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CIAO DATE: 03/04
2003 (Volume 14 Issue 5)
The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua by Christine Gray
A majority of the contentious cases brought to the International Court of Justice in recent years have involved questions of the legality of the use of force. This is a dramatic change in the subject matter of the Court's cases; Is it a dangerous development for the Court? In the Nicaragua case the USA argued strongly that such disputes were non-justiciable, but the Court summarily rejected its arguments. The first part of this article considers how far defendant states have subsequently challenged admissibility and jurisdiction in cases involving the use of force. Despite the rejection of the US arguments in the Nicaragua case, several states have reverted to these; this article considers whether their use by states which are not members of the Security Council may be more acceptable than by the USA. The second part of this article focuses on provisional measures. It discusses whether the significant increase in the number of requests for provisional measures shows the emergence of a special regime in cases involving the use of force, and examines the divisions within the Court as to whether there should be a modification of the normal requirements for an indication of provisional measures. It concludes by considering the view the Court has taken of its role as the principal judicial organ of the UN and of its relationship to the Security Council in cases involving the use of force.
A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature? by Joost Pauwelyn
An important, though oft neglected, distinction between multilateral treaty obligations separates obligations of a bilateral nature from those of the collective or erga omnes partes type. Multilateral obligations of the bilateral type can be reduced to a compilation of bilateral, state-to-state relations. They can be compared to contracts. Collective obligations, in contrast, cannot be divided into bilateral components. They are concluded in pursuit of a collective interest that transcends the individual interests of the contracting parties. The standard example of such obligations are those arising under a human rights treaty. In domestic law, collective obligations can be compared to criminal law statutes or even domestic constitutions. This essay examines the origins of the distinction between bilateral and collective obligations, as well as its major consequences, both in the law of treaties and the law on state responsibility. On that basis, a wider typology of multilateral treaty obligations is suggested. In the exercise, obligations arising under the World Trade Organization are used as a case study. The argument is made that WTO obligations remain essentially of the bilateral type; they are not collective in nature.
'Transnational Criminal Law'? by Neil Boister
International criminal law is currently subdivided into international criminal law stricto sensu - the so-called core crimes - and crimes of international concern - the so-called treaty crimes. This article suggests that the latter category can be appropriately relabelled transnational criminal law to find a doctrinal match for the criminological term transnational crime. The article argues that such a relabelling is justified because of the need to focus attention on this relatively neglected system, because of concerns about the process of criminalization of transnational conduct, legitimacy in the development of the system, doctrinal weaknesses, human rights considerations, legitimacy in the control of the system, and enforcement issues. The article argues that the distinction between international criminal law and transnational criminal law is sustainable on four grounds: the direct as opposed to indirect nature of the two systems, the application of absolute universality as opposed to more limited forms of extraterritorial jurisdiction, the protection of international interests and values as opposed to more limited transnational values and interests, and the differently constituted international societies that project these penal norms. Finally, the article argues that the term transnational criminal law is apposite because it is functional and because it points to a legal order that attenuates the distinction between national and international.
Iceland's Reservation at the International Whaling Commission by Alexander Gillespie
Reservations to international treaties represent one of the most difficult areas to negotiate through in international law. The difficulties with reservations lie in their legal applicability and the political implications that reservations create for the subsequent utilization of the treaty and its members. The full extent of these difficulties has recently been displayed in the International Whaling Commission. In this instance, although the reservation was ultimately successful, a certain amount of integrity was retained by the Commission as it ultimately controlled the process and the overall decision was not dictated to the Commission on a bilateral basis.
Security Council Action in the Balkans: Reviewing the Legality of Kosovo's Territorial Status by Enrico Milano
This article examines Kosovo's territorial status by reviewing the legal basis of its international administration. Despite the reassuring claim that the United Nations and NATO authority in Kosovo is based on Security Council Resolution 1244, the consensual element provided by the agreements underlying that resolution cannot be overlooked. Investigating the validity of these agreements, namely the 3 June 1999 Agreement and the Kumanovo Agreement, means linking the discussion to the application of Article 52 of the Vienna Convention on the Law of the Treaties on the coercion of states. This is necessary, with respect to the Kumanovo Agreement, due to the non-compliance of Operation Allied Force with the purposes and principles of the UN Charter and the coercion exercised over the Federal Republic of Yugoslavia. The picture is further complicated by the expansionist approach of the Security Council in interpreting its powers under Chapter VII. However, not even the broad terms of UN legality seem to encompass the Security Council's power to endorse agreements, which are void under Article 52 VCLT. The conclusion inevitably claims the unlawfulness of NATO security presence and recalls the need for signature of a Status of Forces Agreement (SOFA) between NATO and Belgrade as a means of curing the original illegality.
Sexualities and the ECHR: Introducing the Universal Sexual Legal Subject by Michele Grigolo
Shifting from an essentialist to a constructionist perspective on sexual identities, I move from a consideration of the homosexual legal subject, as presently treated under the European Convention on Human Rights, to the elaboration of a universal sexual legal subject. The universal sexual legal subject enjoys two basic rights: the right to choose sexual activity and sexual identity and the right to establish relationships and families in accordance with this choice. The possibility of including these two rights within the Convention presupposes their insertion into a set of sexually neutral standards which grant the universal sexual legal subject equality of choices. By examining the case law of the European Court and Commission of Human Rights on decriminalization of same-sex sexual activity, and family and relationship issues, I question the sexual particularity of the construction of the homosexual legal subject. This analysis of the case law provides the legal material and principles around which the insertion of the two sexual rights into the Convention is discussed. Both sexual rights are located within the right to respect for private and family life (Article 8). Equality of choices can only be guaranteed if the right to marry and found a family (Article12) is erased and marriage is 'privatised' into Article 8 on an equal footing with other sexual and relational choices.
Book Review — ShanyYuval: The Competing Jurisdictions of International Courts and Tribunals Reviewed by Chester Brown
Book Review — AnheierHelmut , Marlies Glasius and Mary Kaldor: Global Civil Society 2001 Montserrat Abad Castelos Universidad Carlos III, Madrid AnheierHelmut , Marlies Glasius and Mary Kaldor (eds)
Book Review — KronenbergerVincent , ed.: The European Union and the International Legal Order: Discord or Harmony? Reviewed by Anthony Valcke
Book Review — BinelloDaniela , ed.: Il diritto non cade in prescrizione: I 'desaparecidos' italoargentini. I diritti umani tra negazione e internazionalizzazione Reviewed by Fabian Raimondo