Showing papers in "Nordic Journal of International Law in 2000"

Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties

Abstract: An unsatisfactory characteristic of the Vienna Convention on the Law of Treaties regime relating to reservations is that objections to reservations do not normally prevent the reserving state from getting what it wants, no matter how outrageous the reservation may be. The Nordic states in particular, disgruntled with this state of affairs, have in recent years formulated objections to reservations in such as manner as to aim to prevent reserving states from benefitting from their reservations. The present paper records this Nordic practice, traces some antecedents, and analyzes its legal consequences, arguing that the Nordic practice may not prevent states from benefitting from their reservations but is best seen as an attempt to influence the work of the ILC's Special Rapporteur on reservations.

A Discussion of the Pinochet Case (House of Lords Decision of 24 March 1999) Noting the Juxtaposition of International Relations and International Law Perspectives

Abstract: This article examines in detail the decision of the House of Lords in the Pinochet case (handed down 24 March 1999) and seeks to discuss the relevance of the decision in international law and international relations perspectives. The case is a focal point for discussing the current importance of two themes at the international level. Firstly, the relationship between the concepts of state sovereignty and human rights. Secondly, the nexus between international law and international relations theory.

The Jurisdiction of the European Court of Justice to Give Preliminary Rulings on the Interpretation of Mixed Agreements

Abstract: This article is about the scope of the jurisdiction of the European Court of Justice to interpret, under Article 234 of the EC Treaty, international agreements which include among their contracting parties the European Community, all or some of its Member States and one or more other subjects of international law and which fall partly within the competence of the Community and partly within the competence of the Member States (so-called ‘mixed agreements’). In particular, the article addresses the question of whether, and if so to what extent, the Court's jurisdiction covers those provisions of mixed agreements which have been concluded under Member State powers. New light has been shed upon the question of jurisdiction by the Court's judgment in Case C-53/96 Hermes v. FHT concerning the interpretation of Article 50 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) annexed to the 1994 Agreement establishing the World Trade Organization (WTO) – the first case where the jurisdiction issue is addressed by the Court outside the context of association agreements. The article analyses the judgment and its implications in the light of both the Court's earlier case law and the legal and policy considerations at stake when the scope of the Court's jurisdiction is determined.

Human Rights and Refugees: Enhancing Protection through International Human Rights Law

Abstract: This essay analyses how UN mechanisms of human rights protection – namely the UN Commission and Sub-Commission on Human Rights, the Committee Against Torture, the Committee on the Rights of the Child and the Human Rights Committee – can be used as a practical and analytical tool to enhance the protection of refugees and suggests that they can make a significant contribution to refugee protection. Although UN mechanisms may not provide a framework of protection as expansive and reliable as domestic systems, recent developments in international human rights law have contributed to an increasingly important legal framework that can be invoked in support of both specific cases and more broad-based advocacy on behalf of refugees. This article draws on specific examples to argue that UNHCR and refugee advocates can use these laws and mechanisms to enhance protection principles and give effect to forms of enforcement.

The Legality of Unilateral Humanitarian Intervention – A Defence

Abstract: On March 24, 1999 NATO entered Kosovo. This was a response to months in which the world had witnessed the commission of large-scale atrocities against civilians. During this period, the Security Council was not able to find common ground and became a victim of its own voting procedure. NATO's attempt to end the massive human rights violations in Kosovo by means of military force has revived the classical discussion of the legality of unilateral humanitarian intervention. The case is currently pending before the International Court of Justice. The Court has touched upon the issue of humanitarian intervention in one previous case, where it found in general that questions of human rights “are questions of domestic policy”, and that “the use of force could not be the appropriate method to monitor or ensure … respect for [human rights]”. It is in the opinion of the authors far from certain that the Court will uphold its position in the current case.

Israel's Supreme Court and International Human Rights Law: The Judgement on ‘Moderate Physical Pressure’

Abstract: On September 6, 1999, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its latest judgement on the question of the use of ‘moderate physical pressure’. The lack of substantial references to international law in the Court's reasoning was notable. The present article examines the possible reasons for the reluctance to introduce international law and goes on to analyse the effects of this reluctance. The analysis finds that the reasons for leaving international human rights norms out are less than compelling and that keeping the necessity defence for interrogators using force against detainees leaves a substantial risk of abuse.The article goes on to place the judgement in the larger context of Israeli human rights practices. By applying the so-called ‘spiral model’, developed within international relations theory, it is possible to examine linkages between international norms and domestic change. The model allows for an evaluation of what progress has been achieved so far and for suggestions as to which measures are still needed. It is found that the judgement reasonably can be interpreted as a tactical concession and that further progress in efforts to eradicate the use of force against detainees is dependent upon a change in the attitude of the Israeli public. Future efforts should thus be aimed at influencing Israeli public opinion to ensure that torture is eliminated from Israeli interrogation practices.

Professor Uluots, the Estonian Government in Exile and the Continuity of the Republic of Estonia in International Law

Abstract: International legal practice in the 20th century is rich in challenging cases of state continuity and extinction. One of those cases is the preservation of the continuity of the Baltic states throughout 51 years of foreign occupation and annexation. After decades of non-recognition of Soviet annexation by leading Western powers, the present-day Baltic republics have not been seen as successor states of the Soviet Union, but as identical with the independent Baltic states of 1918–1940. How could the continuity of the Baltic states be preserved, especially as the Soviet Union had effectively and seemingly “forever”established its control over the Baltic republics? This article focuses on the Estonian situation, laying out the events of 1944 which led to the proclamation of the new constitutional government, and after the country was for the second time occupied by the Soviet army, to the creation of an Estonian government in exile. One of the main questions asked in this article is whether and how the Estonian government in exile contributed to the preservation of the continuity of the Republic of Estonia. Both legal and political aspects played a role in the preservation of the continuity of the Republic of Estonia, and for various reasons, the role of the Estonian government in exile was not exactly that of “the” preserver of state continuity.

Reception Conditions for Asylum Seekers in Europe: An Analysis of Provisions in Austria, Belgium, France, Germany and the United Kingdom

Abstract: As a part of what may be characterised as challenges posed to welfare state systems by globalisation processes, growing numbers of asylum applications have made the access of asylum seekers to welfare state benefits an important issue. Thanks to the new EC competencies introduced by the Treaty of Amsterdam as Title IV of the EC Treaty, the situation accorded to asylum seekers after arrival and during the time while their claim is being processed will soon constitute an important issue on the European level. The discussion and the rules to emerge will be influenced on the one hand by standards derived from international law (in particular the 1951 Geneva Convention and the ECHR) as well as the existing national laws and practices. The article shows that limitations imposed on states' discretion in designing reception policies are few. On the other hand, the diversity of states' policies shows that common European standards are a long way down the road. However, the states examined have demonstrated a strong tendency towards more restrictive policies thereby following the obvious aims of deterrence and saving money. Additionally, it is shown that another subtext is underpinning restrictive measures: by limiting access to economic, social and cultural benefits possibilities for integration are kept at a low level. Having in mind the necessity to secure a life in human dignity, it will be argued that the time period of impeding full participation of asylum seekers in the host society must be kept very short.

Legal Pluralism in the Comoros and Djibouti

Abstract: The article deals with the mixture of French, Moslem, and customary legal traditions constituting the legal systems of the Comoros and Djibouti. They are both extremely small jurisdictions in terms of legal resources and depend to a large extent on foreign legal models. They provide an example of how such jurisdictions may combine Western legal thinking with deeply rooted principles of Islamic law.

International Relations in the New “Constitution of Finland”

Abstract: The need for a comprehensive reform of Finland's four laws of constitution has been discussed since the late 1960s. As a consequence of several substantial changes to the old constitutional laws and the political consensus to move the system of governance in a more parliamentary direction, a new Constitution was drafted during the 1990s and adopted by the Parliament in 1999. Finland's new Constitution integrates constitutional provisions into a single Constitution, and reduces the constitutional powers of the president of the republic. The new Constitution increases parliamentary control in foreign policy. It requires the president to co-operate with the government when directing Finland's foreign policy. It also requires acceptance by the Parliament of a wider range of international obligations. The system for the national organisation of matters concerning the European Union adopted in connection with Finland's accession to the Union in 1995 has also been confirmed by the Constitution, with the government and the Parliament being the main actors in that field.

Confronting the Possible Eugenics of the Past Through Modern Pressures for Compensation

Abstract: Compensation is a primary legal mechanism to provide recompense for harm. It is a feature of both common (Anglo-Celtic) law and of civil (European) law systems. In both systems it deals with harms that occur across the world. It has featured in particular in claims for product liability, vehicle accident and workplace accident related harm. This form of claim is common to both the common law and the civil law system, although each system of law has developed distinctive features. While there are differences between the common law and the civil law jurisdictions in this context, there have been distinctive, new, and common, features to emerge from the concept of compensation over the past decade. Chief among these is the search for a unifying principle of compensation, one that can encompass the most recent pressure upon this area of law: compensation that reflects reparation for wrongs now the subject of broad human rights and humanitarian concern. Such wrongs include criminal actions by the state, and breaches of duty of care by state bodies leading to abuse and neglect of children. This paper will canvass some recent cross-jurisdictional cases with a view to establishing commonalities in the quest for a global shift from compensation to reparation. It looks in particular at compensation in the context of earlier governmental policies that have since been considered to contain or imply notions of eugenics. In keeping with two earlier papers published in this journal, the paper notes that while this is a matter of international concern, there can be a constructive comparative focus in examining both Australia and Sweden. The primary concern of the paper is to raise issues that concern the future of genetic research, placing that future in a reflective past context.