Nico Schrijver

Eroding the Primacy of the UN System of Collective Security: The Judgment of the European Court of Justice in the Cases of Kadi and Al Barakaat

This contribution examines the problem of review of targeted sanctions imposed by the Security Council in light of recent developments that occurred in the EU context. Some recent judgements of the European Court of First Instance of the European Communities (CFI) are analysed, as rendered in the cases of Yusuf and Kadi, and also more recently in the cases of the Mujaheddeen and Sison. These latter two judgements show that flaws in the targeted sanctions regimes do not only exist at UN level. The CFI also does not substantively review the listing when this listing is done by the Council of the EU. An examination of the progress made at UN level to address the procedural flaws shows that more than anything else, the real stumbling block is substantive review of intelligence information by an independent and impartial organ. The only conclusion that can be drawn from this is that we are on the way towards a better de-listing procedure, but we are not there yet.

Managing the global commons: common good or common sink?

Abstract The global commons, comprising the areas and resources beyond the sovereignty of any state, build upon the heritage of Grotius’s idea of mare liberum – an idea that aimed to preserve the freedom of access for the benefit of all. However, the old mare liberum idea digressed into ‘first come, first served’ advantages for industrialised countries. Especially at the initiative of developing countries, it has now been replaced by a new law of international cooperation and protection of natural wealth and resources beyond the limits of national jurisdiction. The global commons have thus served as the laboratory for testing new legal principles and the rights and corollary duties emanating from them. Occasionally path-breaking innovations in regulation have been practised, most notably the imposition of a ban on whaling, penalties for the production and use of ozone-depleting substances and the freezing of claims to sovereignty over Antarctica.

From Mare Liberum to the Global Commons: Building on the Grotian Heritage

This article addresses the heritage of Grotiuss concept of common goods ( res communes ) as developed in his seminal work Mare liberum . This contribution identifies the basic tenets of Grotiuss thinking on the nature of common property and identifies the relevance of these ideas for the present day management of global commons, i.e., the areas and natural resources beyond the limits of national jurisdiction. Successively, the article examines the regimes for: the deep seabed, the high seas, and marine mammals; outer space, particularly the moon; the two polar regions; and the atmosphere, in particular the ozone layer and the climate system. The article demonstrates how some of the original tenets of Grotiuss concept of res communis – in particular the idea of inexhaustibility – can no longer be upheld and how the freedom of access to the global commons has become increasingly qualified and supplemented, if not replaced by a new law of international co-operation aimed at conservation and sustainable use of natural wealth and resources beyond the limits of national jurisdiction. The global commons function as laboratories for the testing of new principles of international law and new forms of international co-operation, which can be said to clearly build upon the Grotian heritage.

Beyond Srebrenica and Haiti: Exploring Alternative Remedies against the United Nations

Since the end of the Cold War, international organizations have frequently called upon their member States to respect the principles of good governance and international law. Increasingly, however, questions are raised concerning the behaviour of international organizations themselves and whether their own practice corresponds to what they expect from their member States. In other words: do organizations practise what they preach? Since many international organizations aim to promote respect for human rights and fundamental freedoms, it is reasonable to consider the extent to which these organizations respect such rights and freedoms themselves. Given the immunity of the United Nations, this paper examines some alternative legal procedures for the settlement of claims against the United Nations, taking into consideration contemporary international principles in relation to access to court, due process and reparation. It concludes with a number of recommendations.

Beyond Srebrenica and Haiti

Since the end of the Cold War, international organizations have frequently called upon their member States to respect the principles of good governance and international law. Increasingly, however, questions are raised concerning the behaviour of international organizations themselves and whether their own practice corresponds to what they expect from their member States. In other words: do organizations practise what they preach? Since many international organizations aim to promote respect for human rights and fundamental freedoms, it is reasonable to consider the extent to which these organizations respect such rights and freedoms themselves. Given the immunity of the United Nations, this paper examines some alternative legal procedures for the settlement of claims against the United Nations, taking into consideration contemporary international principles in relation to access to court, due process and reparation. It concludes with a number of recommendations.

Cases Concerning Sovereignty over Islands before the International Court of Justice and the Dokdo/Takeshima Issue

The article analyzes the recent jurisprudence of the International Court of Justice in relation to disputes concerning sovereignty over islands and considers the potential implications of this jurisprudence for the resolution of the Dokdo/Takeshima issue. It does so by examining the principles and rules of international law applied by the Court to the determination of title to territory, especially those concerning the question of original title and its interplay with state conduct in general (effectivités). The article also pays special attention to the different legal techniques applied by the Court in resolving each particular dispute and the Courts practical approach to dealing with questions of historical facts and other evidentiary matters in relation to small and uninhabited islands.

Fifty Years Permanent Sovereignty over Natural Resources

This chapter analyses the evolution of permanent sovereignty over natural resources by reference to its two main roots, self-determination of peoples and sovereignty of States; the formulation and adoption of the 1962 Declaration; the further phases in the evolution of the principle; the right holders and the objects to which it relates; and the reflection of the principle in sources of international law, such as treaty law and judicial decisions. The chapter emphasizes the new directions the principle has taken in an increasingly interdependent world by giving rise to duties as well as rights. In this way the principle of PSNR serves at the core of law-making efforts in the field of foreign investment regulation, global and national resource management, environmental conservation and sustainable development. The 1962 Declaration proves to be of lasting value in all these fields formulating as it does the opinio iuris communis on some principal dimensions.

The Fragmented International Legal Response to Terrorism

This article constitutes the introduction of a new volume entitled Counter-terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges (Cambridge University Press, 2013).