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CIAO DATE: 06/07
November 2006 (Volume 17, Issue 5)
Articles
Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion
Andrea Bianchi*
* Professor of International Law, Graduate Institute of International Studies, Geneva, and Catholic University, Milan. Email: bianchi@hei.unige.ch
This article aims to assess the effectiveness of the Security Council’s anti-terror measures against the background of the Member States’ practices of implementation. This survey is based primarily on the national reports submitted by states, pursuant to the relevant SC resolutions. Other issues, such as the legitimacy of the SC’s actions and the encroachment of anti-terror measures on fundamental human rights, are also broached in so far as they may have an impact on the effectiveness of the implementation process. Finally, the article attempts to evaluate, primarily from the perspective of legal interpretation, how to reconcile the predominant security concerns underlying anti-terror measures with the cohesion of the international legal system.
‘Jus ad bellum’, ‘jus in bello’ . . . ‘jus post bellum’? –Rethinking the Conception of the Law of Armed Force
Carsten Stahn
* Dr.jur., LL.M. (NYU), LL.M. (Köln–Paris), Associate Legal Officer, International Criminal Court, Visiting Fellow Leiden University. The views expressed in this article are those of the author alone and do not necessarily reflect the views of the International Criminal Court. This article is part of a broader research project of the author on ‘jus post bellum’. Email: Carsten.Stahn@icc-cpi.int
The law of armed force is traditionally conceptualized in the categories of jus ad bellum and jus in bello. This dualist conception of armed force has its origin in the legal tradition of the inter-war period. This essay revisits this approach. It argues that the increasing interweaving of the concepts of intervention, armed conflict and peace-making in contemporary practice make it necessary to complement the classical rules of jus ad bellum and in jus in bello with a third branch of the law, namely rules and principles governing peace-making after conflict. The idea of a tripartite conception of armed force, including the concept of justice after war (‘jus post bellum’) has a long-established tradition in moral philosophy and legal theory. This article argues that this historical concept deserves fresh attention from a legal perspective at a time when the contemporary rules of jus ad bellum and jus in bello are increasingly shaped by a normative conception of law and justice and a broadening notion of human security. Moreover, it identifies some of the legal rules and principles underlying a modern conception of ‘just post bellum’.
Naming and Shaming: The Sorry Tale of Security Council Resolution 1530 (2004)
Therese O’Donnell*
* Lecturer, University of Strathclyde. Email: therese.odonnell@strath.ac.uk
Security Council Resolution 1530, adopted within hours of the Madrid bombings on 11 March 2003, should give international lawyers pause for thought. It sought to denounce atrocity but, in so doing, it also unequivocally attributed responsibility for the bombings to ETA. It quickly emerged that this was a case of mistaken identity. The revelation of this mistake produced a wealth of questions regarding the capacity of states to manipulate the Security Council, the Council’s procedures themselves, the need or otherwise for evidence of attribution of responsibility, and the consequences, legal or political, that might arise in the light of a glaringly incorrect resolution. In focusing on Resolution 1530, this article considers law’s domain in the Security Council’s political context, particularly the hasty drafting and tabling of a resolution explicable only by reference to a rhetorical war on terror. It also considers the techniques of interpretation regarding so-called ‘terrorism resolutions’, the Security Council’s role as inquisitor and arbiter of evidence and the assumption of good faith on the part of members. It concludes by considering the Council’s future counter-terrorist role and the issue of the Council’s legitimacy.
The Place of the WTO and its Law in the International Legal Order
Pascal Lamy*
* Director-General of the WTO. Address before the European Society of International Law, Paris, 18–20 May 2006.
Proportionality and Remedies in WTO Disputes
Andrew D. Mitchell*
* PhD (Cantab), LLM (Harv), LLB (Hons) (Melb), BCom (Hons) (Melb); Senior Lecturer, Faculty of Law, University of Melbourne; Barrister and Solicitor, Supreme Court of Victoria. This article draws on a larger work by the author on the role of legal principles in WTO dispute settlement (Legal Principles in WTO Disputes), which will be published by Cambridge University Press in early 2007. Email: a.mitchell@unimelb
This article considers the role of proportionality in determining the level and type of remedies available to World Trade Organization Members for violations of legal obligations or for certain other undesirable or unfair conduct. As an aid to interpretation, proportionality confirms the purpose of suspension of concessions as inducing compliance and may clarify the meaning of ‘nullification or impairment’ and the appropriate response to actionable or prohibited subsidies. However, principles such as proportionality must yield to the relevant text of the WTO agreements, where that text is unambiguous, and WTO Tribunals must carefully investigate the meaning and scope of a principle before using it in the WTO. Contrary to certain past decisions, the principle of proportionality is not relevant to the imposition of safeguards in the WTO.
A GMO by Any Other Name . . . Might Be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement
Jacqueline Peel *
* Senior Lecturer, Faculty of Law, University of Melbourne, Australia; BSc/LLB (Hons I), LLM (NYU). Email: j.peel@unimelb.edu.au
The lengthy WTO Panel report, recently issued in the EC-Biotech dispute, contains many noteworthy findings. Perhaps the most extraordinary and potentially far-reaching are those regarding the scope of the SPS Agreement. This Agreement has been the focus of much attention because of the requirement for scientific justification of national SPS measures, thereby casting doubt on the WTO validity of precautionary regimes like the EC’s GMO regulations at issue in EC-Biotech. The Panel found that the SPS Agreement extends to trade-restrictive measures addressed to a range of health and environmental risks, even where those risks only indirectly relate to the introduction of ‘pests’ into a Member’s territory. This article considers the consequences of an expanding ambit for the WTO SPS Agreement through the designation of a wider range of health and environmental regulations affecting trade as ‘SPS measures’. The author contends that the EC-Biotech Panel’s findings, if upheld, have the potential to work important changes in the relationship between the SPS Agreement and environmental regulatory regimes, both domestic and international. As a result, not only GMO regulations, but also other health and environmental measures with trade impacts, could become subject to SPS oversight, and consequently, the institutional rigours of the WTO regime.
Book Reviews
Book Reviews
Katarina Månsson
Book Reviews
Anja Lindroos
Book Reviews
Inger Österdahl