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CIAO DATE: 01/07
September 2006 (Volume 17, Issue 4)
Articles
The Eritrea/Ethiopia Claims Commission Oversteps Its Boundaries: A Partial Award?
Christine Gray*
* Professor of International Law, University of Cambridge. Email: cdg22@cam.ac.uk.
The recent decision by the Eritrea/Ethiopia Claims Commission on the ius ad bellum claims of Ethiopia – that Eritrea had violated the law on the use of force in starting the 1998–2000 war between the two states – is a troubling one. It raises questions about the proper role of arbitral tribunals in such cases. There were many factors which suggested that the Commission should have abstained from giving judgment. There was no unequivocal agreement between the parties that the Commission’s jurisdiction extended beyond claims for violations of humanitarian and other international law during the conflict to an examination of responsibility for the start of the war. Moreover, the award is extremely brief, and consequently it deals with controversial issues of the law of self-defence, such as the meaning of armed attack and the duty to report to the Security Council, in a rather limited way. The award also raises important questions about the relationship of an arbitral tribunal to other bodies. In this case, the award of the Claims Commission undermined the Eritrea/Ethiopia Boundary Commission’s 2002 Delimitation Decision, already under challenge by Ethiopia, at a time of increasing tension along the border.
The Legal Nature of WTO Obligations and the Consequences of their Violation
Tarcisio Gazzini
* Lecturer in International Law, School of Law, University of Glasgow. Email: t.gazzini@law.gla.ac.uk.
The obligations deriving from participation in the World Trade Organization are never inherently indivisible or erga omnes in the sense elaborated by the International Court of Justice in the field of human rights. As a rule, remedies for violations of WTO obligations remain available only to the Member(s) whose international trade interests have been affected, in actual or potential terms. Nonetheless, contracting parties have decided to extend to a limited number of WTO obligations the legal regime of indivisible obligation and to consider immaterial for the purpose of resorting to the dispute settlement system the effects of their violations. WTO obligations, therefore, are not a monolithic bloc. They may be divided into two categories which are governed by different rules as far as legal standing and counter-measures are concerned. Depending on whether the obligation allegedly breached belongs to one or the other category, the nullification or impairment of benefits is presumed – but can be challenged – under Article 3(8) of the DSU or is entirely irrelevant. Furthermore, countermeasures are normally proportionate or equivalent to the nullification or impairment of the benefits of the complainant. In the case of WTO obligations treated as indivisible obligations, however, the effects of the violation are immaterial and the trade interests of the complainant may well be unaffected. As a result, counter-measures are to be permitted to the extent that they will effectively ensure compliance. Special problems may finally arise in the case of multiple applicants, especially when the countermeasures are authorized at different times.
Intervention in a ‘Divided World’: Axes of Legitimacy
Nathaniel Berman*
* Professor of Law, Brooklyn Law School. This paper was funded, in part, with a Brooklyn Law School summer research stipend. Email: nathaniel.berman@brooklaw.edu
In the post-2001 era, many fear that the ‘international community’ that had been developing in the years after the Cold War is becoming irremediably divided. Challenges to the ‘international community’ have come from such radically disparate quarters as US unilateralism and Islamicist attacks on ‘Western’ internationalism. Many worry that such divisions will severely hamper the ability of the international community to intervene in local crises, whether for humanitarian purposes or to stop ethnic conflict. This article challenges the major assumptions upon which this common view is based. First, it rejects the notion that the ‘international community’ ever had the kind of unity that is retrospectively attributed to it. Secondly, it rejects the notion that such an illusory unity is necessary for the legitimacy of international interventions even of the boldest variety. Rather, by examining recent fears in light of the history of bold international action since World War I, it develops a complex schema for evaluating forms of international legitimacy and forms of critique of that legitimacy. In light of this analysis, it shows how legitimacy can be achieved, even if only provisionally, even under the most fractious international conditions. In particular, it shows how the achievement of such legitimacy depends on distinguishing actions in the name of internationalism from seemingly similar actions that lie in international law’s discredited colonial past.
The European Union and Human Rights: An International Law Perspective
Tawhida Ahmed and Israel de Jesús Butler*
Tawhida Ahmed, School of Law, University of Nottingham. E-mail: llxta3@nottingham.ac.uk. Israel de Jesús Butler, City Solicitors’ Trust Lecturer in EU Law, Law School, University of Lancaster. Email: i.butler@lancaster.ac.uk.
The European Union has maintained that the obligations incumbent upon it in the area of human rights stem from its own internal legal order. Under this limited approach, the EU is merely under an obligation not to violate human rights when it acts (i.e. a negative obligation to respect human rights) and effectively only to respect those rights enumerated in the European Convention on Human Rights. This article explores how the EU may be subject to more extensive human rights obligations, incumbent on it by virtue of international law. As an intergovernmental organization and subject to international law, the EU can be said to be bound by customary international law, treaties to which it is a party, and human rights treaties entered into individually by Member States through the principle of succession or substitution. This would extend the range of applicable rights far beyond those in the ECHR to other obligations in, for instance, UN human rights treaties. It also implies that the EU must not merely refrain from violating human rights, but also that, within its spheres of competence, it should take positive measures to protect and fulfill human rights.
European Court Practice Concerning State Immunity from Enforcement Measures
August Reinisch*
* Professor of International and European Law at the University of Vienna and Professorial Lecturer at the Bologna Center of SAIS/Johns Hopkins University. Email: august.reinisch@univie.ac.at.
The practice of national courts in Europe with regard to enforcement immunity is far from uniform. Nevertheless, certain common principles have emerged over the last decades. Absolute immunity from enforcement measures has been largely abandoned and almost all jurisdictions have adopted a restrictive approach to enforcement immunity in one or another form. Enforcement measures are usually permitted in case of waiver or with regard to earmarked property. In practice, the most important exception from immunity concerns non-governmental property. Here it is primarily the purpose of the property against which enforcement measures are sought that determines whether or not immunity will be granted. This article surveys the judicial practice in Europe, focusing on the case-law of the last 50 years, in order to permit an assessment of whether various recent codifications, most importantly the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, actually codify such practice or depart from it.
The WTO Treaty as a Mixed Agreement: Problems with the EC’s and the EC Member States’ Membership of the WTO
Eva Steinberger*
* Email: eva.steinberger@gmx.de.
The article deals with the problems the joint membership of the EC and the EC Member States of the WTO causes with regard to their responsibility for breaches of the WTO Agreement. As a necessary preliminary question it first considers the problem whether both – the EC and the EC Members – are bound by the whole Agreement despite the fact that each of them has inner competences with regard to only parts of the Treaty. It concludes that both are fully bound by all Treaty provisions and cannot invoke lack of inner competences as an excuse for failures of treaty performance via other members of the WTO. Bearing this conclusion in mind, the article focuses on the real problem of responsibility of the EC and the EC Members, especially on the question of attribution of the failures of treaty performance of EC Members to the EC and vice versa. Here it reasons that the EC and EC Members are both at the same time fully responsible for each breach of the contract – no matter whether it was committed by an organ of the EC or of an EC Member. Finally this article looks at the consequences of these results for damages and litigation. It concludes that this is a case of joint and several responsibility and that the EC and the EC Members can at the choice of the complainant be sued either together or individually for the entire amount of the damages.
Book Reviews
Book Reviews
Roberto Baratta
Book Reviews
Fausto Pocar
Book Reviews
Pasquale De Sena
Book Reviews
Ignacio de la Rasilla del Moral
Book Reviews
Aurel Sari
Book Reviews
Tuula Kolari