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CIAO DATE: 10/04
2004 (Volume 15 Issue 1)
International Institutions Today: An Imperial Global State in the Making by B. S. Chimni
The article argues that a growing network of international institutions—economic, social, and political—constitute a nascent global state, whose current task is to realize the interests of an emerging transnational capitalist class in the international system to the disadvantage of subaltern classes in the third and first worlds. The evolving global state formation can therefore be described as having an imperial character. Underpinning the emerging imperial global state is a web of sub-national authorities and spaces that represent, along with non-governmental organizations, its decentralized face. These developments, it is contended, seriously undermine substantive democracy at both inter-state and intra-state levels. Eight possible objections to the thesis that a nascent global state having an imperial character has evolved are next considered and rejected. The concluding section briefly explores the question as to whether international institutions can be reformed, the vision that should inform change, and some concrete proposals in this regard. It argues the case for a complex internationalism in which statist reforms are necessary in the short and medium terms. These reforms can only be brought about by a powerful global social movement.
Still Hazy after All These Years: The Interpretation of National Treatment in the GATT/WTO Case-law on Tax Discrimination by Henrik Horn and Petros C.Mavroidis
This article discusses the National Treatment (NT) obligation as applied in the GATT tax discrimination cases. The central thesis of the paper is that case-law has not clarified the interpretation of the terms in Article III. It appears that the reason for this failure is the lack of a conceptually coherent view of the role of the NT obligation. After summarizing the case-law on discriminatory taxation, this article lays out a theory of the role of NT in trade agreements, in order to shed light on appropriate interpretations of the terms appearing in Article III. We start from the notion that the GATT is an obligationally incomplete contract. This incompleteness invites beggar-thy-neighbour type behaviour, and the NT obligation is an imperfect remedy for such problems. We suggest that likeness/directly competitive or substitutable (DCS) should be determined ‘in the market place’, whereas the ‘so as to afford protection’ criterion is ultimately about the protection of expectations concerning the intent behind domestic regulations. But since intent usually cannot be determined directly, adjudicating bodies have to seek recourse to indirect evidence, as is frequently done in legal practice.
Representing International Territorial Administration: A Critique of Some Approaches by Ralph Wilde
This piece highlights some of the ways in which the administration of territory by international organizations has been represented in certain academic texts, discussing the manner in which these representations frame the nature of and the purposes served by the practice in general and certain administration projects in particular. It draws from commentary on current and previous projects, and also considers some of the concepts with which the practice has been associated, including the 'failed states' paradigm, 'generations' of peacekeeping, and the idea of 'post-conflict reconstruction'. The point of this inquiry is to explore how accurate these representations are in their own terms, and more broadly to evaluate the political consequences of framing international territorial administration in the manner identified. It is suggested that some of the pictures painted of the recent administration missions risk undermining attempts at a critical evaluation of the missions. The risk is identified in the presence of four different discursive strategies within the texts discussed.
The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law by Erika De Wet
The article explores the validity of the Furundzija dictum in accordance with which jus cogens has to bind the state in its treaty relations and with respect to acts of the legislature, executive and judiciary. It mainly focuses on the implications of the prohibition of torture as a limitation to the national (constitutional) legislative process (an ‘internal manifestation’ of jus cogens), as well as to national legislation pertaining to sovereign immunity (an ‘external manifestation’ of jus cogens). The article also gives some indication of the role of jus cogens in determining the applicable law in conflict of law disputes and in fulfilling the double criminality requirement in extradition proceedings. In the process, it reflects the highly complicated nature between jus cogens and national law. For example, whereas the ‘internal manifestation’ can result in a strengthening of international norms within the national legal order, the ‘external manifestation’ has the potential to undermine the binding character of general international law, or even destabilize the international legal order itself. The article also exposes an emerging hierarchy of norms in international law, which is underpinned by a deepening of the international consensus pertaining to the content and hierarchical order of the international value system.
The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health by Haochen Sun
Designed to respond to concerns about the negative impact of the TRIPS Agreement on access to medicines, the Declaration on the TRIPS Agreement and Public Health (Doha Declaration), adopted at the Doha Ministerial Conference, explicitly clarified for the first time what flexibilities inherent in the TRIPS Agreement can be used by WTO Members to combat a public health crisis. Nevertheless, the Doha Declaration did not fully dismantle the obstacles created by the TRIPS Agreement. Even after the most recent agreement on access to generic medicines in poor countries, serious differences of interpretation and implementation difficulties under the TRIPS Agreement are likely to persist. This article explores the global debate on the TRIPS Agreement and public health, as it has evolved over the years. Specifically, it focuses on the implications, and limitations, of the Doha Declaration. It is argued that the TRIPS Agreement should be implemented and interpreted so as to allow WTO Members the maximum flexibility in increasing access to essential medicines for all.
Silencing Hearings? Victim-Witnesses at War Crimes Trials by Marie-Bénédicte Dembour and Emily Haslam
It is commonly accepted that war crimes trials should provide a space for victims to tell their stories. A close reading of the transcripts of victim-witnesses' testimonies in the Krstic trial at the International Criminal Tribunal for the former Yugoslavia suggests, however, that war crimes trials effectively silence, rather than hear, victims. In this particular trial, victim-witnesses predictably governed neither the agenda nor the pace of the hearings. More problematically, we argue that incongruously optimistic judicial remarks unnecessarily denied their suffering. On a different plane, victims' testimonies were only vaguely connected to the person of the accused; they related to facts the relevance and proof of which are debatable. This article aims to generate a debate about victim-witnesses' testimonies at war crimes trials. It seeks to identify both the demands that the legal process imposes on victim-witnesses and the tensions that arise out of their participation in it. In the light of the fact that legal proceedings cannot produce the definitive collective memory of the events with which they deal, the article finally stresses the need to foster a variety of collective memories outside the judicial platform.
Silence: v. …1. Trans. To cause or compel (a person) to cease speaking…
Shorter Oxford English Dictionary
Hearing: … 2. The action of listening …3. The listening to evidence and pleadings in a court of law…
Shorter Oxford English Dictionary
I hope your father will come back.
(Judge Riad to Mr Husic, who testified in the Krstic trial)
Review Essay — The Gift of Formalism Reviewed by Anne Orford
Bruno Simma: The Charter of the United Nations: A Commentary
In its fidelity to the text of the UN Charter as the constitution of a world community and in its commitment to the notion of a strong international organization, the 2nd edition of The Charter of the United Nations: A Commentary is markedly different in orientation to the scholarship of those international lawyers who have argued for a purely instrumental approach to international law. In particular, those sections of the Commentary relating to the use of force reject the suggestion that international lawyers might shake off the constraints of the Charter and create a new version of the law. In this sense, the approach taken by the authors of the Commentary resonates with those texts suggesting that international law might offer a resistance to imperialism (specifically of the American variety). However, the notion that the UN Charter embodies an international legal order that is free of the desire for empire is complicated if we turn to those sections of the Commentary that support the trend towards constituting the UN as the manager of problems in the developing world. There, the Commentary produces a vision of a new international law operating through the administration of daily life and the harmonization of systems of control. The essay concludes by exploring that which escapes the formalist gift of fidelity—that which is played out beyond the certainties of the Commentary.
Review Essay — Sustaining Paradox Boundaries: Perspectives on Internal Affairs in Domestic and International Law Reviewed by by Peer Zumbansen.
A.Claire Cutler: Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy.
The book under review addresses the complex interaction of hard and soft law, legal-political intervention and social practice and self-regulation, public and private law, and rules of social praxis and behaviour in transnational law. While the increased contractualization of public governance and the growing involvement of private actors in public administration has, for some time now, been the subject of legal analysis in domestic contract law and administrative law scholarship, these findings have attracted little attention from commercial and international law scholars and practitioners. Cutler's book argues for the need to embrace a more comprehensive view of the complexity of developments in national, international and transnational law, acknowledging the emergence of new norm-generating actors and the challenge posed by them and their norms to the otherwise neatly defined realms of national and international legal orders. Exploring the arguments made against and in favour of lex mercatoria, Cutler can be read as arguing for the paradoxical re-entry of the dividing lines between state and civil society, public and private, even if and because the two opposing poles cannot be married in a single unifying concept but only together constitute the poles of our orientation.
Book Review — L.Ali Khan: A Theory of Universal Democracy: Beyond the End of History Reviewed by Christian Pippan
Book Review — Jude I.Ibegu: Right to Democracy in International Law Reviewed by Christian Pippan
Book Review — Adekeye Adebajo: Liberia's Civil War: Nigeria, ECOMOG, and Regional Security in West Africa Reviewed by Ikechi Mgbeoji
Book Review — Thomas Jaye: Issues of Sovereignty, Strategy and Security in the Economic Community of West African States (ECOWAS): Intervention in the Liberian Civil War Reviewed by Ikechi Mgbeoji
Book Review — Adekeye Adebajo: Building Peace in West Africa: Liberia, Sierra Leone, and Guinea-Bissau Reviewed by Ikechi Mgbeoji
Book Review — Nicholas M.Poulantzas: The Right of Hot Pursuit in International Law, Second Edition Reviewed by Bill Gilmore
Book Review — Liesbeth Zegveld: The Accountability of Armed Opposition Groups in International Law Reviewed by Robert Dufresne
Book Review — William E. Butler: The Law of Treaties in Russia and the Commonwealth of Independent States. Text and Commentary Reviewed by Dmitry K. Labin