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CIAO DATE: 06/05
2005 (Volume 16 Issue 1)
Articles
Rybná 9, Praha 1: Restitution and Memory in International Human Rights Law by Patrick Macklem
The history of Rybná 9, Praha 1 – a building in the old city of Prague – illustrates how international human rights law, producing new forms of legal right and obligation, participates in the turbulence of modernity. With its capacity to remember the past through the discourse of human rights, international law engages and formalizes a politics of collective memory. This article explores the relationship between international human rights law and collective memory in the context of challenges to post-communist restitution initiatives in Central and Eastern Europe. Rybná 9 formed the basis of one such challenge before the United Nations Human Rights Committee. Other restitution cases have proceeded to the European Court of Human Rights. Whereas the Human Rights Committee is willing to remember certain pasts as a matter of equality, the European Court of Human Rights approaches equality with a modernist impulse to repudiate history. This divergence is especially acute when comparing how the field engages the collective memories of Jews and the Holocaust and those of Sudeten Germans after the war. International legal engagement with the politics of collective memory thereby reflects broader debates about the emergent nature of European citizenship.
Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription by Randall Lesaffer
In his Private Law Sources and Analogies of International Law (1927), Hersch Lauterpacht claimed that many rules and concepts of international law stemmed from private law. He also showed that it was common practice in international adjudication and arbitration to look for inspiration there. The rules of private law that had found their way to international law were often common to the great municipal law systems. Many had their origins in Roman private law. This article examines whether and how the International Court of Justice has made use of Roman law rules and concepts. Roman law can be thought to fulfil its role as a source of inspiration for international law in three ways. First, it might have served as a direct historical source during the formative period of the modern law of nations. Second, it might have served as an indirect historical source because of its enduring impact on the great municipal law systems afterwards. Thirdly, it might still be considered ratio scripta, the expression of a timeless and universal law. For the purpose of examining which of these roles Roman law plays in the eyes of the ICJ, the analysis is restricted to two examples of private law analogies: occupation of terra nullius and acquisitive prescription.
The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions by Alexander Orakhelashvili
The United Nations Security Council is the most powerful institutional body ever established at the global level. Its existence and powers, as based on the United Nations Charter, firmly evidence the support of the entire international community. At the same time, the will of the international community as a whole can be expressed at different levels and in different ways. In today’s international law, there can be little doubt that the international community as a whole attaches special importance and effects to peremptory norms of general international law (jus cogens) and endows them with high status. The interaction between those high-ranking norms and the powers of the Security Council is therefore among the most central issues of international law. In searching for a preferable approach, it is proposed to consider the treaty-based character of the Security Council’s powers. The Council is not free of legal limitations, and this conclusion cannot be rebutted even by referring to the classical debate on the interaction between the concepts of peace and justice in international relations, because the General Assembly and Security Council have repeatedly affirmed the relevance of the observance of law in maintaining and restoring international peace and security, notably with regard to the conflicts of the Middle East and Former Yugoslavia. Bearing all this in mind, this article will examine the scope and legal effects of the legal limitations imposed on the Security Council by the operation of peremptory norms.
State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case by Pasquale De Sena and Francesca De Vittor
In the Ferrini case the Italian Supreme Court affirmed that Germany was not entitled to sovereign immunity for serious violations of human rights carried out by German occupying forces during World War II. In order to reach this innovative conclusion, the Court widely referred to international legal arguments, such as the concept of international crimes, the principle of primacy of jus cogens norms and the notion of a strict analogy between state immunity and the ‘functional immunity’ of state officials. Based upon a systematic interpretation of the international legal order, the Court conducted a ‘balancing of values’ between the two fundamental international law principles of the sovereign equality of states and of the protection of inviolable human rights. This article explores the Court’s reasoning and its consistency with international legal theory and preceding case law with the view to verifying whether, and in which sense, the Ferrini judgment may facilitate a radical reappraisal of the relationship between human rights and the law of state immunity.
Symposium: Europe and International Law
International Law in Europe: Between Tradition and Renewal by Martti Koskenniemi
International law is a European tradition. Nevertheless, like many other European traditions, it imagines itself as universal. Throughout its history, it has been associated with projects such as Christianity, secular statehood, enlightenment, ‘civilization’, free trade and human rights. International law’s association with particular ideas or preferences does not, however, even slightly undermine it. There are no authentic universals that one could know independently of their particular manifestations. The key question is a political one: Are there good reasons for extending the scope of such ideas or preferences? Answering this question may not have been assisted by the turning of some of them into kitsch. But is that the condition of their universality?
What International Law Should (Not) Become. A Comment on Koskenniemi by Oliver Gerstenberg
This comment argues that Koskenniemi’s postmodern irony with regard to concepts such as human rights and jus cogens, which views these concepts either as ‘kitsch’ or as mere ‘instru-ments in hegemonic struggle’, is not plausible, because there is, contrary to Koskenniemi’s postmodern-ironist assertions, no neutral platform permitting us to stand outside (and to look through) concepts such as human rights, democracy, jus cogens, and so on.
Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi by Pierre-Marie Dupuy
Martti Koskenniemi’s criticism of the ‘universality’ of international law, ensuing from the European tradition, initially sounds quite stimulating, although not really new. Yet, one may be inclined to think that such criticism is also rather inaccurate, inasmuch as it remains both equivocal and ambiguous. This seems particularly true at a time when general international law, as it claims in essence to be universal in scope, is under attack from those who, in the name of their assumed unique position in the world community, aim to weaken the very notion of an international legal order. Nevertheless, as this order is indeed ‘cosmopolitan’, in the Kantian sense of the word, it is at the same time celebrated, especially by a number of non-governmental organizations which constitute the most active component of international civil society. Martti Koskenniemi’s reductive vision does not seem to take account of this important phenomenon.
Talking to Ourselves by Gerald L. Neuman
The discourse of international law is a remarkable achievement, but it poses the danger that international lawyers will be absorbed in their own conversation and fail to persuade outsiders. International human rights bodies may be especially vulnerable to that risk, despite their need for cooperation from local actors.
Review Essay
The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’ by Anthony Carty
The UK (as indeed the US) gave as its formal legal ground for the invasion of Iraq reliance upon interpretations of Security Council resolutions. In other words, there was no open admission by official legal advisers that the British invasion of Iraq created a new precedent for the development of international law, in particular a doctrine of pre-emptive attack. However, an understanding of state practice as a source of customary international law requires that one challenge the view that a state’s contribution to practice must be taken to be its stated legal position. Instead, one has to engage in an in-depth study of the motivations of state officials that move the institutions of the state. These need to be pieced together from official declarations and also from the work of known government advisers who are systematically developing policy with legal implications. Furthermore, one needs to consider the practice of a state as embedded in institutional continuities, including especially institutional planning for the future. This can be gleaned from a variety of official documents, such as White Papers, which set out the purposes for which institutions of the state, especially the armed forces, are being shaped. On this basis it is clear that the UK has committed itself to set a precedent for pre-emptive attack through its invasion of Iraq. That is clear from the studies considered in this essay.
Book Reviews
Review: Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law by Dirk Pulkowski
Review: Die Koordination des WTO-Rechts mit anderen völkerrechtlichen Ordnungen: Konflikte des materiellen Rechts und Konkurrenzen der Streitbeilegu by Dirk Pulkowski
Review: Towards Juristocracy: The Origins and Consequences of the New Constitutionalism by Jan Klabbers
Review: Environmental Principles – From Political Slogans to Legal Rules by Sonia Boutillon
Review: The Purpose of Intervention, Changing Beliefs about the Use of Force by Georg Nolte