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CIAO DATE: 01/07
June 2006 (Volume 17, Issue 3)
Articles
Of Planets and the Universe: Self-contained Regimes in International Law
Bruno Simma* and Dirk Pulkowski**
* Judge, International Court of Justice (The Hague); Professor of International Law, retired, Ludwig-Maximilians-Universität (München); Member of the Affiliate Overseas Faculty, University of Michigan Law School (Ann Arbor). Email: simma@icj-cij.org.
** Doctoral candidate in international law, Ludwig-Maximilians-Universität (München); LL.M., Yale Law School (New Haven); Ass. jur. (München). Email: dirk.pulkowski@aya.yale.edu.
Contemporary legal practice requires the allocation of authority within a complex system of legal prescriptions. As international law has extended to areas as diverse as trade, environmental regulation and human rights, the consequences of breach of international legal obligations become more difficult to assess. The authors probe the role of the lex specialis maxim as a tool for the effective placing of special secondary rules within the general international law of state responsibility. The central question is: Are the general rules on state responsibility to apply residually? The authors answer in the affirmative. ‘Conceptual’ arguments for so-called self-contained regimes are unconvincing. Scholars who perceive international law as a unified legal order might be led to apply a presumption in favour of the applicability of the general international law of state responsibility. Scholars who regard international law as no more than the sum total of loosely interrelated subsystems tend to advocate a presumption in favour of the normative closure of a particular regime. In the authors’ view, neither presumption is helpful, since both tend to obfuscate the value judgments that legal decision-making inevitably involves. Instead, the authors propose that a fallback on general international law, including resort to countermeasures, may be justified on normative grounds. A closer analysis of four subsystems that have often been associated with the notion of self-contained regimes – diplomatic law, European Community law, the WTO and human rights – concludes the discussion.
The Security Council, Democratic Legitimacy and Regime Change in Iraq
Steven Wheatley*
* Senior Lecturer in International Law, University of Leeds. Email: S.M.Wheatley@leeds.ac.uk.
This article examines the political transition in Iraq from the perspective of international law, which regards forcible democratic regime change as unlawful. The concern is to establish the extent to which the relevant Security Council Resolutions, 1483 (2003), 1511 (2003) and 1546 (2004), necessary to give legal effect to the fact of regime change, may be regarded as a legitimate exercise of the political authority provided to the Security Council under the Charter of the United Nations, and consequently a lawful exercise of that authority. The article will argue that Security Council resolutions enjoy ‘democratic’ political legitimacy to the extent that they are consistent with the constitutional framework provided by the UN Charter and wider international law, and that they accord with the practice of the Security Council in ‘like’ cases, or the Council is able to demonstrate sufficient justification for the exercise of political authority in the particular case. The article first reviews the process of political transition in Iraq, examining the role of Security Council resolutions. It concludes that the process involved a violation of the right of the Iraqi people to political self-determination, creating a conflict between the Security Council resolutions adopted under chapter VII and an international norm of jus cogens standing. Rejecting arguments that the resolutions should be regarded as void, or that they should command absolute deference, the work outlines a model of constitutional adjudication in cases of conflict between these ‘higher’ forms of obligations in accordance with a deliberative understanding of the nature of the system of international law.
State Responsibility for Genocide
Marko Milanovic*
* LL.B (Belgrade), LL.M (Michigan); Associate, Belgrade Centre for Human Rights. Email: marko.milanovic@gmail.com.
‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’Nuremberg Judgment, at 41
In the past years international law has made strides in establishing individual responsibility for crimes against international law as one of its most fundamental principles. This year, however, provides us with the first opportunity for adjudication on state responsibility for genocide in the case brought before the International Court of Justice by Bosnia and Herzegovina against Serbia and Montenegro. This article attempts to provide a methodological approach for deciding the many issues raised by this case, mainly by focusing on a strict separation between primary and secondary rules of international law, with this approach being both theoretically and practically desirable. The article also deals with the question of state responsibility for acts of non-state actors on the basis of state de facto control. By applying this general methodology to the facts of the Genocide case, the article will show that the principal difficulties the Court will face if it decides to use this approach will not be in applying the relevant substantive law, but in establishing the facts and assessing the available evidence.
New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement
Patrick Dumberry*
* PhD, Graduate Institute for International Studies, Geneva, Switzerland, 2006; Member of the Quebec Bar; Attorney at the law firm of Ogilvy Renault, Montreal, Canada. Email: pdumberry@ogilvyrenault.com.
There is a well-established principle of international law according to which whenever an insurrectional movement succeeds in creating a new state, the new state should be held responsible for obligations arising from internationally wrongful acts committed by the insurrectional movement against third states during the armed struggle for independence. The principle is clearly stated in Article 10(2) of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts. The issue has, surprisingly, not been the object of great attention by legal scholars. This article examines the different possible theoretical foundations in support of this principle. It is submitted that the new state should remain responsible for acts which took place before its independence because there is a ‘structural’ and ‘organic’ continuity of the legal personality of the organization of the rebels with that of the new state. There is, however, only limited state practice in support of this principle. The analysis of the concrete application of this principle for different types of succession of states leads the author to conclude that it should find application in all cases because of its fair and equitable consequences.
Symposium: WTO 'Constitutionalism'
The Constitutions of the WTO
Joel P. Trachtman*
* Professor of International Law, The Fletcher School of Law and Diplomacy. Email: joel.trachtman@tufts.edu.
Constitutions have many dimensions. These dimensions include at least the following: an economic constitution in the sense of a set of rules for transactions in and institutionalization of authority; an interfunctional constitution that allows for the integration of various social values; a political constitution that reflects the cultural and democratic integrity of a group of people; a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules; a human rights constitution that limits the sphere of governmental authority, and a redistributive constitution founded on social solidarity. The WTO ‘constitution’ has already grown along some of these dimensions. As we assess the constitutional development of the WTO, we must first analyse these dimensions separately. Second, we must examine how these dimensions relate to one another. Third, we must examine how these dimensions of the WTO ‘constitution’ relate to the general international legal system’s constitution and to the constitutions of other international organizations. Fourth, we must examine how these dimensions of the WTO ‘constitution’ relate to the domestic constitutions of the WTO’s member states. Finally, we must examine the ‘tertiary’ rules that relate these different constitutions to one another.
Constitutional Conceits: The WTO’s ‘Constitution’ and the Discipline of International Law
Jeffrey L. Dunoff*
* Charles Klein Professor of Law & Government and Director, Institute for International Law and Public Policy, Temple University Beasley School of Law. Email: jeffrey.dunoff@temple.edu.
International legal scholarship, particularly trade scholarship, is preoccupied with questions of constitutionalism. However, neither WTO texts nor practice suggest that the WTO is a constitutional entity. The disjunction between scholarship and practice is puzzling: Why would scholars debate the WTO’s (non-existent) constitutional features? Although the term is used in different ways, leading accounts of constitutionalism at the WTO share an impulse to channel or minimize world trade politics. Paradoxically, however, the call for constitutionalism triggers precisely the contestation and politics that it seeks to pre-empt. This creates an even larger puzzle: If constitutional discourse sparks the very politics it seeks to avoid, why do scholars continue to use this discourse? This paper explores the conditions that give rise to debates over constitutionalism, and explores whether the timing and prominence of constitutional debates reflect disciplinary anxieties that have been heightened by recent geopolitical developments. Might international lawyers use constitutional discourse as a rhetorical strategy designed to invest international law with the power and authority that domestic constitutional structures and norms possess? If so, this strategy may be self-defeating. Critical evaluation of constitutional claims may highlight the lack of constitutional structure or legitimating foundations of the WTO, and international law more generally. The paper closes by suggesting that other forms of constitutionalism may be imagined, including those designed to invite political debate and contestation, or to empower democratic and deliberative decision-making.
Review Essay
Legalizing Lawlessness: On Giorgio Agamben’s State of Exception
Stephen Humphreys*
Sidney Sussex College, University of Cambridge. Email: sh407@cam.ac.uk.
This review essay examines in some detail Giorgio Agamben’s recent State of Exception, his third in a series of books that reconstruct sovereignty using a range of interdisciplinary and critical tools. Engaging with Agamben’s text on its own terms – rather than focusing on the potential deficiencies of an approach that eschews standard doctrinal and empirical research – the essay seeks to distil a set of conceptual and analogical perspectives that might help interpret the significance of the present rise of emergency regimes. The essay concludes by exploring whether Agamben’s work might enrich legal inquiry, despite its often alien tenor, by reviewing some recent cases in the UK and the US involving exceptional measures.
Book Reviews
Book Reviews
Brett Bowden
Book Reviews
Andrew Newcombe
Book Reviews
Michal Kowalski