Showing papers in "International Community Law Review in 2006"

Third World Approaches to International Law: A Manifesto

Abstract: * I would like to thank Antony Anghie for his comments on an earlier draft of the paper. The usual caveat applies. First published in: Antony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora Okafor (Eds), The Third World and International Order: Law, Politics and Globalization (Martinus Nijhoff Publishers, 2003). 1 The word “recolonisation” is being inter alia used to indicate first, the reconstitution of the relationship between State and international law so as to undermine the autonomy of third world States and to the disadvantage of its peoples. Second, the expansion of international property rights which are to be enforced by third world States without possessing the authority to undertake the task of redistribution of incomes and resources. Third, the relocation of sovereign economic powers in international trade and financial institutions. Fourth, the inability of third world states to resist the overwhelming ideological and military dominance of the first world. 2 See UNDP, Human Development Report (1999). 3 We adopt here the definition of domination offered by Thompson: “We can speak of ‘domination’when established relations of power are ‘systematically asymmetrical’, that is, when particular agents or groups of agents are endowed with power in a durable way which excludes, and to some significant degree remains inaccessible to, other agents or groups of agents, irrespective of the basis upon which such exclusion is carried out.” See J. Thompson, Ideology and Modern Culture, in The Polity Reader in Social Theory (1994) 133 at 136. Third World Approaches to International Law: A Manifesto

The Due Diligence Principle Under International Law

Abstract: This article explores the interface of state responsibility, non-state actors, and the due diligence principle. It begins by examining the various principles of responsibility under international law. After doing so, it closely considers the deliberations of the International Law Commission on the topic of state responsibility. In light of these developments, attention is then paid to exactly what has been expected of states with regard to the activities of non-state actors during the last century. This overview focuses on the due diligence principle, a principle which, it is argued, can be restrictively or expansively interpreted, as the particular facts and circumstances require, to hold states responsible for their actions or omissions related to non-state actors.

Global Civil Society and International Law in Global Governance: Some Contemporary Issues

Abstract: This article examines current academic knowledge regarding the international relations and political science concept of 'global governance' as it has emerged in international law scholarship. The notion of 'global governance' encompasses the broad realm of political interaction aimed at global problem-solving. It includes the United Nations system, its organs and agencies, and the public and private legal institutions, regimes and networks governing relations among states and other actors across state borders. Its value in contemporary discourse lies in the need for a concept broader than 'international law' that encompasses the multitude of legal and non-binding regulatory mechanisms currently existing beyond the national domain. The contemporary idea also incorporates the phenomenon of 'global civil society,' but it repudiates global 'government.' Instead, the discourse focuses on role of democracy in global governance. Part One commences with an exploration of the meaning of 'global governance' and of the contemporary framework of global governance. The second section then situates the emerging concept of 'global civil society' and international law within the global governance framework and distinguishes global governance from global 'government.' The third section then explores globalisation and its various effects on global governance. Part Two first examines the philosophical origins of the idea of civil society, then looks at the historical evolution of the role of civil society actors in global governance, and finally investigates contemporary meanings of the terms 'civil society,' 'global civil society,' 'civil society organizations' and 'nongovernmental organization' (NGO).

A Transcivilizational Perspective on Global Legal Order in the Twenty-first Century: A Way to Overcome West-centric and Judiciary-centric Deficits in International Legal Thoughts

Abstract: * This paper is based on some of my earlier works. A number of references are therefore made to my own writings. For further references, please refer to the pages of my writings indicated in the footnotes. First published in: Ronald St. John Macdonald and Douglas M. Johnston (Eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoff Publishers, 2005). 1 Although international legal studies have always dealt with the problem of legitimacy in various forms and in various ways, the pioneering work dealing with the problem of legitimacy characterizing it as a core question in international law is that of Thomas Franck, The Power of Legitimacy among Nations, Oxford Univ. Press, 1990. However, the definition of legitimacy adopted in this book is so narrow that even Franck himself changed his position in his following work, Fairness in International Law and Institutions, Oxford Univ. Press, 1995. In this paper, the term “legitimacy” is used according to a general usage of the term, i.e., the state of affairs that is characterized as fair, righteous and justifiable. See also Kelly, J. P., “The Twilight of Customary International Law”, Virginia Journal of International Law, vol.40 (2000), pp. 449–543; Chigara, B., Legitimacy Deficit in Custom, Ashigate, 2001. A Transcivilizational Perspective on Global Legal Order in the Twenty-first Century: A Way to Overcome West-centric and Judiciary-centric Deficits in International Legal Thoughts*

Two Years in the Life: The Pioneering Aarhus Convention Compliance Committee 2004–2006

Abstract: The UNECE's Aarhus Convention is widely considered as a leading light in the area of environmental democracy. Its Compliance Committee is similarly innovative, being the first multilateral environmental agreement to allow members of the public to trigger its compliance procedure. In February 2004 the first case by a member of the public seeking a review of a State Party's compliance was submitted to the Compliance Committee. Since then a further fifteen cases from members of the public have been received. This paper contains a review of the Compliance Committee's pioneering work over the last two years. The paper begins with a brief background on the Aarhus Convention. It then describes the structure and modus operandi of the Compliance Committee. The cases brought before the Committee to date are then discussed, including where relevant the Committee's findings and recommendations and the Meeting of the Parties' decisions. The paper ends with observations drawn from the Committee's case work thus far.

NGOs at the World Court: Lessons from the past

Abstract: An inquiry into the previous history of the Court's involvement with non-governmental organizations shows that neither the PCIJ nor the ICJ were entirely immune to submissions by non-governmental entities before the 1990s. The examination of these submissions and their subsequent treatment by the Court remains extremely fruitful as far as any conceptual framework for the participation of NGOs is concerned. This article first considers the practice of the PCIJ related to non-state organizations (I), before dwelling on the treatment of NGOs by the International Court of Justice from 1947 to 2003 (II) and finally considering the new 'regime' set out by the 2004 Practice Directions (III).

The Requirement of Reasons for Findings of Fact

Abstract: In recent years, various common law jurisdictions have been inclined to impose upon courts an obligation to give reasons for their findings of fact. This trend has not been free of criticism. Alongside those who cite the conventional argument that such an obligation would unduly burden the judicial system, a more fundamental critique has been suggested by Ronald Allen and Gerald Seniuk. Allen and Seniuk claim that the nature of factual reasoning, and the fact that this process is not transparent to the fact finder herself, doom the requirement of reasons to failure.This article attempts to examine the desirability of a requirement of reasons for findings of fact in light of this fundamental critique. I will endeavour to show that while the basic, important insights at the heart of Allen and Seniuk's critique do relate to essential elements of the process of factual reasoning, they leave other aspects of this process enigmatic or problematic. This is the case, in particular, regarding the character of claims on matters of fact put forward by litigating parties. I contend that within these, additional aspects of the reasoning process the requirement of reasons would be beneficial. Consequently, I suggest a rethinking of the scope of the reasons that should be required, and a conceptual reappraisal of the nature of the requirement of reasons on findings of fact: rather than conceive of the process of giving reasons as one in which the fact finder must raise beyond the brink of consciousness the considerations that led her to her decision, we should see this process as one of critical review, employed by the fact finder to constrain the intuitive, subconscious sphere in which initial impressions are conceived.