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CIAO DATE: 09/03
2003 (Volume 14 Issue 1)
International Dispute Settlement: A Network of Cooperational Duties by Anne Peters
This article identifies various duties of cooperation both in political and legal settlement strategies. A general, customary law-based duty of cooperation with a view to settlement, comprising a duty to negotiate, is inherent in the obligation to settle disputes peacefully. On the other hand, a general 'political exhaustion doctrine' does not exist. In diplomatic third party-based settlement, we find specific, i.e. procedural, obligations of cooperation. With regard to adjudication, the evolution of treaty law has seen the cooperational act of submission given at an increasingly early stage. The doctrine of non-frustration of adjudication functions as a corollary to the duties of cooperation. In international criminal justice, manifold duties of cooperation are binding erga omnes partes. The cooperational duties are placed in the context of two antagonistic trends in dispute settlement. One is the rise of adjudication which is found, for instance, in the creation of new courts. On the other hand, new and varied political means are resorted to, and justified by novel arguments, such as alternative dispute resolution (ADR). The international law of dispute settlement may be envisaged as a network of obligations. The hierarchical strand of the network is dominant where (quasi-)compulsory jurisidiction exists. Yet horizontal Westphalian elements persist. Finally, the network image applied to dispute settlement visualizes the oscillation of international law between Westphalianism and Constitutionalism.
Countering, Branding, Dealing: Using Economic and Social Rights in and around the International Trade Regime by Robert Wai
This article explores how the creative use of international economic and social rights law might assist actors operating inside and around the international trade law regime to address the impact of trade on social concerns. In a world context where trade and social concerns overlap in many ways, strategies based on international human rights law may disturb conceptions of the trade regime as narrowly directed towards trade facilitation, while also providing a basis to address difficult problems such as reconciling the concerns for high social standards in both the South and the North. The article describes and relates strategies based on international social rights at three potential venues for the development of the trade regime. First, a strategy of 'countering' could utilize international social rights law to guide interpretation and application of trade treaties, including to challenge the selective spread of such 'human' rights intellectual property rights and investment rights. Second, international social rights might be achieved by, and in turn guide, NGO 'branding' practices. Third, a strategy of 'dealing' informed by norms of international social rights could generate broader reforms to the trade regime that would address both concerns about fair trade and regulatory competition in developed countries and concerns about trade access and development in developing countries.
The Ambiguities of Security Council Resolution 1422 (2002) by Carsten Stahn
SC Resolution 1422 (2002) is one of the most controversial resolutions of the Security Council. In order to surmount the United States' threat to block future UN peacekeeping missions, the members of the Council voted in favour of a resolution that requests the ICC to defer potential prosecutions of peacekeepers from non-state parties to the Statute for a 12-month period. What has been praised as a 'pragmatic solution' to the US demands is in fact a highly questionable legal compromise challenging not only the framework of the Rome Statute, but also the role and powers of the Security Council. This article discusses both the interplay between the Council's request and the Rome Statute, and the possible implications of the resolution for the ICC and its member states.
International Law in and with International Politics: The Functions of International Law in International Society by Onuma Yasuaki
International law has conducted and still conducts distinctive societal functions based on the general understandings and perceptions of law. In this article, I first quickly glance at two disciplines, international law and international relations, and see how they have developed as separate disciplines, scarcely learning from each other until recently. In the second section, I deal with the longstanding debates on the binding force of and compliance with international law from a functional perspective. In the third section, I seek to demonstrate that although bindingness is the primary function of international law, the raison d'être of international law must be explained by means of more comprehensive perspectives. In the final section, I indicate functions other than the binding one, and seek to elucidate how they carry out important societal functions which non-legal norms, such as ethics, morality and religion, as well as policies or politics, cannot fulfil. In this way, I seek to explore the raison d'être of international law in terms of its societal functions, in comparison with those of international politics (or policies) and international ethics (or morality), by analysing four functions of international law: binding, communicative, value-declaratory, and justifying and legitimating.
Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity? by Akbar Rasulov
A belief formed over the last decade, both within and outside the academic community, that humanitarian treaties are subject to a special regime in the law of state succession, known as 'automatic succession'. This article seeks to critically re-examine the accuracy of this belief. By analysing the state practice generated during the recent wave of state succession, this article comprehensively elucidates the current customary regime of succession applicable to humanitarian treaties. With minor exceptions, the final verdict appears pessimistic: not only have the successor states not behaved as though succession to humanitarian treaties were automatic, but on the general level there also has not been any de facto continuity in succession patterns. The opinio juris currently held by the successor states strongly disfavours any automaticity of succession. Even the human rights bodies seem to vacillate in their opinion. Nevertheless, the idea of automatic succession to humanitarian treaties, strengthened by the doctrine of 'acquired rights', possesses enough legitimacy to be incorporated into positive international law. The major requirement at this stage, therefore, is to boost the spirit of accountability. Depositaries and treaty-monitoring bodies must become more active in discharging their watchdog functions.
Measuring the Effects of Human Rights Treaties by Ryan Goodman and Derek Jinks
Do human rights treaties improve human rights conditions on the ground? In the end, this critical question is empirical in character. The effectiveness of any regulatory strategy turns on whether its rules and institutions actually mitigate the problems they are designed to address. Although empirical questions require empirical study, bad data is worse than no data. In a recent study, Professor Oona Hathaway purports to quantify the effect of human rights treaty ratification on human rights violations. Her findings are striking. She contends that ratification is associated with worse human rights practices (when other important variables are held constant). Of course, it is unsurprising that some states continue to commit substantial human rights abuses even after ratifying human rights treaties. It is, however, startling to suggest that treaty membership - including the labelling, monitoring and reporting of abuses - actually increases violations. In our view, any study advancing such wildly counterintuitive claims carries a heavy burden. While we support the empirical study of these phenomena (and indeed we rely on many such studies in formulating our critique), we identify several problems with Hathaway's project. We suggest that these problems demonstrate serious deficiencies in her empirical findings, theoretical model and policy prescriptions.
Testing Conventional Wisdom by Oona A. Hathaway
In my recent article, 'Do Human Rights Treaties Make a Difference?', I presented evidence and arguments that called into doubt two widely shared assumptions: (1) that countries generally comply with their human rights treaty commitments and (2) that countries' practices will be better if they have ratified treaties than they otherwise would be. In response, Professors Ryan Goodman and Derek Jinks argue that we must stick with 'conventional assumptions' until we 'know' the 'real effects of human rights treaties'. In this reply, I clarify my argument, which Goodman and Jinks misportray, and respond to the central themes of Goodman and Jinks' critique. First, I argue that Goodman and Jinks' scepticism toward my empirical results is misplaced and that their claims that the multiple data sources on which I draw one 'bod' are unsubstantiated. Their argument, taken to its logical conclusion, would counsel against any empirical analysis of the effectiveness of human rights treaties. Second, I defend my theoretical account, which argues for looking beyond existing models in analysing state behaviour. Third, I contest Goodman and Jinks' claim that it promotes human rights to continue to rely uncritically upon conventional assumptions. I argue that the international legal community should instead seek to understand better the relationship between treaties and state behaviour and then carefully consider how to make treaties achieve their goals more effectively.
Book Review - Gráinne de Búrca and Joanne Scott, eds. The EU and the WTO. Legal and Constitutional Issues Reviewed by Peter Hilpold
Book Review - Kai Ambos: Der Allgemeine Teil des Völkerstrafrechts: Ansätze einer Dogmatisierung Reviewed by Wolfgang Schomburg and Nina H. B. Jørgensen
Book Review - Christoph J. M. Safferling: Towards an International Criminal Procedure Reviewed by Wolfgang Schomburg and Nina H. B. Jørgensen