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CIAO DATE: 09/03
2003 (Volume 14 Issue 3)
What Happens to the Iraqi Oil?: Thoughts on Some Significant, Unexamined International Legal Questions Regarding Occupation of Oil Fields by R. Dobie Langenkamp and Rex J. Zedalis
Possible US and allied occupation of Iraqi oil fields following any military action against Saddam Hussein would raise a variety of interesting legal issues under the international law of belligerent occupation. With specific regard to Article 55 of the 1907 Hague Regulations on the Laws and Customs of War on Land, an occupant's treatment of state-owned immovables, such as oil reserves, must accord with the rules of usufruct. In the essay that follows, the authors look at how the rules of usufruct affect three particular matters that have not previously received extensive consideration: (1) the latitude of an occupant to employ sophisticated producing technologies that increase the degree to which an oil field may be swept clean; (2) the permissibility of increasing the rate or volume at which oil is produced from a particular field; and, (3) the uses to which an occupant may put either the oil produced or the proceeds from sales of such. The authors suggest that a usufructuary is permitted to exercise a rather broad, though not unlimited, discretion in connection with selecting extraction technologies and rates of production. As for how the oil produced or the proceeds from such may be used, it is suggested that international law forbids any use that can be seen as being for the enrichment of the occupant.
Security Council Deliberations: The Power of the Better Argument by Ian Johnstone
Why are legal arguments used in a political forum like the United Nations Security Council? This article draws on international law and international relations theory to provide an answer to that question, supported by a case study of the debates over NATO's intervention in Kosovo. The theoretical argument is that international law operates largely through a process of justificatory discourse within and constrained by interpretive communities, composed of the participants in a field of practice who set the parameters of what constitutes reasoned argumentation for that practice. Drawing insights from the theory of communicative action, the article claims that minimal preconditions for this discursive interaction exist in and around the Security Council. The debates over Kosovo are offered as evidence that the legal discourse not only occurs but has independent influence even in that political setting. While legal considerations did not directly cause any decision, concerns about precedent and reputation did influence positions taken as well as subsequent developments in the UN and NATO. The article concludes with an illustrative suggestion as to how Security Council deliberations could be improved, namely the adoption of a set of considerations to be taken into account in debates on humanitarian intervention. The suggested reform would not do away with the influence of hard power and perceived national interest, but, to paraphrase Jurgen Habermas, would give 'the power of the better argument' a fighting chance in Council decision-making.
Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court by Darryl Robinson
With the entry into force of the Rome Statute of the International Criminal Court, many issues which were once theoretical will soon have significant practical ramifications. Prominent among these is whether and when the ICC might defer to national reconciliation programmes that involve amnesties. This article discusses the provisions of the Statute that might allow deference and suggests propositions for the ICC. First, given the mandate of the ICC and the imperative of removing expectations of impunity for serious international crimes, prosecution is of the highest importance. Second, in situations of transition from mass violence, involving large numbers of perpetrators, the ICC could nevertheless defer to a national programme whereby only those most responsible are prosecuted and low-level offenders are dealt with by non-prosecutorial alternatives (truth commissions). Third, national programmes whereby amnesties may be sought even by those persons most responsible for international crimes are most unlikely to garner deference, but it is at least conceivable that the ICC could conclude that it would not be in the 'interests of justice' to interfere with a democratically adopted, good faith alternative programme that creatively advanced accountability objectives. Finally, blanket amnesties could never warrant deference, as they are the antithesis of the ICC; even in situations of extreme political necessity, to accept a blanket amnesty would be for the ICC to succumb to blackmail.
Deliberative Democracy and Minorities by Steven Wheatley
This article examines the contribution that international law can make to the recognition of minority interests and preferences through a deliberative understanding of democracy. The deliberative model conceives of democracy as a free association of equal citizens who engage in a rational discussion on political issues, presenting options and seeking a consensus on what is to be done. The concern here is with how the deliberative model accommodates ethno-cultural minority groups. The cardinal features of the deliberative model-equality, participation (i.e., inclusion) and consensus-are clearly attractive to hitherto marginalized groups. Like other minorities, ethno-cultural groups demand a recognition of their status as equal citizens, and effective representation in the deliberative and decision-making institutions and mechanisms of the state, notably national Parliaments. The pure deliberative model, outlined by Habermas in Between Facts and Norms, assumes that given sufficient time and goodwill, it is always possible to reach a consensus. On certain issues which affect ethno-cultural minorities, however, a consensus cannot be reached. Democratic deliberation on questions of ethno-cultural minority identity, this article argues, should not aim to establish uniform rules in all areas of public life, but to determine a constitutional arrangement that will guarantee the cultural security of the minority group. Where this can be established in common institutional and legal frameworks, this is to be preferred; where not, appropriate autonomy regimes should be introduced. Finally, the article considers the mechanisms through which this accommodation may be reached.
Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights by Alexander Orakhelashvili
The European Convention on Human Rights was adopted as an instrument to protect the rights and interests of individual human beings rather than of state parties. It thus embodies obligations which objectively protect human beings and are not reducible to mutual or reciprocal legal commitments of states. The jurisprudence of the Convention organs has recognized the importance of the nature of the Convention obligations, and has interpreted and applied a number of its substantive and procedural provisions accordingly. This has become possible through the use of appropriate methods of treaty interpretation, dictated by the character of the Convention obligations. In particular, the Convention organs refused to interpret the Convention restrictively, as this would endanger its integral application which is inherent to the Convention's object and purpose. However, the recent jurisprudence of the European Court of Human Rights indicates some trends which undermine the rationale of the Convention through the use of interpretive methods that are of doubtful value in cases in which they are applied. This article examines the Court's recent jurisprudence, and concludes that adherence to such interpretation approaches endangers the very rationale of the European Convention and its ability to effectively benefit those it has been designed to protect.
Giving Effect to Public International Law and European Community Law before Domestic Courts - A Comparative Analysis of the Practice of Consistent Interpretation
by Gerrit Betlem and André Nollkaemper
This paper explores differences and similarities in how domestic courts - mainly Dutch courts - apply two distinct forms of non-domestic law: public international law and European Community law. The article focuses on the application of the principle that dominates practice in both areas: that courts should, whenever possible, construe national law in conformity with, respectively, public international law and European Community law. This article offers a systematic comparison of how courts employ this principle. On the basis of a detailed analysis of the relevant national case law and the case law of the European Court of Justice (ECJ), it is argued that there is no fundamental divide between the application of public international law and EC law (despite the theoretically opposing starting points); differences in application are a matter of degree not of principle. The principle of consistent interpretation proves to be effective and of great practical importance in both areas and further testifies of similarities in the impact of the two areas on domestic law.
Problems under the EC-Israel Association Agreement: The Export of Goods Produced in the West Bank and the Gaza Strip under the EC-Israel Association Agreement by Christian Hauswaldt
Where are Israel's borders? This question arose when European customs officers demanded verification of the origin of products declared as Israeli but which originated in the occupied territories. The EC-Israeli Association Treaty grants preferential tariffs to products of Israeli origin. European customs officers abandoned the practice of treating products originating in the occupied territories as Israeli products after the EC concluded an Association Treaty with the PLO. This caused serious irritation on the Israeli side and controversial discussions between the EC and Israel. The issue remains unsolved. The article argues that this issue is directly linked to the question of sovereignty over the disputed areas of Palestine. It discusses several approaches to the solution of the current problem, and examines the possibility of a bilateral, or even regional, cumulation of origin. It concludes that trade agreements and the rules of origin are so closely related to the question of sovereignty that a final solution to the question of origin of products from the occupied territories can only be found after the Israeli-Palestinian conflict has been solved.
Book Review — Von Bernstorff Jochen: Der Glaube an das universale Recht: Zur Völkerrechtstheorie Hans Kelsens und seiner Schüler Reviewed by Jan Klabbers
Book Review — Jayawickrama Nihal: The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence Reviewed by Philip Alston