A Report on "The Power of International Law in Times of European Integration" held in Budapest, 28-29 September 2007
Teng, Yean-Sen
This is the second Biennial Research Forum of the European Society of International Law held in Budapest, beginning in the afternoon of 28 September 2007 and ending on the evening of 29 September 2007. In addition to 2 plenary sessions and 2 forawith invited speakers, 8thematic Agorae and one ESIL interest group meeting were organized, focusing on a key sector or branch which poses challenges to contemporary international law, especially from the viewpoint of European scholars.
The purposes of the thematic Agorae were to encourage the junior scholars of international law to present some ongoing research for stimulating the exchange of views on specific areas of international law and to establish connections with the participants. In that connection, the Agorae were essentially workshops enabling the sharing of new ideas with groups of colleagues specialized or particularly interested in a specific workshop theme.
During the first Plenary Session, Judge Ziemele, Ineta, European Court of Human Rights, gave a key-note speech on the role of International Law in regulating region-specific relations and resolving regional disputes, in which she addressed the issue "Does International Law have legitimacy 'pull' or has the European Union preempted its normative space?" Her presentation was mainly based on a series of case law of the European Court of Human Rights. In elaborating and analyzing some legal conceptions of International Law concerning the protection of human rights, which she was trying to argue for the legitimacy pull of International Law, however, she concluded that the methodology applied by the Court was uncertain and different methodology was even applied in different area.
In Parallel Agora 2, "The New Peacekeeper: Central and Eastern Europe in UN and NATO Actions beyond Europe" in that I participated, the conception of humanitarian intervention was discussed as regards the case of former Yugoslavia's dissolution and especially the case of Kosovo. In the consideration of the "contributions" of NATO, intervening in Kosovo upon which three categories of arrangements were identified as regards the nature of NATO operations, namely, capacity problem of the UN; operational coherence; the unwillingness of the UN to operate. In that connection, the opportunities for NATO to operate may rest on some possibilities as follows: the restraint of the UN; the intervention not unlimited in capacity; different interpretation of the Mandate of NATO.
Consequently, in fact the potential new peacemaker, if possible, would cause some challenges in the status quo of contemporary International Law. They may include: progressive development of an autonomous regional collective security regime undermining the UN Security's responsibility and role in peacekeeping; Chapter VIII of the Charter of the UN and the right to act collectively wherefrom would need a renovation or reinterpretation; no capacity to address non-military tasks; mostly US's dominance in the outside UN operation. In order to solve the ambiguous relationships between the UN and NATO, some innovative ideas were suggested such as reviewing the constituting Treaty of NATO and /or signing a cooperation agreement between UN and NATO as regards the peacekeeping operations.
In the Forum, Professor Philippe Sands and Stephen Stec addressed the issue "Bridges over Troubled Waters - Environmental Disputes in Central and Eastern Europe and the Competing System of Norms Contributing to, or Preventing, Their Resolution". The evolving image and development of a judicialization of international institutions, such as European Union and the Council of Europe was strongly reviewed and warned concerning the competing norms in environmental issues between Central and Eastern Europe.
Naturally, the very issue concerns the different conceptions of the judicialization of international organizations. From the positive viewpoint, the evolving conception will benefit the authority and legitimacy of international organizations. However, judicialization of international organizations has to be weighted against the traditional doctrine of check-and-balance in the exercise of the organizational power, this is the skeptical point of view derived from the immaturity of the development of international institutional law.
During the first Parallel Agora in the second day, an illuminating topic "Wilson - Lenin - Badinter - Self-Determination or Otherwise in East and West" was discussed. The term "East" refers to East Europe, and "West" as West Europe. The panelists analyzed and examined the conceptions of self-determination from historical perspectives and the conceptual framework especially in the Badinter Commission on Yugoslavia. In the discussions, the issue of Taiwan was also raised as to the possible application of the right to self-determination. Not surprisingly, nearly all the scholars in the session cast doubt on the existence of a genuine "self", which referred to the identity of a State in this case. The identity of Taiwan as an independent State, however, was divided as acknowledged by the academics in Europe in considering the issue and conflicting claim of the membership of the United nations in the island.
In the second Forum on "The ICJ under Siege: The Balkans Cases before the Court", the issue of jurisdiction and the definition of genocide identified by the Court were fully elaborated. Following from the Court's judgments, the power of International Law was seemingly strengthened through the evolutionary idea of the judicialization of international organization corresponding to the previous forum.
In the last Parallel Agora entitled "Tales of 'Civilization'; Imperialism and Transfer of Values",
the theme concerned the values traditionally recognized and upheld by the Western Europe such as rule of law, democracy and human rights were critically reexamined and discussed. One leading paper argued that the emerging concept of common interests has been emerging and been taking place of the traditional values, the platform and passage for the Eastern Europe to join the club of the West. In the case of human rights, the idea was the usefulness for the protection of human rights rather than the value of human rights per se. Some may regard the idea of the usefulness of the protection of human rights as corresponding to that of "ethics" of humanitarian intervention in terms of its effectiveness in that connection.
In fact, the argument of common interest in place of universal values could be seen as the shift from the viewpoint of Idealist or Universalist to that of Realist. Obviously, this is the argument of international relation theory, in that the effectiveness rather than the legitimacy of International Law has become the main concern in international arena. In practice, the concept of common interest is far more acceptable to the East than to the West in their dominant position by laying down the values, which the East have never approved or participated in their formulation. Those values if any in International Legal regime may serve as the guidelines or directions, on which the authority of rules of International Law is dwelled. The element of opinio juris for the formulation of customary international law would vanished eventually on the ground that the rationales for State to act or not to act are whether there are certain interests for the State concerned. Consequently, the "legitimacy pull" of International Law could become fictitious.
At the last plenary before closing the Research Forum, Professor Janos Kis gave a speech addressed on "New Capitalism and Old Human Rights - The Pains of Transition and Their Mitigation by Human Rights". Professor Kis raised one of the traditional values "human rights" as a painkiller for the East Europeans to transit from their old memories when they were much pleased to embrace a new friend "new capitalism". However, Professor Kis was not at ease to tell some stories of corruptions in these days in having the "new friend" in East Europe. I was quite sure that was the reason why the traditional value such as human rights could be a good and proper painkiller for the pains of transition. Without the prescription of human rights as the food for transition and if the transition concerned only the choice of interests for the State per se, then the new capitalism would cause much more miserable than the old days. Whether this may be a good lesson or might be a warning for all mankind, Professor Kis, however, did not conclude in his speech.
In conclusion, this was really a great opportunity to participate in the extraordinary research forum focusing on some legal problems from the perspective of the integration between Eastern and Western Europe in International Law. Several brave and novel ideas were talked and discussed in the Parallel Agorae; some panelists were even trying to solve the inevitable problems in the process of integration between difficult legal cultures and traditional values by proposing some new theories in International Law. However, in general, the positivistic approach to traditional International Law was strictly applied by most papers presented. | 
