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CIAO DATE: 01/03
2002 (Volume 13 Issue 4)
WTO Dispute Settlement and Human Rights by Gabrielle Marceau
The World Trade Organization (WTO) dispute settlement system could be seized of a dispute carrying human rights claims or arguments in support of either a complaint or a defence. How would WTO adjudicating bodies address this issue? It is suggested that WTO law must evolve and be interpreted consistently with international law, including human rights law. Thus, a good faith interpretation of the provisions of the WTO, including its exception provisions, should lead to a reading and application of WTO law consistent with human rights. The recent Doha Declaration on TRIPS and Public Health is a good example of such a possible coherent reading of WTO provisions taking into account potentially relevant human rights law. WTO adjudicating bodies cannot formally interpret other treaties and customs and thus cannot apply or enforce other treaties or customs or determine the legal consequences of rights and obligations that WTO Members may have under other treaties or by custom; these may be examined only when necessary for the interpretation of WTO law and/or as a factual determination. WTO Members do not appear to have granted WTO remedies for the enforcement of rights and obligations other than those under the 'covered agreements'. Since states are bound simultaneously by all their international rights and obligations, WTO Members in violation of human rights law may be liable, but this responsibility cannot be enforced by WTO adjudicating bodies. Yet human rights can be respected through good interpretation and application of WTO provisions.
Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann by Philip Alston
Petersmann's proposal for the enforcement of human rights through the WTO is presented as though it were simply a logical development of existing policies, rather than representing a radical break with them. In a form of epistemological misappropriation he takes the discourse of international human rights law and uses it to describe something which is in between a Hayekian and an ordoliberal agenda. It is one which has a fundamentally different ideological underpinning from human rights law and would have extremely negative consequences for that body of law. Many of his characterizations of the existing state of the law - whether at the national, EU or international levels - are questionable. What is needed is for all participants in the debate over the future relationship between trade and human rights, be they ordoliberals such as Petersmann or mainstream human rights proponents, to move beyond such analyses and to engage in a systematic and intellectually open debate which acknowledges the underlying assumptions and meets a higher scholarly burden of proof than has so far been the case.
Taking Human Dignity, Poverty and Empowerment of Individuals More Seriously: Rejoinder to Alston by Ernst-Ulrich Petersmann
When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case by Antonio Cassese
The recent judgment of the ICJ has indubitably shed light on a rather obscure area of international law, that is, the legal regulation of the personal immunities of foreign ministers. However, one should express serious misgivings about some of the Court's conclusions. In particular, the Court, besides omitting to pronounce upon the admissibility of universal criminal jurisdiction, failed both (i) to distinguish between so-called functional immunities (inuring to foreign ministers and, more generally, to all state agents with respect to acts performed in their official capacity), and personal immunities, and (ii) to refer to the customary rule lifting functional immunities in case of international crimes. It follows that, in the opinion of the Court, foreign ministers (and other state officials), after leaving office, may be prosecuted and punished for international crimes perpetrated while in office only if such crimes are regarded as acts committed in their 'private capacity', a conclusion that is hardly consistent with the current pattern of international criminality and surely does not meet the demands of international criminal justice.
Immunity for Core Crimes? The ICJ's Judgment in the Congo v. Belgium Case by Steffen Wirth
The ICJ, in its Judgment in The Congo v. Belgium (the so-called Yerodia case), stated in a problematic obiter dictum that, before national courts, former Ministers for Foreign Affairs enjoy immunity even if they committed a serious international crime, unless they acted in their private capacity. It seems that this statement (for which the Court gives no reasons) does not properly reflect the current state of customary international law. Rather, modern state practice and opinion juris deny immunities for core crimes to all former and incumbent state officials with the sole exception of the highest state representatives such as Heads of State or Ministers for Foreign Affairs; and even these persons are protected only while in office (as has been demonstrated in the Pinochet case). It is submitted that this rule not only reflects positive law but at the same time strikes the proper balance between, on the one hand, the need to protect a state's ability to discharge its most important tasks (such as the maintenance of peace), and, on the other hand, the need to punish serious violations of human rights (once retired, even Heads of State can be held responsible).
State Responsibility v. Individual Responsibility for International Crimes: Tertium Non Datur? by Marina Spinedi
The ICJ held in the recent Congo v. Belgium case that a former Minister for Foreign Affairs of a state may be subjected to the criminal jurisdiction of another state only in respect of acts carried out 'in a private capacity'. Therefore the question arises of whether international crimes committed by persons with the status of state officials are to be regarded as acts done 'in a private capacity'. This article argues that the answer to this question should be in the negative. Treating war crimes or crimes against humanity perpetrated by a state official as acts committed 'in a private capacity' would mean that such acts could not be attributed to the state at an international level. As a consequence, the state would not be responsible for those acts under international law.
Symposium on Thomas M. Franck's Fairness in International Law and Institutions (1995)
Thomas Franck's 1993 General Course at the Hague Academy of International Law, subsequently published in 1995 as Fairness in International Law and Institutions, is the subject of a series of critical evaluations by a group of British scholars, including Iain Scobbie, Holly Cullen, Stephen Tierney, Dino Kritsiotis and John Tasioulas, and introduced by Colin Warbrick. The publication of these essays marks the culmination of the first program of work of the Committee on Theory and International Law of the International Law Association (British Branch). Franck responds to his critics by rejecting claims of cultural relativism and calling for a celebration of the growing international consensus around decent aspirational values, such as the sanctity of life, right to democracy, participation in governance, freedom of religion and expression, the right to a decent standard of living, and the inherently equal worth of all persons.
Introduction to the Symposium by Colin Warbrick
Tom Franck's Fairness by Iain Scobbie
The Role of History in Thomas Franck's Fairness in International Law and Institutions by Holly Cullen
The Search for a New Normativity: Thomas Franck, Post-modern Neo-tribalism and the Law of Self-determination by Stephen Tierney
Imagining the International Community by Dino Kritsiotis
International Law and the Limits of Fairness by John Tasioulas
Epistemology at a Time of Perplexity by Thomas M. Franck
Book Review — Il principio della proporzionalità nell'ordinamento internazionale by Riccardo Pisillo Mazzeschi