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CIAO DATE: 08/05
2005 (Volume 16 Issue 3)
Articles
International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order by Nico Krisch
Hegemony and international law are often regarded as irreconcilable: international law is widely assumed to depend on a balance of power and to be eschewed by hegemons in favour of political tools. This corresponds to an often idealized contrast between international law and international politics, one reflecting reason and justice, the other brute power. Realists and critical legal scholars have long sought to counter this idealization, but often by merely reducing international law to power. This article seeks to go beyond these positions by analysing the multiple ways in which dominant states interact with international law. Drawing on international relations theory, it develops a model of this interaction and illustrates it with historical examples, taken mainly from Spanish, British and American phases of dominance. The typical pattern observed is one of instrumentalization and withdrawal, coupled with attempts at reshaping international law in a more hierarchical way and at replacing it with domestic legal tools that better accommodate formal hierarchies. The resulting picture should provide a starting point for critique and help us better understand why international law is simultaneously instrumental and resistant to the pursuit of power. International law is important for powerful states as a source of legitimacy, but in order to provide legitimacy, it needs to distance itself from power and has to resist its mere translation into law. International law then occupies an always precarious, but eventually secure position between the demands of the powerful and the ideals of justice held in international society.
Core Labour Rights – The True Story (Reply to Alston) by Brian A Langille
The concept of 'core labour rights' has, over the last decade or so, assumed a central role in debates about the role of international labour law in an integrated world economy. Some, including Philip Alston, see this development as a retreat from and a threat to the existing international labour law regime, especially the International Labour Organization's international labour code. On this view the new concentration upon core rights undermines the existing regime from within by narrowing its focus, weakening the legal status of the core rights, relegating the 'non-core' to a second-class status, watering down its 'enforcement' mechanisms, and so on. This view, while popular, is available only on a very narrow and conventional understanding of the purpose of international labour law. A better understanding is available which enables us to see core labour rights as conceptually coherent (and not politically arbitrary), morally salient (and not merely part of an empty neo-liberal conspiracy) and pragmatically vital to the achievement of our true goals, including the 'enforceability' of the 'non-core' (and not an undermining of the whole regime from within). This essay defends this second and positive account of core rights by reacting to Philip Alston's recent essay in this journal, which is taken as the most comprehensive and aggressive articulation of the 'anti-core rights' point of view.
Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers' Rights by Francis Maupain
The thesis presented by Philip Alston, according to which the ILO 1998 Declaration on Fundamental Principles and Rights at Work may undermine what he calls the 'International Labour Regime' (ILR), lacks a clear and coherent methodological framework. This article thus tries to assess more systematically the concrete impact of the Declaration (a) on the achievement of fundamental rights themselves and (b) on other workers' rights. As regards (a), Alston's claim that the Declaration's reliance on 'principles' rather than on specific provisions of ILO instruments has an undesirable impact on the realization of fundamental workers' rights ignores contrary evidence, particularly: (i) more states have ratified the relevant ILO conventions since the Declaration, and compliance therewith has been improved; (ii) for those states which have still not ratified, the process of dialogue and technical cooperation inherent to the follow-up mechanism has generated some tangible progress – though it is recognized that this mechanism may still be improved in the light of experience. As regards (b), the ILO's capacity to make effective other workers' rights is subject to obvious constraints. However these limitations are inherent to the ILR; they have nothing to do with the Declaration. On the contrary, the Declaration and its follow-up represent an added-value for their promotion, particularly because fundamental rights are enabling rights and their increased application gives greater possibilities for workers all over the world to 'claim' other workers' rights, and because the follow-up to the Declaration provides a model and a precedent for a possible use of Article 19 of the ILO Constitution for the universal promotion of rights dealt with in relevant conventions and recommendations, even in the absence of ratification. Some recent developments, in connection with the 'decent work' agenda, suggest that this possibility may no longer be a matter for mere speculation.
Facing Up to the Complexities of the ILO's Core Labour Standards Agenda by Philip Alston
This article responds to two detailed critiques by Brian Langille and Francis Maupain of an article dealing with the 'transformation of the international labour rights regime' which followed the adoption by the ILO of the 1998 Declaration on Fundamental Principles and Rights at Work. The author argues that the ILO does, in fact, play a central role in the process of defining core labour standards and that its approach is invoked by a wide range of actors seeking legitimacy for their own approaches to such standards, whether in the context of bilateral free trade agreements or of private voluntary initiatives. For these reasons it is important to understand clearly the role played by the ILO, to acknowledge the extent to which the Declaration has become detached from the existing jurisprudence of labour rights, and to seek to ensure that the ILO adopts a more balanced approach which does not unduly privilege a limited range of procedural rights at the expense of equally important substantive social rights. The article concludes by outlining the steps which the ILO ought to take in order to ensure that it remains a relevant and influential actor in efforts to protect the basic rights of workers in the 21st century.
Symposium: Oil Platforms Case
Fragmenting International Law through Compromissory Clauses? Some Remarks on the Decision of the ICJ in the Oil Platforms Case by Enzo Cannizzaro and Beatrice Bonafé
This article addresses the role of compromissory clauses in limiting the law applicable by the ICJ to disputes concerning the interpretation and application of treaty provisions. In the Oil Platforms case, the Court essentially tried to avoid such a problematic side-effect of compromissory clauses by relying on principles of treaty interpretation. Accordingly, customary law can be taken into account in order to interpret treaty provisions falling under the Court's jurisdiction. However, this is only a limited mechanism aiming at balancing the principle of consent (underlying the limited jurisdiction under compromissory clauses) and the need to take other international law rules into account when applying treaty rules to the dispute before it. In particular, there are disputes governed at the same time by treaty rules and customary law, which can hardly be settled on the ground of the former only. An inquiry into the jurisprudence of the ICJ shows that the Court is also prepared to consider that disputes concerning the applicability of a treaty fall within its jurisdiction under compromissory clauses. This may be deemed an important tool at the disposal of the Court in order to avoid the fragmentation of international law under compromissory clauses.
Exploring the Limits of International Law relating to the Use of Force in Self-defence by Natalia Ochoa-Ruiz and Esther Salamanca-Aguado
In the new millenium, the scope and limits of the use of force in international relations are still the subject of strong debate. Some legal scholars and state representatives favour an expanded interpretation of the right of self-defence which includes so-called pre-emptive and anticipatory self-defence. The International Court of Justice recently dealt with a dispute involving the use of force, allegedly in self-defence, in the Case Concerning Oil Platforms (Iran v. United States). This article explores the contribution of the judgment to international law on the use of force in self-defence. It discusses two issues: the relationship between self-defence and the protection of essential security interests of states, and the Court's analysis of the conditions for self-defence. We conclude that the ICJ has largely confirmed its existing jurisprudence in the field and avoided making any explicit, significant new contribution to the notion of self-defence. Nonetheless, we suggest that the Court's insistence on a narrow interpretation of certain conditions and silence on some controversial arguments advanced by the parties is prudent and more eloquent than words.
Review Essays
Conservative and Progressive Visions in French International Legal Doctrine by Anthony Carty
How can one develop a progressive agenda of international law, while at the same time not sacrificing the unity and rigour which traditional formalism can appear to claim? In France formalists will not come out of a limited agenda of preservation of the integrity of the French and other classical states, while the progressives, searching for grounds of solidarity in international society, tread uncertainly in the formlessness of material demands made upon the law. Dupuy finds a material basis of unity of the legal order in a triad comprising the general principles of international law, the instrument of the legal fiction and the Kantian theory of the transcendental grounding of the validity of law. Dupuy places the task of developing such a material law in the hands of the international judiciary, despite reservations about their performance. Indeed, it is difficult to imagine any judiciary with the philosophical skill to undertake the tasks he sets them. In fact it is Pierre Legendre, the type of polymath which French culture so readily supports, who demonstrates how problematic is the formalist legal thinking based upon the classical French state. Despite Dupuy's conciliatory spirit towards his formalist compatriots he has opened a Pandora's box for them.
Martti Koskenniemi and the Historiographical Turn in International Law by George Rodrigo Bandeira Galindo
The Gentle Civilizer of Nations constitutes one of the most significant efforts to review the history of international law to be published in recent years. It is possible to say that Martti Koskenniemi's book represents much more than the final word on a subject; it is, in fact, the first word. For this reason, the book opens up many possibilities for a renewed debate in the field of the history of international law. The present article discusses seven controversial themes of the book in order to underline the strong and weak points of The Gentle Civilizer of Nations. The author concludes by proposing that we need to take seriously the historiographical turn that emerges in Koskenniemi's recent work and advocates that this should lead the discipline to a historical turn, where memory would play an essential role in its development.
The World after September 11: Has It Really Changed? by Noëlle Quénivet
This review essay aims to assess whether international law has actually changed significantly since 9/11, or whether there is just an impression of change conveyed by books and articles published shortly after the events. Most books on terrorism start their discussion by wrestling with the concept of 'terrorism'. In a second step, authors examine the legal tools available to states as well as to the international community to fight terrorism. In particular, reference is made to the roots of terrorism and to anti-terrorism measures adopted by states, the United Nations and the European Union. Many contributions focus on 9/11 as the momentum in favour of a concerted police action against terrorism and enhanced inter-governmental cooperation. Other means employed in the fight against terrorism involve the prosecution of those alleged to have carried out acts of 'terrorism' and the application of international humanitarian law to situations that may qualify as armed conflicts. Last but not least, much literature deals with the recent trend to combat terrorism by use of military force. In this regard, attention is paid to the characterization of acts of terrorism as 'armed attack', the reaction of the Security Council in the aftermath of 9/11 and the right to self-defence.