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CIAO DATE: 06/06
2005 (Volume 16 Issue 5)
Articles
The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate By Olivier Corten
Université Libre de Bruxelles.
Email: ocorten@ulb.ac.be.
Controversies about the rule prohibiting the use of force have mainly focused on issues such as the conditions for self-defence or the existence of a right to humanitarian intervention. Beyond the question of the validity or relevance of each substantial argument, a comprehensive analysis of the doctrine reveals that the debate is actually more about methodology than substance. Hence, those who stand for an enlarged conception of the right to self-defence or who support a right of humanitarian intervention tend to adopt a particularly loose method in defining the content of the customary rule.
The Vocabulary of Progress in Interwar International Law: An Intellectual Portrait of Stelios Seferiades By Thomas Skouteris
Lecturer, Faculty of Law, Leiden University
Email: t.skouteris@law.leidenuniv.nl.
The intellectual portrait of Stelios Seferiades sketched out in this article performs a dual function. While paying tribute to the work of a neglected, but fascinating, scholar, it serves as a heuristic device which allows us to examine the ‘vocabulary of progress' in international law – the discursive strategies used in legal argument to legitimize the transformation of the discipline. Crucial to the construction of such a vocabulary of progress in the international law writings of Seferiades is the opposition between the notions of absolutism and democracy. The article situates this opposition in the political milieu of the interwar period and the life trajectory of Seferiades. Ultimately, it points to the closely-knit relationship between ‘universalist' vocabularies of progress, such as the opposition between absolutism and democracy, and the personal-ideological pursuits of public international lawyers.
Dispelling the Chimera of ‘Self-Contained Regimes' International Law and the WTO By Anja Lindroos
Erik Castrén Institute of International Law and Human Rights, University of Helsinki, Finland.
Michael Mehling**
** Faculty of Law, University of Greifswald, Germany.
Email: anja.lindroos@helsinki.fi.
Email: mehling@celm.org.
International lawyers have in recent years expressed much unease about the perceived fragmentation of their legal system. In truth, however, international law has always been fragmented without losing its ability to operate. A threat, rather, arises from the ongoing proliferation of special regimes endowed with strong institutional frameworks and an ability to set new international norms. This expansion begs an uncomfortable question: What if such – seemingly independent – entities were to claim autonomy and challenge the validity of general international law? A salient feature of this debate is the preoccupation with ‘self-contained regimes' and their status under international law. In a recent report to the International Law Commission, for instance, Martti Koskenniemi concluded that no such regime can be created outside the scope of general international law. Drawing on a particularly controversial example, this article therefore reviews the law and practice of the World Trade Organization to determine how that body has positioned itself in the debate. While its judiciary has recognized that the rules on world trade do not exist in isolation of general international law, a closer look at actual case law unveils a far more ambivalent picture. The chimera of self-contained regimes, in other words, is not easily dispelled.
The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ By Marko Divac Öberg
Legal Researcher at Al-Haq, Ramallah
Email: marko.divac.oberg@nyu.edu.
This article aims to extract from the jurisprudence of the International Court of Justice a basic theory of legal effects of unilateral instruments of international organizations in public international law. These effects can be divided into three categories. The first is substantive effects. These include binding, authorizing and (dis)empowering effects. The second category is causative effects, whereby determinations of fact or of law bring substantive effects into existence. The third category is modal effects – how and when the substantive effects come into existence (e.g. immediate or deferred, retroactive or non-retroactive, reversible or irreversible effect). Each of these categories of legal effects behaves differently according to whether the effects are intrinsic or extrinsic. Intrinsic effects are based on the special treaty powers of the United Nations Security Council and General Assembly. In this hypothesis, all three categories of effects exist to the full extent that the explicit and implicit powers of the adopting body allow for them. Extrinsic effects are directly based on general international law, in particular on the rules of formation of customary international law. Here, there are no causative effects. Substantive effects do not strictly speaking exist; only pre-substantive ones do. And modal effects are always immediate, non-retroactive and reversible.
Toward a General Margin of Appreciation Doctrine in International Law? By Yuval Shany
LL.B. 1995 (Hebrew University); LL.M. 1997 (NYU); Ph.D. 2001 (University of London). Hersch Lauterpacht Chair in Public International Law, Faculty of Law, Hebrew University, Jerusalem; visiting researcher, the Pioneer Project, Amsterdam Centre for International Law, University of Amsterdam (2004).
Email: yshany@mscc.huji.ac.il.
Three recent International Court of Justice decisions – Oil Platforms, Avena and Wall in the Occupied Palestinian Territory – highlight the uncertain status of the margin of appreciation doctrine in the Court's jurisprudence. The purpose of this article is to evaluate, in the light of contemporary practice of other courts, the current status under international law of the margin of appreciation doctrine, which encourages international courts to exercise restraint and flexibility when reviewing the decisions of national authorities, and to offer preliminary guidelines for future application. The article also discusses a variety of policy arguments concerning the legitimacy and effectiveness of international courts, which can be raised in support of the development of a general margin of appreciation doctrine with relation to some categories of international law norms governing state conduct, and it examines potential criticism. Eventually, it argues that the same considerations which have led to the creation of ‘margin of appreciation type' doctrines in the domestic law of many states and in the context of specific international regimes (for instance, the European Convention on Human Rights) also support the introduction of the doctrine into general international law. The position of the ICJ towards the application of the doctrine therefore merits reconsideration.
Symposium: The Wall
Unchart(er)ed Waters?: Consequences of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory for the Responsibility of the UN for Palestine By Iain Scobbie
Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case By Christian J. Tams
LL.M. (Cantab., 2000), Ph.D. (Cantab., 2004). Walther-Schücking-Institute for International Law, University of Kiel (Germany)
Email: ctams@internat-recht.uni-kiel.de.
In its recent Wall Opinion, the International Court of Justice gave rather short shrift to Israel's claims that the construction of the wall could be justified as an act of self-defence in the sense of Article 51 United Nations Charter. This article assesses the Court's approach and places it in the broader context of ICJ pronouncements on the use of force. It suggests that the Court failed to appreciate the complex legal problems to which Israel's claim gave rise, in particular the problem of self-defence against attacks by non-state actors. It shows that the Court's restrictive understanding of self-defence, while following the 1986 merits judgment in the Nicaragua case, is difficult to bring in line with modern state practice, and increases the pressure to admit other, non-written, exceptions to Article 2(4) of the UN Charter.
Review Essay
International Criminal Law vs State Sovereignty: Another Round? By Robert Cryer
School of Law, University of Nottingham.
Email: Robert.Cryer@nottingham.ac.uk.
This is a review of five recent works which deal with international criminal law. By an analysis of those works, the essay queries whether the relationship between international criminal law and state sovereignty is always accurately conceptualized. International criminal lawyers often see sovereignty as the enemy of international criminal law, though frequently failing to discuss in any depth the nature and malleability of sovereignty. Although international criminal law does involve some challenges to sovereignty, it also needs, and in some ways empowers, that sovereignty too. The works under review tend to pay less attention to the substantive aspects of international criminal law than its institutional part. This is unfortunate, as some of the most interesting interactions between international criminal law and sovereignty occur at this level. The essay finishes with some broader reflections on how the works under review conceptualize the international legal order, regrets the absence at times of engagement with relevant constructivist scholarship but notes that the answer to the question of the precise relationship between international criminal law and sovereignty is unlikely to be agreed upon soon.
Book Reviews
Peter J. Schraeder (ed.). Exporting Democracy: Rhetoric vs. Reality. Boulder: Lynne Rienner Publishers, 2002. Pp. 289. • Susan Marks. The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology. Oxford: Oxford University Press, 2003 (paperback). Pp. 164. Reviewed by B. S. Chimni
Eur J Int Law 2005 16: 1001-1005; doi:10.1093/ejil/chi154
Robert Walter, Clemens Jabloner, Klaus Zeleny (eds). Hans Kelsen und das Völkerrecht. Ergebnisse eines Internationalen Symposiums in Wien (1–2 April 2004). Vienna: Manz, 2004. Pp. 241. x48. ISBN 3-214-07672-8. Reviewed by Jörg Kammerhofer
Eur J Int Law 2005 16: 1005-1008; doi:10.1093/ejil/chi155
Pierre D'Argent. Les réparations de guerre en droit international public: la responsabilité internationale des États à l'épreuve de la guerre. Bruxelles: Emile Bruylant, 2002. Pp. 904. Ä150. ISBN: 2802715933 • Andrea Gattini. Le riparazioni di guerra nel diritto internazionale. Padova: CEDAM, 2003. Pp. 722. Ä59. ISBN: 8813245149 Reviewed by Drazen Petrovic
Eur J Int Law 2005 16: 1008-1011; doi:10.1093/ejil/chi153