CIAO DATE: 02/05/08
European Journal of International Law
Volume 18, Issue 3, June 2007
Articles
Universalism and Imperialism: The True-False Paradox of International Law?
Emmanuelle Jouannet
This article examines one of the central recurrent questions in international law: the relation between the universalism of certain of its principles and the possibility that they are imperialist in nature. The author illustrates how, in this regard, international law has, from its very origins, been the bearer of a paradox; a paradox that is, moreover, constitutive of the discipline, and from which international law cannot escape without itself ceasing to exist as such.
Kelsen Lives
Alexander Somek
Does it make sense any longer to study international law as a system of law? In both theory and practice, the impression of fragmentation and feebleness seems to be currently eclipsing the traditional faith in the unity and efficacy of cosmopolitan benevolence. Repeatedly, state interest has trumped the discipline of norms; international regimes do not form one coherent system, and behind their multiplicity seems to lurk disarray and new modes of hegemony. This article proposes to meet these challenges by reintroducing to the discipline a set of ideas about the foundations and the modest aspirations in the analysis of international law that are associated with the work of Hans Kelsen. To the argument that the system of public international law, as envisaged by Kelsen, is now untenable, the paper replies that phenomena such as hegemony and persistent decentralization are quite compatible with a system of public international law. To the argument that ideas associated with classical Kelsenian legal positivism have been eclipsed by more sophisticated sociological theorizing, it will be replied that Kelsen's insistence on the non-idealization of law remains a convincing answer. It will be shown that, contrary to their haughty pretensions, current sociological approaches are prey to idealizing assumptions as regards the agents and the substantive coherence of the international legal system. One example is social systems theory, which seeks to expose the unity of the international system as a myth, and to convince us that enduring fragmentation is all there is. Another example is that of theories premised on rational choice atomism, which would have us believe that international law is merely the combined factual consequence of self-interested state conduct. In both cases, the relevant sociology implicates a series of idealizations which betray its ideological thrust. Insofar as this kind of sociology provides the misguided basis for the claim that public international law is in crisis, legal positivism – methodo Vindobonense – is the antidote.
International Responses to Iranian Nuclear Defiance: The Non-Aligned Movement and the Issue of Non-Compliance
Tanya Ogilvie-White
This article explores the responses of the non-nuclear-weapon states (NNWS) to Iran's violation of the Nuclear Non-Proliferation Treaty (NPT), focusing on the stance adopted by members of the Non-Aligned Movement (NAM) in the International Atomic Energy Agency (IAEA). In February 2006, key NAM members voted to refer Iran to the UN Security Council in a move that stunned Iranian diplomats, and seemed to signal a collapse in NAM solidarity on fundamental non-proliferation issues. This article assesses the significance of this event, analysing the extent to which it represents a softening in the ideological divide between NAM and Western approaches to third-party non-compliance, and a convergence in attitudes towards the nuclear non-proliferation regime more generally. It draws on the interlinking concepts of international system, international society and global society to help explain these developments, exploring the hurdles and opportunities associated with any attempt to build on the fragile consensus emerging among the NNWS over the need to respond more decisively to NPT violations.
Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression
Kevin Jon Heller
The International Criminal Court's Special Working Group on the Crime of Aggression (SWG) is currently considering two different proposals for a definition of the crime. Although different in many respects, both proposals agree that aggression is a ‘leadership’ crime that can be committed only by ‘persons who are in a position effectively to exercise control over or to direct the political or military action of a State’. According to the SWG, the ‘control or direct’ standard is consistent with – and required by – the jurisprudence of the International Military Tribunal, Nuremberg Military Tribunal, and International Military Tribunal for the Far East. In fact, that jurisprudence tells a different story. These three tribunals not only assumed that the crime of aggression could be committed by two categories of individuals who could never satisfy the ‘control or direct’ requirement – private economic actors such as industrialists, and political or military officials in a state who are complicit in another state's act of aggression – they specifically rejected the ‘control or direct’ requirement in favour of a much less restrictive ‘shape or influence’ standard. The SWG's decision to adopt the ‘control or direct’ requirement thus represents a significant retreat from the Nuremberg principles, not their codification.
Iraqi Oil and Revenues from Its Sale: A Review of How Existing Security Council Resolutions Affected the Past and May Shape the Future
Rex J. Zedalis
The newly proposed Iraqi oil and gas legislation is currently making its way through Iraq's political process. The specific content of that legislation may be criticized for a variety of reasons. Nonetheless, while early Security Council resolutions addressing Iraq's oil and gas, and revenues from its sale, demonstrated extensive supervision over such by the international community beginning in the 1990s, more recent resolutions assign Iraq the kind of control that suggests its peoples are entitled to manage those resources and monies as they see fit. At the same time, the international community cannot ignore the importance of oil and gas to the economic well-being of Iraq, and the link between economic health and the survival of that country's nascent democracy. As a consequence, despite the fact that Security Council resolutions have seen fit to permit Iraqi authorities to resume autonomous control over that nation's hydrocarbons and the revenues produced by the sale of such, serious consideration should be given to the adoption of a new resolution, extending beyond the current 31 December 2007 date Iraq's protection against legal claims from existing and potential creditors.
Taking Uncertainty Seriously: Adaptive Governance and International Trade
Rosie Cooney and Andrew T.F. Lang
The problem of uncertainty presents a major challenge for institutions of international governance. In this article we draw lessons from a variety of literatures, including ecology and environmental management, for understanding and responding to uncertainty. From them we derive a model of ‘adaptive governance’ as a way to respond to the extensive and pervasive uncertainty confronting decision-makers in international institutions. Adaptive governance accepts and responds to uncertainty through promoting learning, avoiding irreversible interventions and impacts, encouraging constant monitoring of outcomes, facilitating broad participation in policy-making processes, encouraging transparency, and reflexively highlighting the limitations of the knowledge on which policy choices are based. Here we assess the World Trade Organization as an institution of adaptive governance, taking for our focus the WTO's treatment of national measures to counter the spread of invasive alien species, an arena in which particularly challenging and persistent uncertainties are faced. We find that while some aspects of the WTO's operation already fit within an adaptive governance model, in other important respects the WTO fails to encourage (and sometimes inhibits) effective policy responses to persistent uncertainty.
Review Essay
‘The Divided West’: International Lawyers in Europe and America
Guglielmo Verdirame
It is well known that significant differences exist in international law scholarship between the United States and Europe. Even when they share a positive outlook on the role and future of international law – as Philippe Sands and Anne-Marie Slaughter do – the intellectual approach and analytical style of European and American international lawyers often vary considerably. A complex and fascinating intellectual history lies behind these differences. Its main chapters are the emergence on the two sides of the Atlantic of different assumptions about sovereignty in the modern world; the role of science in legal argument and the relationship between the actual and the normative, areas of thought shaped in the United States by the philosophy of pragmatism which had a marginal influence in Europe; and the deep-seated rule-scepticism that defines much American thinking about the law but is not for the most part a feature of the European approach to the law in general and to international law in particular. Subject to the necessary cautions and disclaimers which must accompany any reflection on general trends in two large and heterogeneous intellectual communities, this analysis seeks to draw attention to these trends as illustrated in the recent work of Sands and Slaughter.
Sands, Philippe, Lawless Worlds: America and the Making and Breaking of Global Rules. London, New York: Allen Lane, 2005
Slaughter, Anne-Marie, New World Order. Princeton: Princeton University Press, 2004.
Book Review
International Responsibility Today: Essays in Memory of Oscar Schachter • L’émergence de la communauté internationale dans la responsabilité des Etats
Vincent-Joël Proulx