Showing papers in "European Journal of International Law in 2004"

International Institutions Today: An Imperial Global State in the Making

Abstract: The article argues that a growing network of international institutions — economic, social, and political — constitute a nascent global state, whose current task is to realize the interests of an emerging transnational capitalist class in the international system to the disadvantage of subaltern classes in the third and first worlds. The evolving global state formation can therefore be described as having an imperial character. Underpinning the emerging imperial global state is a web of sub-national authorities and spaces that represent, along with non-governmental organizations, its decentralized face. These developments, it is contended, seriously undermine substantive democracy at both inter-state and intra-state levels. Eight possible objections to the thesis that a nascent global state having an imperial character has evolved are next considered and rejected. The concluding section briefly explores the question as to whether international institutions can be reformed, the vision that should inform change, and some concrete proposals in this regard. It argues the case for a complex internationalism in which statist reforms are necessary in the short and medium terms. These reforms can only be brought about by a powerful global social movement.

‘Core Labour Standards’ and the Transformation of the International Labour Rights Regime

Abstract: A person's enthusiasm for the protection of labour rights through the EU's foreign and trade policy is tempered by two factors. First, he/she is aware that the protection of labour rights in external relations can quickly generate suspicions of protectionism, and, that where this is indeed the case such protectionism can be challenged as illegal in the context of the international trade regime, the suspicions of representatives of non-EU countries that initiatives aimed at linking trade to labour rights are fuelled by the desire to protect European businesses from competition must be taken seriously. Second, simply taking a 'rights-based approach' does not provide easy answers in the context of the EU's complex legal order, there is a very real risk that competing rights claims may arise at the national and at the international levels. Keywords: European Union (EU); external trade; labour rights; protectionism

The Legitimacy of International Law: A Constitutionalist Framework of Analysis

Abstract: Does international law suffer from a legitimacy crisis? International law today is no longer adequately described or assessed as the law of a narrowly circumscribed domain of foreign affairs. Its obligations are no longer firmly grounded in the specific consent of states and its interpretation and enforcement is no longer primarily left to states. Contemporary international law has expanded its scope, loosened its link to state consent and strengthened compulsory adjudication and enforcement mechanisms. This partial emancipation from state control means that domestic accountability mechanisms are becoming ineffective as a means to legitimate international law. Correspondingly, the legitimacy of international law is increasingly challenged in domestic settings in the name of democracy and constitutional self- government. This article addresses this challenge. It develops a constitutionalist model for assessing the legitimacy of international law that takes seriously the commitments underlying constitutional democracy. At the heart of this model are four distinct concerns, each captured by a distinct principle. These principles are the formal principle of international legality, the jurisdictional principle of subsidiarity, the procedural principle of adequate participation and accountability as well as the substantive principle of achieving outcomes that are not violative of fundamental rights and are reasonable. Such a framework provides a middle ground between national and international constitutionalists. Whereas the former sometimes suggest that any law not sufficiently connected to domestic legal actors is suspect legitimacy-wise, the latter tend to underplay what is lost democracy-wise as decision-making is ratcheted up from the national to the international level.

Silencing Hearings? Victim- Witnesses at War Crimes Trials

Abstract: It is commonly accepted that war crimes trials should provide a space for victims to tell their stories. A close reading of the transcripts of victim-witnesses' testimonies in the Krstic trial at the International Criminal Tribunal for the former Yugoslavia suggests, however, that war crimes trials effectively silence, rather than hear, victims. In this particular trial, victim-witnesses predictably governed neither the agenda nor the pace of the hearings. More problematically, we argue that incongruously optimistic judicial remarks unnecessarily denied their suffering. On a different plane, victims' testimonies were only vaguely connected to the person of the accused; they related to facts the relevance and proof of which are debatable. This article aims to generate a debate about victim-witnesses' testimonies at war crimes trials. It seeks to identify both the demands that the legal process imposes on victim-witnesses and the tensions that arise out of their participation in it. In the light of the fact that legal proceedings cannot produce the definitive collective memory of the events with which they deal, the article finally stresses the need to foster a variety of collective memories outside the judicial platform.

United States Hostility to the International Criminal Court: It’s All About the Security Council

Abstract: The now abundant literature on the hostility of the United States towards the International Criminal Court speaks to the litany of criticisms invoked by Washington, from the vulnerability of American nationals to prosecution to such issues as the lack of trial by jury. But these so-called shortcomings are also features of the international tribunals to which the United States has accorded enthusiastic support, from Nuremberg and Tokyo to the more recent generation. Had the 1994 draft of the International Law Commission remained more or less intact, it is likely that today the United States would be a keen supporter of the Court. The distinctions between the 1994 draft and the final version of the Rome Statute unlock the mystery of United States opposition. At the heart of the changes during the four-year drafting process is the relationship between the Court and Security Council. The ILC had conceived of what was in effect a permanent ad hoc tribunal, perfectly subordinate to the Security Council and interlocked with the Charter of the United Nations. But the drafters adjusted this conception, with the result that the Court has significant independence from the Security Council, notably with respect to the triggering of prosecutions, the deferral of cases and the definition of aggression.

The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law

Abstract: The article explores the validity of the Furundzija dictum in accordance with which jus cogens has to bind the state in its treaty relations and with respect to acts of the legislature, executive and judiciary. It mainly focuses on the implications of the prohibition of torture as a limitation to the national (constitutional) legislative process (an 'internal manifestation' of jus cogens), as well as to national legislation pertaining to sovereign immunity (an 'external manifestation' of jus cogens). The article also gives some indication of the role of jus cogens in determining the applicable law in conflict of law disputes and in fulfilling the double criminality requirement in extradition proceedings. In the process, it reflects the highly complicated nature between jus cogens and national law. For example, whereas the 'internal manifestation' can result in a strengthening of international norms within the national legal order, the 'external manifestation' has the potential to undermine the binding character of general international law, or even destabilize the international legal order itself. The article also exposes an emerging hierarchy of norms in international law, which is underpinned by a deepening of the international consensus pertaining to the content and hierarchical order of the international value system.

The Truth in Autonomous Concepts: How To Interpret the ECHR

Abstract: This paper addresses the role of the European Court of Human Rights in interpreting the European Convention on Human Rights and attacks the standard image in the literature that pictures judges as having, by default, a great amount of discretion in interpretation and a power to create new law. The Court's notion of 'autonomous concepts' is presented and analysed thoroughly, to show that substantive disagreement is widespread in law and that judges must necessarily make choices precisely out of respect for what the ECHR grants. The paper draws resources from Ronald Dworkin's philosophy and shows the affinities between the theory of 'autonomous concepts' and Dworkin's 'semantic sting' argument. It is argued that all concepts in the ECHR are autonomous, in the following two senses: first, people do not share the same linguistic criteria on how to identify their meaning; second, the correct meaning may radically transcend the way the ECHR concepts are classified and understood within the national legal order. Judges therefore have to construct substantive theories that aim at capturing the nature or purpose of the right involved and of the ECHR more generally. The paper concludes by urging scholars and judges to stop raising the threat of judicial discretion and work out general theories of adjudication for the ECHR.

Still Hazy after All These Years: The Interpretation of National Treatment in the GATT/WTO Case-law on Tax Discrimination

Abstract: This article discusses the National Treatment (NT) obligation as applied in the GATT tax discrimination cases. The central thesis of the paper is that case-law has not clarified the interpretation of the terms in Article III. It appears that the reason for this failure is the lack of a conceptually coherent view of the role of the NT obligation. After summarizing the case-law on discriminatory taxation, this article lays out a theory of the role of NT in trade agreements, in order to shed light on appropriate interpretations of the terms appearing in Article III. We start from the notion that the GATT is an obligationally incomplete contract. This incompleteness invites beggar-thy-neighbour type behaviour, and the NT obligation is an imperfect remedy for such problems. We suggest that likeness/directly competitive or substitutable (DCS) should be determined 'in the market place', whereas the 'so as to afford protection' criterion is ultimately about the protection of expectations concerning the intent behind domestic regulations. But since intent usually cannot be determined directly, adjudicating bodies have to seek recourse to indirect evidence, as is frequently done in legal practice.

Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems

Abstract: Uncertainty abounds in international law and customary international law is no exception. This article seeks to delineate this uncertainty and explain its causes. Not only is there uncertainty surrounding the exact nature of the two elements considered necessary for custom-formation — state practice and opinio juris — we also do not know how custom-formation works. It is not clear what precisely 'state practice' is, nor do we know how we can have a belief that something is already law in order to create it. The particular uncertainties of customary international law point directly to systemic uncertainties at a higher level. Article 38 of the Statute of the International Court of Justice is convenient, but is it authoritative? What is the basis of our knowledge regarding customary law-making? This article argues that two commonly used approaches to provide a theoretical underpinning — deduction and induction — are fundamentally flawed in their pure forms. Their problems are alleviated, but not solved, by combining them. Without a dominant legal culture and without a written constitution to blind us to other possibilities, not even a pragmatic outlook can save us from uncertainty. However, even where the law is not disputed, it remains an ideal, not real. Law is based on the fiction that it exists.

The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?

Abstract: In 1995 the Council of Europe, as part of the revitalization process of the European Social Charter, adopted a Protocol providing for a system of collective complaints. The Protocol came into force in 1998. So far 23 complaints have been lodged under it. The aim of this article is to critically examine the practical operation of this collective complaints system during its first five years. After placing the system in a general human rights context by giving an overview of mechanisms for ensuring compliance with other treaties concerned with economic and social rights, the article then analyses the system for making collective complaints and its functioning in practice to date. The latter part of the article considers the likely utility and effectiveness of the system and concludes that without a major change in the practice hitherto of the Committee of Ministers, the system is unlikely to achieve its objectives.

International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO

Abstract: This article examines the relationship between 'negative' (market) and 'positive' (policy) integration in the European Union and the World Trade Organization. It does so in relation to trade in goods, and takes as its example the area of environmental law. It argues that the strong role accorded to instruments of policy coordination in the EU (through the adoption of European standards and harmonizing legislation) is tied to the fact that such measures are contestable, so that authority and contestability go hand in hand. Contestation proceeds by way of administrative and judicial channels, and serves to instil a measure of accountability and to protect diversity. In the WTO, by contrast, the Appellate Body has shown a marked reluctance to accord authority to international standards and — important developments in Shrimp/Turtle notwithstanding — deep uncertainty persists as to the relationship between the free movement norms and multilateral environmental agreements. This paper argues that in defining the role of these instruments, the Appellate Body would do well to regard their authority as contingent. In the WTO — as in the EU — contestability could contribute to ensuring forms of transnational governance which are more accountable and appropriately respectful of diversity. To the extent that contestability would seem to imply a quasi-review function for the Appellate Body, some might fear that this suggestion would feed the 'constitutionalization' of the WTO, by placing it in a position of supremacy vis-a-vis other regimes. This paper argues that this fear would be misplaced.

Globalization and Europe: How to Square Democracy, Globalization, and International Law

Abstract: Fundamental controversy reigns in Europe over how to understand globalization. This is particularly true with respect to globalization's impact on democracy. The spectrum of relevant diagnoses ranges from those which identify an extreme danger to democracy to others which find that democracy is undergoing a substantive strengthening. The spectrum of proposals is similarly divergent. Some recommend the acceptance of a loss of democracy, some call for national self-preservation, others advocate a global democratic federation. The paper provides a stocktaking from a European perspective of influential scholarly positions on the basis of categorized diagnoses and proposals, and examines their conceptions of the further development of international law. This project is carried out in three steps. The first step serves to outline the concepts of globalization and democracy. The second presents important conceptions relating to the impact of globalization on the reality of democracy in a world organized around statehood. The third step puts forward ideas for the protection and development of democracy in the process of globalization and relates them to conceptions on the future development of international law. The article concludes with perspectives for future research. 1 Project Fundamental controversy reigns in Europe over how to understand globalization. This is particularly true with respect to globalization's impact on democracy. The question of the fate of democracy within globalization encounters a number of most divergent descriptive and normative responses. The spectrum of relevant diagnoses ranges from those which identify an extreme danger to democracy to others which find that democracy is undergoing a substantive strengthening. The spectrum of

Arguments of Mass Confusion

Abstract: While public discourse has been correct to question the credibility of Operation Iraqi Freedom, it has demonstrated the extent to which international law remains exposed to a set of serious — and serial — confusions in terms of the justifications used for analysing where a given intervention stands as a matter of the jus ad bellum. These confusions have presented international law with an important methodological challenge and, to address this challenge, the essay returns to the jurisprudence of the Nicaragua case (1986), where it finds that the International Court of Justice outlined discrete principles for the identification and assessment of justifications for the application of force under international law. In its judgment, the Court distinguished between legal and political justifications for action, but it also recognized that states operate in formal and informal spheres of action. The principles form part of a coherent and viable framework for use beyond the four corners of the courtroom, in simulated scrutinizations of legal justifications given for the application of force. That framework is articulated and explained, before it is considered in the context of Operation Iraqi Freedom — where it provides us with a sense of how best to organize and evaluate the arguments made in defence of that intervention: the authorized enforcement of Security Council resolutions, the right of pre-emptive self-defence, humanitarian intervention and pro-democratic intervention. In the aftermath of Operation Iraqi Freedom, public discourse on both sides of the Atlantic has been consumed by the persistent claims of the humanitarian and political benefits derived from the change of regime in Baghdad as well as the integrity of intelligence information on ‘weapons of mass destruction’ that had precipitated the intervention against Iraq. Whereas the former consideration has been pressed into MFK-Mendip Job ID: 10126BK-0133-2 1 234 Rev: 26-04-2004 PAGE: 1 TIME: 14:23 SIZE: 61,11 Area: JNLS OP: XX EJIL 15/2 chg201 234 EJIL 15 (2004), 233–278 2 See Duffy and Carney, ‘A Question of Trust’, Time, 21 July 2003, 22. Not even the foremost internet search engine has been able to oblige: readers are advised to visit http://www.google.com and enter ‘weapons of mass destruction’ in the search bar, before clicking the ‘I’m Feeling Lucky’ icon. 3 Lowe, ‘The Iraq Crisis: What Now?’, 52 ICLQ (2003) 859, at 860–861. service by those who advocated Operation Iraqi Freedom, the latter consideration has been taken up and pursued by the critics of intervention — who have alleged that the very credibility of the intervention lies in terminal doubt by the subsequent (and ongoing) failure to retrieve weapons of mass destruction in Iraq. In these circumstances, it has proved difficult to resist the temptation to pair together these claims and establish a certain correlation or confluence between them — to construct some neat element of cause and effect between the absence of weapons of mass destruction in Iraq and the benefits of intervention as we come to mould our perceptions and understanding of the ‘justifications’ for Operation Iraqi Freedom under international law. ‘Weapons of mass destruction’ had, after all, become the forbidding clarion call for recourse to force on that occasion that now, in the immediate wake of intervention but still absent weapons of mass destruction in Iraq but also present regime change in Baghdad, what better raison d’etre to accompany military victory than to proclaim humanity’s and freedom’s own decisive triumph? Such impressions have become more and more pronounced within the realm of public discourse, but they have also begun to resonate within international law deliberations with their unceasing emphasis on a perpetual rotation of arguments in defence of intervention. As such, they have threatened to defer or frustrate substantive assessments on the lawfulness of Operation Iraqi Freedom, because the justifications for intervention have been made out to be moving or transcendental targets, enigmatic to the core and elusive to sustained examination. At other times, the justifications have been portrayed as operating in tandem with each other or, indeed, as running in to one another to the point where phenomenal uncertainty and confusion has gathered around the reference-point for calculating where Operation Iraqi Freedom stands as a matter of the jus ad bellum. To these seeds of confusion — or, perhaps, it could be said that as the root source of this confusion — it has not helped that, at different times and in different places, the arguments made in anticipation of Operation Iraqi Freedom underwent something of their own telling evolution. From President Bush’s commitment to expanding the boundaries of pre-emptive self-defence in a terror-struck world to the utilization of an intriguing complement of Security Council resolutions stretching as far back as 1990, we became perplexed spectators to the sport of nurturing different arguments as possible candidates for the legal justification of Operation Iraqi Freedom. Precisely how this evolution transpired, what its starting and ending coordinates were, and ascertaining whether these candidates for justification did indeed become the justifications for intervention are all questions calling out for further inquiry, but, before their details can be mastered in the fullness of time, we should at least be conscious of the narrative of nuance which they contribute to our proceedings. That narrative cannot afford to be missed if the complete tale is to be told but, critically, it is MFK-Mendip Job ID: 10126BK-0134-3 1 235 Rev: 27-03-2004 PAGE: 1 TIME: 07:12 SIZE: 61,11 Area: JNLS OP: CS EJIL 15/2 chg201 Arguments of Mass Confusion 235 4 See, in particular, Miller, ‘A Chronicle of Confusion in the Hunt for Hussein’s Weapons’, NY Times, 20 July 2003, A1. also a narrative which speaks to the experiences of but one of the states which participated in Operation Iraqi Freedom: it is not a narrative which can or should be assumed for other intervening states, or indeed, for the coalition when taken as a totality. As if this were not enough, Operation Iraqi Freedom occurred against an ever-shifting factual landscape in which accusations and facts seemed to change and to continue to change in real time. Nowhere was this made more apparent than with the failure of intervening forces to locate or secure anything approximating ‘weapons of mass destruction’ in the opening chapter of their occupation of Iraq. That matter alone has forced us to confront the precise bearing which these accusations and facts have and should have on the lawfulness of Operation Iraqi Freedom: which of these factual assertions are relevant — which count and which do not — in making that determination? With what consequence those accusations redeemed and those left unredeemed? Has Operation Iraqi Freedom been trapped in a state of provisional lawfulness until the time that offending arsenals do indeed surface? Or does it lurk in the twilight zone of provisional unlawfulness until that same time? Or will discoveries of weapons of mass destruction make no difference to that determination? To be sure, the methodological challenge posited for international law by the apparent justifications for Operation Iraqi Freedom is not unique to Operation Iraqi Freedom. However, Operation Iraqi Freedom magnified the challenge several fold because it enhanced the opportunities for confusion — for confused analysis — by its most extraordinary cocktail of historical and modern and changing and speculative circumstance. More so than before, international law appeared wholly exposed to a set of serious — and, given their recurring nature, we should contend serial — confusions in terms of the identification and assessment of justifications for the application of force under international law. To ward off these eventualities, it is incumbent on us to investigate whether international law has designed its own framework for addressing this challenge, so that the mission of this essay is to discern and provisionally work with such a framework for Operation Iraqi Freedom. We are therefore concerned with exploring the particularities of such a framework, but, in our conclusion, we shall also reflect upon the possible problems and limitations of its function in practice. Our objective is not to set about the passing of final judgement on the lawfulness of Operation Iraqi Freedom in these pages — for that would require a far more programmatic study than is ever attempted within — but, rather, to gain a better sense of how international law has sought to moderate the thinking and making of such judgements on previous occasions as part of its own methodological record.

The European Response to Terrorism in an Age of Human Rights

Abstract: However terrorism is defined, it covers some non-state violence directly or indirectly against state authorities. The authorities against which it is directed will always regard these activities as criminal. Accordingly, one line of response to core terrorism will be through criminal law enforcement. For many reasons, states do not always find that the ‘ordinary’ criminal law and procedure, with their delicate balances between preserving public order and respecting the rights of individuals, allows effective responses to terrorism. Modifications of the law, including special laws justified only on the basis of an exceptional emergency, have been enacted. These laws inevitably interfere with the human rights of individuals. It is for the state to justify these interferences within the scope of its human rights obligations. In Europe, the ratification of the European Convention on Human Rights (ECHR) by practically all European states means that the European Court of Human Rights will have jurisdiction over the striking of a balance between the rights of individuals and the response to terrorism. This ultimate judicial role is important because it means that the European states may not put ‘terrrorists’ beyond the law. Where a state finds the threat to its security so serious that it must resort to a military rather than a police response, international humanitarian law (IHL) may apply but, because of the procedural avenue which the ECHR provides, it is important to stress that IHL does not apply to the exclusion of human rights law. It is suggested in the paper that the insistence on the application and observance of international legal standards of human rights, even if they must be modified in extremis, should be an essential feature of any response to terrorism, even a war against terrorism, which is waged to protect the rule of law. A postscript refers very briefly to part of the judgment of the Court of Appeal of England, which deals with the consequences of the obtaining of information by means of torture, a judgment which seeks to draw a strong line between the international obligations of the state and the interpretation of its national law in the interests of a more effective response to terrorism.

Is Europe Living Up to Its Obligations to Refugees

Abstract: While Europe is somewhat indeterminate as a legal concept, with respect to refugee law the European Union is the major actor in the region, although the Council of Europe provides protection guarantees for many people who fail to obtain refugee status consequent on the restrictive approach taken in EU Member States. In 2004, the EU finally produced the harmonized policies on qualification for refugee status or subsidiary protection, and on minimum procedures throughout the 25, called for in the 1997 Treaty of Amsterdam. The principal criticism of the approach of the EU towards refugees is that it has combined asylum with immigration. Immigration law is about controlling entry, whereas refugee law is about providing international protection. The absence of a supervisory tribunal to oversee the application of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol has meant that states have developed their interpretations of refugee law independently; harmonization, on the other hand, inevitably leads to equalizing down at the expense of the refugee when it is attempted to attune those independent approaches. Taken together with the link to migration, particularly irregular migration, the focus within the EU is on numbers and on so-called ‘bogus’ asylum seekers. With an immigration control mentality driving refugee policy, it is little wonder that the approach of the European Union has consisted in part of measures designed to move decision-making to third states.

The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health

Abstract: Designed to respond to concerns about the negative impact of the TRIPS Agreement on access to medicines, the Declaration on the TRIPS Agreement and Public Health (Doha Declaration), adopted at the Doha Ministerial Conference, explicitly clarified for the first time what flexibilities inherent in the TRIPS Agreement can be used by WTO Members to combat a public health crisis. Nevertheless, the Doha Declaration did not fully dismantle the obstacles created by the TRIPS Agreement. Even after the most recent agreement on access to generic medicines in poor countries, serious differences of interpretation and implementation difficulties under the TRIPS Agreement are likely to persist. This article explores the global debate on the TRIPS Agreement and public health, as it has evolved over the years. Specifically, it focuses on the implications, and limitations, of the Doha Declaration. It is argued that the TRIPS Agreement should be implemented and interpreted so as to allow WTO Members the maximum flexibility in increasing access to essential medicines for all.

EC Compliance with WTO Law: The Interplay of Law and Politics

Abstract: This article analyses the interplay of international law and domestic politics in producing compliance with GATT/WTO law. It seeks to assess whether the strengthening of GATT dispute settlement under the WTO has led to greater compliance on the part of the European Community. In doing so, it focuses on cases of trade-restrictive regulatory process standards. From an in-depth analysis of two cases in which the EC adopted such standards, the article concludes that the change from GATT to WTO has indeed led to a greater awareness of international trade law considerations within the EC. Nevertheless, compliance with GATT/WTO law is not unconditional. Rather, the case studies point to two factors that are particularly important in understanding compliance. First, resorting to the WTO is most effective as a threat before the trade-restrictive standards are implemented; once these standards are implemented, it becomes progressively more difficult to have them withdrawn. Second, the role of European trade officials is crucial in producing compliance; although the role of trade officials within the EC has become stronger since the creation of the WTO, their influence on a decision to comply depends crucially on their capacity to exclude other interests from the decision-making process.

Understanding Refugee Law in an Enlarged European Union

Abstract: The present article seeks to explore how asylum law is formed, transformed and reformed in Europe, what its effects are on state practice and refugee protection in the Baltic and Central European candidate countries, and what this process reveals about the framework used by scholars to understand the dynamics of international refugee law. Arguably, an exclusive focus on EU institutions and their dissemination of regional and international norms among candidate countries through the acquis communautaire is misleading. Looking at the sub-regional interplay between Vienna and Budapest, Berlin and Warsaw, Copenhagen and Vilnius provides a richer understanding of the emergence of norms than the standard narrative of a Brussels dictate. Hence, to capture these dynamics, we will attempt to expand the framework of analysis by incorporating sub-regional settings, cutting across the divide between old and new Members, and by analysing the repercussions sent out by domestic legislation within these settings. While acknowledging that bilateral and multilateral relations are continuously interwoven, we conclude that bilateralism accounts for a greater degree of normative development and proliferation than multilateralism at EU level, and that domestic legislation as formed by sub-regional dynamics will remain the ultimate object of study for scholars of international refugee law.

The Better Peoples of the United Nations? Europe’s Practice and the United Nations

Abstract: Are the Europeans indeed, as they think, the ‘better peoples' of the United Nations? In this article, the author takes a closer look at this flattering European self-image by selecting a few issues of the general theme of ‘Europe's practice and the UN'. Having recalled, in Section 2, Europe's marginal role in the foundation of the UN at the end of World War II, and the fragmented existence of Europe in the Organization in the long period of the Cold War (Section 3), the article turns to its central subject - Europe's compliance with the rules of the UN Charter. Here, in Section 4, matters which the author considers particularly important or characteristic are singled out, among them the prohibition of the use of force, the obligation of states to settle their disputes by peaceful means, the protection of human rights, and decolonization and economic cooperation with developing countries. In Section 5, the article reflects on the efforts of the EU Member States to coordinate their foreign and security policies with regard to, and in, the United Nations. In the sixth and last section, it seeks to explore the future place and role of Europe in the UN. In his conclusion, the author suggests that Europe has no choice but to remain loyal to the idea of a multilateral international system based on the fundamental rules of the UN Charter. Intellectually and conceptually, the EU and the UN are built on the same foundations, so that a failure of multilateralism on the global level would necessarily have negative repercussions on the European project.

The US and the Use of Force: Double-edged Hegemony and the Management of Global Emergencies

Abstract: Absent a clear case of an armed attack, the UN Charter severely restricts the ability of individual states to react to what they perceive as their national security risks, relegating such a task to the collective decision-making of the Security Council Contemporary global security risks pose serious challenges to this regime Stopping terrorist groups and rogue regimes from obtaining weapons of mass destruction or ending incidents of mass atrocities against civilian populations often require swift and resolute collective responses Not all those who can respond to such threats are willing to do so, and the collective response of the Security Council frequently proves ineffective As the stronger military power, the US has both the ability and the motivation to provide the public good of global security unilaterally, while other countries rely on international law to explain their inaction The so-called 'Bush Doctrine', which asserts an authority to act unilaterally and pre-emptively, can thus be understood as an earnest effort to respond to these security challenges But this doctrine upsets the existing UN regime, and in turn creates other risks to global stability This essay seeks to lay out the prevailing global security risks as a collective action problem It assesses the tensions that exist between existing legal constraints on the use of unilateral force and the proposals for their modification, and evaluates the ramifications of such proposals

Righting Wrongs or Wronging Rights? The United States and Human Rights Post-September 11

Abstract: What impact are US policies having on the fabric of international human rights law in the wake of September 11? This paper examines this question from three largely independent angles. First, US policies embody discrimination against non-citizens and between non-citizens, which is pushing international law to clarify the rights of non-citizens and the relationship between such discrimination and discrimination based on race, nationality and religion. Second, in assessing the impact of US policies, we must consider not only the actions of the United States but also the reactions of the rest of the world. When we broaden our focus in this way, interesting divisions emerge both between states and within states, which are relevant to the formation of customary international human rights law. Finally, the premise that the international terrorist threat is 'novel' has been used by the United States to justify picking and choosing between existing laws and to claim that there are legal vacuums in international law. This raises questions about the validity of taking an a la carte approach to international law and whether there are ways to protect against similar legal vacuums arising in the future.

Representing International Territorial Administration: A Critique of Some Approaches

Abstract: This piece highlights some of the ways in which the administration of territory by international organizations has been represented in certain academic texts, discussing the manner in which these representations frame the nature of and the purposes served by the practice in general and certain administration projects in particular. It draws from commentary on current and previous projects, and also considers some of the concepts with which the practice has been associated, including the 'failed states' paradigm, 'generations' of peacekeeping, and the idea of 'post-conflict reconstruction'. The point of this inquiry is to explore how accurate these representations are in their own terms, and more broadly to evaluate the political consequences of framing international territorial administration in the manner identified. It is suggested that some of the pictures painted of the recent administration missions risk undermining attempts at a critical evaluation of the missions. The risk is identified in the presence of four different discursive strategies within the texts discussed.

Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO

Abstract: WTO jurisprudence, in particular in the area of trade and environment, continues to evolve. Books on the same topic roll off the academic presses as never before. Yet, not all of these publications have fully appreciated the dramatic change that took place with the shift from GATT to the WTO, especially the more nuanced decisions by the Appellate Body. This essay reviews four recent books on trade and environment. It sets the debate in a wider framework and then focuses on the extent to which trade rules genuinely prohibit ecological state intervention. Its main objective is to dispel some of the GATT-inspired myths that keep haunting the WTO, in particular to point at the narrowed scope of prohibited discrimination, the accepted extra-territorial effect of certain regulations (including the possibility to justify regulations based on process or production methods) and the increased relevance, including before WTO panels, of environmental agreements negotiated outside the WTO.

US-UN Relations after Iraq: The End of the World (Order) As We Know It?

Abstract: The UN embodies a precarious 'institutional bargain' between the United States and the rest of the world, based in part on a distinctly American vision of world order. The US was largely responsible for creating the normative and institutional order embodied in the UN, and for reshaping it in the post-Cold war era. This article argues that the US military action against Iraq has done serious but not irrevocable damage to that order. The UN has been a surprisingly conducive venue for cultivating a climate among Member States that renders them receptive to — or hard-pressed to resist — the US' projection of soft power. That climate affects and has been affected by innovative approaches to peace and security over the last 14 years, which the US supported and often led. The immediate response to 9/11 reinforced the tradition of the US using the UN to shape global norms. Most states were prepared to acquiesce, evidenced by the widespread support for self-defensive action in Afghanistan and Security Council Resolution 1373 on terrorism. Most were not prepared to acquiesce to the invasion of Iraq, however, because the context in which the action took place and the discourse surrounding it were seen as a major departure from the prevailing normative and institutional framework. They were seen not as an attempt to adapt existing norms and institutions to new threats, but rather to tear them down and start again from scratch. The result is a damaged UN Charter-based legal order, but one that is likely to recover, not least because American interests and identity are embedded in it.

The United States and International Environmental Law: Living with an Elephant

Abstract: For many observers, the US decision in 2001 to abandon the Kyoto Protocol to the United Nations Framework Convention on Climate Change encapsulates an alarming trend in American attitudes towards international environmental law. This article explores recent trends in US approaches. It begins by canvassing the trajectory of US practice since around the time of the 1992 Earth Summit in Rio. This review suggests that some shifts in legal avenues for shaping relevant policy agendas have indeed occurred, but that it would be a mistake to treat one event — the US withdrawal from Kyoto — as representative of the nature of these shifts. It then examines a range of possible explanations for the changing US approach to international environmental law. These include factors related to the growth of treaty regimes and institutional structures, factors related to American power, domestic politics and attitudes towards international law, and factors specifically related to the administration of George W. Bush. Both the review of US practice and the assessment of factors that might account for American policy suggest that the international environmental law community must carefully distinguish short-term developments from longer-term trends.

Review: The Gift of Formalism Bruno Simma The Charter of the United Nations: A Commentary. 2nd edition

Abstract: In its fidelity to the text of the UN Charter as the constitution of a world community and in its commitment to the notion of a strong international organization, the 2nd edition of The Charter of the United Nations: A Commentary is markedly different in orientation to the scholarship of those international lawyers who have argued for a purely instrumental approach to international law. In particular, those sections of the Commentary relating to the use of force reject the suggestion that international lawyers might shake off the constraints of the Charter and create a new version of the law. In this sense, the approach taken by the authors of the Commentary resonates with those texts suggesting that international law might offer a resistance to imperialism (specifically of the American variety). However, the notion that the UN Charter embodies an international legal order that is free of the desire for empire is complicated if we turn to those sections of the Commentary that support the trend towards constituting the UN as the manager of problems in the developing world. There, the Commentary produces a vision of a new international law operating through the administration of daily life and the harmonization of systems of control. The essay concludes by exploring that which escapes the formalist gift of fidelity — that which is played out beyond the certainties of the Commentary.