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10601. Attribution of Conduct in Peace Operations: The 'Ultimate Authority and Control' Test

Author:
Kjetil Mujezinovic Larsen
Publication Date:
06-2008
Content Type:
Journal Article
Abstract:
The article addresses the issue of whether conduct in international peace operations is attributable to the troop contributing states or to the United Nations, taking the European Court of Human Rights' admissibility decision in the Behrami and Saramati cases as a point of reference. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attributable to the United Nations. The article examines the content of the 'ultimate authority and control' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view difficult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's decision, when seen in connection with previous case law, in practice renders the European Convention on Human Rights irrelevant in international peace operations.
Topic:
Human Rights, International Organization, and United Nations
Political Geography:
Europe

10602. Terrorist Crimes and International Co-operation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes

Author:
Marcello Di Filippo
Publication Date:
06-2008
Content Type:
Journal Article
Abstract:
Notwithstanding the emphasis placed on the need for concerted international action to confront the problem of terrorism, positive international law is far from treating the issue of defining the criminal notion of terrorism coherently; the discussion of such a notion is being made hostage [sic!] to the abuse of the term 'terrorism' in the course of the debate and to the confusion between an empirical description of a phenomenon and its treatment under criminal law. Proposing a core-definition approach, this article elaborates a notion based upon the basic rights of civilians and on the unacceptability of their violation by terrorist methods carried out by private organized groups. The definition proposed here, which does not recognize in the perpetrator's motivations any material relevance because of the overwhelming importance of the value infringed, is able to minimize the relevance of some abused arguments (such as state terrorism or the treatment of 'freedom fighters'), could quickly gain customary status and would prove useful in interpretation and in drafting exercises, both at international and national level. As for the inclusion of terrorism in the category of international crimes, it is submitted that two interpretive options are open: to consider the category of crimes against humanity as already able to embrace core terrorism; or to place the strong rationale underlying the stigmatization of terrorist crimes in the perspective of the gradual emerging of a discrete international crime of terrorism. National case law seems to point to the latter option, but the question does not appear settled: for this reason, the discussion regarding the prospect of an amendment to the ICC Statute expressly to include terrorist crimes continues to be of interest. An express inclusion could be useful to avoid doubts or discrepancies at national level and to solve some outstanding issues of the international community's criminal policy.
Topic:
International Cooperation, Terrorism, and Law

10603. Overcoming Jurisdictional Isolationism at the WTO–FTA Nexus: A Potential Approach for the WTO

Author:
Caroline Henckels
Publication Date:
06-2008
Content Type:
Journal Article
Abstract:
The proliferation of free trade agreements which share dispute settlement jurisdiction with the WTO has added to claims of disintegration within international trade law. Recent WTO jurisprudence is indicative of the limits of WTO members' ability to invoke provisions of an FTA as a 'jurisdictional defence' where the dispute implicates trade measures under both WTO and FTA rules. Such uncertainty in the law has the potential not only to create issues of incoherent jurisprudence, but also to threaten the stability and predictability of the multilateral trading system. These issues are likely to continue to arise as FTAs continue to grow in abundance while the Doha round is stalled. Based on analysis of a selection of state-state disputes before other fora such as the International Court of Justice, this article argues that in the interest of the effective administration of justice, the WTO's judicial organ should use its inherent power of comity to decline to exercise jurisdiction so that the dispute can be resolved by an FTA tribunal where a dispute is inextricably connected with a dispute under an FTA and that exercising jurisdiction would not be reasonable in the circumstances.
Topic:
World Trade Organization

10604. Some Thoughts on the Making of International Law

Author:
Arnold N. Pronto
Publication Date:
06-2008
Content Type:
Journal Article
Abstract:
In their timely and thought-provoking book, Alan Boyle and Christine Chinkin explore contemporary methods of making international law. With the expansion of international law, and its increased specialization, it is no longer the case that it is 'made' by a finite number of entities (states) through a handful of intergovernmental processes. Instead, international law is made in a large number of for a, including a variety of multilateral processes, tribunals and the organs of international organizations. In addition, although states remain the primary makers of international law, they are joined by other participants such as international organizations and judges, as well as entities which are influential in the making of international law, including non-governmental organizations and even individuals. The authors' approach is to seek to draw generalized inferences from an analysis of the processes, both within and beyond the United Nations, which led to the adoption (or not) of several significant international instruments and other documents. Although their treatment of the subject-matter is not without its difficulties, it nonetheless provides a useful overview, which should be of interest to the academic and practitioner alike. The book is also significant for the fact that, in reviewing the range of modern international law instruments, the authors inadvertently provide an insight into the modern sources of international law, particularly as regards the significance of the interplay between different types of law-making instruments. The present writer offers his perspective on the treatment of the question of participation in international law-making, the impact of NGOs in the making of international law, consensus-based decision-making, the role of innovation in securing consensus, and the concept of 'soft law'.

10605. Human Dignity and Judicial Interpretation of Human Rights

Author:
Christopher McCrudden
Publication Date:
09-2008
Content Type:
Journal Article
Abstract:
The Universal Declaration on Human Rights was pivotal in popularizing the use of 'dignity' or 'human dignity' in human rights discourse. This article argues that the use of 'dignity', beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common understanding of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context-specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to significant judicial manipulation, increasing rather than decreasing judicial discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of substantive interpretations of human rights guarantees which appear to be intentionally, not just coincidentally, highly contingent on local circumstances. Despite that, however, I argue that the concept of 'human dignity' plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication.

10606. Incomplete Internalization and Compliance with Human Rights Law

Author:
Ryan Goodman and Derek Jinks
Publication Date:
09-2008
Content Type:
Journal Article
Abstract:
In earlier work, we argue that acculturation is a distinct social process by which international law influences states and that human rights law might harness this mechanism in designing effective global regimes. In this article, we consider an important objection to our work. The concern is whether acculturation institutionalizes non-compliance. The growing body of empirical evidence for global-level acculturation, in part, documents persistent forms of decoupling - suggesting that formal commitments to global culture often fail to change concrete practices of local actors. In the human rights context, this is particularly troubling, given the prevalence of seemingly disingenuous acceptance of human rights instruments by states with poor human rights records. Many critics suggest, and understandably so, that acculturation should not guide the design of international human rights regimes since any such regime would promote only shallow reforms - further entrenching the gap between formal commitments and actual practices. The problem with human rights law, on this view, is that it is under-enforced - not that it is insufficiently acculturative. In reply, we argue that acculturation generally does not impede progress toward deeper reform and, indeed, will often facilitate it.

10607. Human Rights as International Constitutional Rights

Author:
Stephen Gardbaum
Publication Date:
09-2008
Content Type:
Journal Article
Abstract:
The Universal Declaration was, of course, the first of the three global international human rights instruments which have collectively come to be known as the International Bill of Rights. Very often, however, this latter term appears within quotation marks or is prefaced by the qualifying phrase, 'so-called', signalling that there are serious, although mostly unexplored, questions about the validity of the implied comparison with domestic bills of rights. In this article, I treat the anniversary as an occasion to take stock by exploring these questions and making the comparison express. I do so by considering the two parts of the term separately. First, regarding 'bill of rights', what are the similarities and differences between the UDHR, ICCPR, and ICESCR on the one hand and domestic bills of rights on the other? In particular, to what extent or in what sense, if any, has international human rights law become constitutionalized and, thereby, similar and closer to most domestic bills of rights? Secondly, regarding 'international', do the major international human rights instruments simply duplicate domestic bills of rights or provide a generally inferior substitute for them where unavailable - as a certain strand of human rights scepticism suggests? Or do they perform any distinctive functions over and above domestic bills of rights that make a novel and unique contribution to the development of constitutionalism?

10608. Human Rights, International Economic Law and 'Constitutional Justice'

Author:
Ernst-Ulrich Petersmann
Publication Date:
09-2008
Content Type:
Journal Article
Abstract:
According to J. Rawls, 'in a constitutional regime with judicial review, public reason is the reason of its supreme court'; it is of constitutional importance for the 'overlapping, constitutional consensus' necessary for a stable and just society among free, equal, and rational citizens who tend to be deeply divided by conflicting moral, religious, and philosophical doctrines. The European Court of Justice (ECJ), the European Court of Human Rights (ECtHR), and the European Free Trade Area (EFTA) Court successfully transformed the intergovernmental European Community (EC) treaties and the European Convention on Human Rights (ECHR) into constitutional orders founded on respect for human rights. Their 'judicial constitutionalization' of intergovernmental treaty regimes was accepted by citizens, national courts, parliaments, and governments because the judicial 'European public reason' protected more effectively individual rights and European 'public goods' (like the EC's common market). The 'Solange method' of cooperation among European courts 'as long as' constitutional rights are adequately protected reflects an 'overlapping constitutional consensus' on the need for 'constitutional justice' in European law. The power-oriented rationality of governments interested in limiting their judicial accountability is increasingly challenged also in worldwide dispute settlement practices. Judicial interpretation of intergovernmental rules as protecting also individual rights may be justifiable notably in citizen-driven areas of international economic law protecting mutually beneficial cooperation among citizens and individual rights (e.g. of access to courts). Multilevel economic, environmental, and human rights governance can become more reasonable and more effective if national and international courts cooperate in protecting the rule of international law for the benefit of citizens (as 'democratic principals' of governments) with due regard for human rights and their constitutional concretization in national and international legal systems.
Topic:
Government
Political Geography:
Europe

10609. Carving up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface

Author:
Thomas Schultz
Publication Date:
09-2008
Content Type:
Journal Article
Abstract:
The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.
Topic:
International Law

10610. Gender Equality Jurisprudence of the European Court of Human Rights

Author:
Ivana Radacic
Publication Date:
09-2008
Content Type:
Journal Article
Abstract:
The European Court of Human Rights has recently proclaimed gender equality as one of the key underlying principles of the Convention. However, the Court's jurisprudence has been largely impotent in challenging gender discrimination in the member states. This article explores the reasons why this is so by analysing Article 14 sex discrimination jurisprudence and the application of the principle of gender equality in the 'Islamic headscarf' cases. The author argues that reasons lie in the Court's formalistic conceptualization of discrimination, and simplistic and paternalistic understanding of gender equality, which is insensitive to intersectionality of discrimination. The author proposes an understanding of gender equality as challenging (multiple and intersectional) forms of disadvantage. Under this approach, the question in equality jurisprudence would not be whether there was unjustified differential treatment, but rather whether the law or practice at issue perpetuated or produced subordination of women (as defined by other identity characteristics) and unequal gender (and other) relations.
Political Geography:
Europe