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Vol. III


MASTHEAD

ARTICLES
State of Necessity as a Justification for Internationally Wrongful Conduct by Roman Boed
Abstract | PDF
Toward the African Court on Human and Peoples' Rights: Better Late than Never by Nsongurua J. Udombana
Abstract | PDF
Guatemala's Peace Accords in a Free Trade Area of the Americas by Gus Van Harten
Abstract | PDF

NEW DEVELOPMENTS
The World Bank's Draft Comprehensive Development Framework and the Micro-Paradigm of Law and Development by Richard Cameron Blake
Abstract | PDF
Debt Relief in 1999: Only One Step on a Long Journey by Eric A. Friedman
Abstract | PDF



ARTICLES
State of Necessity as a Justification for Internationally Wrongful Conduct by Roman Boed
Can the safeguard of essential state interests, such as national development, social stability, non-interrupted provision of essential services or environmental protection, ever legally justify a State's violation of internationally protected human rights? United Nations legal officer Roman Boed warns that current understandings of the doctrine of necessity in international law could justify such a breach. Developed by Grotius in the seventeenth century, the concept of a "state of necessity" as a valid justification for breach of international legal obligations has been applied by international tribunals through the centuries and has recently been codified by the International Law Commission (ILC) in article 33 of its Draft Articles of State Responsibility. Premised on a balancing test between the individualized interests of two states, article 33 permits the invocation of necessity where an essential interest of a State is faced with grave and imminent peril, the essential interest outweighs the interest of a third-party State in non-breach, an no other means of safeguarding the essential interest is available. Boed argues that the current construction of draft article 33 skews the necessity balancing test in favor of breach where human rights are involved by misrepresenting the multilateral or erga omnes character of such obligations. While "necessity" may function as a legitimate "safety value" for protecting States' essential interests in the context of discrete breaches of international human rights law in the mid-twentieth century demands the reformulation of the necessity calculus to better account for the community interest in safeguarding human rights. Applying the necessity balancing test to a practical example of a State closing its borders to a large-scale influx of asylum-seekers, Boed demonstrates that the necessity doctrine, as understood by the ILC and the International Court of Justice, could be used to absolve a State of responsibility for breach of its international duty of non-refoulement. To avoid - or at least substantially limit - this and similar outcoumes, Boed urges the adoption of a proposed change to draft article 33 that would preclude resort to the necessity doctrine where erga omnes and multilateral human rights obligations established for the protection of the general interest are involved. Such a reformulation, Boed argues, is essential to prevent perverse outcomes in international human rights law and to bring the doctrine of necessity up to date with contemporary international law, which increasingly contains multilateral and erga omnes obligations. Boed concludes that such a reformulation must be accompanied by efforts to develop international burden-sharing mechanisms that allow the entire community of States to assist individual States to comply with their international obligations without harm to their essential interests. Human rights and development may thus be pursued complementarily, with one never justifying breach of the other.

Toward the African Court on Human and Peoples' Rights: Better Late than Never by Nsongurua J. Udombana
The African human rights system has long stood apart from its European and Inter-American counterparts by the conspicuous absence of a regional human rights court. On June 9, 1998, accompanied by great elation in the African and international communities, the initial steps to install an African Court on Human and Peoples' Rights successfully came to a close. On that date, thirty African States signed a Protocol to the Banjul Charter providing for the establishment of the long-awaited Court. Professor Udombana of Nigeria describes the urgent need for a human rights court in Africa, the arguments that have historically stood in its way, and the decades-long process of establishing the Court. In so doing, he highlights the shortcomings of the Organization of African Unity and the African Commission of Human and Peoples' Rights, which have failed to act as effective instruments for the protection of human right in the continent. Udombana argues that Africans must ensure that the new Court is not handicapped with the same deficiencies and weaknesses that have beset its predecessors. He highlight the key features of the new Court, identifies the obstacles that it faces, and suggests proposals for strengthening the newly established organ. While recognizing that the Court will not be a panacea to the widespread human rights problems in the region, Professor Udombana argues forcefully that the establishment of the Court is an essential step in the historic process of ensuring human rights to all Africans, restoring confidence in the region's institutions, and entrenching the understanding that African governments may be held accountable for their domestic actions on the international plane. The African human rights court, the author concludes, has been long in coming, but is better late than never.

Guatemala's Peace Accords in a Free Trade Area of the Americas by Gus Van Harten
International investment agreements are increasingly being negotiated worldwide. Advocates assure that, by providing stable and predictable rule, such agreements spur economic growth and development, bringing greater prosperity to rich and poor countries alike. By "disciplining" governments' ability to regulate foreign investment, however, they may also threaten sovereignty and democratic accountability to domestic popular choices. Gus Van Harten argues that the heightened standards of investor protection embodied in recent international agreements may give foreign investors unwarranted leverage to influence political decisonmaking and thus constrain the scope of governments' freedom to pursue national strategies for development, human rights, and reform. As a compelling illustration, he highlights the recent negotiations toward a Free Trade Area of the Americas (FTAA) and its potential effect on the ability of the Guatemalan government to fulfill its commitments under the historic 1996 Peace Accords. The Accords, concluded with the participation of broad sectors of civil society, commit the State to pursue critical measures in the areas of human rights verification, agrarian reform, social investment in health and education, demilitarization, indigenous rights, and resettlement of uprooted populations. Following thirty-six years of bloody civil war, deepening poverty, and systematic human rights abuse by state authorities, the Accords represent an important chance for the consolidation of democracy in Guatemala. Social stability, however, depends in large part on whether the commitments under the Accords are actually fulfilled. Based on an anticipatory analysis of the arguments that investors might use under an FTAA investor-to-state mechanism, Van Harten contends that the threat of investor challenges under the FTAA investment agreement may undermine the hard-won Government commitments to pursue crucial land-related and other socio-economic reforms under the Peace Accords. To avoid this outcome, he urges FTAA negotiators to ensure that clear rules are established not only for the protection of the investors, but also for the valid exercise of state regulation of foreign investment where the risk of constraining legitimate democratic choices is simply too great.

NEW DEVELOPMENTS
The World Bank's Draft Comprehensive Development Framework and the Micro-Paradigm of Law and Development by Richard Cameron Blake
The author asserts that Law and Development (L&D) scholars and practitioners must pay more attention to micro-level L&D theory. In contrast to the original L&D theory's sole focus on macrodevelopment of markets and democracy, micro-L&D theory focuses on developing law and legal resources for the poorest of the poor. The author then evaluates the World Bank's new Comprehensive Development Framework (CDF) in light of micro-L&D theory. He claims that the CDF's policy of country-level planning and ownership has the potential to allow the poor to become empowered by giving them an opportunity to articulate, advance and protect their interests before policymakers, but criticizes the lack of full civil society participation so far.

Debt Relief in 1999: Only One Step on a Long Journey by Eric A. Friedman
The massive debts of many poor countries is a serious impediment to their ability to meet their economic and social rights obligations. By insisting that poor states use their scarce resources for debt service payments, the international community is complicit in the wide-scale violation of human rights. To much fanfare, in June 1999 the G7 enhanced their debt relief program for the Heavily Indebted Poor Countries. The improvements, however, are far too modest. An earnest debt relief plan is urgently required. It should focus on eliminating debt service payments and be connected to increased social spending and creating effective democratic institutions.

 

VOL. 3 MASTHEAD

 Shaheena Ahmad
 Articles Editor
 Susan Benesch
 Submissions Editor
 Natalie Bruce
 Articles & Technical Editor
 Philip Chen
 Submissions Editor
 Erin Chapman
 Articles Editor
 Michael Durham
 Articles & Technical Editor
 Shad Fagerland
 Submissions Editor
 Jeremy Feit
 Executive Editor
 Michael Gottlieb
 Notes Editor
 Tara Melish
 Editor-in-Chief
 Marco Simons
 New Developments Editor
 Karen Sokol
 Articles Editor
 Nathaniel Zylstra
 Executive Editor
 
 

EDITORS
Ali Ahsan, Cecily Baskir, Lily Batchelder, Brandee Butler, Eric Friedman, Avi Kumin, Emily Pierce, Mathew Seal, Erika Serran, Saema Somalya, Ronnell Wilson