bluuebunny/crossref_metadata_2025 huggingface dataset:
Case Analysis: Case Concerning Land and Maritime Boundary (Cameroon v. Nigeria): Provisional Measures, Order of 15 March 1996
Authors: Sztucki Jerzy
Published: March 2004

By an application filed on 29 March 1994, Cameroon instituted proceedings against Nigeria, relying on the declarations under Article 36(2) of the Statute of the Court, made by both states without reservations. The dispute, according to the Application, related “essentially to the question of sovereignty over the Bakassi Peninsula”, where, “since the end of 1993”, the Nigerian troops were “occupying several Cameroonian localities”. Cameroon also requested the Court “to determine the course of the maritime boundary between the two states beyond the line fixed in 1975”. In an ‘Additional Application’, filed on 6 June 1994, Cameroon extended the subject of the dispute “essentially to the question of sovereignty over a part of the territory of Cameroon in the area of Lake Chad”, which had become the object of “the official […] claim […] by […] Nigeria quite recently, for the first time”; and also requested the Court “to specify definitely” the whole frontier line from Lake Chad to the sea, and to examine the two Applications as a single case. In its counter-memorial, filed within the prescribed time-limit (18 December 1995), Nigeria raised objections to the jurisdiction of the Court and the admissibility of the Cameroonian claims, whereupon the proceedings on the merits were suspended and the President of the Court fixed 15 May 1996 as the time-limit within which Cameroon might present its observations on the Nigerian objections.
Frontiers of International Law, Part One: The Chechen People, Continued
Authors: de Hoogh André
Published: March 2004

In its first issue of 1996, the Leiden Journal of International Law published an Editorial from the hands of René Lefeber and David Raič. In it, their main contention is that even if the Chechen people might not have had a right to external self-determination before December 1994, it acquired such a right due to Russia's massive and indiscriminate use of military force in December 1994. This right to external self-determination, so they claim, entails a (correlative?) right to secession.
Frontiers of International Law, Part One: The Chechen People, Continued
Authors: Lefeber René , Raič David
Published: March 2004

We agree with André de Hoogh that the Chechens did not possess a right to external self-determination prior to the massive indiscriminate use oi military force by Russia in December 1994. At no point have we argued or suggested otherwise. Hence, up to December 1994, the Chechen claim did indeed not meet the conditions set by paragraph seven of the Friendly Relations Declaration. However, the Friendly Relations Declaration needs to be interpreted in view of usus and opinio iuris. In other words, one has to analyse how this paragraph has developed in customary international law. According to our analysis of the law of self-determination, the emergence of a right to external self-determination depends on two cumulative conditions, viz. 1) the serious and persistent violation of the right to internal self-determination and 2) the exhaustion of all total and international peaceful remedies by the people concerned to effectuate its right to internal self-determination. These conditions must be deemed fulfilled if the parent state seriously and massively violates the fundamental human rights and freedoms – in particular by an arbitrary violation of the right to life – of the persons belonging to the people concerned.
Cum Grano Salis
Authors: Lefeber René
Published: March 2004

It has to date not been examined in-depth what correlative rights and obligations the breach of an erga omnes obligation or an erga omnes right may entail. In his Separate Opinion in the Gabčíkovo-Nagymaros case, Judge Weeramantry devotes one section to the legal consequences of the involvement of erga omnes obligations in inter partes judicial procedures. This editorial analyses the relevant parts of Judge Weeramantry's Separate Opinion and explores the impact it may have on future litigation involving erga omnes issues.
State Immunity and Fundamental Human Rights
Authors: Karagiannakis Magdalini
Published: March 2004

Should state immunity from jurisdiction be denied to states that violate fundamental human rights in breach of international law? This article critically discusses three analytical approaches which can be used to answer the question at the level of international law. These approaches are derived from a review of principles of state immunity and fundamental human rights, including ius cogens. The article goes on to examine why the results dictated by these approaches at the level ot international law may not be reflected by municipal legal systems, using US domestic statutes and case law as an example of how a domestic legal system has dealt with this question.
The Precedential Effect of WTO Panel and Appellate Body Reports
Authors: Chua Adrian
Published: March 2004

The Dispute Settlement Understanding in the WTO Agreement represents a significant shift from a diplomatic model of dispute settlement to a rule-based model. The substitution of legal legitimacy for political legitimacy in the dispute settlement process makes the success or failure of the system largely dependent on the credibility of the jurisprudence produced by the panels and Appellate Body. One way which international tribunals have established credible jurisprudence, is by following their previous decisions unless there is good reason for deciding otherwise. This paper examines the precedential effect of previously adopted panel and Appellate Body reports, and policy reasons for and against a stronger form of precedent in WTO jurisprudence.
Autonomy of the Hong Kong Special Administrative Region
Authors: Jiuyong Shi
Published: March 2004

On 1 July 1997 the People's Republic of China recovered Hong Kong in accordance with the Sino-British Joint Declaration of 19 December 1984. On the same day, China announced the Hong Kong Special Administrative Region (HKSAR) formally established and functioning as of 1 July 1997.
The Brčko Award of 14 February 1997
Authors: Schreuer Christoph
Published: March 2004

The Dayton Accords of 1995 provided for arbitration over the boundary line in the Brčko area of Bosnia. Arbitration took place between the Muslim and Croat Federation and the Republica Srpska. Both party-appointed arbitrators refused to sign the Award. The Award does not draw a boundary line but establishes an international interim supervisory regime. The Tribunal decided on the basis of international law and equity. But it refused to apply the principle of non-recognition of territorial gains obtained in violation of international law. A further decision of the Tribunal is planned by 15 March 1998.
The Choice of a Switch: The European Reaction to the Helms-Burton Act
Authors: Vermulst Edwin , Driessen Bart
Published: March 2004

The dispute between the United States and the European Community on American extraterritorially operating trade legislation is far from resolved. The European Community has adopted a two-pronged approach to the matter; on the one hand WTO dispute settlement proceedings were initiated which, however, were subsequently suspended. On the other hand, the Community adopted quite unique anti-extraterritoriality legislation. This contribution reviews developments relating to the Community's double response in the last year, and provides some comments on possible developments in the future.
Redress (noun): Reparation without satisfaction. Among the Anglo-Saxons a subject conceiving himself wronged by the king was permitted, on proving his injury, to beat a brazen image of the royal offender with a switch that was afterward applied to his own naked back. The latter rite was performed by the public hangman, and it assured moderation in the plaintiff's choice of a switch.
Case Analysis: The Nicaragua Case and the Denunciation of Declarations of Acceptance of the Compulsory Jurisdiction of the International Court of Justice
Authors: Quintana Juan José
Published: March 2004

This paper is concerned with the denunciation of declarations of acceptance of the compulsory jurisdiction of the International Court of Justice under the Optional Clause and the impact that the 1984 Judgment of the Court in the jurisdictional phase of the Nicaragua case may have had upon it. In this decision the Court found that the principle of good faith is of paramount importance in the legal regime of the Optional Clause and introduced in that regime the element of a ‘reasonable time’ for the denunciation of declarations of indefinite duration and silent as to termination. The relevant passage of the Judgment is discussed with a view to determine the contours of this requirement and the ways it may operate in practice.
Case Analysis: Dispute Resolution by the International Court of Justice
Authors: Ajibola Bola A.
Published: March 2004

Over the years the International Court of Justice has come to play a mediative role in the settlement of disputes. This article focuses on the negotiation process by the International Court of Justice during the settlement of inter-state disputes. Various cases that were brought before the International Court of Justice are discussed to elaborate on this growing trend.
Case Analysis: Torture and Related Crimes – A Discussion of the Crimes Before the International Criminal Tribunal for the Former Yugoslavia
Authors: Wauters Jasper M.
Published: March 2004

The Statute of the International Criminal Tribunal for the former Yugoslavia lists certain offences that might constitute a war crime or a crime against humanity. It does not, however, define any of these offences, among which are torture, inhuman treatment and wilfully causing great suffering or serious bodily harm. Although their meaning is clear in plain language, their legal definition is not. This article attempts to find the customary international law definition of these crimes.
Case Analysis: Murder as a Crime Under International Law and the Statute of the International Criminal Tribunal for the Former Yugoslavia: Of Law, Legal Language, and a Comparative Approach to Legal Meaning
Authors: Hogan-Doran Justin
Published: March 2004

Whilst the crime of murder, and its equivalents, is clearly defined and subject to extensive jurisprudence in every jurisdiction, no attempt has been made to give this crime a definition at the international level. For the international criminal tribunals, such as the ICTY, to work effectively, and fairly, this and other major crimes must be clearly defined from the outset. This paper briefly compares the approach to murder as a class of homicide across major legal systems. It reveals that, for all their differences, each system makes many of the same distinctions between classes of homicide, and provides us with similar conceptual tools to help us find a workable and just definition for this most serious of crimes.
The WTO Bananas Decision: Cutting Through the Thicket
Authors: Hirsh Bruce R.
Published: March 2004

The Bananas decision demonstrated that WTO dispute settlement panels and the Appellate Body are capable of effectively and clearly analyzing whether extremely complex measures are consistent with WTO rules. The trade-liberalizing decision established the General Agreement on Trade in Services (GATS) as a meaningful constraint on discriminatory measures with an impact on both goods and services and clarified the nature of the GATS Most-Favoured Nation (MFN) obligation. The decision also severely constrained the ability of the EU to justify non-tariff discriminatory measures such as the quota allocation system at issue in Bananas based on the Lomé waiver.
Separatism in the Comoros: Some Legal Aspects
Authors: Naldi Gino J.
Published: March 2004

Since its founding in 1963, the Organization of African Unity (OAU) has placed special emphasis on the preservation of the territorial integrity of African states. It has actively contributed to the development of relevant rules of international law, such as that of uti possidetis. Its opposition to the fragmentation of states has been absolute. However, the small island state of Comoros has challenged this state of affairs. The seemingly successful secession of ‘Anjouan’ has threatened the cherished principles of the OAU. This article critically analyzes the relationship between the principles at the heart of the dispute, those of self-determination and uti possidetis, and concludes that there is no legal proscription on the secession of ‘Anjouan’.
Restitution of Jewish Cultural Property Looted in World War II: To Whom?
Authors: Blum Yehuda Z.
Published: March 2004

The Hague Convention on Cultural property of 1954 prohibits the transfer by the occupier of cultural property from territory occupied by him. Under the Protocol annexed to the said Convention, the parties to it undertake to return cultural property transferred in contravention of the Convention to their countries of origin. These provisions arc clearly inadequate when dealing with Jewish cultural property looted by Nazi-Germany and its collaborators in the course of World War II. Jewish cultural heritage was usually considered as endangering the cultural heritage of the host nations and, consequently, subject to harassment and destruction. It would therefore seem inequitable to return looted Jewish cultural property (representing the cultural heritage of the Jewish people) to (those countries from which it was looted; the proper recipient of this heritage (also by virtue of the principle of self-determination) is the Jewish people represented by the State of Israel and the major contemporary Jewish communities around the world.
The WTO's Rules of Conduct for Dispute Settlement
Authors: Wiers Jochem
Published: March 2004

This article provides an overview of, and a short comment on the WTO's Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes. After an introduction, the nine articles and three annexes of the Rules are described. Next, some comments are made. The article concludes arguing that some clarifications to the Rules could be made. However, these are not expected to be realised shortly, since there is as yet little or no experience with the Rules. Interpretative issues regarding the Rules appear unlikely to be invoked frequently for fear of impairing the success of the dispute settlement process.
Case Analysis: The Gabčíkovo-Nagymaros Case Seen in Particular From the Perspective of the Law of International Watercourses and the Protection of the Environment
Authors: Lammers Johan G.
Published: March 2004

The subject-matter of this article is the Judgment of the International Court of Justice in the Gabčíkovo-Nagymaros case. Following an exposition of the relevant facts, it continues with a critical analysis of the Judgment of the Court. In addition to a brief analysis of the issues involving the law of treaties, the law of state responsibility, the law of state succession, and the treaty obligations of Hungary and Slovakia relating to the use of Danube water and the protection of its environment, it focuses on the rules and principles of general international law concerning the use of international watercourses and the protection of the environment that were applied by the Court in this case.
Case Analysis: The Gabčíkovo-Nagymaros Case: The Law of Treaties
Authors: Fitzmaurice Malgosia
Published: March 2004

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.
Case Analysis: The Prosecutor v. Slavko Dokmanović. Irregular Rendition and the ICTY
Authors: Scharf Michael P.
Published: March 2004

In the summer of 1997, a member of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia met with Slavko Dokmanović in Serbia in order to lure him into Croatia, where he was ultimately arrested by UN peacekeeping personnel, Dokmanović was the subject of a sealed indictment for his role in the execution of 261 people forcibly taken out of the Vukovar hospital in 1991. The Tribunal rejected Dokmanović's argument that the manner of his arrest violated the sovereignty of the Federal Republic of Yugoslavia (Serbia and Montenegro) and international law. In doing so, the Tribunal focused on the distinction between ‘luring’ and ‘forcible abduction’, reckoning that the former was acceptable while the latter might, constitute grounds for dismissal in a future case. The article argues that the Tribunal's decision rests on an artificial distinction between luring and abduction which may needlessly discourage future apprehensions undertaken by NATO and UN troops in the territory of the former Yugoslavia. What the Tribunal in Dokmanović should have focused on, is that there is no violation of international law where the Security Council or the Tribunal has authorised law enforcement activities, where the state has consented to such activities, or where such activities are necessary under the principle of self-defence. Moreover, even where the manner of apprehension violates international law, the Tribunal may apply the so-called ‘Eichmann-exception’, while at the same time recognising that the mala captus bene dententus principle is generally inconsistent with the modern law of human rights.
Case Analysis: To Cooperate or not to Cooperate?: The Case of the Failed Transfer of Ntakirutimana to the Rwanda Tribunal
Authors: Sluiter Göran
Published: March 2004

The relationship between national jurisdictions and the international criminal tribunals for the former Yugoslavia and Rwanda raises many problems. One of them concerns the surrender of indicted war criminals from national jurisdictions to the Ad Hoc Tribunals. Several obstacles stand in the way of effective surrender to the Ad Hoc Tribunals. This contribution focuses on the legal obstacles that may be encountered in this respect. By means of the case of the failed surrender of Ntakirutimana from the United States to the Rwanda Tribunal, it will be demonstrated that legal assistance to the Ad Hoc Tribunals is of a fundamental different nature than legal assistance offered to foreign tribunals.
Under Rhodes' Eyes: The ‘Old’ and the ‘New’ International Law at Looking Distance
Authors: Skouteris Thomas , Korhenen Outi
Published: March 2004

The Spring Conference of the British Branch of the International Law Association exemplified to the authors some of the ways in which the ‘old’ encounters the ‘new’ in contemporary international law. Followed by a selective Bibliography of new-stream international legal writing, this Editorial tries to unravel the ‘interested distance’ maintained by the mainstream towards new trends in international legal scholarship.
The UN Convention on International Watercourses as a Framework for the Avoidance and Settlement of Waterlaw Disputes
Authors: Tanzi Attila
Published: March 2004

The adoption of the Convention in hand is regarded as a significant step in the law-making process in the field, irrespective of its entry into force. In order to assess the extent of such significance, the text under consideration is interpreted in the light of the most advanced relevant international instruments, including the International Law Association private codification process. The provisions on the general principles of equitable utilisation and no-harm are read in conjunction with Part IV on ‘protection, preservation and management’, on account of a systematic interpretative approach, and on the assumption of the interdependence between water quantity and quality issues. The general character of the wording in which the substantive principles are spelled out, will prompt their further specification, rather than change, through subsequent diplomatic, treaty, and judicial practice.
The UN Compensation Commission: Lessons of Legitimacy, State Responsibility, and War Reparations
Authors: Wassgren Hans
Published: March 2004

The United Nations Claims Commission (UNCC) was set up by the UN Security Council to process claims submitted by victims of the war between Iraq and the Coalition Forces (1990–1991). From an institutional point of view, the UNCC is a curious creation, assuming the form of a hybrid between an administrative claims procedure and an international tribunal. This article will highlight some of the difficulties with the institutional model chosen and focus on the institutional, as well as the normative legitimacy of the UNCC, whereby particular attention is devoted to Iraq's participation in the procedure.
The Brčko Supplemental Award of 15 March 1998
Authors: Schreuer Christoph
Published: March 2004

The Dayton Accords of 1995 for Peace in Bosnia and Herzegovina provided for arbitration over the boundary line in the Brćko area of Bosnia. Arbitration took place between the Muslim and Croat Federation and the Republika Srpska. Both party appointed arbitrators refused to sign the Award. The Award of 14 February 1997 did not draw a boundary line but established an international interim supervisory regime. The Tribunal decided on the basis of international law and equity, but it refused to apply the principle of non-recognition of territorial gains obtained in violation of international law. On 15 March 1998 the Arbitral Tribunal handed down a Supplemental Award. This holds out the prospect of a further decision by the Tribunal in early 1999.
Military Enforcement of Arms Control in Iraq
Authors: Dekker Guido den , Wessel Ramses A.
Published: March 2004

The effects of the 1990 Iraqi invasion of Kuwait are felt strongly up to the present day. On numerous occasions, the inspection teams of the UN Special Commission (UNSCOM) have encountered serious problems and opposition by the Iraqi government when verifying the non-production of weapons of mass destruction in Iraq. Among the many legal questions raised by the Iraqi-Kuwait war's aftermath, a fundamental issue is whether – in the absence of an explicit Security Council decision – compliance by Iraq with its obligations may be enforced by military means. In this article, this question is addressed by examining whether military enforcement action can be based on Security Council resolutions adopted earlier in the course of the conflict, especially Resolutions 678 (1990), in which the Council authorised the use of ‘all necessary means’, and 1154 (1998), in which the ‘Memorandum of Understanding’ between the UN and Iraq was endorsed. It is argued that without a further mandate from the Security Council, military enforcement of arms control in Iraq under the present circumstances is prohibited by international law.
The Energy Charter Treaty and ‘Compulsory’ International State/Investor Arbitration
Authors: Tucker Andrew E.L.
Published: March 2004

The Energy Charter Treaty came into force on 16 April 1998. The Treaty contains far-reaching provisions on trade and investment liberalisation within the energy sectors of 49 signatory states. The Treaty arguably offers a basis for multilateral agreement on micro-economic reform of the energy sectors. Some of the most significant initiatives contained in the treaty are the provisions for resolution of disputes. This article examines in detail the provisions dealing with arbitration of disputes between investors and states. These mechanisms build on models developed in other recent multilateral investment treaties. The limitations and potential offered by these provisions are discussed and some conclusions drawn.
The International Tribunal for the Law of the Sea
Authors: Mensah Thomas A.
Published: March 2004

The International Tribunal for the Law of the Sea is one of the “compulsory procedures entailing binding decisions” provided for in Article 287 of the Convention. The Tribunal is established by Annex VI to the Convention which is its Statute. Within the Tribunal is established the Seabed Disputes Chamber which has jurisdiction to deal with respect to deep-sea mining activities covered by Part XI of the Convention.

The Tribunal performs three different but closely related functions. The first is to offer a forum of choice for states parties to the Convention to settle disputes concerning the interpretation or application of the provisions of the Convention. The second function is to provide a special, and largely mandatory, procedure for dealing with disputes in connection with the interpretation and application of the provisions of Part XI of the Convention. This is the function of the Seabed Disputes Chamber. The Chamber also has competence to give advisory opinions on legal questions arising within the scope of the activities of the Assembly and Council of the International Seabed Authority. Thirdly, the Tribunal serves as a residual and compulsory mechanism for the settlement of certain disputes identified by the Convention as requiring expeditious decision, such as applications for the prompt release of arrested vessels and crew or requests for the prescription of provisional measures pending final decisions in cases. The Tribunal may also deal with disputes arising under other maritime agreements, if the agreements so provide.

The Tribunal commenced operations in October 1996. It has completed organizational work for its administrative judicial functions. It has adopted its Rules, the Resolution on the Internal Judicial Procedure and Guidelines to assist parties appearing before it. It has also established special Chambers. The Tribunal has already dealt with one application for the prompt release of a vessel and crew arrested in a foreign port and one request for provisional measures. Proceedings are in progress on the merits of the first case submitted to it.
The Procedure Before the International Tribunal for the Law of the Sea; The Rules of the Tribunal and Related Documents
Authors: Treves Tullio
Published: March 2004

The Rules of the International Tribunal for the Law of the Sea, adopted in October 1997 (together with the Resolution on Internal Judicial Practice and the Guidelines Concerning the Preparation and Presentation of Cases Before the Tribunal) follows the model of the Rules of the International Court of Justice with rather relevant differences. Some of these differences depend on the need of more expeditious and less expensive proceedings: in particular, the provisions introducing time limits and those in the Resolution on Internal Judicial Practice which eliminate in most cases the requirement of Notes by each judge. Others depend on the specific characteristics of the jurisdiction of the Tribunal. These include the provisions on intervention, on preliminary objections and proceedings, on provisional measures, on prompt release of vessels and crews, and on activities in the international seabed Area. In this category can also be included the provisions on the participation in proceedings by international organizations and natural and juridical persons.
Case Analysis: The Gabčíkovo-Nagymaros Project and the Law of State Responsibility
Authors: Lefeber René
Published: March 2004

In the Gabčíkovo-Nagymaros proceedings, the parties, viz. Hungary and Slovakia, defended their conduct, amongst others, with arguments derived from the relationship between the law of treaties and the law of state responsibility, and from the law of state responsibility itself. In its judgment, the International Court of Justice disentangled the mixture of arguments derived from the law of treaties and the law of state responsibility advanced by Hungary, and drew a clear line between these two branches of international law. Second, it rejected several circumstances that were advanced by the parties to preclude the wrongfulness of their conduct. On both these accounts, the author opines that the declaratory dicta of the Court have contributed to the development of the law of state responsibility. Third, the Court decided on the legal consequences of the intersecting internationally wrongful acts committed by Hungary and Slovakia. According to the author, the Court erred in its reasoning on this account by confusing the award of cessation of the internationally wrongful acts with the award of reparation for these acts.
Case Analysis: International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaškić
Authors: Wedgwood Ruth
Published: March 2004

In a world of sovereign states, gathering evidence is one of the major challenges for the new international criminal tribunals. The decision in Prosecutor v. Blaškić, by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, shows some of the difficulties. The Tribunal finds it has the power to issue compulsory orders to sovereign states for the production of evidence, although not to issue a subpoena as such. The Tribunal also assumes the power to review a state's national security privilege, a holding that may challenge the more protective provisions of the new Rome treaty for a permanent International Criminal Court. However, the Appeals Chamber's declaration that there is no power to summon particular government officials, even for eyewitness testimony, that document production must be limited, and that its orders cannot be directly enforced, may hobble the Tribunal's capacity to muster the necessary proof at trial.
Case Analysis: The International Tribunal for the former Yugoslavia and the Enforcement of Sentences
Authors: Tolbert David
Published: March 2004

With a number of sentencing judgments expected in cases pending before the International Criminal Tribunal for the former Yugoslavia, the enforcement of sentences has become an important concern. The author discusses theoretical and practical issues raised in this regard, including the juridical basis for enforcement as well as the Model Agreement regarding modalities of enforcement. On the basis of this Model Agreement, a number of agreements has been concluded with individual states. The author concludes that the nature of the Tribunal has necessitated the development of novel and sometimes artificial measures for the enforcement of sentences.
The Disciplines of International Law and Policy
Authors: Kennedy David
Published: March 2004

This article considers the idea that the professional and intellectual disciplines which have developed in the United States to advance insight into international affairs also have characteristic blind spots and biases which leave professionals and intellectuals working within them more sanguine about the status quo than they might otherwise be. I am particularly interested in blind spots and bias which emerge from interactions among the disciplines of public international law, international economic law, comparative law, and international relations. Although internationalists in the United states working in these disciplines have broadly divergent methodologies and political ideologies, they share a sensibility which narrows the range of concerns and the scope of political possibilities which seem plausible to professionals and intellectuals concerned with international law and policy.
The GATT and the GATS: Should They Be Mutually Exclusive Agreements?
Authors: Gaffney John P.
Published: March 2004

The GATT 1994 and the GATS contain separate multilateral rules on trade in goods and services. The question arises as to whether the GATT 1994 and the GATS are therefore mutually exclusive. This paper argues that the GATT 1994 and the GATS should be mutually exclusive in the application of their respective obligations to the specific aspects of any given measure. The paper offers a test, based on a similar test applied under EC law, to determine which of the agreements should apply to the specific aspects of any given measure where it appears to affect both trade in goods and services.
The Northern Ireland Peace Agreement: Evolving the Principle of Self-Determination
Authors: Williams Paul R. , Ardalan Sabrineh
Published: March 2004

Central to this article is the evolution of the nature of the principle of self-determination. The main focus will be on the examination of a recent instance of state practice — the Northern Ireland Peace Agreement. In particular, the way in which the Northern Ireland Peace Agreement has given effect to the primary elements of self-determination, including democratic self-government, the protection of human rights, and the protection of minority rights will be discussed.
Southern African Development Community Protocol on Shared Watercourses: Challenges of Implementation
Authors: Lebotse Kabelo Kenneth
Published: March 2004

The Rundu – Grootfontein Project, a project by which Namibia wants to divert waters of the Okavango river, may significantly affect the flow of that river through Botswana. The present paper discusses and tests rules of global and regional international watercourse law as to their applicability to the problems posed by the project. In this respect the UN Framework Convention on the Law of the Non-Navigational Uses of International Watercourses, as well as the Southern African Development Community Protocol on Shared Watercourses form the main focal point.
Case Analysis: Counterclaims Before the International Court of Justice: The Genocide Convention and Oil Platforms Decisions
Authors: Thirlway Hugh
Published: March 2004

The provisions of the ICJ Rules of Court concerning counter-claims have fallen to be applied in two recent cases, in circumstances such the Court has had to examine the nature of a counter-claim and the conditions for its admission as such, and in particular the nature of the ‘direct connection’ with the subject-matter of the application, required by the Rules. In each case the counter-claim was admitted, over the dissent of some judges: these decisions are probably justified, even though some aspects of the reasoning may be criticised.
Case Analysis: The Right of Passage Doctrine Revisited: An Opportunity Missed
Authors: Elias Olufemi , Lim Chin
Published: March 2004

In the Preliminary Objections phase of this case the Court followed its previous jurisprudence based on the Right of Passage Over Indian Territory case (1957) concerning the operation of Article 36(2) of its Statute. It is argued here that there were compelling reasons why the Court should have reassessed this jurisprudence. The implications of the Right of Passage doctrine for the operation of Article 36(2) and the role of the Court in international affairs are also discussed.
Justifying NATO's Use of Force in Kosovo?
Authors: Duursma Jorri
Published: March 2004

There is no unanimity in the international community about the legality of NATO's use of force in Kosovo in order to avert a humanitarian catastrophe. NATO has acted without Security Council authorization and its arguments for a humanitarian intervention are legally inconsistent. It has set a dangerous precedent. This editorial analyses the legal framework and complexities of the Kosovo crisis and its repercussions on the concept of ‘justified use of force’.
Untying the Gordian Knot: Evaluating the Legal Dimensions of the UN Weapons Inspection Programme in Iraq and Rethinking the Future
Authors: Zedalis Rex J.
Published: March 2004

A variety of legal problems exist with the UN weapons inspection régime applicable to Iraq. These problems hinder the assurance that Iraq can be disarmed of the ability to produce biological or chemical weapons. Given this fact, the stalemate produced by the mid-December 1998 air strikes against that country might be best resolved by a reconfigured inspection program which aims at addressing Iraqi weapons of mass destruction efforts in the context of global security policy regarding such weaponry, with due account taken of the desires of Iraq's neighbors and the importance of reintegrating that nation into the world community.
Unconventional Dispute Settlement in the Finnish Question (1899 to World War I): The Power of Cultural and Historical Argument in International Law
Authors: Korhonen Outi
Published: March 2004

The world comes to the international lawyer in forms less perfect than the ordered categories of law. The lawyer stands at a point of making a difference through devising arrangements, managing complex transactions, striking conventions, predicting outcomes, and wringing out settlements even if no clear legal recipe exists. This situation seems familiar in the contemporary global framework, but it is more general and, in this study, the author uses a historical case to illustrate it. The author shows how international lawyers make sense of wide cultural and historical contexts and negotiate their different implications in bringing about a new international legal personality, complex dispute settlement, and peaceful governance even without the benefit of a clear set of available legal procedures.

Tsar de Russie, […] Tu peux venir quand tu voudras: le lac repose silencieux et tu peux dormir dans l'archipel de Finlande en toute securité [mais] tu ne pourras jamais retrouver l'anneau magique qui fait aimer: l'océan s'est refermé à jamais sur lui.
Diplomatic Immunity, Head of State Immunity, State Immunity: Misconceptions of a Notorious Human Rights Violator
Authors: Bröhmer Jürgen
Published: March 2004

This decision of the House of Lords is significant because it is the first decision of a major court of an important country refusing to grant a former head of state immunity from adjudication in the context of alleged gross violations of human rights. It is shown that state immunity, diplomatic immunity and head of state immunity are to be distinguished and the rules pertaining to head of state immunity are explained. Whereas the author agrees with the result of Lords' decision, he disagrees with the reasoning because the majority circumvented the immunity question by artificially qualifying the alleged human rights violations of General Pinochet as private acts.
Righting a Wrong or Prolonging the Agony? The Work of the Claims Resolution Tribunal for Dormant Accounts in Switzerland
Authors: Linton Suzannah
Published: March 2004

Little is known about the work of the Claims Resolution Tribunal for Dormant Accounts in Switzerland. Once the existence of dormant Holocaust era bank accounts was publicly acknowledged by the Swiss banks in 1997, the problem required resolution. This Tribunal was therefore created to establish ownership of the dormant accounts. The Claims Resolution Tribunal operates very much behind closed doors and its decisions have not been open to academic scrutiny and are unlikely to be available until the entire process is completed. Whilst justice may never be done for those carrying the monstrous legacy of the Holocaust, it is important to examine whether the Claims Resolution Tribunal is in fact righting the wrong done in respect of those who have struggled with the Swiss banks for many years to claim what is rightfully theirs. This article seeks to do this by scrutinising the inner workings of the Claims Resolution Tribunal and the various steps which a claimant must go through before his claim, is, if at all, accepted as valid. The experience of the Claims Resolution Tribunal in relation to Holocaust accounts and its role in the context of the various Holocaust era processes currently in the international arena is also examined in order to appraise its effectiveness as a means of belatedly doing justice.
List of Current Proceedings: Update
Authors: Amaya-Castro Juan M.
Published: March 2004

On 8 July 1991, Qatar filed an application instituting proceedings against Bahrain in respect of certain disputes between the two states relating to sovereignty over the Hawar Islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two states.
Case Analysis: To Review or Not to Review? The Lockerbie Cases Before the World Court
Authors: White Nigel
Published: March 2004

On 27 February 1998, the International Court of Justice rejected the preliminary objections of the US and of the UK in the cases concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie. The arguments made to the Court, and its decisions on jurisdiction and admissibility, are examined with a view to ascertaining the issues facing the Court, as well as the possible outcomes, if the cases reach the merits stage. The disputes over the Montreal Convention are considered, but particular attention is paid to the legal effects and, more widely, the legality of the relevant Security Council resolutions (Resolutions 748 and 883). The underlying question to be considered is whether there are any indications in the judgments that the Court is moving towards review of those resolutions.
Case Analysis: The ICJ and South West Africa (Namibia): A Retrospective Legal/Political Assessment
Authors: Pomerance Michla
Published: March 2004

No single political issue has engaged the ICJ more than that of South West Africa (Namibia). Over a period ranging from 1949 through 1971, recourse was had to the Court, both in its advisory and contentious capacities, on various aspects of the problem. Even today, after Namibia attained independence, the Court's jurisprudence and the saga of UN-Court relations in this matter continue to intrigue. This is because the questions raised have continuing relevance to many issues bearing on international law and international relations.

Much has been, and will be, written on the approach of the Court and of individual judges to a panoply of international legal questions raised in the course of the judicial proceedings. But, in fact, the long tale also offers researchers an enticing fountain of material on the role of law and adjudication in international relations, on the interaction between the UN judicial and political fora and, more broadly, between law and politics. This article focuses mainly on these latter, relatively neglected, aspects because it is with respect to these that the benefit of hindsight offers the ability to reassess and revise some of the earlier assumptions and to note some interesting paradoxes not readily discernible at the time. Perhaps revision of some of the axiomatic propositions long perpetuated in the field will offer better guidance to those seeking to enhance the role of international adjudication in world affairs.
List of Current Proceedings
Authors: Henquet Thomas
Published: March 2004

The accused is charged with both individual criminal responsibility and superior criminal responsibility for crimes against humanity, grave breaches of the 1949 Geneva Conventions, and violations of the laws or customs of war. All crimes were allegedly committed at the Sušica camp in the municipality of Vlasenica, Bosnia and Herzegovina in 1992. Given the inability of Bosnia and Herzegovina to execute the arrest warrant and the non-co-operation by the Federal Republic of Yugoslavia and Republika Srpska, an international arrest warrant was issued to all states, pursuant to Rule 61 of the Rules of Procedure and Evidence. The accused remains at large.
Constitutional and Institutional Developments
Authors: Rydberg Åsa
Published: March 2004

On 10 February 1999, H.E. Ms. Anna Lindh, Minister for Foreign Affairs of Sweden visited the International Criminal Tribunal for the former Yugoslavia (ICTY) to sign an Agreement with the United Nations on the enforcement of sentences of the ICTY. The Agreement with Sweden differs from the previously concluded agreements with Italy, Finland and Norway in that it is limited to convicted persons with strong ties to Sweden.
Case Analysis: The Protection of the Interests of Witnesses – The ICTY in Comparison to the Future ICC
Authors: Rydberg Åsa
Published: March 2004

Thus far, witnesses have played a crucial role in most proceedings before the International Criminal Tribunal for the former Yugoslavia. It can be expected that this will also be the case in the proceedings before the future International Criminal Court. The author of the note focuses on the position of witnesses and compares the rules, practices, and experiences of the Tribunal with the Rome Statute in this respect. In particular, the support and protection of witnesses and the role of the Victims and Witnesses Units of the respective courts will be discussed.
Case Analysis: The Definition of Rape and Its Characterization as an Act of Genocide – A Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia
Authors: Karagiannakis Magdalini
Published: March 2004

Despite the clear prohibition of rape by international law, no conventional or other international instrument defines this international crime or explains its relation to the international crime of genocide. This article reviews the recent precedent-setting judgments of the international criminal tribunals for the Former Yugoslavia and Rwanda which have sought to define rape in international law using different approaches. It also analyses the recent Akayesu Judgment of the Rwanda Tribunal. This is the first decision of an international tribunal to consider the question of whether rape can constitute genocide.
Bridging the Gap? The 1999 Annual Meeting of the American Society of International Law
Authors: Skouteris Thomas
Published: March 2004

The 1999 Annual Meeting of the ASIL exhibited a rare diversity of panels and speakers. The paradigm of an ‘inclusive’ professional community, shared by this Meeting, is well in line with a more general understanding of international law as an inclusive, unified discipline. This Editorial begins investigating this image of unity and its consequences for the ways ‘difference’ is encountered in professional debate.
Security Council Resolution 1101 (1997) and the Multinational Protection Force of Operation Alba in Albania
Authors: Kritsiotis Dino
Published: March 2004

In March 1997, the Security Council adopted Resolution 1101 (1997) which authorised a multinational protection force – known as Operation Alba – to enter Albania “to facilitate the safe and prompt delivery of humanitarian assistance, and to help create a secure environment for the missions of international organisations in Albania, including those providing humanitarian assistance.” Created with the consent of the government of Albania, the intervention occurred as a direct but also as a near-immediate response to the political, financial and humanitarian crisis that had been precipitated by the collapse of so-called pyramid schemes in Albania. The purpose of this article is to examine the background of the adoption of Resolution 1101 (1997) and then to investigate the impact and importance of the consent for the operation given by the beleaguered government of President Sali Berisha. The article will then analyse the legal significance, meaning and interpretation of Security Council in Resolution 1101 (1997), as amended in Resolution 1114 of June 1997, in its endeavour to provide an account of the organisation, achievements, shortcomings and lessons of Operation Alba.