With the end of the Cold War, the United States has emerged as the sole remaining superpower whose ambition is to create a new open and integrated world order based on principks of democratic capitalism. To ensure its hegemony, the United States is prepared to resort to military action with or without UN approval when its international and national security interests are at stake. The intervention in Iraq by the Coalition of the Willing is a good example of this policy and raises the question of its legality and legitimacy under contemporary international law. May or must a state resort to military intervention against a state sponsoring terrorism or depriving its nationals of their internationally recognized human rights? The so-called “Bush doctrine” of anticipatory or preventive self-defence against a state accused of supplying weapons of mass destruction to a foreign terrorist organization, which was one of the reasons advanced by the Coalition of the Willing for intervening in Iraq, meets neither the conditions laid out in Article 51 of the UN Charter nor those of customary international law. Thus, at the present stage of development of international law, the Bush doctrine is not even lege ferenda. It is not an extension of the customary international law right of pre-emptive self-defence. Only with the approval of the Security Council pursuant to Chapter VII of the UN Charter or when it takes place within the strict confines of self-defence, can armed intervention be legitimate.

The second reason for intervening in Iraq given by the Coalition of the Willing is based on humanitarian considerations, which raises the question whether the protection of human rights can be assured from the outside. Here, international law is evolving in the right direction since the international community is prepared to adopt the concept of responsibility to protect, which justifies the use of force to protect and enforce human rights as an exception to Article 2(4) and (7) of the UN Charter. Again, such intervention is legal only when approved by the Security Council acting pursuant to Chapter VII on the ground that human right crises do not fall “essentially within the jurisdiction of any state.” However, the international community, with the exception of the Coalition of the Willing, is not yet prepared to support a right of unilateral military intervention as a last resort when the Security Council is incapable and unwilling to do so. This includes intervention motivated by the non-democratic form of government of the targeted state. Although the primary responsibility to deal with human right crises rests with the United Nations based on the responsibility to protect, it is argued that one should not rule out unilateral military action based on a customary international law right of intervention to meet the gravity and urgency of the situation provided the intervening state fully observes the necessary precautionary principles governing such type of intervention. The conclusion is that terrorism and human rights abuses can only be effectively challenged through a concerted multilateral collective approach not through the politics of unilateralism.

Legal commentators have not always considered advisory opinions as a legitimate judicial function. Under both national and international law, it is often considered that only ripe controversies can be legitimately decided by a court of law. Under international law, advisory opinions are also criticized for undermining sovereignty when consent is not obtained from all states affected by the matter. By examining the International Court of Justice’s (ICJ) advisory opinions in light of comparative law, the author argues that this criticism underestimates the evolution of the judicial function, as much in international as in national law. The advisory opinion is a mode of social ordering that stands somewhere between consultation and adjudication. The advisory opinion not only adopts most of adjudication’s characteristics but abo has the added flexibility of consultation because it can consider a wider spectrum of opinions than can adversary procedures. The ICJ’s advisory opinions can almost be assimilated to adjudication. Considering that they have also greatly contributed to the development of international law, the ICJ’s advisory opinions remain an integral and legitimate part of the court’s judicial function.

In order to enhance and encourage compliance with obligations in multilateral environmental agreements (MEAs), states have agreed to the creation of compliance committees for all of the recent MEAs. Canada has been a strong supporter of the compliance committee experiment and an active participant in the negotiation and operation of numerous MEA compliance committees. This article does three things. First, it examines the international legal nature of the MEA compliance committees. Second, the key issues of the structure of the committees are explored. Finally, the article look at the development and operation of compliance committees pursuant to: the Montreal Protocol; the LRTAP Convention; the Espoo Convention; the Basel Convention; the Cartagena Protocol; the Rotterdam Convention; the Stockholm Convention; and the Protocol to the London Dumping Convention.

Over the past century, the laws of armed conflict have limited or prohibited the use of a number of weapons, principally due to their cruel effects or indiscriminate nature. Among the examples are chemical and biological weapons, anti-personnel mines, and blinding laser weapons. In recent years, one of the most controversial armaments used by states has been the cluster bomb. Cluster weapons are inexpensively produced area weapons with a high propensity for failure. The source of constant condemnation since the Vietnam conflict, the legality of cluster weapons remains highly questionable. With such weapons, the question is not so much whether there is a need to create new instruments of limitation, or indeed prohibition, but whether the existing laws of armed conflict are already sufficient to address any human and environmental concerns.

Discussion surrounding the prevention of genocide has focused to a large extent on the appropriate mode(s) of reaction to particularly serious breaches of human rights obligations. In particular, the question arose whether existing UN mechanisms aimed at preserving international peace and security should be regarded as a privileged — or even exclusive — means to enforce compliance by states with their obligations relating to genocide. Drawing extensively on the work of the International Law Commission on the codification of the law of state responsibility, the author argues that the new draft articles, with their emphasis on “serious breaches of obligations arising under peremptory norms of general international law” rather than obligations erga omnes, are ill-suited to provide for the taking of preventive measures by “not-directly affected” states. Paradoxically, the institutionalization of mechanisms for preventing gross human rights abuses has been reduced to a minimum in the new draft, with emphasis being laid on the vague requirement that states “cooperate” to bring “serious breaches” to an end. It is suggested, however, that ascribing a subsidiary role to UN organs and procedures is, despite criticisms made as to their adequacy, necessary to supplement state action. The UN has in fact a distinct legal interest that is clearly affected when breaches of obligations relating to genocide occur. More importantly, by acting on behalf of the “organized international community” in matters of international peace and security, the Security Council has itself assumed today a legally binding subsidiary obligation to prevent genocide. The article concludes that in the absence of ineffective decisional institutions for the prevention of genocide, the choice is not between the subjectivism of a decentralized response and the absence of any consequences for the most serious wrongful acts but rather to strengthen the UN’s institutional capacity to react.

Recent decisions of the Appellate Body of the WTO deal with the interpretation of GATT Article XX, which provides exemptions from trade obligations for important non-trade policies such as the protection of health and the environment. The article discusses those decisions, as well as the balance between trade and non-trade interests in the provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade.

In the spring of 1999, the NATO allies conducted a bombing campaign against the Federal Republic of Yugoslavia for several weeks. The campaign was a response to the failure of negotiations at Rambouillet, France, relating to a situation in Kosovo that United Nations agencies had characterized as a “humanitarian crisis.” In late April, only a few days after filing an Optional Clause declaration under the Statute of the International Court of Justice accepting the compulsory jurisdiction of the court subject to reservations, Yugoslavia initiated proceedings in the court against ten NATO allies, including Canada. The application was accompanied by a request for the indication of “provisional measures” pursuant to the statute, enjoining the NATO allies from continuing the use of force against Yugoslavia. Yugoslavia relied upon its new declaration and upon the compromissary clause of the Genocide Convention as grounds of jurisdiction. In June 1999, the court refused the request for provisional measures on the ground that it lacked prima facie jurisdiction. Canada and other remaining respondents filed preliminary objections on jurisdiction and admissibility. The objections on jurisdiction were based on the grounds that had been advanced at the provisional measures stage and largely endorsed by the court: first, that Yugoslavia was not then a member of the United Nations and was therefore not entitled to make an Optional Clause declaration; second, that the declaration was limited to future disputes; and, third, that the subject matter of the dispute was not covered by the Genocide Convention, which could therefore not be invoked to establish jurisdiction.

Following oral hearings in April 2004, the court ruled in a judgment of 15 December 2004 that it lacked jurisdiction. The ruling was based exclusively on the fact that Yugoslavia lacked United Nations membership and standing in the court in 1999. The judgment concludes that the exception in Article 35(2) of the statute relating to “treaties in force” does not entitle a non-member of the United Nations to appear before the court in a matter related to the Genocide Convention, which the Court interprets as applying only to treaties in existence before 1945. This reasoning came as a surprise, since the court had assiduously avoided the issue of UN membership both in its provisional measures ruling and in its decisions in closely related proceedings taken by Bosnia and Croatia against Yugoslavia pursuant to the Genocide Convention. It remains to be seen how the judgment will be reconciled with rulings already made on jurisdiction in the proceedings taken by Bosnia, where jurisdiction has already been confirmed and where hearings on the merits are scheduled for 2006.

The importance of the role of discipline in the military and the way in which it has been viewed from historical times to the present day are surveyed by the author. The practices of different armies in various conflicts are considered and attempts to codify rules through international conventions and decisions of tribunals are discussed.

— Ivan Leigh Head

Written over fifteen years ago by Ivan Leigh Head, a highly distinguished Canadian international lawyer, foreign policy expert, and international development thinker, the words contained in the above quotation point firmly at this great man’s analytic incisiveness and hint at the sheer depth of his fairness of mind. For although the net transfer of resources from the much poorer geopolitical “South” to a far richer “North” remains to this day one of the most important obstacles to international development, rarely have the dominant accounts of international development given this phenomenon the pride of place that it surely deserves. Ivan Head was therefore well ahead of his time in foregrounding, highlighting, and criticizing this very disturbing, yet continuing, feature of South-North relations.