bluuebunny/crossref_metadata_2025 huggingface dataset:
An Old Judge Remembers
Authors: Lagergren Gunnar , Aldrich George H.
Published: March 2004

Gunnar Lagergren has performed many notable functions in the course of the twentieth century, most of which resulted in significant contributions to international law and, in particular, to the settlement of international disputes. As an arbitrator, he handled a number of important cases, including that between India and Pakistan concerning the Rann of Kutch and the Taba boundary arbitration between Egypt and Israel. He served with distinction on a number of important tribunals, including the European Court of Human Rights at Strasbourg and the Iran-United States Claims Tribunal at The Hague, where he was its first President.
The Bosnia Case Revisited and the ‘New’ Yugoslavia
Authors: Craven Matthew
Published: March 2004

The application by the Federal Republic of Yugoslavia for a revision of the 1996 ICJ Judgment in the Bosnia case is the latest initiative involving the Court in the Balkan crisis. Whilst the application raises interesting questions, they reflect rather upon the indeterminate nature of the Court's original Judgment than upon their own merit. It is doubtful whether the Court would regard the change in circumstances such as to justify revising its Judgment. The most perplexing issue concerns the motivation behind the application. Given the potential effect of the proceedings on other cases involving the FRY before the Court, the application may allow the Court to dispose of all such cases in one single decision, which may have certain attractions for the Court if it is to remain politically disengaged.
The Protection of Human Life Through Provisional Measures Indicated by the International Court of Justice
Authors: Iwamoto (Lee) Yoshiyuki
Published: March 2004

Recently, the ICJ appears to have been taking into account the protection of human life in its indication of provisional measures. This raises the question of how and to what extent the human life element influences the criteria for indicating provisional measures. After considering the meaning of ‘irreparability’ in the Court's jurisprudence, the author analyzes recent case law in the light of a link between irreparable harm and those rights of the parties that constitute the subject matter of the dispute in judicial proceedings. In conclusion, the author criticizes the Court's recent approach towards indicating provisional measures, as it raises some problems concerning jurisdiction, as well as the binding character and the nature of provisional measures.
The Role of International Law in United States Death Penalty Cases
Authors: Babcock Sandra
Published: March 2004

The United States has repeatedly failed to notify detained foreign nationals of their rights to consular notification and access under Article 36 of the Vienna Convention on Consular Relations. In capital cases, US non-compliance with this ratified Treaty has led to litigation by foreign governments and individual lawyers in domestic courts and international tribunals. While these efforts have had mixed results in individual cases, litigation by Mexico, Germany and other actors has led to increased compliance with Article 36, and a growing recognition of the significance of US treaty obligations.
The Genocide Acquittal in the Sikirica Case Before the International Criminal Tribunal for the Former Yugoslavia and the Coming of Age of the Guilty Plea
Authors: Jørgensen Nina H.B.
Published: March 2004

This article focuses on two key aspects of the Keraterm case before the ICTY. The first is Duško Sikirica's acquittal of the crime of genocide. The Trial Chamber's construction of the phrase “destruction in part of a group” is critically examined and compared to the reasoning of a differently constituted Trial Chamber in the Krstić case. The second key aspect of the Keraterm case is the decision by all three defendants to enter into plea agreements with the Prosecutor at a relatively late stage in the trial. This article discusses the rules governing plea agreements, general sentencing factors and the extent to which guilty pleas have resulted in a pattern of lighter sentences in the jurisprudence of the Tribunals.
Judicial Independence in the International Criminal Court
Authors: de Bertodano Sylvia
Published: March 2004

Judges in international tribunals have historically been subject to political pressures which might influence the independence of their position. The Rome Statute for the International Criminal Court has created a system in which judges are selected by political representatives of state parties, without any independent screening process. Furthermore, judges will have a high degree of control over the fundamental decisions as to who should be prosecuted, an area which normally falls in the province of the Prosecutor. There are legitimate reasons to fear that this system will fail to provide the necessary safeguards to ensure that judicial independence is maintained.
Privatizing Jerusalem or an Investigation into the City's Future Legal Stakes
Authors: Shalakany Amr A.
Published: March 2004

The purpose of this article is not to propose yet another normative vision for Jerusalem's future. Instead, I map out the major sovereignty-related issues that have traditionally preoccupied the literature on the subject, and argue that most of these issues have become moot following the latest rounds of Israeli-Palestinian negotiations. In response to this recent paradigm shift, I propose that international law scholarship should turn its attention to studying the politics of Jerusalem's private sphere, a sphere so far dismissed as “merely technical,” yet also a sphere replete with such deep distributional stakes as to make it the primary arena for playing out power-relations in the city's future. I conclude with critiquing recent proposals that privatization would play a constructive role in defusing political tensions associated with the future Jerusalem.
The Internationalization of Domestic Conflict: The Role of the UN Security Council
Authors: Blokker Niels M. , Kleiboer Marieke
Published: March 2004

In recent years, the UN Security Council has increasingly been involved in domestic conflicts. To explain this development, two lines of arguments have been used most often, both referring to the end of the Cold War. The first line of argument holds that the collapse of the Soviet Union has led to more domestic conflicts that manifest themselves at the international level, and the UN has simply responded to that growing problem. In the second line of argument, the collapse of the Soviet Union has led to an end of the anticipation and use of Soviet veto power in the Security Council, leading to more opportunities for the UN to take a more proactive stance in domestic conflicts. How plausible are these explanations? In this article, the argument is made that both lines of explanation rest partly on faulty premises.
The Rwanda Tribunal
Authors: Lee Roy S.
Published: March 2004

The Rwanda Tribunal is an independent judicial institution established by the Security Council under Chapter VII of the UN Charter. It is the first international court having competence to prosecute and punish individuals for egregious crimes committed during an internal armed conflict. While the Government of Rwanda was a member of the Security Council and participated in the negotiations regarding the creation of the Tribunal, there were significant differences of opinion between it and the Council regarding the Tribunal's jurisdiction and competence. This article discusses the special features of the Rwanda Tribunal, as compared to the Yugoslavia Tribunal.
Impartiality in United Nations Peace-Keeping
Authors: Vohra Shyla
Published: March 2004

United Nations peace-keeping is presently being faced with dynamic new challenges. The concept of peace-keeping is rapidly expanding, operations are being entrusted with new and innovative tasks, and are increasingly being deployed in intrastate conflicts. As the functions of peace-keepers vary, so too does the role and conception of peace-keeping. The new tasks entrusted to peace-keepers have brought with them new problems and difficulties. Controversial recent operations, such as those in Somalia and the former Yugoslavia, have particularly raised the issue of impartiality in the context of UN peace-keeping. Impartiality is traditionally a distinguishing feature of peace-keeping operations, yet its meaning and status remain unclear.
Postscript: Tension in the Aegean – The ‘Imia’ Incident
Authors: Strati Anastasia
Published: March 2004

In January 1996, tension escalated in the south-eastern Aegean as a result of Turkey's challenge of Greek sovereignty over the Imia rocks. Turkish ‘journalists’ from the newspaper Hurriyet occupied the Greek rocks and took down the Greek flag. This led to a build-up of Turkish and Greek naval forces near the rocks, thus creating a potential source of armed conflict. The tension was reduced after diplomatic intervention by the United States. However, there was a surprising absence of initiative on the part of the European Union in spite of the fact that the external borders of one of its member states had been challenged. The following will be a very brief account of the incident and the arguments of both parties, as evidenced primarily by their respective verbal notes.
Constitutional and Institutional Developments
Authors: Schwebel Stephen H.
Published: March 2004

Andrés Aguilar Mawdsley had a national and international career of the highest distinction. After his studies in Venezuela and at McGill University in Montreal – where more than the law he found the lovely wife who was at his side until the moment of his death – he began his career as a teacher of law, early attaining the rank of professor and dean of the law faculty in Caracas. By the age of thirty-four, he was appointed Minister of Justice. He subsequently served as the legal counsel of the Venezuelan national oil company and in many other positions of responsibility in Venezuela.
Case Analysis: Some Procedural and Substantive Aspects of the Libya/Chad Case
Authors: Argüello-Gomez Carlos J.
Published: March 2004

Libya has come three times before the International Court of Justice (ICJ) on the basis of special agreements. At present, Libya has pending before the Court two cases it has brought by unilateral application, respectively against the United Kingdom and against the United States, concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie. For its part, Chad had never come before the Court since its accession to independence in 1960.
Self-Determination Undetermined: The Case of East Timor
Authors: Scobbie Iain G.M. , Drew Catriona J.
Published: March 2004

On 22 February 1991, Portugal filed a case against Australia in the Registry of the International Court of Justice (ICJ) instituting proceedings in a dispute concerning “certain activities of Australia with regard to East Timor”. The impetus behind the case was the conclusion of the Timor Gap Treaty between Australia and Indonesia in December 1989. The application alleged that Australia's conduct had caused “particularly serious legal and moral damage to the people of East Timor and to Portugal, which will become material damage also if the exploitation of hydrocarbon resources begins.” Jurisdiction was founded on the parties' declarations under Article 36(2) of the Statute.
Case Analysis: The Prosecutor v. Tadić The Appellate Decision of the ICTY and Internal Violations of Humanitarian Law as International Crimes
Authors: Maresca Louis G.
Published: March 2004

Recently, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) issued its opinion on jurisdictional matters in the case of The Prosecutor v. Dusko Tadić. The defendant had challenged the establishment and jurisdiction of the Tribunal. While the defendant specifically contested the authority of the Tribunal on three grounds, it is the claim of lack of subject matter jurisdiction which will be the focus of this article. As the first case proceeding towards trial, this challenge gives the Tribunal its first opportunity to comment upon and clarify the extent of its subject matter jurisdiction.
TRIBUTE
Authors: Lefeber René , Meijer Iris C.
Published: March 2004

The year 1994 marked a time of momentous change for the Leiden Journal of International Law. Quantity and quality of copy flow had reached a bare minimum, while the editors were overburdened with the administration of the Journal. It was concluded that the Journal would only have a future if it was reorganized rigorously. A business plan was drafted that set up a two-step transition process. The first step in this process was completed in 1995 with the influx of a group of experienced editors, the restructuring of sections of the Journal and a fresh lay-out. One of the most important changes was the development and introduction of the Hague International Tribunals Section, which involved the establishment of a close working relationship with the international judicial institutions in The Hague. The quality input in several field of the Journal had not only been a necessity to give our readers value for money, but also to prepare the Journal for the second step of the transition process, entering into a strategic alliance with a publishing house that could run the burdensome production and administration of the Journal. Sooner than expected, the Journal qualified for such an alliance and, this year, the negotiations with Kluwer Law International were brought to a successful conclusion.
To Rule or Not to Rule: Part Two
Authors: Muller A. S.
Published: March 2004

The simplistic ideas about the judicial function in international relations are very harmful to the public perception of the role of the International Court of Justice. […] The general public both expects too much of the Court, and is then disappointed that there is so much violence in the world which the Court does not seem to be effective to control.
Policy Externalities and High-Tech Rivalry: Competition and Multilateral Cooperation Beyond the WTO
Authors: Hoekman Bernard M. , Mavroidis Petros C.
Published: March 2004

Governments have increasingly been giving attention to the need for, and prospects of, ensuring contestability of markets through international agreements. This paper explores what has been achieved so far in the context of the World Trade Organization (WTO) and what might be done to further enhance the ‘competition-friendliness’ of the multilateral trading system. The case of high-technology industrial rivalry is used for concreteness. High-tech is interesting because it cuts across many of the issues that are relevant from a systemic perspective, both ‘old’ (market access) and ‘new’ (investment, antitrust). We conclude that greater contestability of regulatory regimes in domestic legal orders may be beneficial. This can be pursued by giving private parties the right to contest actions of WTO member states before national courts.
The WTO Appellate Body's First Decision
Authors: Palmeter David
Published: March 2004

The General Agreement on Tariffs and Trade (GATT) began more as a diplomatic forum where parties compromised disagreements than a court that settled them. The term ‘conciliation’ was used more frequently to describe the process than the term ‘dispute settlement’. However, over nearly half a century as the focal point of international trade law and diplomacy, GATT's dispute settlement procedures moved decidedly, if not steadily, from the diplomatic to the juridical. With the adoption of the Marrakesh Agreement Establishing the World Trade Organization (WTO), the juridical model clearly has prevailed.
Who Defines Members' Security Interest in the WTO?
Authors: Swaak-Goldman Olivia Q.
Published: March 2004

The European Community (EC) has recently announced its decision to begin dispute-resolution procedures in the World Trade Organization (WTO) against the United States (US) because of the latter's passage of the so-called ‘Helms-Burton’ law, which tightens the sanctions against Cuba by means of extraterritorial application. This will, in all probability, offer the WTO an ideal opportunity to define the limits of the General Agreement on Tariffs and Trade's (GATT) security exception. The security exception, contained in GATT Article XXI, is also included in other agreements annexed to the Agreement establishing the World Trade Organization (WTO Agreement), such as the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). It provides an exception from all GATT (as well as GATS and TRIPs) obligations, including the all-important ‘most-favoured-nation’ non-discrimination rule. The security interests at issue must be those of a political, rather than an economic, nature. It should be noted that because there is no human rights and democracy exception to the GATT or other agreements annexed to the WTO Agreement, trade restrictions that are based either in whole or in part on these concerns, such as the measures against Cuba, are usually justified on the basis of the security exception.
The Involvement of the Organization for Security and Cooperation in Europe in Issues of Minority Protection
Authors: Constantinides Aristoteles
Published: March 2004

The close relationship between security and minority protection is more than ever before manifest in today's (eastern) Europe. The adoption of far-reaching substantive commitments in the fields of the OSCE, and its increasing intrusion upon traditionally internal affairs of states, constitutes a positive framework for minority protection. A constructive combination of implementation mechanisms, preventive diplomacy instruments, and dispute-settlement efforts has produced positive results. Primarily concerned with the maintenance of security in Europe, the OSCE involves itself in minority issues, subject to the (dis)advantages of its political character. Despite its inherent weaknesses, the OSCE system has already contributed to the protection of minorities in Eastern Europe in various ways during the political transition in the former communist states, and it is prepared to continue, especially in the absence of other more effective systems.
The Future of Inter-State Dispute Settlement Within the Council of Europe
Authors: Decaux Emmanuel
Published: March 2004

The original philosophy behind the 1950 European Convention on Human Rights and Fundamental Freedoms (European Convention) was accurately summarized by Lord Layton when, in opening the first debates of the Parliamentary Assembly in 1949, he underlined “the great importance” of the guarantee of human rights:
first for the sake of the individual European citizens who may benefit from it; secondly, as a means of strengthening the resistance in all our countries against insidious attempts to undermine our democratic way of life from within or without, and thus to give to western Europe as a whole greater political stability; and thirdly, as the acid test of whether countries should be admitted to this Council of Europe.
Air Strikes on Bosnian Positions: Is NATO Also Legally the Proper Instrument of the UN?
Authors: Dekker Ige F. , Myjer Eric P.J.
Published: March 2004

For weeks, the air strikes that NATO executed in defence of the ‘safe area’ of Sarajevo were ‘hot news’. The fact that NATO would, eventually, execute these strikes had seemed inevitable for some time. The well-informed observer had sufficient indications to this effect via television and the newspapers. However, the media, and all of the debates in national parliaments, have never, or have scarcely, addressed the legal basis for these strikes. At first sight, this appeared to be a relatively simple question, since NATO repeatedly stressed that it was acting on a mandate from the UN Security Council. At a second glance, however, the legal basis of the NATO actions gives rise to a number of questions for which the answers are less easy to ascertain.
NATO as the UN Security Council's Instrument: Question Marks From the Perspective of International Law?
Authors: Blokker Niels , Muller Sam
Published: March 2004

In the previous contribution, Dekker and Myjer maintain that, from the viewpoint of international law, there are at least two problematic issues with regard to NATO's actions in Bosnia-Herzegovina. The first issue concerns the way in which the Security Council has, in a legal sense, shaped its authority over NATO's actions. The second issue is the question of whether NATO is entitled, under its own constitution, to execute such actions. The contribution of Dekker and Myjer was prompted by NATO's air strikes in defence of Sarajevo, which took place in August and September 1995. Their criticism also applies to the current actions that NATO is undertaking in the implementation of the Dayton Agreement, as they later elaborated in the periodical Transaktie. First and foremost, it must be noted that Dekker and Myjer deserve full credit for pointing out these legal aspects of these recent NATO actions. That being said, their two main points of criticism are debatable and, in our opinion, paint a less than consistent picture of the possibilities that the UN and NATO have to offer, in particular the possibilities that may or may not be provided by those organizations' constitutions to flexibly respond to the demands posed at the present time, as well as the room to manoeuvre that is available under the changed international balance of power.
Postscript
Authors: Dekker Ige F. , Myjer Eric P.J.
Published: March 2004

We are grateful to our Leiden colleagues Blokker and Muller for their comments on our contribution in the Nederlands Juristen Blad; just as their response in Transaktie to the elaborated version of our opinion, it is in many ways a well thought-out addition to what we maintained there. Insofar as the purpose of their contribution was to refute our positions, it has (again) failed to convince us.
Case Analysis: Case to the International Court of Justice on Legality of French Nuclear Testing
Authors: Bracegirdle A. M.
Published: March 2004

Last year, for the second time in a little over 20 years, New Zealand asked the International Court of Justice to adjudicate the legality of French nuclear testing. This followed the announcement by the new President of France to the effect that the moratorium that his predecessor had put in place three years earlier, and had promised that France would continue to observe, would be terminated. The action by the New Zealand government was based on a unanimous decision by all political parties in New Zealand. This action reflected the anger of the countries in the South Pacific at the fact that a nuclear-weapon state was still prepared, in 1996, to explode nuclear devices in fragile marine environments on the other side of the world. In short, New Zealand wanted to utilize all available opportunities to persuade France not to proceed.
Case Analysis: From ‘Kidnapped’ Witness to Released Accused ‘for Humanitarian Reasons’: The Case of the Late General Djordje Djukić
Authors: de Waart Paul J.I.M.
Published: March 2004

On 6 February 1996, the government of Bosnia and Herzegovina informed the Implementation Force (IFOR) that eight Serbs, who were reported missing since 20 January, were held in custody by the Bosnian authorities as war crimes suspects. None of them had already been indicted for war crimes by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. Among the eight detainees were two high-ranking Serb officers: General Djordje Djukić and Colonel Aleksa Krsmanovic. They were said to have been arrested accidentally by Bosnian police officers during a routine traffic control on 30 January 1996.
The Rules of Procedure and Evidence of the ICTY
Authors: Ascensio Hervé
Published: March 2004

In accordance with Article 15 of its Statute, the International Criminal Tribunal for the Former Yugoslavia (ICTY) adopted its Rules of Procedure and Evidence on 11 February 1994. This text entered into force on 14 March 1994. It is essential not only for the Tribunal itself in its present work in The Hague, but also as a reference for any other international criminal courts and tribunals currently existing or forthcoming. Largely inspired by the national rules of adversarial systems, the Rules rightly put the emphasis on the rights of the accused. However, they must also ensure the protection of victims and witnesses and, generally, the efficiency of the Tribunal, objectives that cannot be addressed on an international level in the same manner as on a national level. Moreover, all of these objectives must be reconciled in order to guarantee a fair trial. As Trial Chamber II of the ICTY emphasized in its response to the prosecutor's request for protection of victims and witnesses in the Tadić case, “[a] fair trial means not only fair treatment to the defendant but also to the prosecution and to the witnesses.”
The International Criminal Tribunal for the Former Yugoslavia and Fair Trial Rights: A Closer Look
Authors: Sloan James
Published: March 2004

In a recent article lamenting the perception of partiality created by an activist judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), one commentator observed the general lack of scrutiny to which the ICTY is being held in its treatment of the rights of the accused. He noted that it “is a court without legal critics: no complaint about its conduct may be made to the Human Rights Committee in Geneva or to the European Court [of Human Rights], and human rights lobbies have tended to look the other way.” Indeed, it is in a position that many governments, fatigued by what many of them consider to be cumbersome reporting obligations and troublesome individual complaints procedures under the United Nations treaty body system, would envy.
Frontiers of International Law: Counteracting the Exercise of Extraterritorial Jurisdiction
Authors: Lefeber René
Published: March 2004

On 22 November 1996, the Council of the European Union adopted a framework regulation and agreed to joint action to ‘protect’ the interests of the European Union and its citizens against the extraterritorial application of legislation by non-member states. These measures were adopted in response to the extraterritorial application of certain measures by the United States, concerning trade with and investment in Cuba, as well as investment in Iran and Libya. These United States measures apply to all natural and legal persons irrespective of their nationality, residency, or place of activity. Thus, even nationals of a member state of the European Union residing and active in the European Union must comply with the United States measures. The enactment of this legislation marks a new episode in the on-going battle between the United States and the European Union over the frontiers of a state's (or an international organization's) jurisdiction to prescribe. This time, however, the European Union counteracted by the adoption of measures which can partly be characterized as retorsion measures and partly as countermeasures. The adoption of these measures by the European Union raises questions with respect to the legitimacy of the retorsion measures and the legality of the countermeasures.
The Claims of Dual Nationals Before the Iran-United States Claims Tribunal: Some Reflections
Authors: Aghahosseini Mohsen
Published: March 2004

The issue of whether an international judicial forum may entertain the claim of a dual national against a state to which he owes allegiance, is an old one. What is new, however, is the challenge by the Iran-United States Claims Tribunal of the traditionally held view that, in the absence of a clear mandate and where customary international law is exclusively invoked, the forum may not do so. Such a claim is admissible, says the Tribunal, provided the claimant is able to demonstrate: (a) that at all relevant times his “dominant and effective” nationality was the one on which he now relies; and (b) that the rights in question, those for the asserted breach of which he seeks redress, were not secured because of his other, non-dominant, nationality. Leaving for another day the questionability of the challenge, the present article offers to examine some of the more important aspects of the second test, as expounded and applied by the Tribunal.
Voting Behaviour and National Bias in the European Court of Human Rights and the International Court of Justice
Authors: Kuijer Martin
Published: March 2004

Independence and impartiality of the judiciary is a conditio sine qua non for confidence in, and the authority and success of, any judicial procedure. This article takes a close look at the voting patterns of the judges of two influential international tribunals: the International Court of Justice and the European Court of Human Rights. To what extent do national judges (and judges ad hoc, in particular) vote consistently with the position of their national governments? By conducting a factual analysis of the voting behaviour of the judges, the present paper aims at drawing some tentative conclusions on the fulfilment of the requirements of independence and impartiality in the operation of these two distinguished courts.
Of all influences to which men are subject, none is more powerful, more persvasive or more subtle than the tie of allegiance that binds them [judges] to the land of their homes and kindred and to the great sources of the honors and preferments for which they are so ready to spend their fortunes and to risk their lives.
The Additional Protocol to the European Social Charter Providing for a System of Collective Complaints
Authors: Jaeger Markus
Published: March 2004

The European Social Charter (ESC) was signed in 1961 and has been in force since 1965. Protecting 19 fundamental rights, it was conceived as the counterpart, in the field of social and economic rights, to the European Convention on Human Rights. However, it was considered to have several shortcomings as a human right instrument, namely a slow, confusing and government-controlled monitoring mechanism as well as a list of protected rights that was incomplete. This last criticism was partly met by the Additional Protocol to the Charter of 1988, which guaranteed four additional rights. However, an informal Ministerial Conference on Human Rights held in Rome on 5 November 1990 acknowledged that one had to go further. The ministers invited the Committee of Ministers of the Council of Europe to take the necessary steps for a detailed study of the role, content, and operation of the European Social Charter with a view to giving it a new impetus. In response, the Committee of Ministers authorized the convening of an ad hoc committee, the Committee on the European Social Charter (the so-called “Charte-Rel Committee”). It was instructed to make proposals for improving the effectiveness of the Charter and, in particular, the functioning of its supervisory machinery. In carrying out its task, the Committee consulted the international representatives of management and labour, including the European Trade Union Confederation (ETUC) and the Union of the Confederations of Industry and Employers of Europe (UNICE), as well as the International Labour Organization (ILO) at all stage.
Conflict Management and the Chemical Weapons Convention
Authors: Kenyon Ian R. , Dunworth Treasa
Published: March 2004

While conflict management is an important part of any international treaty, it is particularly important in the case of the Chemical Weapons Convention, which will enter into force on 29 April 1997. Disarmament is the primary goal of the Convention and, therefore, by definition, it will encroach on the sovereignty and security interests of its state-parties. Negotiated by the Geneva-based Conference on Disarmament over more than 20 years, the Treaty was finally approved by that body in September 1992 and endorsed by the UN General Assembly in December of that year. The Convention's provisions reflect the new world into which it was born. The regime established by the Convention to verify compliance with its terms is unprecedented in terms of its scope and depth, and because state-parties will have no right to refuse verification activities specified in the Convention. It is also unprecedented in that all state-parties are treated equally, unlike some other multilateral regimes related to the control of weapons of mass destruction negotiated earlier. Nonetheless, such an extensive regime, made possible by the politics of a post-Cold-War world, will inevitably encounter unexpected complications and unforeseen difficulties. This will be so particularly with respect to compliance and interpreting the results of verification activities; therefore, the provisions in the Convention for managing potential or actual conflict will be cruical for it to operate effectively.
The European Court of Human Rights has the Turkish Security Forces Held Responsible for Violations of Human Rights: The Case of Akdivar and Others
Authors: Zwaak Leo
Published: March 2004

In this article, special attention will be given to the recent judgment of the European Court of Human Right in the case of Akdivar and Others v. Turkey. Since 1985, a violent conflict has raged in the South-Eastern region of Turkey, between the Turkish security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers' Party of Kurdistan). Since 1987, 10 of the 11 provinces of South-Eastern Turkey have been subjected to emergency rule, which was in force at the time of the facts complained of. The main issue in this case concerned the fact that during this conflict, a large number of villages have been destroyed and evacuated by the security forces. According to the applicants, the alleged burning of their houses by the security forces constituted, inter alia, a violation of Article 3 (the prohibition of torture and inhuman treatment or punishment) and Article 8 (the right of respect for private life, family life, and home) of the European Convention on Human Rights (ECHR), and Article 1 of Protocol No. 1 (property rights).
Judge Peter Kooijmans
Authors: Lammers Johan G.
Published: March 2004

In a small note which Peter Kooijmans wrote to me in answer to a letter in which I congratulated him with his election as Judge in the International Court of Justice – the first Netherlands Judge in the Court after World War II apart from Professor Riphagen who only served as a Judge ad hoc in the Barcelona Traction, Light and Power Company Ltd. case – he stated that he considered himself to be a privileged man. Privileged, because the new position would allow him to continue to remain active in the field of international law considerably beyond the retirement age of 65 which applies to professors of international law and most other people in The Netherlands. Privileged, I would like to add, also in another respect. Very rarely it will be given to one person in his lifetime to fulfil so many different honourable positions in the field of international law and international relations at such a high level of responsibility as has been the case with Peter Kooijmans: Professor of public international law, United Nations Special Rapporteur on Torture, State Secretary (Staatssecretaris) for Foreign Affairs, in particular disarmament matters (1973–1977), Minister for Foreign Affairs and, finally, Judge in the International Court of Justice.
Judge Peter Kooijmans
Authors: Flinterman Cees
Published: March 2004

Human rights constitute a challenge that Peter Kooijmans never refused or will refuse, both in his academic and government activities. For a long time he has been in the forefront of those who have struggled for the promotion and protection on human rights for everyone, everywhere in the world. As he said himself: “I myself would not have devoted so much of my time to the cause of human rights […] if I had not believed it to be a just cause and worthy task.“ The issue of human rights first became a major concern for him when he was State Secretary for Foreign Affairs (1973–1977), when he had the Dutch foreign policy within the United Nations (including human rights questions) in his portfolio. It was during that period that the United Nations was gradually changing its course, by shifting the emphasis from standard setting in the field of human rights to supervision over the implementation of international human rights norms. He was then working in the shadow of Max van der Stoel, Minister for Foreign Affairs, who was himself an outspoken protagonist of international human rights. It was Max van der Stoel who, after he had again become Minister for Foreign Affairs during the shortlived Van Agt II cabinet (1981–1982), requested Peter Kooijmans to succeed him as Chairman of the Netherlands' delegation to the United Nations Commission on Human Rights, the main political organ of the United Nations in the field of human rights. With his usual sense for realism, Kooijmans once described this Commission as “a crooked stick to make straight stroke”.
Judge Peter Kooijmans
Authors: Brus Marcel
Published: March 2004

When Peter Kooijmans took up his position as judge in the International Court of Justice on 6 February 1997, a formal end came to a career of about 30 years of teaching public international law in the Netherlands. This is why the Leiden Journal of International Law has asked me to write a few words about the work and person of Peter Kooijmans as a teacher of public international law, a task which I accepted with great pleasure, also on behalf of other staff members who have worked with Peter Kooijmans for many years.
Case Analysis: Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear Weapons
Authors: Koskenniemi Martti
Published: March 2004

The dichotomy of reason and passion is so deeply embedded in the construction of what is ‘legal‘ that it seems difficult even to imagine an international law that would not be entrenched in it. The very identity of international law seems based on its capacity to set itself on the side of reason, in opposition to the passionate, the irrational. Is not reason practically synonymous with order, and passion with chaos? And what is law for if not to bring about order, and to allow exit from our slavery under passion? Is not reason what is universal and objective, while passion is particular and subjective? And is it not then the case that a law pretending to universality must perforce align itself with the forces of reason?
Case Analysis: Comment on the Genocide Case (Preliminary Objections)
Authors: Szaz Paul C.
Published: March 2004

On 11 July 1996, the International Court of Justice, in its third Substantive decision and first Judgment in respect of the dispute brought before it by Bosnia and Herzegovina (Bosnia or BH) against the Federal Republic of Yugoslavia (Yugoslavia or FRY) under Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, dismissed all the preliminary objections that had been raised by Yugoslavia, as well as several additional bases of jurisdiction invoked by Bosnia. The Court also found that it had jurisdiction to adjudicate upon the dispute and that the application filed by Bosnia on 20 March 1993 was admissible. It thus positioned itself, over three years after the application had been filed, to resume the proceedings to consider the case on its merits, though still on an somewhat lcisurely schedule.
Constitutional and Institutional Developments: The International Criminal Tribunal for the Former Yugoslavia: Recent Developments in Witness Protection
Authors: Featherstone Y.M.O.
Published: March 2004

The International Criminal Tribunal for the former Yugoslavia (ICTY) is specifically charged in its Statute with the protection of victims and witnesses. This mandatory consideration is also reflected in its Rules of Procedure and Evidence (‘the Rules’). As a newly created international judicial organization, the 18 months since the very first decision granting protective measures for victims and witnesses was issued have been highly influential in identifying and laying down the basic principles upon which such protection may be granted within the context of the unique legal framework of the ICTY. The completion of the first trial has enabled the ICTY to put those principles into practice and evaluate them over a six-month period. This article will focus mainly on the experiences gained from the Tadić trial, with reference to other cases for completeness.
The ICTY and the Right to a Fair Trial: A Critique of the Critics
Authors: Swaak-Goldman Olivia Q.
Published: March 2004

In recent publications a rising tide of criticism directed against the International Criminal Tribunal for the former Yugoslavia (ICTY) is discernible, principally concerning whether or not the ICTY grants the accused a fair trial. The perceived lack of ability, or willingness, to satisfy the highest standards of human rights concerning the right of accused to a fair trial is regarded as a death-knell both for the broad acceptance of the ICTY's jurisprudence as well as the prospects for a permanent international criminal court. While most of the criticism centres around the interpretation and application of provisions of the ICTY's Statute and Rules of Procedure and Evidence addressing the right to a fair trial, some of it concerns the vigorousness with which ICTY officials insist upon the surrender of indicted persons. With all due respect these commentators, by applying norms that are not wholly applicable, misconceive the threat to the accused's fair trial rights.
A Mirage in the Sand? Distinguishing Binding and Non-Binding Relations Between States
Authors: Chinkin Christine
Published: March 2004

The article discusses the two decisions (thus far) of the International Court of Justice in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, especially its consideration of when an internationally binding agreement has come into existence. The Court's willingness to infer a legally binding agreement, regardless of the intentions of at least one of the parties, appears to displace the primacy of consent it has emphasized in its earlier jurisprudence. The decision seems to hold states bound by informal commitments, an approach that might inhibit open negotiations between states and undermine genuine attempts to pre-empt disputes or to comply with the obligation of peaceful settlement of disputes.
Coordination and International Institutions in Post-Conflict Situations
Authors: Taylor Mark B.
Published: March 2004

In recent years, there has been a continous attempt to describe changes in the possibilities for international action in relation to conflict situations. How does the coordination and management of international involvement in post-conflict situations contribute to a lasting peace? The article examines the principle texts associated with peace implementation in the former Yugoslavia, and extracts from these some of the elements of the coordination of multilateral activities. The article places this analysis in the context of past and current research on the question of the coordination of multilateral institutional activities as a first step in the grounded study of the organization and management of international involvement in securing peace in post-conflict situations.
The Comprehensive Nuclear Test Ban Treaty
Authors: Llewellyn Huw
Published: March 2004

In 1954, following the US explosion of a large thermonuclear device in the South Pacific, Prime Minister Nehru of India led the first international call for a comprehensive ban on nuclear testing. It took until 10 September 1996 for the General Assembly of the United Nations to adopt the Comprehensive Nuclear Test Ban Treaty (CTBT). As at the end of April 1997, it had been signed by 142 states including the five nuclear-weapon states.
The OSCE Court: An Overview
Authors: Jacobi Susanne
Published: March 2004

The CSCE/OSCE is linked in public opinion to one of the following headings: Helsinki Final Act and Cold War; arms control and disarmament; crisis management and conflict prevention. This picture is not completely incorrect in that it indicates more than 20 years of CSCE/OSCE history. Being no more than a series of conferences from 1973 to 1990, the ‘old’ CSCE attempted to bridge East and West, and it mainly contributed to developing military aspects of security in Europe. Following the collapse of the former Eastern bloc, the ‘new’ CSCE, later renamed the OSCE, was called upon to assist in managing the epochal change involving the resurgence of regional crises, and it has been equipped with a fully developed organizational and instrumental structure to that end. The most prominent examples of CSCE/OSCE activity in the areas of conflict prevention, crisis management, and post-conflict peacebuilding, are places such as Bosnia and Herzegovina, Chechnya, or Albania.
Case Practice in International Administrative Law
Authors: Hennis Edgar
Published: March 2004

International administrative law deals with legal recourse within public international organizations in respect of conflicts between employees (international civil servants) and the organization itself. Literature in this field of public international law is relatively scarce and jurisprudence is not easily accessible. Following a short survey of the main particulars in international administrative law this article will present a recent case in which the Appeals Board of the European Space Agency (ESA) rendered a decision. It deals with some typical legal issues which play a role in international administrative procedures. For practitioners, in particular, this case is an interesting example, of how international tribunals solve legal questions in respect of jurisdiction and substance.
Constitutional and Institutional Developments: The Function of the International Court of Justice in the Development of International Law
Authors: Weeramantry Christopher G.
Published: March 2004

It is always a pleasure and privilege to address a body of students as they commence their graduate studies. You have climbed the foothills successfully and have reached the first plateau. But there are many peaks ahead, and as you commence your ascent of one of them today, I wish you the very best of luck in reaching the sunlit plateau that lies ahead. When you arrive there, you will no doubt see other peaks which you may wish to climb, because any branch of study reveals ever higher and higher peaks. The higher you go, the more you see. These summits are sometimes even hidden in the clouds. You keep discovering them, and even if their existence is known, they are often unexplored territory. Pathways have to be found through them. That is part of the intellectual excitement you will commence today as you leave the well-trodden paths and begin to carve out pathways for yourselves. I congratulate you and wish you God speed on your journey.
Case Analysis: Dražen Erdemović: The International Criminal Tribunal for the Former Yugoslavia in Action
Authors: Green L.C.
Published: March 2004

The first person to be sentenced by the United Nations ad hoc International Criminal Tribunal for the former Yugoslavia (Tribunal) was Dražen Erdemović, a member of the Bosnian Serb Army who had pleaded guilty to one count of a crime against humanity – murder – and another of violations of the laws and customs of war – murder. Erdemović was a soldier in the 10th Sabotage Detachment of the Bosnian Serb army and the charges against him arose in connection with the slaughter of Bosnian Muslim civilians in the United Nations ‘safe areas’ of Srebrenica and Potocari.