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CIAO DATE: 10/04
2004 (Volume 15 Issue 3)
The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights? by Robin R.Churchill and Urfan Khaliq
In 1995 the Council of Europe, as part of the revitalization process of the European Social Charter, adopted a Protocol providing for a system of collective complaints. The Protocol came into force in 1998. So far 23 complaints have been lodged under it. The aim of this article is to critically examine the practical operation of this collective complaints system during its first five years. After placing the system in a general human rights context by giving an overview of mechanisms for ensuring compliance with other treaties concerned with economic and social rights, the article then analyses the system for making collective complaints and its functioning in practice to date. The latter part of the article considers the likely utility and effectiveness of the system and concludes that without a major change in the practice hitherto of the Committee of Ministers, the system is unlikely to achieve its objectives.
‘Core Labour Standards’ and the Transformation of the International Labour Rights Regime by Philip Alston
The past decade has seeen a transformation of the international labour rights regime based primarily on the adoption of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, and the widespread use of the concept of ‘core labour standards’. Notwithstanding the enthusiasm which has greeted these innovations, it is argued that the resulting regime has major potential flaws, including: an excesssive reliance on principles rather than rights, a system which invokes principles that are delinked from the corresponding standards and are thus effectively undefined, an ethos of voluntarism in relation to implementation and enforcement, an unstructured and unaccountable decentralization of responsibility, and a willingness to accept soft ‘promotionalism’ as the bottom line. The regime needs urgent reforms, such as anchoring the principles firmly in the relevant ILO standards, giving greater substance to the Follow-up mechanism, extending monitoring under the Declaration to include an empirical overview of practice under the bilateral and regional mechanisms which have invoked ILO principles and the Declaration itself, and adequately funding the commitment to workers' rights.
Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems by Jörg Kammerhofer
Uncertainty abounds in international law and customary international law is no exception. This article seeks to delineate this uncertainty and explain its causes. Not only is there uncertainty surrounding the exact nature of the two elements considered necessary for custom-formation—state practice and opinio juris—we also do not know how custom-formation works. It is not clear what precisely ‘state practice’ is, nor do we know how we can have a belief that something is already law in order to create it. The particular uncertainties of customary international law point directly to systemic uncertainties at a higher level. Article 38 of the Statute of the International Court of Justice is convenient, but is it authoritative? What is the basis of our knowledge regarding customary law-making? This article argues that two commonly used approaches to provide a theoretical underpinning—deduction and induction—are fundamentally flawed in their pure forms. Their problems are alleviated, but not solved, by combining them. Without a dominant legal culture and without a written constitution to blind us to other possibilities, not even a pragmatic outlook can save us from uncertainty. However, even where the law is not disputed, it remains an ideal, not real. Law is based on the fiction that it exists.
EC Compliance with WTO Law: The Interplay of Law and Politics by Sebastiaan Princen
This article analyses the interplay of international law and domestic politics in producing compliance with GATT/WTO law. It seeks to assess whether the strengthening of GATT dispute settlement under the WTO has led to greater compliance on the part of the European Community. In doing so, it focuses on cases of trade-restrictive regulatory process standards. From an in-depth analysis of two cases in which the EC adopted such standards, the article concludes that the change from GATT to WTO has indeed led to a greater awareness of international trade law considerations within the EC. Nevertheless, compliance with GATT/WTO law is not unconditional. Rather, the case studies point to two factors that are particularly important in understanding compliance. First, resorting to the WTO is most effective as a threat before the trade-restrictive standards are implemented; once these standards are implemented, it becomes progressively more difficult to have them withdrawn. Second, the role of European trade officials is crucial in producing compliance; although the role of trade officials within the EC has become stronger since the creation of the WTO, their influence on a decision to comply depends crucially on their capacity to exclude other interests from the decision-making process.
Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO by Joost Pauwelyn
WTO jurisprudence, in particular in the area of trade and environment, continues to evolve. Books on the same topic roll off the academic presses as never before. Yet, not all of these publications have fully appreciated the dramatic change that took place with the shift from GATT to the WTO, especially the more nuanced decisions by the Appellate Body. This essay reviews four recent books on trade and environment. It sets the debate in a wider framework and then focuses on the extent to which trade rules genuinely prohibit ecological state intervention. Its main objective is to dispel some of the GATT-inspired myths that keep haunting the WTO, in particular to point at the narrowed scope of prohibited discrimination, the accepted extra-territorial effect of certain regulations (including the possibility to justify regulations based on process or production methods) and the increased relevance, including before WTO panels, of environmental agreements negotiated outside the WTO.
Book Review — Andrea F. Lowenfeld: International Economic Law Reviewed by Peter Hilpold
Book Review — Mitsuo Matsushita, Thomas J. Schoenbaum and Petros Mavroidis: The World Trade Organization Reviewed by Peter Hilpold
Book Review — Stephen C. Angle: Human Rights in Chinese Thought. A Cross-Cultural Inquiry. Reviewed by Hatla Thelle
Book Review — Errol P. Mendes and Anik Lalonde-Roussy, eds.: Bridging the Global Divide on Human Rights. A Canada- China Dialogue Reviewed by Hatla Thelle
Book Review — Peter Radan: The Break-up of Yugoslavia and International Law Reviewed by Ineta Ziemele
Book Review — Eke Boesten: Archaeological and/or Historic Valuable Shipwrecks in International Waters. Public International Law and What it Offers Reviewed by Mariano Aznar
Book Review — John Strawson, ed.: Law after Ground Zero Reviewed by Kanishka Jayasuriya
Book Review — Mohamed Sameh M. Amr: The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations Reviewed by Stanimir A. Alexandrov
Book Review — Jean-Paul Jean and Denis Salas, eds.: Barbie, Touvier, Papon. Des procès pour la mémoire Reviewed by Stiina Löytömäki
Book Review — Maria Clelia Ciciriello: L'aggressione in diritto internazionale. Da ‘crimine’ di Stato a crimine dell‘individuo Reviewed by Cristina Villarino Villa