bluuebunny/crossref_metadata_2025 huggingface dataset:
Commentary: The International Court of Justice and the Adjudication of Territorial and Boundary Disputes
Authors: Merrills J.G.
Published: March 2004

Territorial and boundary disputes provide a major part of the work of the International Court. The author considers how cases of this kind come to the Court and the issues of jurisdiction and justiciability they represent; explains how, when the Court decides such cases, it establishes the facts and applies the law; and, finally, discusses the question of implementation and the factors which determine the effectiveness of judgments. He concludes that in territorial and boundary cases, as elsewhere, the Court's decisions serve both to resolve specific disputes and to develop the law, while also highlighting the political context of international adjudication.
List of current legal proceedings: Update
Authors: Benoit Brigitte P.
Published: March 2004

On 2 August 2000, Trial Chamber III (Judges May (Presiding), Bennouna and Robinson) dismissed Dragan Kolundžija's motion for severance of counts and/or bifurcation of trial, filed on 22 May 2000. Dragan Kolundžija requested in the motion that the Trial Chamber first hear and determine the charges dealing with crimes allegedly committed by the accused inside Keraterm, followed by either a separate trial (‘severance’), or a separate phase of trial (‘bifurcation’), addressing the issues surrounding the crimes allegedly committed outside Keraterm camp. The Trial Chamber dismissed the motion and argued that the defence proposal was impractical and that there was no good reason to conduct the trial in two separate phases.
Commentary: Kosovo: The British Government and ICTY
Authors: Gowan David
Published: March 2004

This article gives an account of the support provided by the British Government of the International Criminal Tribunal for the former Yugoslavia. In 1999, the author was the UK Kosovo War Crimes Co-ordinator, and was responsible for providing information and assistance to the ICTY Prosecutor.
The Right to be Defended in Person or Through Legal Assistance and the International Criminal Court
Authors: Beresford Stuart , Lahiouel Hafida
Published: March 2004

While the Statute of the International Criminal Court guarantees to suspects and accused the right to be defended in person or through legal assistance, it contains little guidance as to the extent to which this most fundamental right will be provided. In order to ascertain how broadly it should be applied, the authors examine the application of the right by the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia. The authors note that the defence-orientated approach taken by the ad hoc Tribunals to the right to be defended in person or through legal assistance not only conforms with international obligations, but also in many respects goes beyond that required by international human rights law. It is, therefore, crucial that the ICC listens to the experience of the ad hoc Tribunals and adopts similar, if not identical, rules and regulations relating to the qualifications, conduct and assignment of counsel.
Individual Human Rights v. State Sovereignty: The Case of Peru's Withdrawal from the Contentious Jurisdiction of the Inter-American Court of Human Rights
Authors: Tinta Monica Feria
Published: March 2004

Human rights law is often regarded as a discipline with aspirations of being an autonomous, self-contained regime within the general corpus of international law. Recent debates concerning reservations in the area of treaty law have reinforced views which claim the governing prinicples of human rights law depart – if not contradict – general rules of international law. By examining a landmark decision of the Inter-American Court of Human Rights which declared the recent purported Peruvian withdrawal from its compulsory jurisdiction invalid, against the background of general international law, the author aims to demonstrate that far from deviating from the general rules of the Vienna Convention of the Law of Treaties, this decision supports the view that human rights law is neither insulated from general international law nor divorced from the principle of sovereignty. For the principle of sovereignty has a twofold character: it is the fundament but also the limit of freedom of action by a state.
Some Random Remarks on Complaints Regarding the East Timor Popular Consultation
Authors: de Hoogh André J.J.
Published: March 2004

The referendum of 30 August 1999 constituted a historic exercise of the right to self-determination by the people of East Timor. It rejected autonomy within Indonesia and chose to go forward on the path towards independence. Proponents of autonomy complained that they had been barred from participating in the process, and that Timorese staff had systematically told or forced people to vote for independence. However, there is no evidence that the referendum was corrupted through systematic bias on the part of local staff members. The outcome of the referendum, 78.5% in favour of independence, must be accepted as an accurate reflection of the will of the people of East Timor.
Change of Guard
Authors: Amaya-Castro Juan M. , Skouteris Thomas
Published: March 2004

Dr René Lefeber stayed at the helm of the Leiden Journal of International Law as its Editor-in-Chief for more than four important years (1996–2000), marked by innovation and change in practically every aspect of the Journal. Barely two years after a profound re-organization, the Journal's volume was doubled with three issues per year in 1997, and four issues in 1998. Meanwhile, the number of pages, the quality, and the diversity of published material saw dramatic growth. The section on Hague International Tribunals became a standard feature; a sub-section on the International Criminal Court was set up in 1998 to regularly cover ongoing developments in this important institution; an annual specialized bibliography on dispute settlement was introduced; and regular Editorial notes by members of the Board figured in each issue. All in all, a very different Journal than the one handed down four years earlier.
The Other Death of International Law
Authors: Morgan Ed
Published: March 2004

Lawyers have begun to think of the legal events and institution-building related to the demise of Yugoslavia as raising new hope for international law. The recognition of newly self-determining sovereign entities that was facilitated by the European Community, together with the creation by the UN Security Council of an international criminal tribunal, constitute instances of newfound political authority over political disputes. On the other hand, close examination of the recognition process of the European Community and the constitutional stature of the ad hoc criminal court reveals political considerations to have dominated normative principles. Thus, while in form the legal events surrounding the Yugoslavia conflict seem to reflect the triumph of internationalism over the force of sovereignty, in substance they reflect precisely the opposite. In analyzing these legal pronouncements through the lens of the fantasy stories of Jorge Luis Borges, one can begin to appreciate international law's conceptual embarrassment of riches.
For this is all a dream we dreamed one afternoon long ago.Hunter & Lesh, Box of Rain.
Carl Schmitt's Critique of Liberal International Legal Order Between 1933 and 1945
Authors: Carty Anthony
Published: March 2004

Carl Schmitt was an intellectual who made the discipline of international law grapple with the major issues of his time. His work as an international lawyer remains largely untranslated. It is riddled with racism and anti-Semitism. However, an interest of his work is that it reflects the ‘shadow side’ of contemporary international law, forgotten because the moral defeat of Germany in 1945 was so total. Schmitt argues for an inherent tendency to violence and demonization in Western liberal international law theory and practice. He argues for the acceptance of difference as against homogeneity in world society as the only way to limit this violence. Finally, he argues that the liberal tradition is fundamentally compromised by its own colonialist heritage. Its objections to Nazi Germany translating this colonialist imperialism onto Eastern Europe are incoherent. Schmitt's avowed racism and anti-Semitism remain shocking. The article does not try to downplay this aspect of his work. However, it is worth noting that his Nazi bosses, for the most part, thought his racism insincere. If any negative spirit imbues the actual technical detail of Schmitt's work it is his aversion to the West. This probably had its roots in the envy which the Kaiserreich had of the British, French, and American Empires while Schmitt was growing to maturity.
The International Court of Justice: Revision of Articles 79 and 80 of the Rules of Court
Authors: Rosenne Shabtai
Published: March 2004

On 5 December 2000 the International Court of Justice adopted amended texts of Articles 79 and 80 of the Rules of Court, dealing respectively with preliminary objections and with counter-claims. The present paper introduces the new articles in the light of the 1978 version of the texts.
Accepting the Compulsory Jurisdiction of the International Court of Justice with Reservations: An Overview of Practice with a Focus on Recent Trends and Cases
Authors: Alexandrov Stanimir A.
Published: March 2004

States can accept the jurisdiction of the International Court of Justice with respect to all or certain categories of legal disputes by means of unilateral declarations. This article examines the reservations to the acceptance of the compulsory jurisdiction that states include in such declarations. It reviews the practice of states and traces the trends in drafting and adopting reservations. It also analyzes the jurisprudence of the Permanent Court of International Justice and the International Court of Justice in relation to the interpretation of various reservations, particularly in recent cases, illustrating the effectiveness or ineffectiveness of different types of reservations.
The Jelisić Case and the Mens Rea of the Crime of Genocide
Authors: Schabas William A.
Published: March 2004

The December 1999 judgment of the ICTY in the Jelisić case is the first ruling on the merits from that court dealing with an indictment for genocide. The Trial Chamber concluded that the Prosecutor had failed to prove that genocide was committed and that consequently the accused could not be convicted as an accomplice to the crime. It went on to examine whether despite the absence of genocide on any widespread or systematic basis it was still possible for an individual, driven by genocidal intent, to commit one of the underlying crimes such as killing or causing serious bodily or mental harm. The Trial Chamber considered this a plausible hypothesis but ruled that this did not correspond to the facts of the case. Since the Jelisić ruling, the Preparatory Commission of the International Criminal Court has attempted to eliminate the lone génocidaire scenario in the Elements of Crimes. While the law remains unsettled, awaiting clarification from the Appeals Chamber, a wise prosecutorial policy would be to reserve international genocide prosecutions for serious cases involving organized and widespread crimes. Exaggerated attention to individual and isolated cases is a questionable use of valuable resources and risks diluting some of the terrible stigma now attached to the “crime of crimes.”
The Maritime Delimitation Between Eritrea and Yemen
Authors: Evans Malcolm D.
Published: March 2004

The Award of the Arbitral Tribunal in the Second Phase (Maritime Delimitation) of the Eritrea-Yemen Arbitration follows the trend towards producing a single all-purpose delimitation line constructed on the basis of equidistance, the course of which is chiefly dictated by mainland coastal geography. Islands are accorded little impact upon the course of the final line, save to the extent necessary to permit them a full territorial sea. The potential relevance of other factors, including fishing and navigational interests is acknowledged but, given the methodology adopted, they did not influence the construction of the line. As in other cases, proportionality is demonstrated by comparison of areas with the relevant coastal lengths, although the usefulness of this is dubious. Although entirely separate exercises, it may be that the methodology pursued owes something to the outcomes of the first phase of the Arbitration, concerning sovereignty over the islands, and this may have a bearing upon the impact of the Award for maritime boundary delimitation more generally.
Lockerbie and Scots Law
Authors: Davidson Fraser
Published: March 2004

This article considers the implications of the Lockerbie case for Scots law. It examines the case from the standpoint of criminal procedure, the substantive charges against the accused, the presentation of evidence, the verdicts open to the court, and the available sentences. Originally written before the trial had commenced, it has been updated to take account of several important developments that occurred during the trial.
The FATF ‘Black List’ of Non-Cooperative Countries or Territories
Authors: Stessens Guy
Published: March 2004

This article discusses the Review to Identify Non-Cooperative Countries or Territories, which was issued by the Financial Action Task Force in June 2000. After a general overview of the problem of secrecy havens and of the criteria used to identify them, the article gives a critical assessment of the process used to arrive at the ‘black list’ of 15 jurisdictions that was eventually drawn up. In this respect, a comparison is made with the work carried out by the OECD in the field of unfair tax competition by tax havens. It also looks forward at the possible follow-up to this list, both by the FATF and other international fora.
Codification of the Law on Diplomatic Protection: the First Eight Draft Articles
Authors: Zieck Marjoleine
Published: March 2004

The ILC has initiated the codification of the law relating to diplomatic protection. Two reports have so far been submitted, a preliminary one and a first one in which eight draft articles are proposed. An analytical synopsis of the preliminary report will be followed by a short outline of the object and purpose of the draft articles as well as of the comments of the Commission which discussed the articles during its 52nd session. In the conclusion the contours of diplomatic protection as may be inferred from the work done so far are sketched.
Still a Mile too Far? International Law Implications of the Location of an Airport in the Sea
Authors: de Leon Pablo Mendes , Molenaar Erik Jaap
Published: March 2004

This essay discusses international law aspects of an airport in the Exclusive Economic Zone (EEZ), concentrating on the law of the sea and air law. The law of the sea gives a more positive answer to the question regarding the feasibility of the operation of an airport in the EEZ than air law. At the same time, the evolution of regimes, including also EC law and policy, may facilitate acceptance of international operations at a national airport in the EEZ. Finally, the prevailing circumstances, such as economic, financial and environmental considerations, will be liable to affect the acceptability of an airport in the sea, more particularly in the EEZ.
Proliferation of International Courts and Tribunals: Is It Good or Bad?
Authors: Buergenthal Thomas
Published: March 2004

In his opening lecture of the LL.M. Program in Public International Law at Leiden University, Judge Buergenthal examines whether the recent phenomenon of the proliferation of international tribunals is to be welcomed or regretted by those who are interested in seeing international law become a vibrant and politically relevant legal system. He addresses questions relating to their interaction and the delimitation of their respective roles.
Human Rights Limitations to Economic Enforcement Measures Under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime
Authors: de Wet Erika
Published: March 2004

This article questions the legality of the extent of the Iraqi sanctions regime, due to its severe impact on human rights such as the right to life and the right to health. After examining whether the Security Council is bound by human rights, the article examines if and to what extent the Security Council may limit human rights norms when imposing economic sanctions. In the process it distinguishes between non-derogable and derogable human rights. With respect to the latter, it supports limitation in accordance with a proportionality principle that protects the core of the rights involved, while at the same time allows the Security Council the flexibility required by its unique role in the maintenance of international peace and security.
Environmental Damages and the 1991 Gulf War: Some Yardsticks Before the UNCC
Authors: Aznar-Gómez Mariano J.
Published: March 2004

Environmental damages caused by Iraqi occupation of Kuwait and its aftermath are to be assessed through the compensation system created by the UN Security Council. The UN Compensation Commission (‘UNCC’) has scheduled its first decision on environmental claims for the summer of 2001. These claims, however, deserve a particular treatment by the UNCC: problems related to the law applicable, the principle of due process, the principle of causal link, the assessment of damage, the identification of injured subjects, and the type of compensation are particularly addressed in the following pages. Keeping in mind the ‘precedent-setting procedure’ used by the UNCC, this article tries to explore previous applicable precedents, ordering them into a structured ‘legal’ framework and exposing existing gaps, if any.
Judges of the International Court of Justice – Election and Qualifications
Authors: Amerasinghe Chittharanjan F.
Published: March 2004

The article reviews (i) the qualifications of judges of, and (ii) the distribution of seats in, the ICJ. (i) Since 1966 there has been only one judge elected who merely satisfied the requirement relating to highest national judicial office. It is clear that with the increase in the supply of competent public international ‘jurists’ from the developing countries and because of the increasingly complicated and specialized nature of international law national judicial office has become irrelevant and insufficient as a qualification. Recognized competence as a public international jurist should be the only valid criterion. On the other hand, the latter concept has been given an unwarranted and undesirable extension by the UN, especially in connection with candidates from developing countries. (ii) While, in keeping with Article 9 of the Statute, there is some agreed regional distribution of seats among the non-permanent members of the Security Council, equity seems to be disregarded, particularly among the non-Western European states, by rotation among states being ignored. This is not in keeping with the Statute.
The Contribution of the International Court of Justice to International Humanitarian Law
Authors: Gardam Judith
Published: March 2004

This article considers the contribution of the International Court of Justice (‘ICJ’) to the development of the rules and principles of international humanitarian law (‘IHL’). In recent times, the contribution of the Court to this body of the law has been overshadowed by the work of the two ad hoc international criminal tribunals, the ICTY and the ICTR, established by the Security Council to punish those responsible for serious breaches of IHL. Nevertheless, the ICJ, in both its contentious and advisory jurisdictions, has considered the provisions of IHL on a number of occasions, and in the process has clarified many areas of IHL. This article is concerned with one particular issue: how does the Court perceive the fundamental nature of IHL? The analysis adopts two themes. First, an assessment is made of the part played by the Court in the process of bringing IHL into conformity with the changing emphasis of general international law. In both the Nicaragua case and the Nuclear Weapons Advisory Opinion the Court continued the process of what has been referred to as the “humanization of international law.” Second, the approach of the Court to the vexed issue of the relationship between ius ad bellum and IHL is considered. The conclusion is reached that the approach of the Court to this latter issue has undermined its contribution to infusing the humanitarian ethos into IHL.
From ‘Common Law’ Towards ‘Civil Law’: The Evolution of the ICTY Rules of Procedure and Evidence
Authors: Mundis Daryl A.
Published: March 2004

As a result of the perception that trials at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) are too lengthy, a discernible shift in the trial practice of the ICTY is occurring, with a greater emphasis on the role that the judges play in controlling the proceedings. While the first few trials at the Tribunal closely resembled common law criminal trials, the level of control being exercised by the Trial Chambers in recent cases is moving more in the direction of the civil law approach. As a result, a truly mixed jurisdiction, that is, one that contains elements of both the common law and the civil law, is emerging. This evolutionary process will be examined in the context of: (1) The Rules of Procedure and Evidence and amendments thereto concerning case management; (2) examples of case management under the amended Rules; and (3) the future evolution of the ICTY.
Trials of Imperfection
Authors: Nice Geoffrey
Published: March 2004

The speaker identifies the scale of the task facing the ICTY and ICTR. He speaks of the necessary procedural and personnel imperfections by which their performance is bound to be limited along with the imperfections of the people of the regions whose war crimes they deal with. He deals with some inevitable shortcomings in the lawyers and judges working at the tribunals and argues for the need to have personnel of the very highest quality doing the tribunals' work. He highlights the need to be truly objective about the tribunals and their work but expresses optimism about their potential beneficial effects.
Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such
Authors: Triffterer Otto
Published: March 2004

All crimes of genocide have a common structure: There must be an actus reus, a corresponding mens rea and, in addition, a second subjective element, the “intent to destroy, in whole or in part, a […] group as such.” This so called “genocidal intent,” is characterized by the fact that responsibility for completed genocide does not depend on the result, the perpetrator intended to achieve. The threshold of this intent is not higher than for the mens rea described in Article 30 of the Rome Statute; in particular, no special quality of the volitive side of this intent is required. Dolus eventualis, therefore, is sufficient to commit the actus reus and to have, in addition, the particular “intent to destroy […].” An inherent, additional and independent, contexual criterion, as proposed in The Draft Elements of Crimes is neither admissible nor advisable to limit the punishability of genocide or the jurisdiction of the Court for such crimes.
Defining the Crime of Aggression Under the Statute of the International Criminal Court
Authors: Müller-Schieke Irina Kaye
Published: March 2004

Article 5 of the Statute of the International Criminal Court verifies the four most serious crimes to the international community as a whole upon which the Court shall have jurisdiction. Though it includes the crime of aggression the Statute lacks a definition of that crime. The purpose of the article is to offer a sustainable definition. It discusses the constitutive elements of the crime, focussing on the crucial points in a debate that has been actively engaged in for the past 50 years. Certainly, the crux of the matter lies in the role the Security Council should play in this regard.
[…] there has been a persistent undercurrent of opinion expressive of the view that there is no fixed limit to the possibilities of judicial settlement; that all conflicts in the sphere of international politics can be reduced to contests of a legal nature; that the only decisive test of justiciability of the dispute is the willingness of the disputants to submit the conflict to the arbitrament of law.H. Lauterpacht
Chechnya: In Search of Constructive Accommodation
Authors: Eide Asbjørn
Published: March 2004

The quest for a constructive solution to the situation in Chechnya is a challenge of the greatest importance. The prospects are examined against a review of the historical background of conflict and suffering. Solutions would have to be based on some form of autonomy within the Russian Federation, providing for extensive self-government in relation to education, culture, use of local languages, measures to protect the environment, local planning, economic development, local policing functions, and housing, health, and other social services. But there are other matters which must be shared with the central authorities. Optimal divisions of functions between autonomous Chechnya and the federal authorities will take time had has to proceed step by step. The role of international agencies in achieving and guaranteeing this result is examined.
Possible International Forums for the Resolution of Legal Conflicts Over Pipeline Transit in the Former Soviet Union
Authors: Sinuraya Timur
Published: March 2004

The development of the former USSR oil and gas resources presents considerable political and legal challenges, such as intergovernmental agreements, delimitation of borders, and jurisdiction over the energy resources (e.g., Caspian basin). In this respect the pipeline transportation and transit have become increasingly important issues. In view of Article 7 of the Energy Charter Treaty, the novel public international law obligation of states to facilitate and not to impede the transport of energy through pipelines, this article will briefly consider the possible international forums for the resolution of legal conflicts over pipeline transit in the former Soviet Union.
A Surinam Crime Before a Dutch Court: Post-Colonial Injustice or Universal Jurisdiction?
Authors: van der Oije Pita J. C. Schimmelpenninck
Published: March 2004

In Surinam, in December 1982, fifteen political opponents of the military regime were allegedly tortured and killed. Fourteen were of Surinam nationality and one was Dutch. There was never an official inquiry by either the Surinam or the Dutch authorities, but several international bodies investigated and reported on the case. The main responsibility of the crime can be attributed to Mr D.D. Bouterse, who has been able to move freely since 1982 and still appears to be occupying an influential position in Surinam. Recently, however, both the Surinam Court of Justice and the Dutch Amsterdam Court of Appeal have decided that Bouterse can be prosecuted. In Surinam, he is to be prosecuted for murder on the basis of national criminal law. The Amsterdam Court ordered that prosecution take place for the international crime of torture on the basis of universal jurisdiction.
Constitution Without a State? Kosovo Under the United Nations Constitutional Framework for Self-Government
Authors: Stahn Carsten
Published: March 2004

On 15 May 2001 the Head of the United Nations Interim Administration in Kosovo (‘UNMIK’) signed into law Regulation 2001/9 establishing a Constitutional Framework for Provisional Self-Government in Kosovo. The document creates a provisional institutional framework for the exercise of public authority by Kosovo's institutions of self-government during the territory's administration under United Nations rule. UNMIK delegates important parts of its responsibilities in the legislative, executive and judicial field to the local institutions envisaged in the document. At the same time, however, crucial areas remain under the direct authority of the United Nations administration. This article examines the modifications brought about by the Constitutional Framework by discussing the legal nature and the contents of the document in the light of the various legal instruments governing Kosovo's institutional system throughout the last thirty years and previous international practice in the field of state-building and territorial reconstruction.
Re-Imagining International Human Rights Education in Our Time: Beyond Three Constitutive Orthodoxies
Authors: Okafor Obiora Chinedu , Agbakwa Shedrack C.
Published: March 2004

This article seeks to show that both the conceptualization and practice of international human rights education within the mainstream human rights community has been shaped and framed, with mostly negative consequences, by at least three constitutive orthodoxies: a heaven-hell binary distinction between an all but “perfect” West and an all but “hellish” Third World; a consequent unidirectional traffic of human rights teaching from the West to the rest; and a reliance on the abolitionist paradigm of human rights education. It starts by mapping these orthodoxies, and proceeds thereafter to challenge them as fundamentally problematic and as capable of frustrating the project of progressive human rights education. The article ends by offering an insight into the ways in which international human rights education might be re-imagined if it is to have a better chance of achieving its ordinarily laudable mission.
Command Responsibility of Civilian Superiors for Genocide
Authors: Zahar Alexander
Published: March 2004

The article critically examines the use of the doctrine of command responsibility by the UN International Criminal Tribunal for Rwanda in two of its judgements, Kayishema & Ruzindana and Musema. It argues that in assessing superior-subordinate relationships the ICTR applied the wrong standard in both cases. While there is no doubt that civilian superiors are liable to prosecution for command responsibility, the doctrine will be properly operative only in cases where the superior's control of subordinates strongly resembles that enjoyed by military commanders. The article builds upon the arguments of the ICTY's Čelebići judgement on this point, and emphasises the difficulty in holding lower-ranking Rwandan civilians responsible as superiors for genocide committed by supposed subordinates.
The Special Court for Sierra Leone: An Initial Comment
Authors: Beresford Stuart , Muller A.S.
Published: March 2004

The proposed establishment of the Special Court for Sierra Leone is a valiant effort to end impunity for the egregious crimes that were committed during the Sierra Leonean civil war. Nonetheless, the Special Court – which will have jurisdiction over crimes against humanity, war crimes, and various offences under Sierra Leonean national law – will have a number of major hurdles to cross in order to fulfill its mandate. Most notably the Court as currently empowered lacks the ability to induce the authorities of third states to comply with its orders and has limited temporal jurisdiction: thereby allowing a number of accused to escape justice. More alarmingly the on-going discussions within United Nations Headquarters concerning the financing of the organisation has substantially eroded the credibility of the institution, especially as large numbers of potential accused have been languishing in jail for significant periods without being formally charged.
The International Islamic Court of Justice: Towards an International Islamic Legal System?
Authors: Lombardini Michele
Published: March 2004

The present article describes the dispute settlement system of the Organization of the Islamic Conference through the envisaged creation of the International Islamic Court of Justice. The Court's Statute, adopted in 1987, considers the Islamic Shari'ah or Islamic law as the fundamental law to be applied by the Court for the resolution of international disputes. Therefore, the Court will have a religious character considering a local religious code as the primary applicable law. The International Islamic Court of Justice has not yet been set up. Its creation might have the effect of grouping Islamic states under the same international judicial system, and of causing a strong political impact in respect of the relations with the State of Israel and of the Palestinian question.
Reparations in the Practice of the African Commission on Human and Peoples' Rights
Authors: Naldi Gino J.
Published: March 2004

The African Commission on Human and Peoples' Rights, which is mandated under the African Charter on Human and Peoples' Rights with promoting and protecting human rights in Africa, has attracted considerable criticism for being an ineffectual body. One of the complaints is that the Charter based regime lacks an effective system of remedies. This paper examines whether this criticism is justified. An analysis of the jurisprudence of the African Commission proves that the Commission is patiently constructing a concept of reparations which has some similarities with that developed by the UN Human Rights Committee.
Soviet Genocide? Communist Mass Deportations in the Baltic States and International Law
Authors: Mälksoo Lauri
Published: March 2004

The present article deals with international law problems that have arisen in the process of legal clarification of the state crimes committed during the Soviet occupation in the three Baltic states. Following the restoration of their independence in 1991, the Baltic states have sought to establish the historical truth about the mass crimes committed during the Nazi and Soviet occupations – Estonia's International History Commission recently published its first report which is analyzed in this article. Moreover, the courts in the Baltic states have convicted deporters of 1941 and 1949 for crimes against humanity and/or genocide. By discussing different definitions of ‘genocide,’ the author attempts to answer the question whether the general context of the Stalinist mass repressions in the Baltic states permits to qualify the occupant's policy as ‘genocide.’
Why Are the Missiles (and Missile Defence) Called Peace-Keepers? – Corroding the Concept of Peaceful Use
Authors: Wilson Keith
Published: March 2004

The United States is abrogating the Anti-Ballistic Missile Treaty in order to deploy a limited missile defence shield. Amongst other developments, this is prompting a reconsideration of the global security framework. However, a crucial element is missing from the current missile defence proposals: a clearly articulated concept of peaceful use, applicable both to outer space and to earth-space. The deployment of missile defence runs counter to emerging norms. It has effects going far beyond the abandonment or re-configuration of specific Cold War agreements. In a community of nations committed to the maintenance of international peace and security (cf. national or plurilateral security), sustainable meaning for widely used and accepted norms of peaceful use and peaceful purposes is at risk.
C.G. Weeramantry at the International Court of Justice
Authors: Anghie Antony
Published: March 2004

This article discusses the judicial vision articulated by Judge Christopher Weeramantry in his time as a member of the International Court of Justice. It seeks to trace the development of his vision by examining his earlier writings, and the factors which shaped his approach to international law. It discusses some of the key elements of his vision: his sensitivity to Third World concerns, his attempts to create a universal international law which represents all the world's cultures, and his views of the judicial function and the international rule of law.
The Election of Ad Litem Judges and Other Recent Developments at the International Criminal Tribunals
Authors: Mundis Daryl A.
Published: March 2004

There have been several important developments concerning the ICTY and ICTR recently. For example, steps have been taken to improve the efficient operation of both ad hoc Tribunals, to include the addition of ad litem judges at the ICTY, an increase in the number of judges assigned to the common Appeals Chamber (to include the permanent assignment of ICTR judges to The Hague for this purpose), and amendments to the Rules of Procedure and Evidence of both ad hoc International Criminal Tribunals. In addition, efforts have been initiated to provide for compensation to victims and to individuals wrongfully detained, prosecuted or convicted. There have also been recent allegations of improper conduct by defence attorneys and investigators. The following article surveys these developments.
The UN and the ICC: The Immunity of the UN and Its Officials: IN MEMORIAM: Paul C. Szasz 1929–2002
Authors: Szasz Paul C. , Ingadottir Thordis
Published: March 2004

The Relationship Agreement between the United Nations and the International Criminal Court should contain provisions governing situations where requests from the Court might impinge on the privileges and immunities of the UN under its Charter and Privileges and Immunities Convention. In particular, the Court might need access to documents in the UN's archives, might require the testimony of persons serving, or having served, the UN in various capacities and might even consider some such persons as potential defendants; in addition, the inclusion of such provisions might make it advisable to include an effective disputes resolution clause in the Agreement.
The PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment
Authors: Ratliff Dane P.
Published: March 2004

The Permanent Court of Arbitration adopted Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment on 19 June 2001. These Rules seek to address fundamental lacunae as identified by a panel of environmental law experts and the member states of the Permanent Court of Arbitration. This article discusses some innovative provisions of the Environmental Rules and concludes that arbitration under the Environmental Rules could have some advantages over adjudication, and that the Environmental Rules can increase access to justice functioning as a tool for interpretation of existing agreements; possibly mending some of the fragmentation of international (environmental) law. The article also offers an examination of present systems and scenarios for how the Environmental Rules may lead to direct environmental improvement.
COPing with Consent: Law-Making Under Multilateral Environmental Agreements
Authors: Brunnée Jutta
Published: March 2004

The growing sense of urgency regarding various global environmental problems has prompted calls for global legislative processes that could produce binding outcomes. However, as law-making gravitates into international forums, questions are raised regarding the legitimacy of international environmental governance. Much law-making today occurs under multilateral environmental agreements (‘MEAs’), such as the Climate Change Convention and its Kyoto Protocol. The article examines the role of Conferences of the Parties (‘COPs’) in MEA-based law-making. It juxtaposes the standard conception of international law-making and an alternative account, which sees law-making not simply as crystallized in formal consent procedures but as continuous interactional processes. The interactional account can help build the foundations for legitimate international environmental governance, and can provide important guidance to law-makers, even as they, even as they continue to operate within a formal, consent-based framework.
Sense and Quasisense of Schmitt's Großraum Theory in International Law – A Rejoinder to Carty's “Carl Schmitt's Critique of Liberal International Legal Order”
Authors: Gattini Andrea
Published: March 2004

One year ago in this Journal Carty offered a reassessment of Schmitt's writings on international law, in an attempt to present them as a still valuable theoretical tool in a contemporary critical discourse on (neo)liberalism. Carty's proceedings, thought provoking as they may be, is unconvincing, because Schmitt's views on international law are indissolubly tied up with Nazi ideology and political purposes. Paradoxically a transfer in our time of Schmitt's Großraum concept provides a less critical argument against neoliberalism than at the best a dubious bolster to it.
Questions of International Judicial Jurisdiction in the LaGrand Case
Authors: Orakhelashvili Alexander
Published: March 2004

On 27 June 2001, the International Court of Justice rendered its final decision in the case of LaGrand (Germany v. United States of America), which deals with many complex issues of international law. Apart from the very interesting substantive legal issues relating to the regime of consular assistance and death penalty in international law, the Judgment of the Court contains significant principles and reflections as to the essence and scope of international judicial jurisdiction. In contrast to the traditional approach to this question, the Court's Judgment is concerned with practical and specific aspects of jurisdiction in action, rather than dealing with general assumptions and conceptions surrounding the problem. From this point of view, the present contribution examines the significance of LaGrand as a case in which the traditional assumptions on international judicial jurisdiction are tested and reappraised.
“Protected Property” and Its Protection in International Humanitarian Law
Authors: Jia Bing Bing
Published: March 2004

The issue addressed here is what types of property are protected by the law and by what qualities they are chosen for such protection. It is then proposed to consider whether it is helpful and possible to draw an analogy between the concepts of “protected persons” and “protected property.” Limited space will be given to the issue of protection of cultural property. The protection of property in land warfare is the main target of examination. The focus when selecting evidence is placed on existing treaties and cases from international tribunals (including the ICTY) dealing with cases arising from international conflicts. The conclusion contains seven principles regarding the protection of property, as evidenced by practice.
The Right of Non-Self-Incrimination of Witnesses Before the ICC
Authors: Ambos Kai
Published: March 2004

An unlimited right of non-self-incrimination of witnesses before international criminal tribunals exists only during the pre-trial investigation (Article 55 ICC Statute); during trial the right is not unlimited, as the witness can be compelled to answer any question, either on the basis of an ex ante assurance of non-use of the evidence against him/her coupled with an assurance of confidentiality (ICC Rule 74(3)(c)) or on the basis of a guarantee of non-use without an explicit assurance to that effect (ICTY/ICTR Rules 90(F)). It is doubtful whether these rules are compatible with the principle nemo tenetur se ipsum accusare since this principle protects not only the accused but also the witness from a criminal prosecution which is based on her own statements.
Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?
Authors: Triffterer Otto
Published: March 2004

The jurisprudence of the ICTY and the ICTR has denied this question, but accepts causality as a basic principle of criminal responsibility. Since the relevant articles in the Statute of the ICTY (Article 7(3)) and the ICTR (Article 6(3)), differ from Article 28 of the Rome Statute, which demands “a result of his or her failure to exercise control properly,” a comparative study is desirable. It has to include the question, whether this failure overlaps with the omission “to take all necessary or reasonable measures within his or her power,” and whether the last alternative “failed […] to submit,” requires at all a causal nexus.
Political Culture in the United States' Treaty-Making: A New Century, Familiar Behavior So Far
Authors: Iles Alastair
Published: March 2004

At the beginning of the 21st century, the United States is criticized widely for its attitudes to treaty-making. It has sought to oppose, or withdraw from, a number of treaties such as the Kyoto Protocol or the Anti-Ballistic Missile Treaty. Such behavior is conventionally attributed, in neo-realistic international law and political science theories, to the interests and ideologies that the US Government articulates. This essay uses a constructivist approach, namely focusing on how treaty-making is shaped by the interpretive work of people regarding the world they live in, to expand the analysis to include structural and cultural factors. The United States' treaty-making is also affected by the decentralized and participatory system of government, and by broader societal commitments to political transparency and culturally contingent understandings of risk.
The Judgment of the European Court of Human Rights in the Case of Cyprus v. Turkey
Authors: Loucaides Loukis G.
Published: March 2004

On 10 May 2001 the European Court of Human Rights delivered the above Judgment which pronounces for the first time on the overall legal consequences of Turkey's invasion and continued military presence in Cyprus since 1974. The Judgment is important in many respects. It deals with a wide spectrum of systematic violations and decides certain significant legal questions in the sphere of international law and of human rights in particular pertaining to state responsibility, continuing violations, liability for missing persons, denial of access to homes and property, domestic remedies by de facto organs and administrative practice. The Judgment is also noteworthy for its various dissenting opinions.
Improving Compliance with International Humanitarian Law Through the Establishment of an Individual Complaints Procedure
Authors: Kleffner Jann K.
Published: March 2004

This article discusses some of the legal issues that arise in the context of the possible establishment of an individual complaints procedure for violations of international humanitarian law, a proposal launched at the Hague Appeal for Peace in 1999. It examines such a proposal in the light of recent practice of human rights bodies, which suggests that the latter are not the most adequate means to improve supervision of compliance with international humanitarian law. The article argues that a separate body should be established and concentrates on the competence ratione materiae of such a body, the conceptualisation of the legal basis for individual complaints, non-state actors as respondents of complaints and applicable reparations for violations of international humanitarian law.
The Navigational Rights of Nuclear Ships
Authors: Roscini Marco
Published: March 2004

Even though Article 23 of the 1982 Convention on the Law of the Sea explicitly acknowledges the right of innocent passage through the territorial sea to nuclear vessels, many coastal states have recently forbidden or submitted to authorization the passage of ships carrying radioactive materials: this reveals a trend towards a more restrictive concept of “innocent passage.” As to straits used for international navigation and archipelagic sea lanes, the ius communicationis is still prominent and every measure that might prejudice the navigational rights of nuclear ships would not be consistent with the Montego Bay Convention.
Rights Inside Out: The Case of the Women's Human Rights Campaign
Authors: Riles Annelise
Published: March 2004

This essay traces the relationship between activists and academics involved in the campaign for “women's rights as human rights” as a case study of the relationship between different classes of what I call “knowledge professionals” self-consciously acting in a transnational domain. The puzzle that animates this essay is the following: how was it that at the very moment at which a critique of “rights” and a reimagination of rights as “rights talk” proved to be such fertile ground for academic scholarship did the same “rights” prove to be an equally fertile ground for activist networking and lobbying activities? The paper answers this question with respect to the work of self-reflexivity in creating a “virtual sociality of rights.”