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The concept of sources of law has only for a short time in history been confined to the formally adopted legal norms of statutory, conventional or customary nature. Such a positivistic and narrow notion can be confronted to an older layer of the concept, which has gained again some prominence in the twentieth century, whereby the sources encompass also all the elements which concur to the interpretation and development of the law. In this larger area, general principles of law play an important, albeit often invisible, role as catalysts of a law-in-movement. In particular, they offer a legal basis from which new legal doctrines or norms can be derived from case to case, in order to fit new social and legal needs. The evolution thereby remains at least partly anchored in the legal sphere, through the link with the legally connoted general principles, and at the same time strikes out to the changing needs in the social and political arena. Thus, general principles of law are particularly instructive elements of this type of dynamic equilibrium to be achieved. Their different functions, and especially their role as law-creating arguments, are put into limelight in this short contribution. These functions are illustrated more concretely through the example of the powerful principle of good faith.
The article addresses the question which consequences the war on terrorism has for the practice of and thinking about humanitarian intervention. The discussions about the legality and legitimacy of humanitarian intervention reached their peak after the NATO bombardments against the Federal Republic of Yugoslavia to protect the Albanians in Kosovo in 1999. The terrorist attacks of 9/11, which led to the war on terrorism, however, changed the focus of attention. The central question for international lawyers is no longer whether states may use force to protect human rights, but whether the use of force in anticipatory self-defence is allowed under international law in view of new security threats. After describing humanitarian intervention after the end of the Cold War, the impact of the war on terrorism on the protection of human rights is analysed. Although some authors think that the war on terrorism can coincide with the protection of human rights, the present author is more pessimistic. Subsequently the concept of the responsibility to protect is discussed. The author concludes that this concept is less revolutionary as some authors claim it to be. Most importantly, it does not provide a legal justification for the use of force to protect human rights without permission of the Security Council. The last section of the article therefore investigates whether the principle of necessity can serve as a potential legal justification for an intervention for human protection purposes without Security Council authorization.
Women all over the world have experienced discrimination and victimisation. However, the level of suffering women in Africa experience far exceeds imaginable proportions. Trapped between the unholy matrimony of poverty and harsh economic conditions, dictatorial regimes, religious beliefs, and cultural and traditional practices, women in Africa have been subjected to some of the worst forms of gender-based violence, abuse, victimisation, prejudice and oppression. Yet, women are at the same time the symbol of love and so central to the maintenance of African ways of life. The African Charter on Human and Peoples' Rights was criticised for its failure to maintain a proper balance between women's rights and African tradition. This article argues that the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol) adopted by the African Union on 11 July 2003 to beef up the protection of women's rights on the continent is amenable to a similar criticism. While it deals with many important issues affecting African women, it fails to articulate a clear or consistent African approach to women's rights. As a result, it is difficult to reconcile the Protocol with the existing body of jurisprudence in the regional human rights system as developed under the African Charter and the African Charter on the Rights and Welfare of the Child.
This article addresses the impact of politics and diplomacy upon the enforcement of international legal obligations through the example of non-violation complaints in the World Trade Organization (WTO). Although this remedy inherited from the past has always been criticized, both the scope and the effects of non-violation complaints upon the WTO dispute settlement system have been disregarded and misunderstood. Only a few WTO members have insisted on using this remedy to the detriment of the immense majority of WTO members for which non-violation complaints still represent an unaffordable luxury. Therefore, this article retraces the negotiation history of this remedy and its entire jurisprudence in order to demonstrate that the WTO dispute settlement system can neither undermine the results of negotiations reflecting the power struggle amongst sovereign nation-states, nor remedy their failure to negotiate by creating new legal obligations. As a result, the security and predictability of the WTO dispute settlement system is at stake, for WTO panels and the Appellate Body have been reluctant and unable to define the ambiguous legal concept of non-violation.
Civil Jurisdiction and Enforcement of Judgments in Europe