CIAO DATE: 03/02
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2001 (Volume 12 Issue 1)
In recent years, attention is being increasingly drawn to the role of Europe in general, and the EU in particular, in shaping policies which may best serve, in the post-communist East, effective human rights protection and long-term inter-state peaceful relations. The gradual extension of the 'Western' integration project to Eastern Europe is resulting in importing a set of unresolved minority issues. In the wake of efforts undertaken by other international institutions, the EU is devising a range of ways and means of committing Eastern European countries to the protection of minorities. By so doing, it is highlighting patterns of scrutiny, providing guidance to an assessment on the prospects for improving state compliance. The present paper attempts to develop a preliminary framework for discussing the relatively unexplored role of minority rights considerations in this crucial context. The case of Eastern Europe reveals the vast potentialities, but also the dilemmas, of the EU action in the field, and reaches out to the question of whether — and to what extent — such an action can and should be taken vis-&224;-vis minority issues in all third countries and the EU member states as well.
International trade is undergoing a transformation commonly referred to as 'constitutionalization'. Despite the ubiquity of the phrase, its meaning remains ambiguous and its significance underexplored. The purpose of this article is to suggest that one plausible interpretation of 'constitutionalization' in the international trade law context is that it refers to the generation of a set of constitutional-type norms and structures by judicial decision-making in the Appellate Body of the World Trade Organization. Unlike the work of John Jackson, Ernst-Ulrich Petersmann and Joseph Weiler (emphasizing institutions, rights and metaphysics respectively), this article will focus on judicial constitutionalization. Four trends will illustrate this: constitutional doctrine amalgamation, system constitution, subject matter incorporation, and constitutional value association. The identification of these trends reveals the underlying structure of the constitutionalization debate. Visible through the tribunal's carefully crafted formulations of rules and justifications are the mainstay principles of constitutional reasoning (democracy and governance, constitutional design, fairness, and allocation of policy responsibility). Ultimately the arguments presented here convert the discussion from a debate about whether the WTO is a constitution into a set of speculations on the nature of international trade, and on the valency of the idea of constitutionalization.
The inauguration of the devolved Scottish Parliament has given greater relevance to the question of whether Scotland should have complete independence from the rest of the United Kingdom. For an international lawyer, this raises the question of what might be the prospective continental shelf boundary between England and Scotland. The present article is not concerned with the political or economic aspects of independence or who gets the bigger share of continental shelf or its natural resources. Rather, it focuses on the legal aspects of a prospective maritime boundary delimitation between England and Scotland, taking into consideration other states' practice in relation to disputed maritime boundaries.
The term 'ideology' is used in many senses, but in one sense it refers to the role of words (and other symbolic forms) in legitimating subsisting inequalities of power. While some theorists contend that the concept of ideology has outlived its usefulness, others point to the persistence of ideology in this sense. In doing so, the latter reassert a tradition of ideology critique that has its roots in the work of Karl Marx. In this article, the author considers the relevance of that tradition for contemporary forms of international legal scholarship. She observes that the methods and objectives of ideology critique are reflected in some approaches to the study of international law, but argues that international legal scholars would do well to make the critique of ideology more central to their enquiries than they have done to date. If the thrust of our analyses was to show how that which appears necessary entrenches historical injustices, that which seems universal serves particular interests, and that which purports to be rational functions as an argument against redistributive claims, then international legal scholarship might come to play a more engaged part than hitherto, not just in interpreting the world, but also in changing it.
The article considers the history of the attempts to extradite or otherwise bring to trial the two Libyans suspected of carrying out the bombing of Pan Am Flight 103 over Lockerbie in 1988. As a result of sanctions and other diplomatic pressure, Libya did eventually agree to 'hand over' the suspects for trial in the Netherlands. The article considers whether the case has modified the law governing international cooperation in criminal matters, and specifically whether a 'third alternative' been added to the traditional aut dedere aut judicare principle - aut transferere. Under this principle, the requested state has hitherto had only two options: either to submit the case to its own competent authorities for prosecution, or to surrender the defendant to the authorities of the requesting state. Has the discretionary power of the requested state now increased and broadened by encompassing also the 'middle path': neither extradition, nor prosecution, but 'delivery' of the accused to a third state? Is the Security Council now playing a new role as an 'enforcer' of the principle of aut dedere aut judicare? If so, this raises further questions, such as the scope ratione materiae of the modified principle.
This paper reports on the current negotiations on the draft Declaration on the Rights of Indigenous Peoples, taking place under the auspices of the UN Commission on Human Rights. The draft Declaration's provision for an indigenous people's right of self-determination provides an opportunity for the world community to articulate more clearly what is meant by the right to self-determination outside traditional contexts. Part 2 of the paper describes the international legal context in which representatives of indigenous peoples make claims to self-determination, focusing on indications that a requirement of self-determination is representative government. Part 3 of the paper develops the view that self-determination should accordingly be considered as a conceptual composite incorporating provision for political participation, autonomy, choice of community, and negotiated self-determination. From this model of self-determination will flow political structures and measures which specifically take into account the particular identity and situations of indigenous peoples. Should negotiations progress, and the United Nations General Assembly eventually adopt a Declaration on the Rights of Indigenous People, the author considers that it would be likely to include a provision on self-determination in such terms. In this way, a provision on indigenous people's self-determination could make a valuable contribution to international law.