European Journal of International Law - current issue

Editorial

JHHW, — 2009-07-01

Universality of International Law from the Perspective of a Practitioner

Simma, B. — 2009-07-01

The ESIL Conference at which this article was originally presented as the Keynote Speech was devoted to the topic of "International Law in a Heterogeneous World". The article attempts to demonstrate that heterogeneity does not exclude the universality of international law, as long as the law retains – and further develops – its capacity to accommodate an ever larger measure of such heterogeneity. After developing three different conceptions, or levels, of what the term ‘universality’ of international law is intended to capture, the article focuses on international rules, (particularly judicial) mechanisms, and international institutions which serve the purpose of reconciling heterogeneous values and expectations by means of international law. The article links a critical evaluation of these ways and means with the different notions of universality by inquiring how they cope with the principal challenges faced by these notions. In so doing, it engages a number of topics which have become immensely popular in contemporary international legal writing, here conceived as challenges to universality: the so-called ‘fragmentation’ of international law; in close connection with this first buzzword the challenges posed by what is called the ‘proliferation’ of international courts and tribunals; and, finally, certain recent problems faced by individuals who find themselves at the fault lines of emerging multi-level international governance. The article concludes that these challenges have not prevented international law from forming a (by and large coherent) legal system. Most concerns about the dangers of fragmentation appear overstated. As for the ‘proliferation’ of international judicial institutions, the debate on fragmentation has made international judges even more aware of the responsibility they bear for a coherent construction of international law. They have managed to develop a set of tools for coping with the undesirable results of both phenomena. Despite some evidence of competition among international courts for ‘institutional hegemony’, such competition has hitherto been marked by a sense of responsibility on the part of all concerned. Thus, from the viewpoint of a practitioner, the universality of international law is alive and well; there is no need to force the law into the Procrustean bed of ‘constitutionalization’.

Close Encounters of a Sovereign Kind

Kritsiotis, D. — 2009-07-01

This article considers the prominence that threats of force have had in international political life since the end of the Cold War, and how we tend to overlook these threats in favour of the actual uses of force. Security Council Resolution 678 of November 1990 is one such example. Emblematic of the rule of law and its New World Order, it is often invoked for the ‘authorisation’ it gave to Member States of the United Nations ‘co-operating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area’ – but this provision was made contingent upon whether ‘Iraq on or before 15 January 1991 fully implements [previous] resolutions’. We examine the range of circumstances in which threats of force have arisen and find that these go beyond the archetypal ‘close encounter’ between states – such as the Cuban Missile Crisis of 1962 and the ‘threats of force’ directed against Iraq prior to Operation Desert Fox (1998) and Operation Iraqi Freedom (2003). Making use of the jurisprudence of the International Court of Justice from its Nuclear Weapons advisory opinion (1996), we advance the idea of a prohibition of the application of force, and consider the logistics of its operation in state practice; first, in the recent relations between the United States and Iran and, then, through a modern reprise of the facts of the Corfu Channel Case of April 1949. We allude to the importance of the legislative background and purpose behind this prohibition, constantly reflecting upon the intricacies of state relations in which this provision of the United Nations Charter seeks to make its mark.

The Rise of International Criminal Law: Intended and Unintended Consequences

Anderson, K. — 2009-07-01

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.

The Use of Force against Terrorists

Tams, C. J. — 2009-07-01

Whether states can use force against terrorists based in another country is much discussed. The relevant provisions of the UN Charter do not provide a conclusive answer, but have to be interpreted. The present article suggests that in the course of the last two decades, the Charter regime has been re-adjusted, so as to permit forcible responses to terrorism under more lenient conditions. In order to illustrate developments, it juxtaposes international law as of 1989 to the present state of the law. It argues that the restrictive approach to anti-terrorist force obtaining 20 years ago has come under strain. As far as collective responses are concerned, it is no longer disputed that the Security Council could authorize the use of force against terrorists; however, it has so far refrained from doing so. More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.

Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia

Treves, T. — 2009-07-01

Attacks against ships off the coast of Somalia have brought piracy to the forefront of international attention, including that of the Security Council. SC Resolution 1816 of 2008 and others broaden the scope of the existing narrow international law rules on piracy, especially authorizing certain states to enter the Somali territorial waters in a manner consistent with action permitted on the high seas. SC resolutions are framed very cautiously and, in particular, note that they ‘shall not be considered as establishing customary law’. They are adopted on the basis of the Somali Transitional Government's (TFG) authorization. Although such authorization seems unnecessary for resolutions adopted under Chapter VII, there are various reasons for this, among which to avoid discussions concerning the width of the Somali territorial sea. Seizing states are reluctant to exercise the powers on captured pirates granted by UNCLOS and SC resolutions. Their main concern is the human rights of the captured individuals. Agreements with Kenya by the USA, the UK, and the EC seek to ensure respect for the human rights of these individuals surrendered to Kenya for prosecution. Action against pirates in many cases involves the use of force. Practice shows that the navies involved limit such use to self-defence. Use of force against pirates off the coast of Somalia seems authorized as an exception to the exclusive rights of the flag state, with the limitation that it be reasonable and necessary and that the human rights of the persons involved are safeguarded.

Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation

Clark, J. N. — 2009-07-01

To date, 20 defendants at the International Criminal Tribunal for the former Yugoslavia (ICTY) have pleaded guilty. Such guilty pleas have generally been accepted by the Trial Chambers as mitigating circumstances on the grounds, inter alia, that they can facilitate reconciliation in the former Yugoslavia. Yet as these guilty pleas are frequently induced through plea bargains, in which important concessions are accorded to defendants, this necessarily raises fundamental questions about whether guilty pleas can and do in fact foster reconciliation. The purpose of this article, therefore, is to explore this posited link between guilty pleas and reconciliation which, in turn, is one dimension of the broader linkage that the Tribunal makes between its work and reconciliation. It will focus on two particular claims made by the Tribunal – that guilty pleas aid reconciliation by helping to establish the truth and that when defendants acknowledge responsibility for their crimes, this may help to provide victims with closure. It will seek to demonstrate that both of these assertions are flawed, and will conclude by addressing some of the broader issues and questions raised by the ICTY's use of plea bargains, in particular the critical relationship between plea bargains and outreach work.

Incomplete Internalization and Compliance with Human Rights Law: A Reply to Ryan Goodman and Derek Jinks

Mushkat, R. — 2009-07-01

Incomplete Internalization and Compliance with Human Rights Law: A Rejoinder to Roda Mushkat

Goodman, R., Jinks, D. — 2009-07-01

Passions et ambivalences. Le colonialisme, le nationalisme et le droit international

Delcourt, B. — 2009-07-01

Targeted Killing in International Law

Abresch, W. — 2009-07-01

Trafficking in Human Beings: Modern Slavery

Allain, J. — 2009-07-01

The United Nations Convention Against Torture. A Commentary * Commentary on the Rome Statute of the International Criminal Court. Observers' Notes, Article by Article

Orakhelashvili, A. — 2009-07-01

International Institutional Veil in Public International Law. International Organisations & the Law of Treaties

Schmalenbach, K. — 2009-07-01

Culture and International Law

Sberro, S. — 2009-07-01

Constitutional Politics in the Middle East

Moschtaghi, R. — 2009-07-01

Principles of International Investment Law

Schill, S. W. — 2009-07-01

Trade Imbalance: The Struggle to Weigh Human Rights Concerns in Trade Policymaking

Jodoin, S. — 2009-07-01

At the Crossroads: The World Trading System and the Doha Round

Marshall, F. E. — 2009-07-01

The WTO, Animals and PPMs

Vranes, E. — 2009-07-01

Democratie, coherence et transparence. Vers une constitutionnalisation de l'Union europeenne?

Vara, J. S. — 2009-07-01

Equality Law in an Enlarged European Union. Understanding the Article 13 Directives

Kochenov, D. — 2009-07-01

Books Received

2009-07-01