As its name suggests, this yearbook focuses on a new reality: the gradual transformation of the international community and the structuring process of a global community in which a coherent legal system for a universal human society is being built. In recent years we have witnessed great changes in the structure and rules of the world community, as it moves away from the classical model based on mere inter-state society. The Yearbook attempts to chronicle the trend of the current international Order towards a coherent, lawful basis for a universal human society. With the founding of the United Nations, we have witnessed great changes since the end of the Second World War in the structure and rules of the international Order, away from the classical model based on mere inter-state society. International law is shifting its attention from the state to the individual: its traditional definition has been superseded, and it has developed a greater awareness and respect for the person, for ethnic groups, for man in a global sense, and for humankind and future generations in general. As a result, international law has developed rules that are increasingly oriented towards the individual. The principle of state sovereignty has been forced to confront significant changes hinging on the growing prominence of environmental awareness, of human rights protection, and of the rights of ethnic groups; furthermore, the sovereignty of states has had to make concessions to cultural heritage, sustainable growth, and international trade. As a consequence of these changes, new subjects –different in nature from states– are emerging on the international scene. These new actors are necessarily accompanied by new international procedures and safeguard mechanisms which seek to adapt to their particular characteristics and needs. International rules now al low individuals, groups of individuals, enterprises, and international non-governmental organizations to have recourse to international legal principles, and to participate in proceedings governing their own interests. At the same time, we have seen the principle of the direct responsibility of the individual for crimes against humanity (crimina juris gentium) be come established. The result of these trends is a deep transformation of the traditional model of the international community and its constitutive structure: since the Second World War, international society has developed substantive and procedural rules creating objective mechanisms to safeguard the interests and rights of humanity as a whole, by set ting up judicial organs and institutionalising procedures and forms of control over state activity, imposing limitations on the rights of states. In recent years we have witnessed a proliferation of international courts and tribunals, and a multiplication of those institutional mechanisms which, from their position of authority over states, guarantee the observance of accepted principles of both general and treaty law. The “legal” character of the international order is thus reinforced. International organizations, especially those of a universal vocation, participate in the management of international power through their organized structures and their organs, which, in various areas of international law, perform certain general functions –on behalf of the community of states– conferred on them by international law. The task of building a global community is currently only at the blue print stage, since the present international community is an unorganised and largely un-institutionalised entity; accomplishing such a task presupposes the gradual erosion of state sovereignty and a certain process of structuring of international institutions. In order for this to occur, the inter-state community must be integrated with international organizations, and to this end, norms must be developed to institutionalise appropriate procedures and mechanisms. Collective interests may thereby be safeguarded. These considerations explain the attention that the Yearbook devotes both to the activity of international organizations and to the decisions of international courts and tribunals; the latter, in particular, play a pivotal role in the process of change out lined above. In view of the absence of written general rules in the international legal order, the courts’ activity is not limited to merely applying the appropriate rule to the specific case, but takes the form of ascertaining the existence of relevant general rules and signalling the changes occurring in international society and its law, in some cases furthering such changes. It is the duty of the courts, in fulfilling their role of applying the norms of international law, to contribute to its harmonious development, eliminating the points of conflict which may arise from the interplay between international rules, or between those rules and domestic laws, as well as from the coexistence of different international courts and tribunals. The remarkable development of the international courts and tribunals has made it increasingly difficult to follow closely the wealth of case law now emanating from those jurisdictions, with out the help of an intermediary. It is this circumstance that has led to the idea of providing a yearly overview of the activities of these international organs, presented in the form of “legal maxims” based on summaries and extracts from the case law. These maxims will set out the points of law on which the international courts and tribunals have pronounced, either in their decisions regarding the state of general international law, or in their interpretations of treaty rules. The aim is to high light and make readily comprehensible the points of law declared in each dispute, thus widening awareness and knowledge of international judicial decisions. The maxims will be arranged following a systematic pattern, in such a way that the reader may be fully in formed about the cases covered; indeed, the maxims will not only contain detail about questions of law, but will ex plain the facts and cir cum stances of the specific case. Thus, it is to be hoped that they will also facilitate the reading of the full text of every decision considered. The originality and utility of this Yearbook lies precisely in this role of intermediation between the case law and international scholars, practitioners and students. Adopting a working method that reflects a functional criterion, the Yearbook is designed to provide information in an easily accessible form, set ting forth the points of law pronounced by international tribunals. Thus, the Yearbook includes an “Analytical Index” containing a wide range of items and sub-items. It provides a key for retrieval of the multifarious contents of the “legal maxims” contained, while its alphabetical order facilitates ready consultation. Moreover, the Yearbook fills the gap left by other Journals that provide partial or sectorial information about judicial decisions. Therefore a subsection of the section “Decisions of international courts and tribunals” will be de voted to each international tribunal or court, so as to carry out an annual survey of the activity of each one. As it would clearly be impracticable to consider every decision handed down by the various international organs, each subsection is prefaced by an “Introductory Note” providing a synopsis of the whole activity of the court or tribunal concerned over the course of the year. However, providing readers with critical information is not the only objective of this Yearbook. Above all, it aims to stimulate discussion on the most significant transformations in the world constitutive structure in a way that allows readers to monitor, from more than one angle, the development of the international legal order and the building of the global community heralded at the end of the second millennium. To this end, it provides academics and practitioners with the opportunity of presenting their views and commenting on the most critical developments in current international legal system, in the sections devoted to “Articles” as well as “Notes and Comments”.
THE GLOBAL COMMUNITY. YEARBOOK OF INTERNATIONAL LAW AND JURISPRUDENCE 2008
ZICCARDI, Giuliana
2009-01-01
Abstract
As its name suggests, this yearbook focuses on a new reality: the gradual transformation of the international community and the structuring process of a global community in which a coherent legal system for a universal human society is being built. In recent years we have witnessed great changes in the structure and rules of the world community, as it moves away from the classical model based on mere inter-state society. The Yearbook attempts to chronicle the trend of the current international Order towards a coherent, lawful basis for a universal human society. With the founding of the United Nations, we have witnessed great changes since the end of the Second World War in the structure and rules of the international Order, away from the classical model based on mere inter-state society. International law is shifting its attention from the state to the individual: its traditional definition has been superseded, and it has developed a greater awareness and respect for the person, for ethnic groups, for man in a global sense, and for humankind and future generations in general. As a result, international law has developed rules that are increasingly oriented towards the individual. The principle of state sovereignty has been forced to confront significant changes hinging on the growing prominence of environmental awareness, of human rights protection, and of the rights of ethnic groups; furthermore, the sovereignty of states has had to make concessions to cultural heritage, sustainable growth, and international trade. As a consequence of these changes, new subjects –different in nature from states– are emerging on the international scene. These new actors are necessarily accompanied by new international procedures and safeguard mechanisms which seek to adapt to their particular characteristics and needs. International rules now al low individuals, groups of individuals, enterprises, and international non-governmental organizations to have recourse to international legal principles, and to participate in proceedings governing their own interests. At the same time, we have seen the principle of the direct responsibility of the individual for crimes against humanity (crimina juris gentium) be come established. The result of these trends is a deep transformation of the traditional model of the international community and its constitutive structure: since the Second World War, international society has developed substantive and procedural rules creating objective mechanisms to safeguard the interests and rights of humanity as a whole, by set ting up judicial organs and institutionalising procedures and forms of control over state activity, imposing limitations on the rights of states. In recent years we have witnessed a proliferation of international courts and tribunals, and a multiplication of those institutional mechanisms which, from their position of authority over states, guarantee the observance of accepted principles of both general and treaty law. The “legal” character of the international order is thus reinforced. International organizations, especially those of a universal vocation, participate in the management of international power through their organized structures and their organs, which, in various areas of international law, perform certain general functions –on behalf of the community of states– conferred on them by international law. The task of building a global community is currently only at the blue print stage, since the present international community is an unorganised and largely un-institutionalised entity; accomplishing such a task presupposes the gradual erosion of state sovereignty and a certain process of structuring of international institutions. In order for this to occur, the inter-state community must be integrated with international organizations, and to this end, norms must be developed to institutionalise appropriate procedures and mechanisms. Collective interests may thereby be safeguarded. These considerations explain the attention that the Yearbook devotes both to the activity of international organizations and to the decisions of international courts and tribunals; the latter, in particular, play a pivotal role in the process of change out lined above. In view of the absence of written general rules in the international legal order, the courts’ activity is not limited to merely applying the appropriate rule to the specific case, but takes the form of ascertaining the existence of relevant general rules and signalling the changes occurring in international society and its law, in some cases furthering such changes. It is the duty of the courts, in fulfilling their role of applying the norms of international law, to contribute to its harmonious development, eliminating the points of conflict which may arise from the interplay between international rules, or between those rules and domestic laws, as well as from the coexistence of different international courts and tribunals. The remarkable development of the international courts and tribunals has made it increasingly difficult to follow closely the wealth of case law now emanating from those jurisdictions, with out the help of an intermediary. It is this circumstance that has led to the idea of providing a yearly overview of the activities of these international organs, presented in the form of “legal maxims” based on summaries and extracts from the case law. These maxims will set out the points of law on which the international courts and tribunals have pronounced, either in their decisions regarding the state of general international law, or in their interpretations of treaty rules. The aim is to high light and make readily comprehensible the points of law declared in each dispute, thus widening awareness and knowledge of international judicial decisions. The maxims will be arranged following a systematic pattern, in such a way that the reader may be fully in formed about the cases covered; indeed, the maxims will not only contain detail about questions of law, but will ex plain the facts and cir cum stances of the specific case. Thus, it is to be hoped that they will also facilitate the reading of the full text of every decision considered. The originality and utility of this Yearbook lies precisely in this role of intermediation between the case law and international scholars, practitioners and students. Adopting a working method that reflects a functional criterion, the Yearbook is designed to provide information in an easily accessible form, set ting forth the points of law pronounced by international tribunals. Thus, the Yearbook includes an “Analytical Index” containing a wide range of items and sub-items. It provides a key for retrieval of the multifarious contents of the “legal maxims” contained, while its alphabetical order facilitates ready consultation. Moreover, the Yearbook fills the gap left by other Journals that provide partial or sectorial information about judicial decisions. Therefore a subsection of the section “Decisions of international courts and tribunals” will be de voted to each international tribunal or court, so as to carry out an annual survey of the activity of each one. As it would clearly be impracticable to consider every decision handed down by the various international organs, each subsection is prefaced by an “Introductory Note” providing a synopsis of the whole activity of the court or tribunal concerned over the course of the year. However, providing readers with critical information is not the only objective of this Yearbook. Above all, it aims to stimulate discussion on the most significant transformations in the world constitutive structure in a way that allows readers to monitor, from more than one angle, the development of the international legal order and the building of the global community heralded at the end of the second millennium. To this end, it provides academics and practitioners with the opportunity of presenting their views and commenting on the most critical developments in current international legal system, in the sections devoted to “Articles” as well as “Notes and Comments”.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
