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The year 1994 marked a time of momentous change for the Leiden Journal of International Law. Quantity and quality of copy flow had reached a bare minimum, while the editors were overburdened with the administration of the Journal. It was concluded that the Journal would only have a future if it was reorganized rigorously. A business plan was drafted that set up a two-step transition process. The first step in this process was completed in 1995 with the influx of a group of experienced editors, the restructuring of sections of the Journal and a fresh lay-out. One of the most important changes was the development and introduction of the Hague International Tribunals Section, which involved the establishment of a close working relationship with the international judicial institutions in The Hague. The quality input in several field of the Journal had not only been a necessity to give our readers value for money, but also to prepare the Journal for the second step of the transition process, entering into a strategic alliance with a publishing house that could run the burdensome production and administration of the Journal. Sooner than expected, the Journal qualified for such an alliance and, this year, the negotiations with Kluwer Law International were brought to a successful conclusion.
The simplistic ideas about the judicial function in international relations are very harmful to the public perception of the role of the International Court of Justice. […] The general public both expects too much of the Court, and is then disappointed that there is so much violence in the world which the Court does not seem to be effective to control.
Governments have increasingly been giving attention to the need for, and prospects of, ensuring contestability of markets through international agreements. This paper explores what has been achieved so far in the context of the World Trade Organization (WTO) and what might be done to further enhance the ‘competition-friendliness’ of the multilateral trading system. The case of high-technology industrial rivalry is used for concreteness. High-tech is interesting because it cuts across many of the issues that are relevant from a systemic perspective, both ‘old’ (market access) and ‘new’ (investment, antitrust). We conclude that greater contestability of regulatory regimes in domestic legal orders may be beneficial. This can be pursued by giving private parties the right to contest actions of WTO member states before national courts.
For several years, there has been a tension between differing philosophies of General Agreement on Tariffs and Trade (GATT) dispute settlement. Commentators have taken different views on whether the system was fundamentally based on an arbitration or a judicial model. The Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Annex II to the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement), represents the first extensive, negotiated agreement revitalizing the dispute settlement system in the history of the General Agreement. It represents nothing less than a complete reform of the GATT dispute settlement system. What is remarkable is that it is the product of extensive multilateral negotiations. In the past, modifications were made to the system on an incremental, case-by-case basis. Since the GATT came into existence in 1948, Articles XXII and XXIII have formed the basis of the dispute settlement mecha-nism. They are very sparse provisions, and most of the procedures that have come to characterize the pre-WTO GATT system have evolved over time as a result of experience in specific cases. Some of these procedural improvements were codified in Decisions and Understandings negotiated at various points in GATT history, but none were as comprehensive as the DSU.
The General Agreement on Tariffs and Trade (GATT) began more as a diplomatic forum where parties compromised disagreements than a court that settled them. The term ‘conciliation’ was used more frequently to describe the process than the term ‘dispute settlement’. However, over nearly half a century as the focal point of international trade law and diplomacy, GATT's dispute settlement procedures moved decidedly, if not steadily, from the diplomatic to the juridical. With the adoption of the Marrakesh Agreement Establishing the World Trade Organization (WTO), the juridical model clearly has prevailed.
The European Community (EC) has recently announced its decision to begin dispute-resolution procedures in the World Trade Organization (WTO) against the United States (US) because of the latter's passage of the so-called ‘Helms-Burton’ law, which tightens the sanctions against Cuba by means of extraterritorial application. This will, in all probability, offer the WTO an ideal opportunity to define the limits of the General Agreement on Tariffs and Trade's (GATT) security exception. The security exception, contained in GATT Article XXI, is also included in other agreements annexed to the Agreement establishing the World Trade Organization (WTO Agreement), such as the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). It provides an exception from all GATT (as well as GATS and TRIPs) obligations, including the all-important ‘most-favoured-nation’ non-discrimination rule. The security interests at issue must be those of a political, rather than an economic, nature. It should be noted that because there is no human rights and democracy exception to the GATT or other agreements annexed to the WTO Agreement, trade restrictions that are based either in whole or in part on these concerns, such as the measures against Cuba, are usually justified on the basis of the security exception.
The close relationship between security and minority protection is more than ever before manifest in today's (eastern) Europe. The adoption of far-reaching substantive commitments in the fields of the OSCE, and its increasing intrusion upon traditionally internal affairs of states, constitutes a positive framework for minority protection. A constructive combination of implementation mechanisms, preventive diplomacy instruments, and dispute-settlement efforts has produced positive results. Primarily concerned with the maintenance of security in Europe, the OSCE involves itself in minority issues, subject to the (dis)advantages of its political character. Despite its inherent weaknesses, the OSCE system has already contributed to the protection of minorities in Eastern Europe in various ways during the political transition in the former communist states, and it is prepared to continue, especially in the absence of other more effective systems.
The original philosophy behind the 1950 European Convention on Human Rights and Fundamental Freedoms (European Convention) was accurately summarized by Lord Layton when, in opening the first debates of the Parliamentary Assembly in 1949, he underlined “the great importance” of the guarantee of human rights:
first for the sake of the individual European citizens who may benefit from it; secondly, as a means of strengthening the resistance in all our countries against insidious attempts to undermine our democratic way of life from within or without, and thus to give to western Europe as a whole greater political stability; and thirdly, as the acid test of whether countries should be admitted to this Council of Europe.
For weeks, the air strikes that NATO executed in defence of the ‘safe area’ of Sarajevo were ‘hot news’. The fact that NATO would, eventually, execute these strikes had seemed inevitable for some time. The well-informed observer had sufficient indications to this effect via television and the newspapers. However, the media, and all of the debates in national parliaments, have never, or have scarcely, addressed the legal basis for these strikes. At first sight, this appeared to be a relatively simple question, since NATO repeatedly stressed that it was acting on a mandate from the UN Security Council. At a second glance, however, the legal basis of the NATO actions gives rise to a number of questions for which the answers are less easy to ascertain.
In the previous contribution, Dekker and Myjer maintain that, from the viewpoint of international law, there are at least two problematic issues with regard to NATO's actions in Bosnia-Herzegovina. The first issue concerns the way in which the Security Council has, in a legal sense, shaped its authority over NATO's actions. The second issue is the question of whether NATO is entitled, under its own constitution, to execute such actions. The contribution of Dekker and Myjer was prompted by NATO's air strikes in defence of Sarajevo, which took place in August and September 1995. Their criticism also applies to the current actions that NATO is undertaking in the implementation of the Dayton Agreement, as they later elaborated in the periodical Transaktie. First and foremost, it must be noted that Dekker and Myjer deserve full credit for pointing out these legal aspects of these recent NATO actions. That being said, their two main points of criticism are debatable and, in our opinion, paint a less than consistent picture of the possibilities that the UN and NATO have to offer, in particular the possibilities that may or may not be provided by those organizations' constitutions to flexibly respond to the demands posed at the present time, as well as the room to manoeuvre that is available under the changed international balance of power.
We are grateful to our Leiden colleagues Blokker and Muller for their comments on our contribution in the Nederlands Juristen Blad; just as their response in Transaktie to the elaborated version of our opinion, it is in many ways a well thought-out addition to what we maintained there. Insofar as the purpose of their contribution was to refute our positions, it has (again) failed to convince us.
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Last year, for the second time in a little over 20 years, New Zealand asked the International Court of Justice to adjudicate the legality of French nuclear testing. This followed the announcement by the new President of France to the effect that the moratorium that his predecessor had put in place three years earlier, and had promised that France would continue to observe, would be terminated. The action by the New Zealand government was based on a unanimous decision by all political parties in New Zealand. This action reflected the anger of the countries in the South Pacific at the fact that a nuclear-weapon state was still prepared, in 1996, to explode nuclear devices in fragile marine environments on the other side of the world. In short, New Zealand wanted to utilize all available opportunities to persuade France not to proceed.
HAGUE INTERNATIONAL TRIBUNALS: Permanent Court of Arbitration
On 6 February 1996, the government of Bosnia and Herzegovina informed the Implementation Force (IFOR) that eight Serbs, who were reported missing since 20 January, were held in custody by the Bosnian authorities as war crimes suspects. None of them had already been indicted for war crimes by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. Among the eight detainees were two high-ranking Serb officers: General Djordje Djukić and Colonel Aleksa Krsmanovic. They were said to have been arrested accidentally by Bosnian police officers during a routine traffic control on 30 January 1996.
In accordance with Article 15 of its Statute, the International Criminal Tribunal for the Former Yugoslavia (ICTY) adopted its Rules of Procedure and Evidence on 11 February 1994. This text entered into force on 14 March 1994. It is essential not only for the Tribunal itself in its present work in The Hague, but also as a reference for any other international criminal courts and tribunals currently existing or forthcoming. Largely inspired by the national rules of adversarial systems, the Rules rightly put the emphasis on the rights of the accused. However, they must also ensure the protection of victims and witnesses and, generally, the efficiency of the Tribunal, objectives that cannot be addressed on an international level in the same manner as on a national level. Moreover, all of these objectives must be reconciled in order to guarantee a fair trial. As Trial Chamber II of the ICTY emphasized in its response to the prosecutor's request for protection of victims and witnesses in the Tadić case, “[a] fair trial means not only fair treatment to the defendant but also to the prosecution and to the witnesses.”
In a recent article lamenting the perception of partiality created by an activist judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), one commentator observed the general lack of scrutiny to which the ICTY is being held in its treatment of the rights of the accused. He noted that it “is a court without legal critics: no complaint about its conduct may be made to the Human Rights Committee in Geneva or to the European Court [of Human Rights], and human rights lobbies have tended to look the other way.” Indeed, it is in a position that many governments, fatigued by what many of them consider to be cumbersome reporting obligations and troublesome individual complaints procedures under the United Nations treaty body system, would envy.