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    The UN General Assembly established the International Law Commission (“ILC”) in 1947 to assist States with the promotion of 1) the progressive development of international law and 2) its codification. The ILC’s first assignment from the General Assembly was to formulate the Nuremberg Principles, which affirmed the then radical idea that individuals can be held liable for certain international crimes at the international level. Since then, the ILC has played a seminal role in the development of modern international criminal law. In 2017, the ILC adopted on first reading a draft convention aimed at the prevention and punishment of crimes against humanity which it transmitted to States for comments. The draft treaty will help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC can take up new topics and the main reasons why it decided to propose a new crimes against humanity convention. Part III discusses positive features of the draft convention, highlighting key aspects of each of the Draft Articles. Part IV critiques the ILC draft treaty focusing on inconsistencies in the use of the ICC definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows a well settled methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law.


Charles C. Jalloh B.A. LL.B Ph.D
Professor of Law, Florida International University and Member, International Law Commission.
Article

Access_open Mercosur: Limits of Regional Integration

Journal Erasmus Law Review, Issue 3 2019
Keywords Mercosur, European Union, regionalism, integration, international organisation
Authors Ricardo Caichiolo
AbstractAuthor's information

    This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union.
    The article demonstrates the extent to which almost thirty years of integration in South America could be considered a failure, which would be one more in a list of previous attempts of integration in Latin America, since the 1960s. Whether it is a failure or not, it is impossible to envisage EU-style economic and political integration in South America in the foreseeable future. So far, member states, including Brazil, which could supposedly become the engine of economic and political integration in South America, have remained sceptical about the possibility of integrating further politically and economically. As member states suffer political and economic turmoil, they have concentrated on domestic recovery before being able to dedicate sufficient time and energy to being at the forefront of integration.


Ricardo Caichiolo
Ricardo Caichiolo, PhD (Université catholique de Louvain, Belgium) is legal and legislative adviser to the Brazilian Senate and professor and coordinator of the post graduate programs on Public Policy, Government Relations and Law at Ibmec (Instituto Brasileiro de Mercado de Capitais, Brazil).
Article

Fiscal Consolidation in Federal Belgium

Collective Action Problem and Solutions

Journal Politics of the Low Countries, Issue 2 2019
Keywords fiscal consolidation, fiscal policy, federalism, intergovernmental relations, High Council of Finance
Authors Johanna Schnabel
AbstractAuthor's information

    Fiscal consolidation confronts federal states with a collective action problem, especially in federations with a tightly coupled fiscal regime such as Belgium. However, the Belgian federation has successfully solved this collective action problem even though it lacks the political institutions that the literature on dynamic federalism has identified as the main mechanisms through which federal states achieve cooperation across levels of government. This article argues that the regionalization of the party system, on the one hand, and the rationalization of the deficit problem by the High Council of Finance, on the other, are crucial to understand how Belgium was able to solve the collective action problem despite its tightly coupled fiscal regime and particularly high levels of deficits and debts. The article thus emphasizes the importance of compromise and consensus in reducing deficits and debts in federal states.


Johanna Schnabel
School of Politics and International Relations, University of Kent, Rutherford College, Canterbury CT2 7NX, United Kingdom.

    Since 2005 a growing number of states have adopted national space legislation to ensure adherence to international obligations, clarify rights under international space law, and promote regulatory certainty for space activities under their jurisdiction. While a certain degree of similarity is seen in the interpretation of these international obligations, the purpose of this paper is to demonstrate that diverging interpretations on a national level already exist. The interpretations that are reflected in national space legislation are often contextual and products of national space capabilities and ambitions. As such the Report of the Study Group of the International Law Commission on the Fragmentation of International Law regarding competing lex specialis, each with its own purpose and reasoning, will be discussed by analogy to provide insight into the processes and consequences of fragmentation of international law through diverging interpretations. Thereafter, this paper will present a brief comparative study on the scope of various national space legislation. This study will highlight variations in the interpretation of what it means to “carry out a space activity” under Article VI OST. Particular attention will be given to who is defined as carrying out a space activity and what is defined as a space activity. The conclusion will underline a need and urgency for coordination in the interpretation and application of space law, which is both beneficial and necessary to avoid the negative consequences of the fragmentation of international space law.


Vincent Seffinga
Vincent Seffinga, Department of Law, European University Institute, Villa Salviati, Via Bolognese 156, 50139 Florence, Italy.

Mari Eldholm
Mari Eldholm, in private capacity.

    Entities enjoying international legal personality are generally regarded as the “subjects” of general international law and international space law and are considered to possess rights and obligations under international law. While States have historically been recognised as the principal subjects of international law, non-State actors, such as international organisations, non-governmental entities, multinational corporations, and (arguably) individuals, are increasingly empowered with rights and subjected to obligations on the international plane. International space law, although embedded in general international law, contains unique principles and rules that are in some cases different from those of general international law. With the changing nature of activities due to technological developments, and the proliferation of actors in the space domain, it is necessary to critically examine the issues as to what are considered the subjects of international space law. This question is important both from the doctrinal perspective, and as a matter of practical relevance, as space activities are increasingly being undertaken by non-State actors under the jurisdiction and control of, or having a nexus with, several States.


Kuan-Wei Chen
K.W. Chen, Centre for Research in Air and Space Law, McGill University, Canada.

Ram Jakhu
R. Jakhu, Institute of Air and Space Law, McGill University, Canada.

Steven Freeland
S. Freeland, Western Sydney University, Australia.

    Among the numerous space activities, satellite communications remain the most widespread, essential, and advanced. To perform a communication function, satellites need to be placed in orbit and use the radio-frequency spectrum. Such limited natural resources, which require rational, equitable, efficient, and economical use in an interference-free environment, are managed by the International Telecommunication Union (ITU).
    Before a new satellite or a satellite network is brought into use, the relevant operator carries out coordination with other operators which utilize satellite networks in the adjacent orbital locations. The results of the coordination procedure are then reflected in coordination agreements. Though coordination may last for years, the difficulty is not so much the conclusion of an agreement as its due performance and enforcement.
    Coordination agreements generally contain mutually acceptable technical parameters for the operation of certain frequencies and their breach may cause harmful interference toward communications satellites. At the request of administrations, the ITU carries out investigations of harmful interference and formulates recommendations. Although such a process has a few drawbacks, complete disregard for the content of coordination agreements makes it totally meaningless.
    If the ITU’s recommendations cannot satisfy the parties or are not duly followed, or if damage was caused by harmful interference and requires compensation, a judicial recourse seems inevitable. As disputes may involve parties around the globe, to which court should they apply? Commonly drafted by technical experts, coordination agreements hardly provide for a dispute resolution mechanism or governing law, while the application of general rules may bring parties to an exotic jurisdiction equally irrelevant to both. Whatever court is chosen, the question of specific knowledge arises. However, the ITU’s practice has always been not to get involved in disputes.
    Therefore, disputes related to coordination agreements pose legal challenges. Where to adjudicate the case and what law to apply are just the tip of the iceberg, while the major question of whether there is a need for a specialized court remains significant. This field of space activities apparently requires legal advice.


Elina Morozova
E. Morozova, Head of International Legal Service, Intersputnik International Organization of Space Communications.

Yaroslav Vasyanin
Y. Vasyanin, Legal Counsel, International Legal Service, Intersputnik International Organization of Space Communications.
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