Pub Date : 2005-06-01DOI: 10.1163/1571804054968822
S. Verhoeven
Introduction The report of 29 november 2004 by the un secretary General’s High-level Panel on the Threats, Challenges and Change, entitled “a more secure world: Our shared responsibility,” examined publicly1 the new era in which the un has to function and how the understanding of the concept of security has broadened from the un’s inception in 1945. Today, a more holistic view of collective security includes within its scope poverty, diseases, failed states, terrorism, and environmental degradation. The Panel also studied the institutional adaptability of the un towards these new challenges, suggesting urgent reforms in some institutions to make the un more effective. some recommendations are innovative, radical or debatable, such as the proposed changes to the security Council and the un Commission on Human rights, and the proposed creation of a Peace Building Commission, which are the focus of the present contribution.
{"title":"The UN High-level Panel Report and the Proposed Institutional Reform of the UN: Would the UN be ready to face the New Challenges?","authors":"S. Verhoeven","doi":"10.1163/1571804054968822","DOIUrl":"https://doi.org/10.1163/1571804054968822","url":null,"abstract":"Introduction The report of 29 november 2004 by the un secretary General’s High-level Panel on the Threats, Challenges and Change, entitled “a more secure world: Our shared responsibility,” examined publicly1 the new era in which the un has to function and how the understanding of the concept of security has broadened from the un’s inception in 1945. Today, a more holistic view of collective security includes within its scope poverty, diseases, failed states, terrorism, and environmental degradation. The Panel also studied the institutional adaptability of the un towards these new challenges, suggesting urgent reforms in some institutions to make the un more effective. some recommendations are innovative, radical or debatable, such as the proposed changes to the security Council and the un Commission on Human rights, and the proposed creation of a Peace Building Commission, which are the focus of the present contribution.","PeriodicalId":148959,"journal":{"name":"International Law Forum Du Droit International","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116657805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-02-01DOI: 10.1163/1571804053742274
Campbell McLachlan
I. Of Practice and Principle The dramatic events in the recent case of Motorola Credit Corporation v. Uzan et al 1 demonstrate the global potency of provisional measures in modern international litigation. Following a multi-billion dollar default on its loans to a Turkish mobile telephone operator, Motorola brought a complaint of fraud against its Turkish partner’s owners to the Southern District of New York. It then pursued an application for a freezing injunction in support of the New York proceedings in England. Its coup de grâce was to seek enforcement of that order in Switzerland, a strategy which has now received the blessing of the Swiss Federal Supreme Court. The experience of this case could be multiplied many times from the law reports in both public and private international litigation. Very often the availability of provisional measures is of huge practical importance to the parties, and may be decisive of the outcome of the case. This is not only true of the large multi-jurisdictional commercial and fraud cases typified by the Motorola litigation. In international tribunals, too, the interim measures jurisdiction may overshadow the settlement of disputes on the merits, as the initial experience of the International Tribunal for the Law of the Sea demonstrates. It is doubtless true, as Jiménez de Aréchaga held in the Aegean Sea Continental Shelf case in the International Court of Justice, that the interim protection of rights is a general principle of law recognized by civilised nations:2
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Pub Date : 2005-02-01DOI: 10.1163/1571804053742229
Riikka Koskenmäki
The Inaugural Conference of the recently established European Society of International Law (ESIL)1 was held on 13-15 May 2004 in Florence in a troubling context: on the one hand, some international legal scholars consider that recent events, in particular the “War on terror” and the United States’ “intervention” in Iraq, have “threatened the integrity and relevance of international law.”2 On the other hand, the drafting process of the Constitution of the European Union reminds us of how heterogeneous Europeans are in terms of values and culture at large. Why, then, to establish a “European” Society of International Law? The theme of the opening session of the conference was, quite appropriately, the raison d’être of the new Society. For Judge Bruno Simma, one of ESIL’s founders and its President, being European is more “a state of mind” than a geographical notion. A call for an inclusive Society that recognises no geographical frontiers had indeed attracted a number of non-Europeans, mostly from the developed world, to the event.3 Coining the “European state of mind’, identity, or intuition, shared by such a heterogeneous audience proved, however, a challenging exercise:
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Pub Date : 2004-11-01DOI: 10.1163/1571804042341820
Doug Cassel
In three rulings on prolonged military detention of so-called “unlawful enemy combatants” in the “war” against terrorism, the United States Supreme Court in June 2004 shielded the rule of law from some of the more extreme excesses of the Bush Administration. However, the Court also yielded some ground and left open a number of troublesome questions. To appreciate the Court’s rulings, one need only contemplate the deep wound to the rule of law, had the Court sustained the Administration’s most sweeping – and chilling – assertion of executive power. Based on his authority as commander in chief of the military, the President claimed the right, without prior judicial authorization and without express constitutional or statutory authority, on the basis of secret intelligence information unseen by anyone outside the executive branch, to designate individuals he suspects of involvement in international terrorism as “enemy combatants,” and then to imprison them indefinitely, for as long as the “war” on terrorism may last, without criminal charges, access to lawyers or courts, due process of law or even status hearings under the Geneva Conventions. This presidential claim was not limited to persons captured on or near the battlefield in Afghanistan, but extended to the entire world. For example, among “enemy combatants” imprisoned at the United States Naval Base in Guantanamo Bay, Cuba, are individuals arrested far from any battlefield in West Africa and Bosnia-Herzegovina. Similarly, U.S. citizen Jose Padilla, imprisoned as an enemy combatant at a Navy brig in South Carolina, was originally arrested, unarmed and in civilian clothes, at a civilian airport in Chicago. This assertion by the chief executive of the global superpower of a right to imprison persons he deems enemy combatants indefinitely, without due process of law, would have seriously undermined, at least in the context of counter-terrorism measures, the fundamental international norm against prolonged arbitrary detention, embodied in such international human rights instruments as the International Covenant on Civil and Political Rights (art. 9) and in such humanitarian law
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Pub Date : 2004-11-01DOI: 10.1163/1571804042341785
Sir Robert Y. Jennings
My first acquaintance with law was when I started to read it as a freshman at Cambridge in October 1932. The first year then included, besides much Roman law, a course on “international relations” which still seems to me was a sensible preparation for international law in the second year. So I have been dealing with international law during a fair slice of the last hundred years. When I started on international law, I discovered that there were doubts whether it was properly “law” at all. The “jurisprudence” lecturer, who taught Austin, did not encourage respect for international law, and the then Cambridge international lawyers – with the exception of Arnold McNair – tended to be on the defensive. This was disturbing because, as a naïve “Mr.Verdant Green,” it had not even occurred to me that law professors might teach a law that was not law; until I heard one of them defending it, and that made me wonder. After all, at that time and on up to the end of the Second World War, international law was, like the leading text book, in two volumes. The international law of peacetime was in volume I. But any state might, in its sovereign discretion, declare war on another. Then one put volume I back on the shelf and took down volume II with its rules about war and neutrality. It is now not always easy to remember that this situation, give or take various feeble attempts at change, was the position until 1946.
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Pub Date : 2004-05-01DOI: 10.1163/1571804041349913
M. Lombard
Un grand commis de l’Etat au siècle de Louis XIV, Colbert, et un juge d’une cour d’appel des Etats-Unis au tournant du XXIème siècle, R.A.Posner, n’ont a priori rien de commun. Pourtant, le rapprochement, s’il peut paraître provocateur, n’est pas totalement incongru. Tant Colbert que Posner établissent en effet un lien entre le droit et l’économie tel que le premier, le droit, est analysé à travers son efficacité du point de vue de la seconde, l’économie, en particulier en termes de contribution à la maximisation de la richesse. Il existe une différence, certes -et elle est essentielleentre les théories économiques qui les inspirent, mercantilisme pour l’un, justifiant, voire imposant les interventions de l’Etat dans l’économie, individualisme néoclassique pour Posner et les études de « Law and Economics », ce qui suppose bien plutôt une liberté de choix de la part des acteurs économiques, non artificiellement entravée par l’Etat. Le colbertisme avait cependant déjà cette particularité de placer le droit au cœur de l’économie, et aussi, réciproquement, de mettre l’économie au centre des préoccupations de l’Etat, perçu alors comme seule entité légitime d’expression du droit. Il eût donc été possible de s’attendre, dans le pays de Colbert, à ce qu’une tradition d’intérêt des juristes français, notamment de droit public, pour l’économie s’installe, voire perdure par delà les transformations de la société au cours des siècles suivants, et qu’ une place soit faite dans leurs travaux à une forme d’analyse économique du droit, même s’il était légitime de penser qu’elle reposerait sur des bases différentes de ce que seront plus tard les travaux de « Law and Economics ». Pourtant, ce dialogue reposant sur des intérêts croisés entre juristes et économistes n’a pas eu lieu, en réalité, en France. Ce qui caractérise même, de nos jours, la littérature juridique française, notamment mais pas exclusivement en droit public, est le plus souvent une indifférence -voire une allergie revendiquée comme telleà tout ce qui s’apparente à l’analyse économique du droit. Il est d’ailleurs remarquable de constater que les quelques travaux en langue française en la matière sont essentiellement l’œuvre non pas de juristes français mais d’économistes, ou encore
路易十四世纪的伟大国家官员科尔伯特和21世纪初的美国上诉法院法官波斯纳显然没有任何共同之处。然而，尽管这种和解可能看起来具有挑衅性，但并非完全不协调。事实上，科尔伯特和波斯纳都在法律和经济之间建立了联系，前者，法律，从后者，经济的角度分析其有效性，特别是在对财富最大化的贡献方面。固然是有区别的,而且它是essentielleentre重商经济理论的启发,为理由之一,甚至要求国家对经济的干预,为Posner)和新古典主义研究»«Law and Economics,相反这一选择的自由,经济主体而言,非人工受阻的州。然而，科尔伯特主义已经有了将法律置于经济核心的特点，同时也将经济置于国家关注的中心，当时国家被视为表达法律的唯一合法实体。因此仿佛被该国可以预料,科尔伯特,这只关心传统的法国法学家、包括公法来贩售,甚至超越持续经济社会的变化在接下来的几个世纪里,而且在其工作中占有一席之地的伸张法律的经济分析的一种形式,思维,即使是合法的,它将在不同的基础上,将最晚工作»«Law and Economics。然而，这种基于法学家和经济学家相互利益的对话在法国实际上并没有发生。如今，法国法律文学的特点，尤其是但不完全是公法，往往是对所有与法律经济分析有关的东西漠不关心，甚至是过敏。此外，值得注意的是，关于这一主题的少数法语著作主要不是由法国法学家编写的，而是由经济学家编写的
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Pub Date : 2004-02-01DOI: 10.1163/157180404773166019
Frances Meadows
History When parties to an international convention undertake to make certain types of behaviour a criminal offence within their own countries, this will, almost irrespective of constitutional variations, require to be implemented by national legislation. Such is the case with Article 1 of the 1997 OECD Convention on Combating Bribery of Foreign Public Of cials in International Business Transactions (the “OECD Convention”). Parties are required to “take such measures as may be necessary to establish that it is a criminal offence (...) for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public of cial (...) in order to obtain or retain business or other improper advantage in the conduct of international business”. The article goes on to provide an autonomous de nition of what, for the purposes of the Convention, constitutes a “foreign public of cial”, though there is no express obligation to adopt the de nition as such. The parties to the OECD Convention, including member states of the OECD as well as other signatories, undertake to submit to a process of monitoring, in the form of peer review of their compliance. Peer review mechanisms, to date used mostly in the consensus-based OECD context, can provide a valuable tool for encouraging and assisting in the implementation of international obligations in national law. In the case of the OECD Convention, this review comprises two phases: in the rst, each country’s implementing legislation is examined to ensure that its criminal provisions ful l the speci c requirements as to the elements of the offence; the second phase examines the implementation in practice of the legislation. When the United Kingdom underwent Phase 1 of the monitoring process, the OECD Working Group on Bribery noted certain de ciencies in the state of the UK law as it then existed, and recommended reforms. After the enactment of the Anti-Terrorism, Crime and Security Act 2001, Part 12 of which dealt speci cally with foreign bribery, a further “Phase 1 bis” review was conducted. This second review found that, when taken together, the UK bribery laws now in force covered the required elements of the offence. However, the Working Group was still concerned about the fragmented and inconsistent nature of the UK law. It is, still, a less than coherent mix of common law and statutes, some of them antiquated, which are too confusing to lend themselves to easy enforcement. The UK Law
{"title":"The International Law-Making Process: An Innovative UK Practice and Its Use in Transposing International Norms into Domestic Law","authors":"Frances Meadows","doi":"10.1163/157180404773166019","DOIUrl":"https://doi.org/10.1163/157180404773166019","url":null,"abstract":"History When parties to an international convention undertake to make certain types of behaviour a criminal offence within their own countries, this will, almost irrespective of constitutional variations, require to be implemented by national legislation. Such is the case with Article 1 of the 1997 OECD Convention on Combating Bribery of Foreign Public Of cials in International Business Transactions (the “OECD Convention”). Parties are required to “take such measures as may be necessary to establish that it is a criminal offence (...) for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public of cial (...) in order to obtain or retain business or other improper advantage in the conduct of international business”. The article goes on to provide an autonomous de nition of what, for the purposes of the Convention, constitutes a “foreign public of cial”, though there is no express obligation to adopt the de nition as such. The parties to the OECD Convention, including member states of the OECD as well as other signatories, undertake to submit to a process of monitoring, in the form of peer review of their compliance. Peer review mechanisms, to date used mostly in the consensus-based OECD context, can provide a valuable tool for encouraging and assisting in the implementation of international obligations in national law. In the case of the OECD Convention, this review comprises two phases: in the rst, each country’s implementing legislation is examined to ensure that its criminal provisions ful l the speci c requirements as to the elements of the offence; the second phase examines the implementation in practice of the legislation. When the United Kingdom underwent Phase 1 of the monitoring process, the OECD Working Group on Bribery noted certain de ciencies in the state of the UK law as it then existed, and recommended reforms. After the enactment of the Anti-Terrorism, Crime and Security Act 2001, Part 12 of which dealt speci cally with foreign bribery, a further “Phase 1 bis” review was conducted. This second review found that, when taken together, the UK bribery laws now in force covered the required elements of the offence. However, the Working Group was still concerned about the fragmented and inconsistent nature of the UK law. It is, still, a less than coherent mix of common law and statutes, some of them antiquated, which are too confusing to lend themselves to easy enforcement. The UK Law","PeriodicalId":148959,"journal":{"name":"International Law Forum Du Droit International","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128729586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2003-11-01DOI: 10.1163/138890303322539975
E. Hey
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Pub Date : 2003-11-01DOI: 10.1163/138890303322540018
L. B. D. Chazournes
There are various ways of assessing the importance of Resolution 1483 (2003), adopted on 22 May 2003 in the aftermath of very troubling times for the international community. The US, the United Kingdom and a group of other states had conducted a war in Iraq the end-result of which was the falling apart of the regime led by Saddam Hussein. The United Nations system had been put aside during that period because of strong discord among member states with respect to the necessity and the legality of resorting to force. It is not the purpose of this contribution to enter into the debate on legality versus illegality of the resort to force in this con ict, or on the relationship between legality and legitimacy, where the latter concept is used to justify the use of force because of the “unacceptable” consequences of not doing so. The war has put the well-being of the international system itself and its governance regime for collective security issues under severe strain and this effect is not going to disappear overnight. The founders of the UN system had put in place a regime for maintaining international peace and security. One of its main axes was the prevention to resort to force, except in very speci c circumstances. The Security Council (SC) was to be at the heart of this regime and was equipped with decision-making and enforcement powers. Practice had already eroded some of the contours of this regime. However the great divide among the SC member states during the Iraqi crisis and the fact that a coalition of states went ahead, supposedly on legal grounds, shook it to its foundations. The result was the irrelevance of the UN in the conduct of the hostilities as well as its marginalization in the rebuilding of Iraq in the aftermath of the con ict.
{"title":"The United Nations on Shifting Sands: About the Rebuilding of Iraq","authors":"L. B. D. Chazournes","doi":"10.1163/138890303322540018","DOIUrl":"https://doi.org/10.1163/138890303322540018","url":null,"abstract":"There are various ways of assessing the importance of Resolution 1483 (2003), adopted on 22 May 2003 in the aftermath of very troubling times for the international community. The US, the United Kingdom and a group of other states had conducted a war in Iraq the end-result of which was the falling apart of the regime led by Saddam Hussein. The United Nations system had been put aside during that period because of strong discord among member states with respect to the necessity and the legality of resorting to force. It is not the purpose of this contribution to enter into the debate on legality versus illegality of the resort to force in this con ict, or on the relationship between legality and legitimacy, where the latter concept is used to justify the use of force because of the “unacceptable” consequences of not doing so. The war has put the well-being of the international system itself and its governance regime for collective security issues under severe strain and this effect is not going to disappear overnight. The founders of the UN system had put in place a regime for maintaining international peace and security. One of its main axes was the prevention to resort to force, except in very speci c circumstances. The Security Council (SC) was to be at the heart of this regime and was equipped with decision-making and enforcement powers. Practice had already eroded some of the contours of this regime. However the great divide among the SC member states during the Iraqi crisis and the fact that a coalition of states went ahead, supposedly on legal grounds, shook it to its foundations. The result was the irrelevance of the UN in the conduct of the hostilities as well as its marginalization in the rebuilding of Iraq in the aftermath of the con ict.","PeriodicalId":148959,"journal":{"name":"International Law Forum Du Droit International","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126124796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2003-02-01DOI: 10.1163/157180403100411833
G. Hazard,
Introduction In logical and formal legal terms, the concept of compensation for victims of historical crimes through civil legal proceedings is perfectly coherent and can be implemented in many legal systems with limited technical difficulties. Claims for compensation can be formulated in pleadings on the basis of substantive legal theorems recognized in virtually all modern legal systems. Problems of evidence can be accommodated by relaxation of the restrictions on “hearsay” evidence. Various procedural mechanisms exist in all modern legal systems by which claims of multiple claimants can be joined together in one action or by consolidation of separate proceedings. Adjustments in other procedural rules that formally are only minor ones would accommodate the claims. Hence, arguments questioning the legitimacy of claims for compensation for historical crimes cannot be intelligently addressed in terms of conventional legal analysis of judicial procedures. Instead, different terms of reference are required.
{"title":"Judicial Redress for Historical Crimes: Procedure","authors":"G. Hazard,","doi":"10.1163/157180403100411833","DOIUrl":"https://doi.org/10.1163/157180403100411833","url":null,"abstract":"Introduction In logical and formal legal terms, the concept of compensation for victims of historical crimes through civil legal proceedings is perfectly coherent and can be implemented in many legal systems with limited technical difficulties. Claims for compensation can be formulated in pleadings on the basis of substantive legal theorems recognized in virtually all modern legal systems. Problems of evidence can be accommodated by relaxation of the restrictions on “hearsay” evidence. Various procedural mechanisms exist in all modern legal systems by which claims of multiple claimants can be joined together in one action or by consolidation of separate proceedings. Adjustments in other procedural rules that formally are only minor ones would accommodate the claims. Hence, arguments questioning the legitimacy of claims for compensation for historical crimes cannot be intelligently addressed in terms of conventional legal analysis of judicial procedures. Instead, different terms of reference are required.","PeriodicalId":148959,"journal":{"name":"International Law Forum Du Droit International","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129978259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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