CIAO DATE: 03/02
2001 (Volume 12 Issue 5)
Worldwide interconnectivity through massive computer networks now makes states vulnerable to new threats. Foreign governments can launch computer-based assaults, or acts of information warfare, on another state's domestic systems such as energy grids, telecommunications, and financial facilities that could severely damage or disrupt national defence or vital social services. Even realizing the new forms of computer-generated weapons and changing concepts of sovereignty and territory brought about by global interdependence, international law is likely to rely on UN Charter principles to define the legal boundaries of cyberspace. While perhaps not armed force literally, resort to cyberforce may be viewed as a form of intervention that can produce harmful or coercive effects, and put at risk the national security of another state. There is need for modern international law to define more precisely the criteria used to distinguish which state actions are permissible as normal computer-generated transborder data flow from those cyberactivities that might qualify as an 'armed attack' against a state. Clearer rules are also needed for what responses are permissible as self-defence by a state targeted in an information warfare situation and how international institutions might facilitate the attainment of these objectives.
This article offers some critiques of the dominant approaches in international law to dealing with territorial boundaries. It demonstrates that these approaches are largely trapped within the framework of nineteenth-century colonial concepts. As a consequence, the international legal system which is still largely constructed on ideas of a certain type of territorial sovereignty recreates and affirms the dispositions by colonial powers, it privileges certain voices and silences others and it restricts the identities of individuals to the limits of state territorial boundaries. One effect of this is to reinforce the state-based framework of the international legal system, particularly in areas such as human rights and resource distribution. This article argues that there are alternative approaches to territorial boundaries that focus on relationships and not on imaginary constructs. These alternatives have institutional, structural and conceptual consequences for the international legal system.
It is not contended in legal literature and jurisprudence that proportionality constitutes a basic requirement of the unilateral response to wrongful conduct. Still, its role and content in the system of state responsibility remains unclear. In the prevailing opinion, proportionality is viewed as a quantitative link between the wrongful conduct and the response thereto. In a different theoretical perspective, the author suggests that the function of the response must rather be taken into account. However, the analysis of international practice proves the existence of a plurality of instruments and tools of self-redress, each of them having a proper nature and function. In the second part of the article, it is therefore argued that proportionality should be assessed on the basis of different standards, which correspond to the different functions pursued by countermeasures. A distinction is thus made between countermeasures having respectively normative, retributive, coercive and executive function. In determining the proper function of countermeasures, and, consequently, the standard to be adopted for assessing the proportionality of the response, due consideration must be given to the structure of the breached rule and to the consequences of the breach. The theoretical and practical consequences of this conclusion are dealt with accordingly.
Considerable confusion has surrounded the question of whether there exists a hierarchy of human rights in contemporary international law. Most human rights studies do not recognize such a hierarchy, mainly because of their emphasis on the indivisibility of human rights. This paper provides a possible coherent understanding of this issue from the perspective of non-derogable rights, which demonstrate the existence of a hierarchy of human rights most clearly in international law concepts. It is a serious mistake to regard non-derogable rights as a unitary concept. Rather, the concept may be identified in at least three different ways: by means of value-oriented, function-oriented and consent-oriented criteria. Within this analytical framework, and particularly with respect to the first two criteria, non-derogable rights need to be distinguished from similar concepts such as core human rights, jus cogens and obligations erga omnes. These concepts display the same character when identified by the value-oriented criterion, but this is not the case when they are identified by the function-oriented criterion. Throughout this discussion, it is argued that non-derogable rights provide the key to understanding hierarchy in international law in general.
In his recent 'Millennium Report' the Secretary-General of the United Nations spread his arms widely to embrace civil society. Yet the present institutional framework of the UN allows only for limited participation of NGOs, and there is fundamental disagreement between UN Member States on whether participatory rights of NGOs should be extended. This disagreement as well as the weaknesses of the current mechanism are well reflected in the work of the UN Committee on NGOs which, on the one hand, confers consultative status upon too many organizations, thereby endangering a substantive collaboration between the UN and NGOs in very practical terms, and, on the other hand, too often rejects organizations that deal with human rights issues under the pretext of 'misbehaviour', thereby muzzling critical voices at the UN. The challenge will be to find a model allowing for substantial contribution of NGOs while at the same time taking into account the necessary limits of participation. The debate promises to be difficult, not only in light of the current dichotomy between open and closed societies of UN Member States, but also because the issue goes to the very fundaments of how international law works, who its actors and, in the end, its legal subjects are.
In 2001 the International Law Commission finally adopted on second reading the Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, bringing to an end nearly 50 years of ILC work on the subject. This article reviews the final group of changes to the text, focusing on the definitions of 'injury' and 'damage', assurances of non-repetition in the light of the LaGrand case, procedural aspects of countermeasures and the controversy over measures taken in response to a breach by states which are not individually injured. The focus of debate now turns to the UNGA Sixth Committee, which will have to decide what to make of the Draft Articles. The ILC itself recommended an initial resolution taking note of the Articles, with subsequent consideration (after a period of years) of a possible diplomatic conference with a view to concluding a convention. This modest proposal allows for further reflection on the text and may help to avoid possibly divisive and inconclusive debate in the Sixth Committee. At the same time it allows time for better understanding of the many changes made as compared with the first reading text (1996).
The terrorist attacks on the US on 11 September 2001 have potentially shattering consequences for international law. It will be necessary to rethink some important legal categories and to emphasize general principles. Collective rather than unilateral measures should be taken as far as possible. Otherwise anarchy could ensue.
Developments over the last 50 years in the institutional nature of international law and the political situation it regulates have led to a revival of Kant's approach to international legal theory. Kant's argument requires, first, that a distinction is made between just and unjust states for the purposes of regulation by international law and, secondly, that international law must be institutionally designed to ensure the peaceful settlement of disputes. Fernando Tesón's A Philosophy of International Law which is the subject of this review represents the fullest defence of Kant's international legal theory yet. It is argued in this review that Tesón'ss work contains two problems. First, Tesón does not defend the methodological and justificatory basis of Kantian theory which is, on most accounts, the categorical imperative, and his allusion to an empirical methodology is problematic. Secondly, Tesón does not sufficiently develop the second of Kant's major theses, which concerns the maintenance of peace b[grave]y international legal institutions. In fact, Tesón's argument can be best understood as an account of a Kantian approach to a moral foreign policy rather than a Kantian conception of international law.