CIAO DATE: 03/02
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2001 (Volume 12 Issue 2)
Anne-Marie Slaughter's application of so-called 'liberal' theory to international law leads to questionable descriptions of how 'liberal' or 'democratic' states behave, as well as equally questionable prescriptions for how international rule-making ought to proceed in the future. Treaties exclusively between parties whose governments respect human rights, the market, and periodic elections are not necessarily more likely to be characterized by 'deep' cooperation enforced via binding dispute settlement; liberal courts have ample reasons to resist (as well as to enforce) international obligations. Contrary to what this version of liberal theory would suggest, compliance with all forms of international legal obligations, including those within international economic law, may not fall along 'liberal'/'non-liberal' lines. Liberal norm-making prescriptions, including overly optimistic assessments of regulation via 'transnational networks' and 'transjudicial communication' and unduly grim assessments of more pluralist alternatives, shrink the domain of international law in misdirected, probably counterproductive, pursuit of the 'liberal peace'.
Ever since the adoption of the Rome Statute, the debate over third party jurisdiction triggered by US opposition to the International Criminal Court (ICC) has been raging without any obvious outcome in sight. This article takes a look at one of the latest academic formulations of the evolving US stance which suggests that, to the extent that the ICC will adjudicate what are effectively inter-state matters, it should defer to state sovereignty. The article finds both the legal underpinning and the political rationale to that argument unconvincing as such. As sometimes happens, however, the argument is less interesting for what it says, as for what it reveals about evolving attitudes to the structure of international law. Indeed, it is suggested that part of the current misunderstanding over the ICC is traceable to a fundamental tension within international law between neo-Grotian and neo-Kantian trends. A better understanding of that tension can serve to reconstruct a narrative of the dialectics of individual and state responsibility under international law over the past half-century. The American stance is reassessed in this light, and some of the implications for the future of the ICC and what may yet turn out to be a revolution in international law are outlined.
International law was virtually synonymous with the natural law until the nineteenth century when the new doctrine of legal positivism supplanted Enlightenment naturalism as the dominant legal philosophy. Whereas the perennial jurisprudence of the natural law had conceived of the natural law and the positive law as complementary aspects of a single juridical reality, Enlightenment naturalism rejected or underestimated the role of positive law in regulating international relations. The confusion this error caused in international law rightly discredited Enlightenment naturalism. This did not, however, lead to a revival of older and more complete conceptions of the natural law. Austin's positivism expelled international law from the province of jurisprudence because it failed to conform to that theory's narrowly constructed definition of `law'. Successive attempts by leading legal positivists to redeem international law for their school have led to a dilution of positivist doctrine, but have not furnished a coherent account of international law's juridical character. These revisions have failed to explain the persistence of non-positive juridical phenomena in the system, which may be highlighted by a detailed consideration of international law's sources. Legal positivism is also having an adverse impact on the theory and practice of international human rights law.
The theory of internationalization of state contracts poses some of the hardest questions that relate to both public and private international law. The theory suggests that, no matter what law the parties to such a contract choose as the proper law of the contract, international law superimposes their choice and applies automatically as the overriding governing law. Thus where the law of the host state applies as the sole applicable law either by virtue of the parties' express choice or by the conflict of laws rule of closest connection in the absence of such choice, the theory of internationalization triggers off not only the theoretical controversies of monism versus dualism of public international law but also the issues of party autonomy and the doctrine of the proper law of the contract in private international law. Besides theoretical interest, the matter has great practical importance in the real world of foreign investment dispute settlement. While critically examining these issues in the context of international commercial arbitration, the article also looks at other relevant issues such as the authority of private international arbitral tribunals to deal with public international law remedies for breach of state contracts.
This paper addresses the question of the relative gravity of crimes against humanity vis-à-vis war crimes. The issue is tackled from a double perspective. First, the categories of genocide, crimes against humanity and war crimes are compared at the general or legislative level. The analysis is mainly based on international treaties and other instruments that consider these crimes from the viewpoint of their diverse nature. The author concludes that it seems possible to infer that genocide and crimes against humanity are considered more serious than war crimes. Secondly, the paper focuses on the judicial and sentencing implications of the determination of the degree of gravity of crimes. In this perspective, it examines Nuremberg and post-Second World War jurisprudence as well as case law of the International Criminal Tribunals for the former Yugoslavia and Rwanda. The issue of national regulations concerning penalties applicable to the different categories of crimes is then tackled. This section of the paper also confirms that there is room for concluding that crimes against humanity are considered more serious than war crimes. However, the author stresses that, at the present stage of evolution of international criminal law, any possible answer can only be tentative.
Starting in 2000, the United Nations has begun to charge a hefty user fee to anyone, other than governments and diplomats, wishing to obtain access to its official electronic database of treaty information, which includes the texts of treaties, the list of states parties, and the official texts of reservations, etc. This new policy is not only entirely out of line with the approach applied more generally by the UN, but also with that of virtually every other international organization. Given the nature of the information as a public good and the strong policy arguments in favour of maximum dissemination and the ready accessibility of such information, the new policy is perverse and should be urgently reconsidered.
`New Publications' aims to provide an up-to-date and comprehensive listing of publications produced in the field of international law. It includes books released no more than six months prior to the publication of the current issue of the journal as well as all forthcoming volumes. Books received with only the year of publication will be listed in two consecutive issues. The listing comprises all books received for possible review as well as all books for which reliable publication data is available.