CIAO DATE: 03/02
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2001 (Volume 12 Issue 4)
For some 13 years, Prosper Weil's defence of the classic liberal understanding of public international law went largely unchallenged. Recently, however, John Tasioulas, in an attempt to promote and support a theoretically credible natural law perspective, launched an influential and wide-ranging critique of Weil's position. The present paper offers an analysis of that critique. It is suggested that Tasioulas' counter is unfair and ineffectual; both of these charges stem from Tasioulas' deployment of Dworkin's interpretative concept of law. This is unfair because Dworkin offers a theory of adjudication, not of obligation; one which, moreover, is inappropriate to public international law. Nonetheless, the deployment of Dworkin is an implicit acceptance of the necessity of process in norm creation; but, as Tasioulas conflates norm creation and application, the procedure tendered comes too late to play this role. This is compounded by the fact that the procedure deployed begs its own subversion in the international arena. The key point here is that, even if it were not unfair, inappropriate and late, Dworkin's theory simply could not perform the function it is allocated.
This article considers the story of East Timor in the light of the international legal rules on self-determination. It is argued that such an analysis is both timely and necessary. For more than 20 years, international lawyers have brought the force of international legal norms to bear upon the 'Question of East Timor'. This article aims to do the reverse: to bring the force of the East Timorese debacle to bear upon international law. Following on from the Introduction, the argument proceeds in three parts. Part 2 considers the legal basis for East Timor's right of self-determination. Part 3 argues that, contrary to its populist characterization as excessively indeterminate, the right of self-determination has a discernible core content which confers on beneficiary peoples, such as the East Timorese, two distinct sets of entitlements: self-determination as process, and self-determination as substance. Finally, having established the basic legal framework, Part 4 compares two moments of high-level institutional engagement with (the two aspects of) East Timor's self-determination entitlement: the case brought by Portugal against Australia before the ICJ in 1995; and the UN-sponsored 'popular consultation' of August 1999. It is argued that the institutional shift from the ICJ to the UN was also characterized by a shift from formalism to pragmatism, and that both institutions failed to uphold the international legal rights of the East Timorese.
This article examines whether internationally agreed environmental principles and nationally applicable environmental liability regimes justify progressive change within corporate governance law. In other words, has environmental protection transcended its current place in the external legal framework governing the way companies behave to play a role within the internal regulation of the way companies are run? International trends in corporate environmental liability and environmental management systems are discussed to determine whether environmental considerations should now play a corporate governance role. Justification for the inclusion of environmental considerations is examined within the context of alternative corporate governance theories and their practical implications for company directors.
Cyprus, linked with the EU by an association agreement, has been de facto divided since 1974. In 1983, the northern part declared independence as the Turkish Republic of Northern Cyprus (TRNC), a state recognized only by Turkey. The English courts, faced with the questions of whether certificates required under EC law for the importation of goods originating in Cyprus under the association agreement could be issued by the TRNC authorities and, if not, whether these certificates could be issued in Turkey by Turkish officials instead, referred these questions to the ECJ for a preliminary ruling. The ECJ ruled that EU members must not accept certificates issued by those authorities because cooperation required under the certificate system was excluded with the TRNC as it was not recognized either by the EU or its members. However, indirect imports from Cyprus via third non-member states were permissible under certain conditions, leaving open, however, the question of whether these conditions could be satisfied in Turkey, a question (still) to be decided by the English courts. By banning the direct importation of Turkish Cypriot products or taxing them out of the European market on the basis of the non-recognition of the TRNC, the ECJ misjudged the scope and consequences of the principle of non-recognition in international law and, in fact, applied economic sanctions, a measure that should be reserved for the political bodies responsible for the conduct of the Community's foreign relations.
This paper analyses the Yugoslav case of financial state succession. The paper examines the issues raised in the succession negotiations between the five successor states of the SFRY and details the agreements reached by certain successor states with third parties including the International Monetary Fund, the World Bank and the London and Paris Clubs. The latter part of the paper distils from the SFRY succession negotiations considerations which are relevant to the shaping of the international law of state succession.
In order to draw a distinction between the Community legal order and other international organizations, the Court of Justice has very often taken a rather prudent attitude towards the application of the principles of customary international law. However, in respect to Article 307 EC (ex Article 234) it has generally made a careful application of those principles. This article first examines the case law related to the subordination clause, contained in paragraph 1, of the EC Treaty vis-á-vis the pre-existing agreements concluded by the member states with third countries. Secondly, it focuses on two recent judgments concerning the obligation, established in paragraph 2, of the member states to eliminate incompatibilities with the EC Treaty found in pre-existing agreements. To find a solution for the two cases, the Court again made reference to the principles of international law, resisting the temptation to develop a particular doctrine, suggested by the Commission, concerning the relationships between earlier agreements and the EC Treaty.