CONTENTS
Table of Cases = xv
Table of Conventions & Treaties = xxii
Table of Legislation = xxxv
PART Ⅰ. A CRITICAL ANALYTICAL FRAMEWORK FOR A CRITIQUE OF INTERNATIONAL LAW
Chapter 1. Fairness and International Law : An Analytical Framework = 3
1. Maturity and Complexity in International Law = 4
2. The Post-Ontological Search for Fairness = 7
a. Legitimacy as Procedural Fairness = 7
b. Distributive Justice as Fairness = 8
3. Two Preconditions of Fairness Discourse = 9
a. Moderate Scarcity = 9
b. Community = 10
c. The Existential Movement : Moderate Security and Community Now = 11
4. The Gatekeepers of Fairness Discourse = 14
a. No Trumping = 16
b. Maximim = 18
5. A Caveat = 22
Chapter 2. Legitimacy and Fairness = 25
1. Legitimacy, Community, and the Social Contract = 26
2. The Indicators of Legitimacy = 30
a. Determinacy = 30
b. Symbolic Validation = 34
c. Coherence = 38
d. Adherence = 41
Chapter 3. Equity as Fairness = 47
1. Equity as Law's Justice : Historical Origins = 48
a. 'Unjust Enrichment' = 50
b. Estoppel or 'Bon Fois' (Good Faith) = 51
c. Acquiescence = 53
2. The Distinction Between Equity and Ex Aequo et Bono = 54
3. Equity as a Mode of Introducing Justice into Resource Allocation = 56
a. Corrective Equity = 58
(ⅰ) Corrective Equity in Trading Arrangements = 58
(ⅱ) Corrective Equity in Continental Shelf Allocation = 61
b. Broadly Conceived Equity = 65
(ⅰ) Broadly Conceived Equity in Continental Shelf Allocation = 66
(ⅱ) Broadly Conceived Equity in Conventional Arrangements = 74
c. Common Heritage Equity = 75
4. Conclusions = 79
PART Ⅱ. FAIRNESS IN EMPOWERMENT OF PERSONS AND PEOPLES
Chapter 4. Fairness to Persons : The Democratic Entitlement = 83
1. Introduction : The Power of Democratic Legitimacy = 83
2. The Validation of Governance = 85
3. The Legitimacy of International Validation = 89
4. Associational Freedom : Historic Self-Determination = 91
5. Discursive Rights = 98
a. The Human Rights Declaration and Civil and Political Rights Covenant = 98
b. Process Determinacy : The Human Rights Committee = 100
c. Other Systemic Protection of Discursive／Political Rights = 104
6. Electoral Rights = 105
a. Post-Colonial Election Monitoring = 105
b. Enunciating Electoral Democracy = 109
c. The Future of International Guarantees of Free and Fair Elections = 117
d. Coherence of Underlying Normative Structure = 121
e. Renouncing Unilateralism = 130
f. Treating Like Cases Alike = 132
7. Peace and the Democratic Entitlement = 134
8. Conclusion : The Emergence of Democracy as a Global Normative Entitlement = 137
Chapter 5. Fairness to 'Peoples' and their Right to Self-Determination = 140
1. Postmodern Neo-Tribalism : An Introduction = 140
2. Uti Possidetis v. Self-Determination = 146
3. Legal Antecedents of Postmodern Claims to Neo-Tribal Self-Determination = 147
4. Confined by Uti Possidetis and Self-Determination = 149
5. A Post-Colonial Right to Secession? = 154
6. Redefining the Rules Ⅰ : Focussing on Amelioration = 162
7. Redefining the Rules Ⅱ : The Effort to Deconstruct the Problem = 168
PART Ⅲ. FAIRNESS AND INSTITUTIONAL POWER
Chapter 6. Administrative Impartiality as Fairness : The UN Secretary-General's Good Offices and Other 'Third Party' Functions = 173
1. Introduction = 173
2. Historical Perspective : Earlier Cases = 175
3. Some Recent Examples of 'Good Offices' = 180
a. Some Successes = 180
(ⅰ) Iran-Iraq = 180
(ⅱ) Afghanistan = 181
(ⅲ) Namibia = 183
(ⅳ) Cambodia = 184
(ⅴ) Central America = 185
(ⅵ) Hostages held in Lebanon = 188
(ⅶ) Russian Relations with Baltic States = 188
(ⅷ) Mozambique = 188
(ⅸ) Some Legal Disputes : Libya-Malta and the Rainbow Warrior = 189
(ⅹ) Guyana and Venezuela = 191
(xi) Abkhazia = 191
b. Frustrated Interventions by the Secretary - General = 193
(ⅰ) Cyprus = 193
(ⅱ) Western Sahara = 195
(ⅲ) East Timor = 198
(ⅳ) Iraq-Kuwait = 198
(ⅴ) Libya = 199
(ⅵ) Macedonia = 200
(ⅶ) Burundi = 200
C. Joint Ventures with Regional Organizations = 201
(ⅰ) Somalia = 201
(ⅱ) Yugoslavia = 203
(ⅲ) Liberia = 205
4. Differences in Style and Content = 206
a. Sources and Limitations of the Secretary-General's Diplomatic and Mediating Authority = 206
b. The Margin of Discretion = 207
c. To Delegate or Not to Delagate = 210
5. Effectiveness = 211
6. Recent Trends and the Future of the Good Offices Function = 212
7. Determinants of Success and Failure = 214
8. How Good the Office? = 215
a. Institutional Control and Co-ordination = 216
b. Staff Control and Subordination = 217
Chapter 7. The Bona Fides of Power : Security Council and Threats to the Peace = 218
1. A Charter of Limited Powers = 218
2. Evidence of Principled Standards = 221
3. Historic Usage : The Easy Cases = 222
4. The Hard Cases' = 224
5. Judicial Review? = 242
Chapter 8. Just and Unjust War = 245
1. Introduction = 245
2. Historic Notions of Just and Unjust Wars = 245
3. The Legal Reformation : the Law in War and the Laws of War(Jus in Bello v. Jus ad Bellum) = 250
4. The 'Post War' Law Pertaining to War and Warfare = 55
5. The Charter System : From Collective Self-Defence to Collective Security = 259
a. Continuity and Innovation : the Move to New Institutions, Processes ; and Sources of Law = 259
b. The Charter's Law Against War = 266
c. Norms and Practice Under the Geneva Conventions = 274
6. Conclusions = 282
Chapter 9. Collective Security : Sharing Responsibility and Burdens = 284
1. Introduction = 284
2. Collective Enforcement Measures Short of Armed Force = 289
3. The Use of Force in Self-Defense = 292
4. The Collective Use of Force by the UN = 298
5. Peacekeeping and Peacemaking = 305
6. Regional Use of Force = 310
7. Conclusions = 313
Chapter 10. Judicial Fairness : The International Court of Justice = 316
1. Introduction = 316
2. The Quest for Structural Impartiality = 319
a. Selection and Tenure of Judges = 319
b. Disqualification : Countering the Appearance of Bias = 322
c. Equalization of Influences : The Judges Ad Hoc = 324
d. Empirical Evidence of Structural Impartiality = 324
e. Chambers : the Ultimate Recourse = 326
3. Procedural Fairness = 327
a. Procedural Aspects of Defining the Court's Jurisdiction = 327
b Provisional Measures = 332
c. Rules of Evidence = 335
d. Complex Facts = 338
e. Whom the Court Hears = 340
(ⅰ) Necessary and Indispensable Parties = 341
(ⅱ) Intervention = 343
4. Conclusion = 346
PART Ⅳ. THE LAW AND INSTITUTIONS OF DISTRIBUTIVE JUSTICE
Chapter 11. Law, Moral Philosophy, and Economics in Environmental Discourse = 351
1. Introduction = 351
2. An Inventory of Environmental Fairness Issues = 351
3. The Normative and Institutional Evolution of International Environmental Law = 357
4. Moral Philosophy, Economics, and Environmental Law = 364
5. The Unique Role of Law and Lawyers = 372
Chapter 12. Some Instances of Fairness in Establishing Environmental Normative Systems = 380
1. Introduction = 380
2. The Case of Ozone Depletion = 380
3. Climate Change／Global Warming = 387
4. Law of the Sea and the Common Heritage Principle = 393
5. Res Communis in Outer Space and the Antarctic = 399
6. Other Systemic Approaches to Environmental Fairness = 405
7. Conclusions = 412
Chapter 13. Economic Fairness : Terms of Development and Trade = 413
1. Introduction = 413
2. Aid Programs = 416
a. Bilateral Aid = 416
b. Multilateral Lending Institutions = 418
c. Multilateral Compensatory Financing = 420
(ⅰ) IMF's Compensatory and Contingency Financing Facility = 420
(ⅱ) STABEX = 421
3. Market Stabilization = 422
a. Common Fund = 422
b. Individual Commodity Agreements = 424
4. Tariff Preferences = 426
a. The GATT Exceptions to MFN for LDCs = 426
b. The Caribbean Basin Initiative = 427
5. Resource Entitlements : UNCLOS Ⅱ = 430
a. Sharing Sea Resources = 430
b. Creating New Allocable Commodities = 432
6. Process Legitimacy : the New World Trade Organization = 433
7. Technology Transfer = 434
a. UNCLOS Ⅱ = 434
b. UNCTAD Code of Conduct on the Transfer of Technology = 435
8. Conclusion = 436
Chapter 14. Fairness in International Investment Law = 438
1. Introduction : The International Law of Foreign Investment = 438
2. Stability and Change in Fairness Disclosure = 438
3. A Hypothetical Case = 441
4. The Nature of an Investment Agreement = 443
5. Bilateral Treaties in the Fairness Disclosure = 447
6. Multilateral Treaties in the Fairness Discourse = 450
7. Human Rights Treaties and Investment Fairness = 453
8. Fair Standards : Duty and Measure of Compensation for Taking = 457
9. Taking of Aliens' Property That May Be Unlawful Per Se in Customary International Law = 465
a. Taking for Non-Public Purpose = 466
b. Taking Without Due Process of Law = 468
c. Discriminatory Taking = 470
10. Conclusions = 472
PART Ⅴ. FAIRNESS ABOUT FAIRNESS : SHAPING A GLOBAL DISCOURSE
Chapter 15. Forums of Fairness = 477
1. Fairness' Discourse = 477
2. Two Characteristics of the Discourse = 478
a. Equal Voice = 479
b. Single Voice = 480
3. Rethinking Structure = 481
a. Ameliorating the Problem of Formal State Equality = 482
b. Ameliorating the Problem of Single Voice in a State-Centred System = 482
4. A Modest Proposal = 483
Index = 485
