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CIAO DATE: 08/02
2002 (Volume 13 Issue 2)
'War'? Legal Semantics and the Move to Violence by Frederic Megret
The use of the word 'war' to describe the anti-terrorist efforts in the wake of the 11 September attacks has gone virtually unchallenged. The term, however, is not innocent and carries far-reaching implications for international law. The article examines how its use can be said to fit into a broader strategy of legitimization of armed violence. 'War', it is argued, prepares the ground for what is basically an ideal-typical state of exception, which portrays the sovereign as the ultimate saviour of liberalism at home. But the domestic implications of the 'war rhetoric' are probably less important than the international ones, where 'war' can be manipulated to provide an escape route from the constraints of international law. This it does by reframing both the temporal and spatial coordinates of self-defence in a way that fundamentally loosens the framework of collective security. By the time the term's use has been ratified by law, it will have served to exclude or distort alternative ways of understanding and dealing with the problem of terrorism, namely, as a criminal and political issue. Whatever else military action against terrorist targets may achieve, it is far from clear that placing such action under the banner of 'war' will serve the cause of suppressing terrorism.
Legal Positivism as Normative Politics: International Society, Balance of Power, and Lassa Oppenheim's Positive International Law by Benedict Kingsbury
Because mainstream international law positivism in the tradition of Lassa Oppenheim (1858-1919) has sought to separate law from morals and from politics, many critics have dismissed this positivism as amoral, apolitical, and atheoretical. This article offers a reading of Lassa Oppenheim that challenges this view. Drawing on the jurisprudential theory articulated in Oppenheim's non-international law writings about conscience and justice, the author reads Oppenheim's adoption of an austere positivism in international law as a theoretically-grounded normative choice of a concept of law best suited to advance his moral and political values. The author thus treats Oppenheim's normative positivism as political, and considers it together with Oppenheim's advocacy of international society and balance of power as a statement of political conditions for international law. While concluding that the extent to which Oppenheim consciously accepted such a political and jurisprudential understanding of international law remains speculative, the author contends that mainstream positivism has had more enduring appeal because it has been at least sub-consciously open to such readings.
New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights by Konstantin Korkelia
This article deals with the legal effect of reservations to human rights treaties with particular reference to the International Covenant on Civil and Political Rights. In treaty practice, two conflicting views may be identified. On the one hand, it is maintained that, as consent remains the governing principle of the existing regime of reservations, states parties to human rights treaties have the discretionary power to determine the admissibility and validity of reservations to treaties. On the other hand, it is argued that, because of the special features of human rights treaties, a different regime of reservations should be applicable to these treaties: treaty supervisory organs should be competent to decide on the admissibility of reservations and to determine the consequences of inadmissible reservations. The fundamental question raised in this controversy is whether human rights treaties are sufficiently different from other treaties to apply to them distinct rules for determining the admissibility of reservations and the consequences of inadmissible reservations. On the basis of General Comment No. 24(52) of the Human Rights Committee and its recent practice, the article examines the persuasiveness of arguments advanced by both sides. In the light of the controversial views on the legal effect of invalid reservations, some conclusions are drawn on how best to deal with reservations to human rights treaties with particular reference on the role of treaty supervisory organs to reservations.
Stories of War and Peace: On Writing the History of International Law in the Third Reich and After by Bardo Fassbender
This essay presents some reflections on what today is widely regarded as the standard book on the history of international law, and on its author, Wilhelm G. Grewe, who after 1945 was one of the architects of West Germany's international legal status and of its relations with the three Western Allied Powers. In particular, the essay discusses Grewe's principal and most influential idea, an interpretation of the history of modern international law as a sequence of epochs defined in each case by the then-dominant power in the states system. Since Grewe developed and formulated this idea in the context of National Socialist political and legal thought, and particularly under the influence of Carl Schmitt's work, the essay leads back to the time of the Second World War and the ideological struggles of that time. In that respect, it is a study of the performance of international legal scholars under the conditions of a dictatorship, and of the intellectual legacy of the Third Reich in international law. Thus, in different ways the essay explores the larger questions of the origins, validity and future of the idea of a power-based international legal order.
A Trojan Horse for Sudeten Claims? On Some Implications of Prince of Liechtenstein v. Germany by Andrea Gattini
For the last 10 years, Prince Hans Adam II of Liechtenstein has been suing Germany in various courts, including the German Federal Constitutional Court, the European Court of Human Rights and the International Court of Justice. Originally, the subject of the Prince's claim was the ownership of a painting seized, among other property belonging to the Prince's father, by Czechoslovakia in 1945. Now, the Prince is claiming reparation for the alleged German decision to treat Liechtenstein assets as 'German' for the purpose of war reparations. The article maintains that the real motive for the claim is an attempt to reignite an international juridical-political debate on the merits of the 1945 Benes Decrees and of the still unsettled Sudeten claims. Such issues give rise to a wealth of international law problems of general interest. The article mainly focuses on the human rights issues which faced the European Court of Human Rights.
Book Review — A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission; Wilson, Richard. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State by Karima Bennoune
Book Review — Antworten in Nurnberg by Mathias Schmoeckel
Book Review — Bowett's Law of International Institutions by Jose E. Alvarez
Book Review — State Responsibility for Transboundary Air Pollution in International Law; Romano, Cesare P. R., The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach; Brown Weiss, Edith, and Jacobson, Harold K. (eds), Engaging Countries: Strengthening Compliance with International Accords; Ehrmann, Markus, Erfullungskontrolle im Umweltvolkerrecht by Peter H. Sand