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The old truism, that international law is not a suicide pact, is forceful in an age of destructive weaponry. Nevertheless strategically, there is little precedent for a major military offensive against a state that has not proximately used force against the interests of the belligerent state. Legally, while a number of legitimate justifications might permit the use of force, an appropriate international law doctrine, under which the United States could execute the military campaign it recently successfully launched against Iraq, does not currently exist. But that lacuna was seemingly plugged with the ‘Bush Doctrine’ that advocates pre-emptive strikes against rogue states and/or entities involved in terrorism. The so-called ‘Bush Doctrine’ articulates a new rule of international law that seeks to bring to life the doctrine of anticipatory self-defence as an appropriate means through which to combat terrorism (including states that actively support terrorism or that are themselves terror states in the sense of acquiring and stockpiling weapons of mass destruction).
Despite adoption by Regional Fisheries Organisations of numerous measures aimed at deterring, preventing and eliminating illegal, unreported and unregulated fishing, IUU fishing by vessels flagged in both member and non-member states continues. None of the reciprocal boarding and inspection schemes adopted by RFOs provides for a positive right of arrest, detention or prosecution by a non-flag state in the event the flag states fails or refuses to take such action itself. The law of countermeasures may, however, provide legal justification for at-sea measures including boarding, inspection and possibly arrest and prosecution by members of RFOs against non-flag vessels of both member and non-member states. Although by nature an exceptional remedy, where the criteria discussed in this article are fulfilled, countermeasures in the form of at-sea enforcement may be an effective, and legal, tool in the fight against IUU fishing.
In this article, the predominant approach to legal research on the rule of law is analysed, and three alternative approaches which enable empirical research are presented. All four approaches are then assessed by applying them to the Dutch practice of judicial rule-making by agreement. The current evaluation approach is shown to be limited in its analytical scope with regard to the actual workings of the rule of law through its lack of empirical grounding. It is unable to critically examine its own assumptions regarding this matter. The first alternative approach focuses on how legal arrangements affect the prevalence of some interests over others in society. This enables an analysis to be made of how social groups are favoured or disfavoured by different rule of law arrangements. The second alternative approach examines how law influences citizens' acceptance of their government and thus focuses on the legitimacy that the rule of law is often assumed to generate. The third alternative approach analyses the rule of law as a discourse. It asks the questions how power relations in society influence the content of the debate on the rule of law and how the content of the rule of law in turn influences power relations in society. The author claims that adopting a combination of these approaches and analysing the interrelations of the findings of these approaches leads to more fruitful rule of law research than continuing on the narrow path of the evaluation approach.