cooperation, increasingly an environmental focus in Antarctic management has begun to prevail. The result is a comprehensive environmental law regime which increasingly controls all activities undertaken on the continent and the surrounding Southern Ocean. Antarctica is a unique model for development and implementation of international environmental law with successes often replicated in other global or regional law instruments. This permits some important lessons to be drawn from the Antarctic experience for the development of international environmental law and treaty-making generally.
The Introduction raises at a general level the question whether and in what sense it is possible to speak of national textbook traditions in international law within Europe. As the articles which follow are the work of commentators on textbooks, the Introduction itself attempts to give a flavour of the residential colloquium in which authors of the textbooks themselves contributed effectively to the discussion of the themes of national textbook traditions. As the articles cannot embrace every theme of the textbook problematic, the Introduction places each of them in the wider context and invites further debate to flesh out the issues more fully.
The first edition of Professor Ian Brownlie's Principles of Public International Law was published in 1966. It is now in its fifth edition. The book covers the major aspects of the law of peace. Its structure has not greatly changed since the first edition. It is well established as a student textbook and it is a work of authority. The book is well known for its disavowal of the treatment of the basis of obligation in international law, though Brownlie has made some remarks about his position in other writings. The paper considers whether the structure of the book has stood the test of time, both in relation to changes in international law and in the law school syllabuses in the United Kingdom. It then addresses Brownlie's foray into theory and whether it sits well with the account of the law presented in the book. It concludes that it does not do so in all respects and that it leaves one very big question unanswered.
Within international law, theory is often considered peripheral to more pressing practical problems. In the first part of this article, it is argued that refusal to take account of theoretical and methodological issues entails that particular descriptions of international law lack validity, and, hence, rational reasons cannot be provided as to why one account should be considered preferable to any other. This problem of rational justification, which emerges in a variety of forms, is referred to as the incommensurability thesis. The argument is illustrated with respect to the ninth edition of Oppenheim's International Law. In part two, a methodology is advanced which demonstrates how a justifiable account of international law can be generated which avoids the incommensurability thesis. This methodology states, specifically, that international lawyers must develop (a) a coherent understanding of the kind of function international law performs in maintaining social order in the relations between states and (b) a substantive conception of social order. Therefore, in order for a particular account of international law to possess validity over rival accounts, international lawyers must take account of social theory and moral and political philosophy. The final part of this article discusses the concepts of international law offered by Weil and Kant, which can be understood as examples of the methodological approach offered in this article.
The theoretical foundations of international law have become ever more dominated by the liberal tradition of thought, the ideal of a 'new' ethic of global democracy and human rights. It is nonetheless questionable whether such a pacifist paradigm of international law, with its assumption of consensus as the source and basis of validity of international law, is sufficient to solve present international legal problems. The paper sets out in the first part the idealist tradition of international law, from Kant, through Kelsen, to its reconstitution in the international law doctrine of the Federal Republic of Germany expressed in the textbook Universelles Völkerrecht by Verdross and Simma. Then, in a second part, the liberal legal paradigm is subject to a critique. Instead of speaking of the transformation of classical international law into a cosmopolitan law of a world civil society, a plea is made for a 'new' pragmatic international law, beyond universality and objectivity. From the perspective of pragmatism, law is seen not as an objective, already given norm, but as a contingent act of creative problem solving. What implications this sort of therapy might have and how international law as discursive law might contribute as a problem-solving discipline, is discussed in the final section, in the context of the Kosovo crisis.
Lassa Oppenheim's treatise has been called 'probably the most influential English textbook of international law'. Its comprehensiveness invited several great internationalists to re-edit the book. But the original intentions of the book, as well as Oppenheim's biography, have not yet been closely investigated. The German-born Oppenheim, professor of criminal law at the University of Basel, focused on international law only after his move to London in 1895. Though naturalized in 1900, his views on law remained influenced by the German methodological discussion of that period, generally labelled as 'positivism'. Looking at this discussion more closely, different approaches to 'positivism' can be identified. There is Oppenheim's originality as well in so far as he also drew on contemporary psychological theories of law. Thanks to his clear and consistent ideas on method, Oppenheim could reduce the existing doctrinal theories to a seemingly homogeneous body of law. Oppenheim could reduce the existing doctrinal theories to a seemingly homogeneous body of law. Oppenheim was convinced that such a description would stimulate the spread of the knowledge of international law and thus further international understanding. The modernity of Oppenheim's book is due both to his psychological and his systematic approach. While Oppenheim wrote at the end of the classical period of international law his textbook has become, in its turn, a classic like the work of Grotius.
This paper attempts to justify the claim that there are profound differences in the conception of the system of international law in the textbooks of various European countries. This is despite considerable cooperation among distinguished jurisconsults in the context of the European Union and the International Court of Justice. The paper undertakes an inevitably controversial account of the method of a leading French textbook on international law alongside a leading German textbook, while placing them both in the context of a more representative selection of textbooks from the two countries. A method of comparative analysis is then used which draws from political theory to highlight more systematically the intellectual context of the two works. The conclusion is that the resolution of the differences between the two works rests outside the discipline, when understood strictly, in so far as they are rooted in divergences of traditions of state and nation. These can only be resolved as a matter of political decision in favour of 'an ever closer union' of European states. There are great strengths in both works and European intellectual traditions should be well able to accommodate them in a new synthesis, given a will to closer political union.