Legal Differentiation and the Concept of the Human Rights Treaty in International Law

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Craven, Matthew (2000)
  • Subject: 4450 | 8500 | 8010
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    73 references, page 1 of 8

    3 Cf. H. Lauterpacht, 'Some Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order', Symbolae Verzijl (1958) 196; J. Stone, Of Law and Nations (1974) ch. 3.

    4 In the past 10 years, for example, the following bodies inter alia have begun work: the International Criminal Tribunal for Former Yugoslavia (1993); the International Criminal Tribunal for Rwanda (1995); the International Tribunal for the Law of the Sea (1996); the UN Compensation Commission (1991); the EFTA Court (1994); and the WTO Dispute Settlement Body and Appellate Body (1995). On the increased use of the ICJ, see e.g. Highet, 'The Peace Palace Hots Up: The World Court in Business Again?, 85 AJIL (1991) 646.

    5 See, e.g., Charney, 'The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea', 90 AJIL (1996) 69; and Guillaume, 'The Future of International Judicial Institutions', 44 ICLQ (1995) 848.

    6 Cf. Barcelona Traction, Light and Power Case, ICJ Reports (1970) 32, paras 33-34.

    7 See, e.g., the extension of state responsibility to govern 'authorized' private acts (Costello-Roberts v. United Kingdom, 19 EHRR (1998) 112) or for failure to properly protect individuals against abuse (X and Y v. The Netherlands, ECHR (1985) Series A, No. 91). See Crawford, 'Revising the Draft Articles on State Responsibility', 10 EJIL (1999) 435, at 439-440; and more equivocally Chinkin, 'A Critique of the Public/Private Dimension', 10 EJIL (1990) 387, at 393-395.

    8 See, e.g., Draft Articles on State Succession in Relation to Nationality, GAOR, 52nd Sess., Supp. No. 10 (A/52/10), chapter IV, section c.

    9 E.g., EC Guidelines on Recognition (1992). See generally Warbrick, 'Recognition of States: Part 2', 42 ICLQ (1993) 433.

    10 E.g., NATO action in Kosovo. See generally Cassese, 'Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?', 10 EJIL (1999) 23; Simma, 'NATO, the UN and the Use of Force: Legal Aspects', 10 EJIL (1999) 1.

    11 The argument that certain categories of treaties must be treated in a distinctive way has, of course, been a long-standing point of debate. McNair argued in 1930, for example, that we need to 'free ourselves from the traditional notion that the instrument known as the treaty is governed by a single set of rules, however inadequate, and set ourselves to study the greatly differing legal character of the several kinds of treaties and to frame rules appropriate to the character of each kind'. McNair, 'The Functions and Differing Legal Character of Treaties', 11 BYIL (1930) 100, at 106. See also Jenks, 'State Succession in Respect of Law-Making Treaties', 29 BYIL (1952) 105.

    12 General Comment No. 24 (52), UN Doc. CCPR/C/21/Rev.1/Add.6, para. 17.

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