CIAO DATE: 02/05/08
European Journal of International Law
Volume 18, Issue 1, February 2007
Articles
Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?
Aeyal M. Gross
Two recent International Court of Justice decisions determine that international human rights law (IHRL) applies in occupied territories, in addition to international humanitarian law (IHL). These decisions reinforce the convergence of these two bodies of law. Advocates of the application of IHRL in occupied territories argue that it serves the interests of a population living under occupation. However, experience shows that, in these circumstances, IHRL can be used to actually undermine the protection of rights and legitimize their violation. The decisions of Israel's High Court of Justice illustrate how the introduction of rights analysis into the context of occupation abstracts and extrapolates from this context, placing both occupiers and occupied on a purportedly equal plane. This move upsets the built-in balance of IHL, which ensures special protection to people living under occupation, and widens the justification for limiting their rights beyond the scope of a strict interpretation of IHL. The different meanings ascribed to proportionality in these two bodies of law are conflated, further contributing to this imbalance. The attempt to bring the ‘rule’ of rights into the ‘exception’ of the occupation, rather than alleviating the conditions of people living under occupation may render rights part of the occupation structure.
* Tel-Aviv University, Faculty of Law. I am grateful to Keren Michaeli for her comments on an earlier version of this article. Earlier versions of this article were presented during May 2006 at the following conferences: ‘Occupations and Withdrawals: Japan, Europe, Palestine, Iraq’ (University of Glasgow); ‘Workshop on Critical Approaches to International Law’ (Birkbeck Law School, London); ‘Biennial Conference of the European Society of International Law’ (Paris); ‘Conference on International Humanitarian Law and International Human Rights Law: Exploring Parallel Application’ (Hebrew University, Jerusalem). I am grateful to the participants in these conferences for their insightful comments, and especially to Ahmed Amara, Orna Ben-Naftali, Françoise Hampson, Noam Lubell, Layla Margalit, and Marco Sasoli. Special thanks go to Yuval Shany for his illuminating suggestions and to Nimrod Karin and Assaf Even-Chen for their comprehensive research work, and to Hedi Viterbo for his assistance in completing the research for this article. I am also very grateful to Batya Stein, who edited this article. Finally, thanks go to the Cegla Center for Interdisciplinary Research of the Law for its support of this study. Email: agross@post.tau.ac.il.
As If: The Legal Fiction in Diplomatic Protection
Annemarieke Vermeer-Künzli
Diplomatic protection is premised on a fiction: injury to an individual is treated as if it constituted injury to the individual's national state, entitling the national state to espouse the claim. While the International Law Commission, in its Draft Articles on Diplomatic Protection acknowledged this legal fiction, it continues to be the subject of debate and criticism. Yet, a closer look at the legal fiction reveals that it enables the application of secondary rules (the rules on diplomatic protection) to a violation of a primary rule. This is a rather complex process: the violation of an individual's right gives rise to the right of the state of nationality to exercise diplomatic protection. The complexity is caused by the question of whose rights are being protected (the state's or the individual’s) and the nature of the various elements of the law on diplomatic protection. These questions should not, however, lead to a rejection of the fiction. To the contrary, a careful analysis of legal fictions in general and the fiction in diplomatic protection in particular shows that the fiction is no more than a means to an end, the end being the maximal protection of individuals against violations of international (human rights) law.
* PhD Fellow at Leiden University. The author wishes to thank the Netherlands Organization for Scientific Research (NWO) and the Van Vollenhoven Stichting, which financially supported two research visits to the International Law Commission in Geneva in May and July 2006. The author further wishes to thank Professor John Dugard and Arnold Pronto for useful comments and discussions. Translations by the author. Email: A.M.H.Vermeer@law.leidenuniv.nl.
Symposium: The European Tradition in International Law - Max Huber
Max Huber: A Portrait in Outline
Daniel Thürer
The introductory chapter should be written last – that was what Richard Baxter taught us, his students. It is the best way to provide a general overview and to highlight the main points of the other chapters. Dietrich Schindler, Jost Delbrück, Oliver Diggelmann, Daniel Khan, Ole Spiermann and Yves Sandoz have each shed light on Max Huber as a person and on his work. This introduction seeks to fill in certain traits in the portrait of Max Huber that could not be included in the individual studies. I also discuss what Max Huber's work means to us in today's world.
* Prof. Dr. iur. Dr. rer.publ.h.c., LL.M. (Cambridge), Chair of International Law, European Law, Public Law and Comparative Constitutional Law and Director of the Institute for International Law and Comparative Constitutional Law at the University of Zurich. The author is also a member of the International Committee of the Red Cross; the views expressed here are, however, his own. Email: daniel.thuerer@ivr.unizh.ch.
Max Huber – His Life
Dietrich Schindler
Max Huber's Sociological Approach to International Law Revisited
Jost Delbrück
Almost a century ago Max Huber published his basic text on a sociology of international law. In a time like ours in which serious challenges to the notion of an international law binding upon all states are not uncommon, it appears to be appropriate to recall Huber's outstanding contribution to this recurrent debate over the nature and role of international law in international relations. To understand his conception of a sociology of international law, this article traces the impact of Huber's socio-political and intellectual environment on his work. Central to Huber's conceptualization of a sociology of international law is his perception of the nature of the state and the key problem of the binding force of international law, which he ultimately found to rest on the collective interest of the states in its binding force. In his early years, Huber adhered to the notion that international law is plain ‘Machtrecht’, but later on he turned away from this position without retreating from his sociological approach to international law altogether.
* Professor em. Dr.Dr.rer.pol.h.c., LL.D.h.c.(IN), former director of the Walther-Schücking Institute of International Law at the University of Kiel, Germany. Email: jdelbrueck@web.de.
Judge Max Huber at the Permanent Court of International Justice
Ole Spiermann
A towering figure in the history of the Permanent Court of International Justice, Max Huber left his imprints on the work of the International Court of Justice as well as various fields of substantive international law. Huber did not exactly overrate the potential for international law, yet he was instrumental in defining and fleshing out an international lawyer's approach that stands as a monument to international legal thinking when put into practice. The Permanent Court outshined earlier institutions and created a heritage worth preserving and nurturing. Huber was quintessential in drafting many of the landmark decisions of the Permanent Court and, as with the awards rendered by him as sole arbitrator, they remain pertinent and relevant.
* Professor of International Law, University of Copenhagen. Email: Ole.Spiermann@jur.ku.dk.
The Aaland Case and the Sociological Approach to International Law
Oliver Diggelmann
This article examines the report of the Aaland Commission of Jurists of the League of Nations against the background of Max Huber's scholarly writings. The report of the Aaland Commission, of which Huber was a member, is considered a milestone in the history of the self-determination of peoples. The article explores the common ground between the report and Huber's so-called ‘sociological approach’ to international law. It begins by describing Huber's method of tackling doctrinal problems. Huber believed that the decentralized character of international law meant that substantial deviations in the international legal order from its social basis should be avoided. A comparison between the report and his theory reveals that the Commission's method of tackling the Aaland problem is very similar to Huber's approach to doctrinal problems. The article further shows that the concept of the state in the report and in Huber's theory are similar in many respects. Huber's analogies between social and biological organisms seem to have influenced the report. Finally, the Commission's view that the right of self-determination has in the case of the Aaland islanders a legal character is examined vis à vis Huber's concept of international law.
* Professor of Law, Andrássy University Budapest; Dr. iur. (Zurich), LL.M. (Cambridge). Email: oliver.diggelmann@bluemail.ch.
Max Huber as Arbitrator: The Palmas (Miangas) Case and Other Arbitrations
Daniel-Erasmus Khan
The peaceful settlement of international disputes by judicialmeans held a prominent place in Max Huber's work throughouthis career both as an academic and legal practitioner. For anumber of good reasons, Huber's best known contribution in thefield, his 1928 award in the Island of Palmas case, is stillrenowned as one of the leading cases of our discipline. Althoughsomewhat less well known, the second case in which Huber actedas sole arbitrator (British Claims in the Spanish Zone of Morocco1923–1925), served as one of the major precedents in theInternational Law Commission's work on state responsibility.Going far beyond the rather technical (and marginal) issuesat stake, both awards owe their lasting importance not leastto the firm theoretical foundations on which they rely. In contrast,a third case in which Huber was actively involved in a twofoldway has almost completely fallen into oblivion. Huber not onlynegotiated and signed the 1921 Swiss-German treaty of arbitrationand conciliation, but was also called to sit on the bench ofthe Jacob Salomon Kidnapping case (1935) established under theterms of that very treaty. Although no formal award was rendered,this case is nonetheless a prime example of the pressure thatthe mere existence of an arbitration procedure can apply evenon dictatorial regimes.
* Professor of International Law and European Community Law at the University of the Federal Armed Forces Munich. Translations at footnotes 57, 61, 62, 64 and 65 from 2 Annual Digest of Public International Law (1923–1924). Translations from German by Carsten Hoppe. Email: khan@unibw.de.
Max Huber and the Red Cross
Yves Sandoz
Max Huber's exceptional academic, diplomatic and judicial career prepared him well for his role as president of the ICRC. Huber assumed the presidency in 1928, thereby taking on the heavy burden of piloting the institution during one of the worst periods of history, culminating with the Second World War. In a time of great danger to the fundamental humanitarian values and the unity of the Red Cross, Max Huber played an outstanding role in better identifying and defending the Red Cross principles, keeping the International Red Cross united and promoting humanitarian law. In spite of its important humanitarian activities, the ICRC was powerless to put a halt to the atrocities committed during the War and was subsequently criticized for having been too timid in denouncing them. This article traces Huber's leadership of the ICRC and the important impact his ideas had on the direction of the organization. Max Huber will certainly remain as one of the greatest personalities in the entire history of the Red Cross.
* Lecturer at the Universities of Geneva and Fribourg; member of the ICRC. Email: Yves_Sand@hotmail.com. The opinions expressed in this article are those of the author and do not necessarily represent those of the ICRC.
Review Essay
International Judicial Activism and the Commodity-Form Theory of International Law
Susan Marks
In his book Between Equal Rights: A Marxist Theory of InternationalLaw, China Miéville revisits the work of 1920s Russianjurist E. B. Pashukanis to develop a ‘commodity-form’theory of international law. The theory serves as a valuableand instructive counterpoint to influential currents in internationallegal scholarship. However, this essay argues that Miévilleis unnecessarily negative about the prospects for internationallaw to contribute to progressive change. Central to his thesisis the critical insight that international law is indeterminate.He maintains that ‘for every claim there is a counter-claimand "legalistic" [anti-imperialism] is therefore ultimatelytoothless’. By contrast, this essay contends that indeterminacyand its antipode, determinacy, are not properties of internationallaw. Rather, they are arguments, the emancipatory force of whichis not fixed, but context-dependent.
China Miéville. Between Equal Rights: A Marxist Theory of International Law. Leiden/Boston: Brill, 2005. Pp. xii, 380. €73. ISBN: 9004131345
Book Reviews
Towards World Constitutionalism, Issues in the Legal Ordering of the World Community • Towards an International Legal Community? The Sovereignty of States and the Sovereignty of International Law
Matthew William Saul
UN Covenant on Civil and Political Rights. CCPR Commentary • The Procedures before the UN Human Rights Treaty Bodies. Divergence or Convergence? • Non-discrimination and Equality in the View of the UN Human Rights Treaty Bodies
Ineke Boerefijn