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Access_open Between a Rock and a Hard Place: Treaty-Based Settlement of Terrorism-Related Disputes in the Era of Active United Nations Security Council Involvement

Journal Erasmus Law Review, Issue 2 2013
Keywords Terrorism, inter-state dispute, international treaties, the United Nations Security Council, the International Court of Justice
Authors Nathanael Tilahun Ali LL.M.
AbstractAuthor's information

    The United Nations Security Council has become a crucial actor in international counterterrorism by not only spurring the taking of preventive and suppressive measures against terrorist individuals and groups, but also by taking actions against states that are said to stand in the way. The Security Council's actions against such states invariably arise from accusations by other states, such as accusations of refusal to extradite suspects of terrorism or responsibility for supporting terrorists. Meanwhile, most such issues of dispute are covered under international treaties relating to terrorism, which provide for political (negotiation) and judicial (arbitration and adjudication) mechanisms of dispute settlement. The Security Council's actions against states in connection with terrorism, therefore, involve (explicit or implicit) factual and legal determinations that affect the legal positions of the disputing states under the applicable international treaties relating to terrorism. The point of departure of this paper is that, in this respect, the Security Council effectively becomes an alternative to the treaty-based dispute-settlement mechanisms. The article centrally contends that the Security Council effectively acts as a more attractive alternative to treaty-based dispute-settlement mechanisms for pursuing terrorism-related (legal) disputes between states, without providing a meaningful platform of disputation that is based on equality of the parties. And the Security Council's relative attractiveness, arising from the discursive and legal superiority its decisions enjoy and the relative convenience and expediency with which those decisions are delivered, entails the rendering of resort to treaty-based dispute-settlement mechanisms of little legal consequence. The point of concern the article aims to highlight is the lack of platform of disputation some states are faced with, trapped between a hostile Security Council that makes determinations and decisions of legal consequence and an unhelpful treaty-based dispute-settlement mechanism.


Nathanael Tilahun Ali LL.M.
PhD Candidate in public international law, Erasmus School of Law. E: ali@law.eur.nl. I would like to thank Prof. Xandra Kramer and Prof. Ellen Hey for their valuable comments on an earlier draft of this article. The usual disclaimer applies.

J. Han Wansink
Emeritus Professor of Insurance Law, Erasmus University and Leiden University.

Niels Frenk
Professor of Liability- and Insurance Law, VU University Amsterdam.

Elena Alina Ontanu
Both authors are doctoral candidates in the Department of Private International and Comparative Law at the Erasmus School of Law, Erasmus University Rotterdam. The authors wish to thank Prof. Xandra Kramer for her constructive remarks, as well as Laura van Bochove and the peer reviewers for their comments on the first draft of this paper. The usual disclaimer applies.

Ekaterina Pannebakker
Both authors are doctoral candidates in the Department of Private International and Comparative Law at the Erasmus School of Law, Erasmus University Rotterdam. The authors wish to thank Prof. Xandra Kramer for her constructive remarks, as well as Laura van Bochove and the peer reviewers for their comments on the first draft of this paper. The usual disclaimer applies.

Bert Keirsbilck
Assistant Professor HUB, senior affiliated researcher KU Leuven.

Ellen Hey

Andria Naudé Fourie

Daniel D. Bradlow
SARCHI Professor of International Development Law and African Economic Relations, University of Pretoria; Professor of Law, American University Washington College of Law; and Chair, Roster of Experts, Independent Review Mechanism, African Development Bank. The views expressed in this article are his personal views, and should not be attributed to any organisation with which he is affiliated.

Megan S. Chapman
Independent Consultant; B.A. University of Chicago; J.D. American University Washington College of Law. The authors wish to thank Anoush Begoyan, Andria Naude Fourie, Werner Kiene, Ellen Hey, David Hunter, Henrik Linders, Per Eldar Sovik, and our anonymous reviewers for comments on various sections and drafts.

Jonas Ebbesson
Professor of environmental law at Stockholm University, and Chairperson of the Aarhus Convention Compliance Committee. The views in this article are those of the author personally and are not intended to represent those of the Aarhus Convention Compliance Committee.

Tammo Wallinga
Tammo Wallinga is Senior Lecturer in Legal History at the Erasmus Universiteit Rotterdam and Professor for History of Private Law at the Universiteit Antwerpen.

Ellen Hey
Editor in Chief.

Bernd van der Meulen
B.M.J. van der Meulen is Professor of Law and Governance at Wageningen University, the Netherlands <http://www.law.wur.nl/uk>; Chairman of the Dutch Food Law Association <http://www.nvlr.nl>; Director of the European Institute for Food Law <http://www.food-law.nl>; member of the Board of Directors of the European Food Law Association <http://www.efla-aeda.org>; and member of the Editorial Board of the European Food and Feed Law Review <http://www.lexxion.eu/effl>. This contribution elaborates on previous publications, such as: Bernd van der Meulen and Menno van der Velde, European Food Law Handbook (2008), available at: <http://www.wageningenacademic.com/foodlaw>; Irene Scholten-Verheijen, Bernd van der Meulen and Theo Appelhof, Landkaart levensmiddelenrecht (2009); and Bernd van der Meulen, Harry Bremmers, Leon Geyer, Nidhi Gupta and Hans Bouwmeester, Nano Food Regulation: Towards an Adaptive Regulatory Infrastructure for Nanotechnology Applications in the Food Sector (forthcoming). Many thanks to Prof. Margaret Rosso Grossman, Anna Szajkowska and Irene Scholten-Verheijen for their valuable comments and suggestions. Comments are welcome at <Bernd.vanderMeulen@wur.nl>.

Matthias Borgers
Both authors are Professors of Criminal Law and Criminal Procedure at the VU University in Amsterdam. This article is based on M.J. Borgers, De vlucht naar voren (The way forward) VU inaugural lecture (The Hague: Boom Juridische Uitgevers 2007) and E. van Sliedregt, Tien tegen één (Ten to One), VU inaugural lecture (The Hague: Boom Juridische Uitgevers 2009).

Elies van Sliedregt
Both authors are Professors of Criminal Law and Criminal Procedure at the VU University in Amsterdam. This article is based on M.J. Borgers, De vlucht naar voren (The way forward) VU inaugural lecture (The Hague: Boom Juridische Uitgevers 2007) and E. van Sliedregt, Tien tegen één (Ten to One), VU inaugural lecture (The Hague: Boom Juridische Uitgevers 2009).

Wim Voermans
Prof. dr. Wim Voermans is professor of Constitutional Law and Administrative Law at Leiden University. He is the president of the Dutch Association for Legislation and the vice-president of the European Association for Legislation. He wishes to thank dr. A.C.M. Meuwese, Marie Curie fellow of Antwerp University, Henk Griffioen, PhD-student at Leiden University and the two anonymous reviewers invited by Erasmus Law Review for their very valuable and valued comments to earlier drafts of this contribution. This paper reports on the results of the Meijers Institute research programme Securing the Rule of Law in a World of MultiLevel Jurisdiction — sub programme Trias Europea, Leiden Law Faculty the Netherlands. In celebration of the birth of Katja Lawson.

Siri Gloppen
Professor of Comparative Politics, University of Bergen and Head of the Courts in Transition research programme at the Chr. Michelsen Institute, Bergen, Norway. The author would like to thank Ole Frithjof Norheim, Bruce M. Wilson and the anonymous referees for constructive comments.

Jennifer Sellin
Junior Researcher, Department of International and European Law, Law Faculty, Maastricht University.

Christian Courtis
International Commission of Jurists, Geneva; Universidad de Buenos Aires.

Nicholas Dorn
Nicholas Dorn is Professor of International Safety and Governance at the School of Law, Erasmus University Rotterdam.

Judith van Erp
Judith van Erp is senior researcher at the department of Criminology at the School of Law, Erasmus University Rotterdam. She is currently carrying out a research project on naming and shaming, which is funded by the Dutch Council for Scientific Research. The author wishes to thank Henk van de Bunt for his valuable comments on an earlier draft.

Hans van Houtte
Professor of Law, K.U.Leuven, Belgium (hans.vanhoutte@law.kuleuven.be), formerly Commissioner and Legal Chair at the CRPC (1996–2003), arbitrator at the CRT (1998–2001), member UNCC (1999–2002), presently President of the Eritrea-Ethiopia Claims Commission (2001 - ).

Iasson Yi
Assistant at the K.U.Leuven, Belgium, working on the research project on ‘Mass Claims Settlement and the Restoration of Property Rights in the Post-Conflict Situations.’

Andrea Pinna
Avocat au Barreau de Paris, France. Research Director at Institut de droit des affaires internationales Paris, France. Formerly Assistant Professor, Erasmus University Rotterdam. The author wishes to thank the board of the Erasmus Law Review and two anonymous referees for their useful comments. Research for this article was finalised September 1st, 2007.

Michael G. Faure
Michael G. Faure is Professor of Law and Economics at the METRO Institute, University of Maastricht and at the Rotterdam Institute of Law and Economics (RILE), School of Law, Erasmus University Rotterdam. I am grateful to Roger Van den Bergh and to an anonymous referee for useful comments on an earlier version of this paper.
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