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  • Author: Ebrahim Afsah
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This is the second release by a research project undertaken by the Institute for International Law and Justice at New York University, following the previously reviewed (21 EJIL (2010): 251) From Mercenaries to Market. The Rise and Regulation of Private Military Companies (Simon Chesterman and Chia Lehnhardt (eds), Oxford University Press, 2007). In that commendable first volume, the editors sought to bring a variety of perspectives to bear on the increasingly topical issue of private security providers and their regulation by states. The contributions to that earlier collection were characterized by a distinctly pragmatic approach to the issue, seeking to re-assess the degree to which international law's categorical proscription of mercenarism remained tenable in a world where most states, rich and poor, view private service providers as an increasingly important part of their military posture.
  • Topic: Security, Military Strategy
  • Political Geography: New York
  • Author: Dr. Kalliopi Chainoglou
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Cooperating for Peace and Security presents a comprehensive collection of essays on multilateral security cooperation since 1989. Leading experts on wide-ranging topics within the ambit of international security and international cooperation analyse the complex relationship between multilateralism and United States security interests.
  • Topic: Security
  • Political Geography: United States
  • Author: Dino Kritsiotis
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article considers the prominence that threats of force have had in international political life since the end of the Cold War, and how we tend to overlook these threats in favour of the actual uses of force. Security Council Resolution 678 of November 1990 is one such example. Emblematic of the rule of law and its New World Order, it is often invoked for the 'authorisation' it gave to Member States of the United Nations 'co-operating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area' - but this provision was made contingent upon whether 'Iraq on or before 15 January 1991 fully implements [previous] resolutions'. We examine the range of circumstances in which threats of force have arisen and find that these go beyond the archetypal 'close encounter' between states - such as the Cuban Missile Crisis of 1962 and the 'threats of force' directed against Iraq prior to Operation Desert Fox (1998) and Operation Iraqi Freedom (2003). Making use of the jurisprudence of the International Court of Justice from its Nuclear Weapons advisory opinion (1996), we advance the idea of a prohibition of the application of force, and consider the logistics of its operation in state practice; first, in the recent relations between the United States and Iran and, then, through a modern reprise of the facts of the Corfu Channel Case of April 1949. We allude to the importance of the legislative background and purpose behind this prohibition, constantly reflecting upon the intricacies of state relations in which this provision of the United Nations Charter seeks to make its mark.
  • Topic: Security, Cold War, Government, United Nations
  • Political Geography: United States, Iraq, Kuwait
  • Author: Christian J. Tams
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Whether states can use force against terrorists based in another country is much discussed. The relevant provisions of the UN Charter do not provide a conclusive answer, but have to be interpreted. The present article suggests that in the course of the last two decades, the Charter regime has been re-adjusted, so as to permit forcible responses to terrorism under more lenient conditions. In order to illustrate developments, it juxtaposes international law as of 1989 to the present state of the law. It argues that the restrictive approach to anti-terrorist force obtaining 20 years ago has come under strain. As far as collective responses are concerned, it is no longer disputed that the Security Council could authorize the use of force against terrorists; however, it has so far refrained from doing so. More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.
  • Topic: Security, Development, International Law, Terrorism, United Nations
  • Author: Tullio Treves
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Attacks against ships off the coast of Somalia have brought piracy to the forefront of international attention, including that of the Security Council. SC Resolution 1816 of 2008 and others broaden the scope of the existing narrow international law rules on piracy, especially authorizing certain states to enter the Somali territorial waters in a manner consistent with action permitted on the high seas. SC resolutions are framed very cautiously and, in particular, note that they 'shall not be considered as establishing customary law'. They are adopted on the basis of the Somali Transitional Government's (TFG) authorization. Although such authorization seems unnecessary for resolutions adopted under Chapter VII, there are various reasons for this, among which to avoid discussions concerning the width of the Somali territorial sea. Seizing states are reluctant to exercise the powers on captured pirates granted by UNCLOS and SC resolutions. Their main concern is the human rights of the captured individuals. Agreements with Kenya by the USA, the UK, and the EC seek to ensure respect for the human rights of these individuals surrendered to Kenya for prosecution. Action against pirates in many cases involves the use of force. Practice shows that the navies involved limit such use to self-defence. Use of force against pirates off the coast of Somalia seems authorized as an exception to the exclusive rights of the flag state, with the limitation that it be reasonable and necessary and that the human rights of the persons involved are safeguarded.
  • Topic: Security, Development, Government, Human Rights
  • Political Geography: Kenya, United States, United Kingdom, Somalia
  • Author: Pasquale De Sena, Maria Chiara Vitucci
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The recent case law of various international tribunals facing questions related to UN Security Council resolutions shows the clear tendency to grant primacy to the UN legal order. This trend, far from being well founded on formal arguments, appears to be a tribute to a legal order perceived as superior, and, at the same time, is revealing of the 'value oriented' approach followed by the courts. Such an approach can be categorized from a theoretical perspective in the light of Scelle's theory of relations between legal orders, whereby the courts implement in their respective legal orders values stemming from the UN legal order. Various critical remarks can be advanced in relation to this attitude. Basically, when different legal values are at stake, the need arises to strike a balance between them, as the ECJ has recently done in the appeal decision in the Yusuf and Kadi cases. Such a tendency, if consistently followed, could serve as a valuable instrument to find the correct equilibrium between the security interest and the need for respect of human rights.
  • Topic: Security, Human Rights, United Nations
  • Political Geography: Europe
  • Author: Roger S. Clark
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In February 2009, the International Criminal Court's Special Working Group on the Crime of Aggression concluded its efforts to draft the 'provision' called for in Article 5(2) of the Rome Statute 'defining the crime [of aggression] and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime'. It produced two draft Articles: Article 8bis, the 'definition', and Article 15bis, the 'conditions'. There was substantial agreement on the definition (and on 'Elements' of the crime produced in June 2009); there was much disagreement concerning the conditions. The author examines the most significant drafting issues. For the definition, these include: applying General Assembly Resolution 3314 to individual responsibility; articulating the 'leadership' nature of this crime; the threshold requirement that the violation of the United Nations Charter be 'manifest'; and consistency with provisions in the Statute, especially those in the 'general part'. In respect of conditions, the difficult issue surrounds the role of the Security Council and the many variations on that theme in draft Article 15bis. The contribution concludes with a fundamental procedural question: can the amendment be applied erga omnes or does it apply only to those states specifically accepting it?
  • Topic: Security, United Nations
  • Author: Aurel Sari
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The conduct of EU military and civilian crisis management operations in third states within the context of the European Security and Defence Policy has presented the EU with new administrative and operational challenges in recent years, including the need to define the international legal position of such operations and their personnel during their presence abroad. In some cases, the EU has entered into agreements with host states to determine the legal status of EU crisis management operations, while in other cases the application of already existing arrangements has been extended to them. The status agreements negotiated directly by the EU confer more extensive privileges and immunities on EU operations and their personnel than current international practice in this area would warrant. Despite opposition to this policy within the EU, it has remained in place under the two model status agreements adopted by the Council of the European Union in 2005 to serve as a basis for negotiations with prospective host states in all future EU operations. Even though no norm of international law compels the EU to request only such privileges and immunities as are absolutely necessary for the purposes of an operation, its practice of negotiating extensive privileges and immunities does not sit well with the growing emphasis on the accountability of peace support operations. This article offers an overview of the evolution of the EU's practice of concluding status agreements in the context of the European Security and Defence Policy and examines the key provisions of the two model status agreements.
  • Topic: Security
  • Political Geography: Europe
  • Author: Charlotte Streck, Jolene Lin
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Kyoto Protocol's Clean Development Mechanism (CDM) is the first global market mechanism in international environmental law. It has been much lauded for its success. However, doubts whether the CDM governance structure is robust enough to meet the challenges of regulating an international market mechanism in the long term are emerging. The Executive Board (EB)'s decision-making practice is often not predictable and many of its decisions have come as a surprise to project participants and technical project experts. Members of the EB often have multiple responsibilities which result in a complicated situation of conflicting interests. Finally, private sector participants in the CDM who have been aversely affected by EB decisions have no right of recourse and essentially little if any due process rights. This article argues that incorporating mechanisms to promote procedural fairness and creating an appeals process for aggrieved CDM participants will promote transparency and accountability in the CDM decision-making processes. This is essential for the sound operation of the CDM regulatory regime which will have a direct positive effect on the international carbon market. After conducting a comparative analysis of other regimes in which international bodies take decisions that directly affect individuals, most notably the system of targeted sanctions of the UN Security Council and the Anti-Doping Regime, as well as examining the World Bank Inspection Panel and the European Ombudsman as models of international review mechanisms, the authors set out proposals for reform of the CDM, including professionalizing the EB and the panels, securing better and more consistent funding, the elimination of political interference, and the introduction of administrative law-like processes.
  • Topic: Security, Governance, Reform
  • Political Geography: Europe
  • Author: Aloysius P. Llamzon
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International institutions are plagued by too many expectations and too little power. One striking example is the International Court of Justice. Its malcontents criticize the Court as an ineffective player in achieving international peace and security, largely because of its perceived inability to control state behaviour. Scholars have long blamed this on the ICJ's 'flawed' jurisdictional architecture, which is based entirely on consent. Anything less than a clear indication of consent by the defendant state in a given case is thought to run serious non-compliance risks. This article takes issue with that assessment. By analysing the ICJ's final decisions since the landmark case of Nicaragua v. US, one finds that the manner in which the ICJ was seised of jurisdiction is actually a poor predictor of subsequent compliance. Rather, through complex mechanisms of authority signal and the political inertia induced by those decisions, almost all of the Court's decisions have achieved substantial, albeit imperfect, compliance. Thus, despite the likelihood that states will continue to reduce the scope of the ICJ's compulsory jurisdiction, the World Court will remain a vital, if limited, tool in resolving inter-state disputes and a force for world public order.
  • Topic: Security
  • Political Geography: United States