Law
This chapter maintains that the concept of individual responsibility for offences committed in non-international armed conflicts has evolved through an instant customary process, from 1992 until 1998. There is still a question mark as to what is the exact ambit of criminal liability in internal conflicts. The existing distinction between international and internal armed conflicts is not a contemporary creation. The difference lies not in the nature of the actual hostilities themselves but in that people of the same land are naturally friends, their land being sick and torn by faction. Depending on the severity of hostilities, the organisation and level of international legitimacy enjoyed by the dissidents, two stages of civil conflict have traditionally been recognised: insurgency and belligerency. Common Article 3 of the 1949 Geneva Conventions calls into application a set of minimum humanitarian standards with regard to those armed conflicts that are 'not of an international character'.
The establishment of the World Trade Organization (WTO) places the international trading system on a firm constitutional footing. The Marrakesh Agreement establishing the WTO sets out the purposes and objectives of the WTO and its institutional framework. The primary purposes of the WTO are twofold: to ensure the reduction of tariffs and other barriers to trade, and the elimination of discriminatory treatment in international trade relations. Membership of the WTO is open to any State or separate customs territory that has autonomy in the conduct of its external commercial relations. In conclusion, the institutional framework of the WTO can be said to provide a basic, but by no means complete, constitutional framework for the international trading system. The system provides for a legislative machinery in the field of international trade, for a dispute settlement apparatus, a surveillance mechanism, and an administrative structure.
Implementation of the rights was originally monitored by two organs created by the Convention, the European Commission of Human Rights and the European Court of Human Rights, and a body which already existed, the Committee of Ministers of the Council of Europe. With the entry into force of Protocol No. 11 in November 1998 this situation changed and monitoring is now carried out through quite different arrangements. It would be wrong to conclude this review of the original institutional machinery of the Convention without making the general point that over the forty years or so in which the arrangements were in operation the Convention proved to be the most effective international system for the protection of human rights that has yet been devised. When Protocol No. 11 came into force at the end of 1998 there was a firm foundation on which to build the new institutional structure.
The need for new arrangements stemmed from the success of the Convention, whilst the means selected to enable the system to cope with the increasing demand was the creation of a new Court of Human Rights to replace the original institutions. This chapter describes the main features of the new Court, outlines its procedures and reviews its work in order to explain the current supervisory arrangements. Normally, failure to appeal to the Constitutional Court will lead to a ruling of inadmissibility on the ground of non-exhaustion of domestic remedies. With the advent of Protocol No. 11, a new Agreement was required and so the European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights was concluded in 1996. Judgments of a Chamber and of the Grand Chamber must be reasoned and, as with the original Court, any judge may deliver a separate opinion.
This chapter deals with the use of force in the related fields of international terrorism and weapons of mass destruction. It discusses in the first place to what extent the notion of self-defence adequately protects States against international terrorism. Linking the armed attack already consumed with the possible military reaction would lead to the repudiation of the defensive character of self-defence. The chapter considers the lawfulness of anti-terrorist military action on the ground of necessity. The lawfulness of armed reprisals intended to curb international terrorism can be neither excluded nor upheld on the basis of theoretical or formal arguments. Finally, the chapter considers collective and unilateral measures taken in order to ensure compliance with disarmament obligations, neutralise threats involving weapons of mass destruction and curb the proliferation and trafficking of these weapons.
This chapter demonstrates how legal discourse appertaining to humanitarian intervention is informed by theoretical explorations, and illustrates how activity in this field emulates these legal and theoretical constructions. International law is portrayed as concerned only with producing structural arguments and not with the significance of the argument, the responsibility of the debaters the significance of the incidence and of its consequences. Therefore, the chapter embraces the dialogic knowledge contained in the value of human dignity. Human dignity entreats appreciation, creativity, empathy, edification and multi-instructionism. It induces lawyers to encounter the phenomena, appreciate their multi-meaning, bear responsibility for their findings and imagine a new order. The chapter also presents an overview of key concepts covered in the subsequent chapters of this book.
The law of neutrality is the law regulating the coexistence of war and peace. Its history is the story of the competition between opposing rights, those of belligerents against those of neutrals. Belligerents claim a right to take whatever steps are necessary to bring their foes to heel, including, when necessary, interrupting their trade with neutral persons. The building of a law of neutral rights has been a sort of juridical guerrilla war. Neutrality encompasses the humanitarianism of the Red Cross but also the derring-do of the blockade runner. Historically, the blockade runner and the arms dealer were earlier on the scene, by a very considerable margin, than the humanitarian and the pacifist. More than perhaps any other area of international law, neutrality has been moulded far more by the struggles of the real world than by the expositions of commentators.
This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. Using the collective system envisaged in the UN Charter as a paradigm, the book aims to provide a systematic view of the rules governing the use of force in international law. It is dedicated to 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. The book describes the collective security system as envisaged in the Charter. It deals with the use of force by States either individually or jointly. Considering the magnitude of recent developments, the book deals with the use of force in the related fields of international terrorism and weapons of mass destruction.
This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book examines some of the challenges which globalisation throws up for the international community from a legal perspective. Its focus is on two aspects of the treatment of foreign investment by states: the general rules concerning access, operation and expropriation of foreign investment and the lex specialis of international taxation. The treatment of foreign investment is addressed only peripherally in the World Trade Organisation (WTO) Agreements, while taxation is scarcely touched upon. However, recent developments show that the WTO Agreements have served to embed certain concepts and techniques in international law which have important consequences for future efforts to address foreign investment. A final theme which emerges concerns the actors in the international law arena.
Beginning in the middle of the eighteenth century, just as Vattel and Hübner were writing, an important new phase in the law of neutrality was beginning. Belligerents were starting to wage economic war upon one another in a more thoroughgoing fashion than before. Various innovations in belligerents' rights were not supinely accepted by neutrals. Attempts of various kinds were made by neutral states to defend their claimed rights. In the process, some far-reaching legal innovations were made. With the spectre of total war removed, at least for the time being, it would prove possible for the states of the world gradually to reach a degree of agreement on some of the specific issues of the law of neutrality, if not on its more fundamental points. A time of confrontation was about to give way to a time of accommodation.