Erika de Wet

The governance of Kosovo: Security Council resolution 1244 and the establishment and functioning of Eulex

On February 4,2008, shortly before Kosovos controversial unilateral secession from Serbia on February 17 of that year, the Council of the European Union (EU) adopted a Joint Action creating the European Union Rule of Law Mission in Kosovo/EULEX (hereinafter EULEX), the largest and most important mission thus far undertaken within the common European foreign and defense policy. Although EULEX is first and foremost a European undertaking, it is also strongly backed by the United States, which agreed to shoulder 25 percent of the operating costs while the remaining costs would be shared by European and other states. In October 2008, the U.S. Department of State further agreed to provide EULEX with eighty police officers and up to eight judges and prosecutors.

Hierarchy in international law : the place of human rights

1. Introduction 2. Norm Conflicts and Hierarchy in International Law: Towards a Vertical International Legal System? 3. Human Rights and United Nations Security Council Measures 4. Human Rights and the Immunities of Foreign States and International Organizations 5. Human Rights and the Immunities of State Officials 6. On the Hierarchy between Extradition and Human Rights 7. Human Rights, Refugees and Other Displaced Persons in International Law 8. Resolving Conflicts between Human Rights and Environmental Protection: Is there a Hierarchy? 9. Human Rights Dimensions of Investment Law 10. The Relationship between International Trade Law and International Human Rights Law 11. Conclusions

Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review

The current contribution focuses on the oversight over international institutions, which is used as a synonym for the accountability of such entities. It departs from the principle that all entities exercising public authority have to account for the exercise thereof. The growing power of international institutions in areas that were formerly regulated domestically, along with the growing impact of their conduct on (the rights of) States and non-State actors alike, has thus far not been matched by a shift in accountability relationships beyond those applicable within the confines of the territorial State. Understandably therefore the calls for the accountability of international institutions have increased in recent years, as it is seen as essential for ensuring their credibility and for securing control over public power. For the purpose of the current contribution, accountability refers to the obligation of international institutions to give a reasoned account of the manner in which they exercise public authority. Of particular importance in this context are normative acts such as standard-setting or rulemaking, or the determining of a particular course of conduct. Decisive is not whether the normative act is legally binding in the formal sense, but rather whether it has a de facto impact on the rights and interests of States and/or non-State actors. The exercise of public authority in the form of a normative act further implies a relationship between an actor and a forum (constituency), a particular conduct which has to be accounted for, as well as forms of or mechanisms for accountability. Whereas the relationship between the actor and the forum should contain an element of distance, (as opposed to self-control) the accountability mechanisms may be judicial as well as non-judicial, (i.e. political, administrative or financial) or any combination of these. The account-ability mechanisms further imply some standard for assessing the conduct of the actor, as well as the possibility of sanctions which can vary from legally enforceable measures to naming-and-shaming.

Conflicts between International Paradigms: Hierarchy Versus Systemic Integration

International law has developed as a horizontal system of norms in which no norm enjoys an automatic hierarchical superiority. Some theoretical concepts and judicial decisions have nevertheless suggested that a hierarchy was emerging in the international system of norms, with human rights at its apex. This article draws on the study of case law of domestic, regional and international judicial bodies to determine whether human rights are indeed given precedence over other international legal obligations. The article demonstrates that in the de-centralised international legal system, a preference given to one type of obligations may be a matter of functional bias rather than fully-fledged hierarchy. Human rights bodies may well favor human rights but this preference is not the universal pattern significant for all tribunals. Nevertheless, human rights obligations play a prominent role in the decisions of international bodies functioning within a different functional paradigm (e.g. WTO panels, investment arbitrations) as well as in jurisprudence of domestic courts. But these decisions do not suggest any hierarchy in international law. They rather reflect the approach of systematic integration of international legal obligations.

Human Rights Limitations to Economic Enforcement Measures Under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime

This article questions the legality of the extent of the Iraqi sanctions regime, due to its severe impact on human rights such as the right to life and the right to health. After examining whether the Security Council is bound by human rights, the article examines if and to what extent the Security Council may limit human rights norms when imposing economic sanctions. In the process it distinguishes between non-derogable and derogable human rights. With respect to the latter, it supports limitation in accordance with a proportionality principle that protects the core of the rights involved, while at the same time allows the Security Council the flexibility required by its unique role in the maintenance of international peace and security.

Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work

The current contribution will elaborate on the manner in which the Declaration of the International Labour Organization (ILO) on Fundamental Principles and Rights at Work1 (hereinafter the 1998 Declaration) functions as an instrument of governance for the purpose of promotion and persuasion. The purpose of this activity is to improve the observance by States of certain principles contained in the 1998 Declaration. At the outset one should stress that this governance technique is a trade mark of the ILO as a whole and not only of the 1998 Declaration. The basic premise of the ILO is to rely on cooperation and dialogue rather than sanctions in its efforts to realize its goals. Public promotion and moral persuasion involve mobilizing peer pressure and shaming through the threat, or act, of exposing breaches of international labour standards to the international community. Technical assistance, which constitutes a particular concretisation of promotion and persuasion, ranges from advising on legislative reform and training of government officials to strengthening the capacity of governments, workers organisations and employers organisations for realizing international labour standards. The ILO does not have the means or the mandate to engage in governance techniques such as black-listing or the imposition of financial sanctions, as may be the case with, for example, the United Nations Security Council. Instead, its governance techniques are more comparable to those of many human rights supervisory bodies within the United Nations system. All of these systems rely on reporting, dialogue and technical assistance as a mechanism for enforc-ing certain international obligations and none of them possess any coercive powers.

The Evolving Role of ECOWAS and the SADC in Peace-Operations: A Challenge to the Primacy of the United Nations Security Council in Matters of Peace and Security?

The article examines the evolution of military operations by the Economic Community of Western African States (ECOWAS) and the South African Development Community (SADC) over the last three decades. By examining constitutional (treaty) developments and organizational practice, it questions whether these sub-regional organizations have displaced the primacy of the United Nations Security Council (UNSC) in matters pertaining to international peace and security, as foreseen in articles 24(1) and 103 of the United Nations Charter (the UN Charter). The relevance of this question is underscored by the fact that ECOWAS and SADC have engaged in various peace operations since the 1990s. The article concludes that since all the interventions under discussion were underpinned by the consent of the recognized government, it would be premature to suggest that the practice of African sub-regional organizations amounts to the emergence of a new customary right to engage in ‘first-instance enforcement action’.

The legitimacy of United Nations Security Council decisions in the fight against terrorism and the proliferation of weapons of mass destruction: Some critical remarks

In November 2003, during the conference on Development of International Law in Treaty Making, the current author concluded that Security Council practice in the post Cold War era has swayed between complete inaction and overreaction.1 This extreme situation is a reflection of the reality that decision-making within the Security Council in the post Cold War era is driven by the (short term) political interests of the only remaining super-power and its closest allies — interests which are frequently being pursued at the expense of the international community as a whole and at the expense of international law.2 Moreover, it is unrealistic to believe that this situation will change in the near future.