From the mid-seventeenth to the mid-eighteenth centuries, the law of neutrality came of age. This was achieved by the growth of a network of bilateral treaties of 'amity and commerce' between the principal European states. Resolution of neutrality issues by means of bilateral treaties was not an invention of the seventeenth century. The most striking feature of the treaty network of the seventeenth and eighteenth centuries was its liberality towards neutrals. Neutral ships sometimes attempted to undermine the visit-and-search process in unscrupulous ways. One was by destroying crucial evidence, for example by hastily throwing the ship's papers overboard as a belligerent ship approached. If Britain was gradually emerging as a consistent advocate of broad rights for belligerents, certain other states were moving in the opposite direction. From the 1780s, the effect of British free riding was set to become more apparent, to the particular discomfiture of France, Britain's long-term enemy.
This chapter describes the historical survey of superior responsibility. It examines who may be subjected to the doctrine, seeking to ascertain whether the concept of superior is a fixed one, or whether it fluctuates in accordance with certain identifiable parameters. The chapter also examines the existence of a meaningful difference between the terms 'command' and 'control'. Army officers do not argue that the doctrine is misconceived, they simply refuse to subject their military to it, as far as this is possible without showing forthright contempt for international humanitarian law. Incarceration of a culprit, after judicial ascertainment of the underlying crimes and motives, serves in the minds of the victims to restore truth and ultimately allow them to continue their lives. The chapter considers the procedural aspects of the doctrine under what circumstances natural persons are deemed to possess such authority over others as to incur criminal liability for their crimes.
This chapter deals with the numerous recent cases of use of force without, or with controversial, Security Council authorisation and assesses their impact on the collective security system. A question germane to the authorisation ex post facto concerns the admissibility of implied authorisations. The common feature of the cases examined is the negative impact they had, in different ways and degrees, upon the collective security system and the limited centralised control over the use of force ensured by the authorisation practice. The United States' recent attitude reveals the intention to dismantle the institutionalised hegemonic collective system established by the United Nations Charter, whose functioning was to a limited extent possible through the authorisation practice. The norms on the use of force by regional organisations embodied in Chapter VIII of the Charter were the result of lengthy negotiations which had led to a substantial revision of the Dumbarton Oaks proposals.
Issues arising from the treatment and taxation of foreign investment in the EU and NAFTA
This chapter illustrates some of the challenges which the pursuit of a 'free trade' goal raises for traditional international economic law in relation to the treatment and taxation of foreign investment. It considers two free trade areas in particular, the EU and NAFTA, the two in which the subjugation of state interests to supranational institutions and laws is greatest. As far as investment is concerned, NAFTA follows the general approach of BITs; however, it goes further than the current generation of BITs in its identification of potential problems faced by foreign investment. Litigation has been less important as a means of clarifying the scope of the obligations under NAFTA than in the EC to date, but there are some important recent cases. The chapter also addresses a number of issues concerning dispute resolution mechanisms.
The current provisions for the protection and regulation of foreign investment and for the taxation of transnational business are riddled with flaws, whether viewed from an economic, political or legal perspective. This chapter examines a number of the most important criticisms of these provisions in greater depth, first in relation to foreign investment, then in relation to taxation. It also addresses some of the problems common to those provision. The first is the problem of one state seeking to impose its political viewpoint on other states in a way that contravenes established international law rules. A second and more general problem relates to the position of the 'free-rider', the state which seeks to remains free from the obligations entailed by participation in a legal regime or network of obligations, but which nevertheless benefits from such participation by other states.
This book is the collective use of force within the framework of the Charter, whose ambitious project is based on the premise that armed force can be resorted to exclusively in the common interest. It begins with a short discussion of the powers granted to the Security Council for the discharge of its primary responsibility for the maintenance of international peace and security, and the conditions under which these powers may be exercised. The United States, supported by its NATO allies, or at least some of them, openly challenged the authority of the Security Council and attempted to downgrade its authorisation from a legal requirement to a matter of political convenience. The book deals with the use of force by States either individually or jointly. Through the lenses of the interaction between the Charter and customary international law, it considers the evolution of the right to self-defence, the only exception expressly provided for in the Charter, and the possible re-emergence of other exceptions. The book focuses in particular on the controversial question concerning the legality of the threat or use of nuclear weapons in self-defence and of the pre-emptive military action against threats posed by these weapons. Often referring to the recent Iraqi crisis, it further deals with the collective and unilateral means at the disposal of the United Nations and its members to enforce disarmament obligations and tackle the proliferation of weapons of mass destruction.
Children often wish to avoid recruitment into armed forces and groups, and child soldiers often face harsh treatment from their commanders and comrades. Recruiting children under the age of 15 years is viewed as a sufficiently serious breach of international law so as to give rise to individual criminal responsibility. In recent years, there has been a tendency to subject asylum seekers to closer scrutiny to determine whether, by reason of their previous conduct, they are undeserving of refugee status. It has been argued that children should never be subject to exclusion from refugee status under Article 1F. Such a view, however, is contrary to both the wording and the drafting history of the provision. In practice, children have been excluded from refugee status as a result of the application of Article 1F.
An Optional Protocol has been adopted and most states have renounced the forced recruitment of children. Indeed, the prohibition of the compulsory and forcible recruitment of children may be becoming a rule of customary international law. There is a substantial body of rules governing the recruitment and treatment of child soldiers, and they have been the subject of considerable augementation and development in recent years. Recent years have undoubtedly seen developments in how international law governs the activities of such groups, culminating in the prohibition of all recruitment of children by them set out in the OP. However, the growth in legal regulation has not been accompanied by any increase in compliance. Not only does international law regulate when and under what conditions children can be recruited and used in hostilities, but it has also begun to address the consequences of failures to comply with these rules.
This book provides a critical exposition of the international law concerning child soldiers. It starts by looking at the situation of child soldiers in the world today, examining why children are recruited into armed forces and groups; why they volunteer for military service; and, once recruited, what treatment they receive. The book explores how perceptions of childhood and children's rights have changed, and how this has affected the ways in which child soldiers have been treated. It describes the activities of the United Nations with regard to the child soldier phenomenon. The book examines the legal regulation of the recruitment and use of children in hostilities. It shows that although international law comprehensively regulates the recruitment and use of child soldiers, owing to the plethora of treaties on the subject, states' obligations continue to differ and children can still lawfully be recruited and used to participate in armed conflict. The book discusses how, once recruited into armed forces and groups, international law treats child soldiers. It considers the status of child soldiers as combatants and as persons in the power of an adverse party in both international and internal armed conflicts, and states' obligations with regard the disarmament, demobilisation and reintegration of child soldiers. An unusual feature of how child soldiers are viewed is that they are often seen as both victims of human rights abuses and as human rights violators. Finally, the book examines the extent to which the recruitment and use of child soldiers is an international crime.
This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book provides a critical exposition of the international law concerning child soldiers. It starts by looking at the situation of child soldiers in the world today, examining why children are recruited into armed forces and groups; why they volunteer for military service; and, once recruited, what treatment they receive. The book then discusses how perceptions of childhood and children's rights have changed, and how this has affected the ways in which child soldiers have been treated. Next, it describes the activities of the United Nations with regard to the child soldier phenomenon. The book examines the legal regulation of the recruitment and use of children in hostilities. Finally, it provides a brief conclusion, which is intended to reprise and analyse the various themes appearing throughout the previous chapters.