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CIAO DATE: 01/07
April 2006 (Volume 17, Issue 2)
Articles
The Idea of European International Law
Alexander Orakhelashvili*
* LLM (Leiden); PhD (Cantab.); Research Fellow, Jesus College, Oxford.
The nature of international law as a legal system which, on the one hand, responds to the need for interaction between states inherent to international society and, on the other hand, is based on agreement between states, categorically excludes viewing international law as the product of a specific regional, i.e., European, tradition. Yet it is still asserted that international law is a European tradition. Such assertions are not only conceptually flawed, but are also unsupported by evidence. The origins of international law lie outside Europe, and at no stage of its development has international law been a truly European system. This holds true not only in terms of general international law, but also in relation to certain ideas developed at the European level, including the ‘public law of Europe’, and of modern European projects that appear to be based on ideas of a regional solidarity in Europe.
The Admissibility of Evidence Obtained by Torture under International Law
Tobias Thienel*
* Walther Schücking Institute of International Law, University of Kiel, Germany. I would like to thank Vanessa Klingberg, Nicki Boldt, Björn Elberling, and Philipp-Christian Scheel for their valuable comments. All remaining errors, of course, are mine. Email: tobiasthienel@web.de.
The article presents a survey of the international legal issues raised by the use of evidence obtained by torture, which concern not only the procedural right to a fair trial, but also play a part in protection from the abhorrence of torture itself. In this discussion, the author passes comment on the recent English decisions in the case of A and Others. The question of the admissibility of such evidence is broken down into several different cases. All those cases come within the exclusionary rule of Article 15 of the UN Convention against Torture. The article further argues that the inadmissibility is also comprehensive under the right to a fair trial, having regard to the right against self-incrimination and to the unreliability of statements obtained by torture. It is also argued that this exclusionary rule is part of customary international law and that the very concept of jus cogens obliges all states to distance themselves from any violation of its substantive content and to therefore refuse to accept any evidence obtained by torture. The article therefore exposes the exclusionary rule as coextensive with the prohibition of torture and as a function of this prohibition.
The Capacity to Protect: Diplomatic Protection of Dual Nationals in the ‘War on Terror’
Craig Forcese*
* Assistant Professor, Faculty of Law, University of Ottawa, Canada. B.A. (McGill), M.A. (Carleton), LL.B. (Ottawa), LL.M. (Yale); of the bars of New York, the District of Columbia and Ontario. Email: cforcese@uottawa.ca
Covert, extrajudicial removals of suspected terrorists from Western countries to face interrogation in nations using torture are now a feature of the post-9/11 world. These ‘extraordinary renditions’ may transgress human rights obligations. They may also engage an often forgotten principle of international law: diplomatic protection of nationals. In the best documented rendition to date, the individual removed by the United States and tortured in Syria was a national, not only of the latter state, but also of another country, Canada. The question this article asks is whether international law stands in the way of countries like Canada extending diplomatic protection to their rendered dual nationals. The article concludes that old rules precluding protection in a contest between two states of nationality are no longer part of international law. For this and other reasons, dual nationality is not a legal bar to diplomatic protection of persons swept up in extraordinary renditions.
The Definition of ‘Norm Conflict’ in International Law and Legal Theory
Erich Vranes*
* Europe Institute, Vienna University of Economics and Business Administration, scholar in the APART post-doctoral programme of the Austrian Academy of Sciences 2003–2006. The author would like to thank Dr. Lorand Bartels, Prof. Stefan Griller, Prof. Wolfram Karl, Prof. Joost Pauwelyn, and Prof. Ewald Wiederin for their comments on the first version of this article. All errors are the author’s. Email: erich.vranes@wu-wien.ac.at.
This article argues that the narrow definition of conflict apparently prevailing in international law doctrine and recent WTO rulings is inappropriate in terms of legal theory and in view of the fundamental structures of the international legal order. The problem with this strict definition is that it does not recognize that a permissive norm may conflict with a prescriptive norm. In this perspective, established conflict rules such as the lex posterior and lex specialis principles cannot be applied in order to determine whether a permissive norm (such as a WTO exception or an MEA permission to restrict trade) actually constitutes the lex posterior or the lex specialis which was meant to prevail by the contracting parties. Further problems in recent academic writings and WTO jurisprudence have been caused by an insufficient distinction between norms of conduct and norms establishing competences. This paper therefore shows that an adequate definition has to encompass incompatibilities between prescriptive norms as well as permissive norms and concludes that an appropriate definition should rely on the ‘test of violation’ first introduced by Kelsen.
WTO Obligations as Collective
Chios Carmody*
* Associate Professor, Faculty of Law, University of Western Ontario, London, Ontario, Canada. I would like to thank Arwel Davies, Francine Mackenzie, Peter Gerhart, Frieder Roessler, Cherise Valles, and Petina Gappah for their comments on an earlier draft, and Joost Pauwelyn for his review of this article during the editorial process. I would also like to thank Dean Ian Holloway of the University of Western Ontario Faculty of Law for providing support to present the ideas contained in this article at several symposia, and Peter Kucherepa, Janice Ho, and Marianne Welch for their research assistance. Any mistakes remain wholly my own. Email: ccarmody@uwo.ca.
One view of obligations under the WTO Agreement is that they are bilateral, that is, they involve legal obligations between two countries. This is premised on the idea that the object of WTO obligations is ‘trade’. According to this view, the WTO Agreement can be considered a ‘bundle of bilateral relations’ and WTO obligations should be analysed pursuant to rules concerning bilateral obligations under the Vienna Convention on the Law of Treaties and the Articles on State Responsibility. This article takes a different position. It posits that WTO obligations are more appropriately regarded as collective because their principal object is the protection of collective expectations about the trade-related behaviour of governments. These form a common interest over and above the interests of WTO Member States individually. At the same time, while expectations may be the treaty’s primary concern, they are not its sole concern. The treaty gives some flexibility to governments to deal with situations actually encountered in the pattern of trade. These two functions – the protection of expectations and the adjustment to realities – combine to produce law in a third mode, something that can be termed a law of interdependence. This is the tendency of the WTO Agreement to promote interaction among producers and consumers in different countries, and thereby to spin an indissoluble web of economic relations that goes beyond the interests of WTO Members individually. For this reason, the WTO Agreement can be thought of as a collective undertaking and WTO obligations are more appropriately analysed under VCLT and ASR rules on collective obligations.
Review Essays
Overexploitation of a Valuable Resource? New Literature on the Precautionary Principle
Jaye Ellis*
* Assistant Professor, Faculty of Law and School of Environment, McGill University. Email: jaye.d.ellis@mcgill.ca.
The precautionary principle in international law has attracted intense and sustained attention in the last ten to 15 years. It is thus becoming increasingly difficult for authors to make meaningful contributions in this area. Nevertheless, there remain a number of important research questions to be explored or further developed. In this review essay, the author considers four recent works on precaution and examines the extent to which they are able to break new ground in this crowded field. Four themes are taken up. First is the question whether precaution has become a rule of customary international law, which, the author suggests, does not require further sustained academic attention at this time. Second, the impact of precaution on the relationship between science and law is considered. Third, the limits of precaution are explored. Given the extraordinarily high expectations that many jurists have of this principle, consideration of the appropriateness of these expectations seems timely. Finally, the doctrinal implications of precaution are taken up. Despite the attention that jurists have bestowed upon the principle, the identification of these implications remains an elusive goal.
The Concept of Sovereignty Revisited
Jens Bartelson*
* Professor of International Relations, University of Copenhagen. Email: JEB@ifs.ku.dk.
This essay, in discussing some recent contributions to the contemporary debate on sovereignty, focuses on what is at stake in this debate. While most authors today agree that the meaning of the concept of sovereignty is open to change across time and space, students of international law and international relations disagree about the causes and consequences of this conceptual change. While some scholars take such changes to be indicative of a corresponding transformation of global institutions, others regard them as evidence of the remarkable endurance of the Westphalian order. In this essay, I argue that this disagreement depends less on divergent accounts of the world, and more on the ontological status implicitly accorded to concepts by these authors. I conclude by pointing out that the very emphasis on the changing meaning of sovereignty makes normative problems intrinsically hard to settle, and that dealing with this impasse will be a major challenge to legal and political theory in the years to come.
Book Reviews
Book Reviews
Roberto Baratta
Book Reviews
Fausto Pocar