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CIAO DATE: 10/04
2004 (Volume 15 Issue 2)
Arguments of Mass Confusion by Dino Kritsiotis
While public discourse has been correct to question the credibility of Operation Iraqi Freedom, it has demonstrated the extent to which international law remains exposed to a set of serious—and serial—confusions in terms of the justifications used for analysing where a given intervention stands as a matter of the jus ad bellum. These confusions have presented international law with an important methodological challenge and, to address this challenge, the essay returns to the jurisprudence of the Nicaragua case (1986), where it finds that the International Court of Justice outlined discrete principles for the identification and assessment of justifications for the application of force under international law. In its judgment, the Court distinguished between legal and political justifications for action, but it also recognized that states operate in formal and informal spheres of action. The principles form part of a coherent and viable framework for use beyond the four corners of the courtroom, in simulated scrutinizations of legal justifications given for the application of force. That framework is articulated and explained, before it is considered in the context of Operation Iraqi Freedom—where it provides us with a sense of how best to organize and evaluate the arguments made in defence of that intervention: the authorized enforcement of Security Council resolutions, the right of pre-emptive self-defence, humanitarian intervention and pro-democratic intervention.
The Truth in Autonomous Concepts: How To Interpret the ECHR by George Letsas
This paper addresses the role of the European Court of Human Rights in interpreting the European Convention on Human Rights and attacks the standard image in the literature that pictures judges as having, by default, a great amount of discretion in interpretation and a power to create new law. The Court's notion of ‘autonomous concepts’ is presented and analysed thoroughly, to show that substantive disagreement is widespread in law and that judges must necessarily make choices precisely out of respect for what the ECHR grants. The paper draws resources from Ronald Dworkin's philosophy and shows the affinities between the theory of ‘autonomous concepts’ and Dworkin's ‘semantic sting’ argument. It is argued that all concepts in the ECHR are autonomous, in the following two senses: first, people do not share the same linguistic criteria on how to identify their meaning; second, the correct meaning may radically transcend the way the ECHR concepts are classified and understood within the national legal order. Judges therefore have to construct substantive theories that aim at capturing the nature or purpose of the right involved and of the ECHR more generally. The paper concludes by urging scholars and judges to stop raising the threat of judicial discretion and work out general theories of adjudication for the ECHR.
International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO by Joanne Scott
This article examines the relationship between ‘negative’ (market) and ‘positive’ (policy) integration in the European Union and the World Trade Organization. It does so in relation to trade in goods, and takes as its example the area of environmental law. It argues that the strong role accorded to instruments of policy coordination in the EU (through the adoption of European standards and harmonizing legislation) is tied to the fact that such measures are contestable, so that authority and contestability go hand in hand. Contestation proceeds by way of administrative and judicial channels, and serves to instil a measure of accountability and to protect diversity. In the WTO, by contrast, the Appellate Body has shown a marked reluctance to accord authority to international standards and—important developments in Shrimp/Turtle notwithstanding—deep uncertainty persists as to the relationship between the free movement norms and multilateral environmental agreements. This paper argues that in defining the role of these instruments, the Appellate Body would do well to regard their authority as contingent. In the WTO—as in the EU—contestability could contribute to ensuring forms of transnational governance which are more accountable and appropriately respectful of diversity. To the extent that contestability would seem to imply a quasi-review function for the Appellate Body, some might fear that this suggestion would feed the ‘constitutionalization’ of the WTO, by placing it in a position of supremacy vis-à-vis other regimes. This paper argues that this fear would be misplaced.
Understanding Refugee Law in an Enlarged European Union by Rosemary Byrne, Gregor Noll and Jens Vedsted-Hansen
The present article seeks to explore how asylum law is formed, transformed and reformed in Europe, what its effects are on state practice and refugee protection in the Baltic and Central European candidate countries, and what this process reveals about the framework used by scholars to understand the dynamics of international refugee law. Arguably, an exclusive focus on EU institutions and their dissemination of regional and international norms among candidate countries through the acquis communautaire is misleading. Looking at the sub-regional interplay between Vienna and Budapest, Berlin and Warsaw, Copenhagen and Vilnius provides a richer understanding of the emergence of norms than the standard narrative of a Brussels dictate. Hence, to capture these dynamics, we will attempt to expand the framework of analysis by incorporating sub-regional settings, cutting across the divide between old and new Members, and by analysing the repercussions sent out by domestic legislation within these settings. While acknowledging that bilateral and multilateral relations are continuously interwoven, we conclude that bilateralism accounts for a greater degree of normative development and proliferation than multilateralism at EU level, and that domestic legislation as formed by sub-regional dynamics will remain the ultimate object of study for scholars of international refugee law.
‘This is the World: Have Faith’ by Sundhya Pahuja
In recent critically inclined texts on human rights, we find a desire to acknowledge the cultural specificity of the human rights regime, to consider the colonial origins of international law and to take account of the putative axiom of globalization. This trilogy is often accompanied by an asserted faith (however vestigial) in the human rights regime. In this essay, the author explores the paradox of such a convergence, asking whether such texts (and the one at hand in particular) are unintentionally performing the question which marks the zeitgeist—that is whether human rights law can ever be anything other than imperializing. To the extent that any sensitization of human rights to its history and context involves a project of ‘refounding’ them—no matter how ‘diverse’ the foundation—it would seem that the answer is no. Arguably such projects remain ensnared in the modern oscillation between the myth of universality on one hand and the nihilism of cultural relativism on the other, ironically forgoing consideration of the relationality of being implied by that very oscillation.
Book Review — Karen Knop: Diversity and Self-Determination in International Law Reviewed by Gaetano Pentassuglia
Book Review — Mainul Ahsan Khan: Human Rights in the Muslim World: Fundamentalism, Constitutionalism and International Politics Reviewed by Abdullahi An-Na'im
Book Review — Mashood A.Baderin: International Human Rights and Islamic Law Reviewed by Abdullahi An-Na'im