CIAO DATE: 03/02
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2000 (Volume 11 Issue 4)
There is a considerable discrepancy in legal and economics scholarship as to the effectiveness of the new WTO dispute settlement system. The former usually suffers from selection bias that is not predicated on any empirical analysis. Bob Hudec produced a remarkable empirical account of how the GATT dispute settlement fared, but no corresponding study with respect to WTO has so far taken place. Maybe it is still too soon. The recent avalanche of compliance panels though, has cast considerable doubt on the initially celebrated effectiveness of the system. This paper is not the equivalent to Hudec's study for the WTO. It uses representative case law from the WTO to make the point that the effectiveness of the WTO remedies depends on the relative 'persuasive' power of the WTO member threatening with countermeasures.
In the Southern Bluefin Tuna cases, the International Tribunal for the Law of the Sea ordered Japan immediately to refrain from conducting an experimental fishing programme. The unprecedented character of the case lies in the fact that the Tribunal applied the precautionary approach to fisheries although it did not expressly say so. The precautionary approach, however, is a principle which has found strong application in international environmental law within the last decade. Its status as regards customary international law is disputed and remains unresolved. However, the character of this case causes one to ask whether the Tribunal's Order was the missing link to argue that the precautionary approach to fisheries has evolved into a norm of customary international law, and, if so, what implications the Order may have for the determination of its content. In addition, it serves as a good example to illustrate the application of public international law on a broader scale as twisted between established legal norms and morality and common sense.
In countries retaining capital punishment, delay before execution is usually measured in years. A major cause of delay is the inmate's appeals to numerous tribunals. Excessive delay, even when caused by the prisoner, can form the basis of a human rights violation. The author points out that the human instinct to survive drives prisoners to appeal their death sentence. A state facilitating such a struggle may be in violation of human rights laws prohibiting cruel punishment. Specific demonstrate judicial acceptance of this doctrine, entitled the 'death row phenomenon'. The author illustrates the inmates' arguments, and the evolution of the judicial response. The author concludes that the 'death row phenomenon' is firmly established in international jurisprudence. The ramifications will pressure states to modify their procedures, or abandon capital punishment.
The United Nations and the Government of Sierra Leone will shortly conclude a bilateral agreement establishing an ad hoc criminal court to try persons allegedly responsible for the commission of serious crimes perpetrated during the Sierra Leone civil conflict. The Special Court for Sierra Leone, as envisaged, is a mixed tribunal. It will be composed of international and Sierra Leonean personnel and will have jurisdiction over both international crimes and crimes prohibited under Sierra Leonean criminal law, thus notably differing from the International Criminal Tribunals for the Former Yugoslavia and Rwanda. This paper analyzes the dual nature of the Special Court and the major consequences it entails. The treatment of juvenile offenders was one of the crucial issues of the negotiations between the United Nations and Sierra Leone. The parties agreed that the Special Court should have jurisdiction over persons who were 15 years of age at the time of the alleged commission of the crime. However, children between 15 and 17 years of age must be tried in accordance with the internationally recognized standards of juvenile justice and may not be punished with imprisonment; they should be rehabilitated and assisted to find a constructive role in society.
Charles de Visscher, in direct contrast to Hans Kelsen, did not believe in any 'pure theory of law', since for him the relationship between law and politics is a key feature of international law. However, contrary to certain current tendencies, his work does not start from an evasive 'sociological' perspective, the scientific status of which can barely be traced. Trained in the most classical humanistic tradition, but, at the same time, deeply influenced by the 'Personalism' of Emmanuel Mounier, a prominent figure of Christian existentialism, Charles de Visscher remains a jurist, in the technical sense of the term, able to master every aspect of legal interstate relations. Being a formal technician, law is both a tool for international politics and for the promotion of common values. Nevertheless, he provides one of the best examples, among the diverse European internationalists, of the fact that one can (and, I would add, should), be both a technician of the law and an analyst of what de Visscher called its 'human ends', emphasizing, more than 60 years ago, but, even more, after the adoption of the UN Charter in 1945, the basic role played by the protection of human rights as one of the fundaments of international law. Reconciling consideration of political reality, formal analysis and fundamental ethics, Charles de Visscher still provides us with an answer to current trends which schematically oppose 'realists' and 'liberals'. Charles de Visscher would probably have agreed that the analysis of international law should give greater respect to nuance. This remains, in general, the prevailing view among European internationalists.
This article traces the career of Charles de Visscher through his early years at the University of Ghent, a brief period in England during World War I, his move to the Catholic University of Louvain in 1931, his role as part of a clandestine political committee in permanent contract with the Belgian Government in exile in London during World War II and his terms on both the Permanent of Court of International Justice and the International Court of Justice.
Theories and Realities in International Law is Charles de Visscher's best known book. Its very title makes clear that he was concerned with both the effective conditions of international relations and the requirements of legal theory. De Visscher was in fact originally mostly a practitioner of the law, becoming a member of the PCIJ in the late 1930s. This part of his career came to an end in 1952 when he was not re-elected to the ICJ. He then returned to the academic world. At nearly 70, he began writing and published several books, universally praised, directly benefiting from his exceptional knowledge of international life. His writings showed a clear dislike for formalistic constructions disconnected with realities; his preference was for a 'method' over a doctrine or a theory and for moral standards over positivist requirements. Most of his writing is fascinating, despite the fact that it is often — which is no surprise — dated.
Charles de Visscher began to take an interest in international justice immediately after the First World War. He embarked upon a brilliant career as an advocate before the Permanent Court of International Justice, where he was highly respected for his vigorous capacity for analysis, his precise and illuminating style and thorough understanding of all aspects of the cases he was involved in. Having sat as an ad hoc judge on the PCIJ, he was elected to it in 1937. He sat on the International Court of Justice from 1946 to 1952. While it may be difficult to assess his contribution to the work of the two Courts, as his thought was generally included in the majority opinion, it is indisputable that he exercised great influence there. His authority was great. Despite his natural discretion, Judge de Visscher was always in the front line of struggle for an international order founded upon law and justice. The judicial function occupied an exceptional place in his life and work, a function that he exercised with a distinction, skill and devotion acknowledged by all.