Nordic Cosmopolitanism Martti Koskenniemi Nordic Cosmopolitanism Essays in International Law for Martti Koskenniemi edited by Jarna Petman & Jan Klabbers MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON Published by: Brill Academic Publishers PO. Box 9000, 2300 PA Leiden, The Netherlands [email protected] http://www.briil.nl Distributed in Canada, USA and Mexico by: Brill Academic Publishers PO. Box 605 Herndon VA 20 17 2 United States of America Tel: +l 800 337-9255 (toll free, Canada & USA only) +l 703 661-1500 Fax: + 703 661-1501 E-mai:l CS@b rillusa.com Distributed in all other countries by: Turpin Distribution Services Ltd Blackhorse Road Letchworth Hertfordshire SG6 1H N United Kingdom Tel: +44 (0)1462 687528 Fax: +44 (0)1462 480947 E-mail: [email protected] A C.I.P. Catalogue record for this book is available from the Library of Congress. The editors gratefully acknowledge that the publication of this book was made possible with the support of the Division for Public International Law and Treaties of the Finnish Ministry for Foreign Affairs. Printed on acid-free paper. ISBN 90-04- 1 36 16-9 O 2003 Kininklike Brill NI! Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. Printed and bound in The Netherlands. Contents Editors: Introduction Inger Osterdahl: The Suqbrising Orignalig ofthe African Charter on Human Rights and Peoples' Rzghts P51 Wrange: The Prince and the Discomse: Commenting and Advising on International Lazv Martin Sc heinin: Cqital Punishment and the International Covenant on Civil and Political Rights: Some Issues oflnteqretation in the Practice ofthe Hnman Rights Committee Holger Ro tkirch: A Peace Institute on the War-Path: Tbe Application ofthe Treag on Open Skies to the Neutrali~eda nd ~emilitari~Aedla nd Idanh and the Powers ofthe Aland Autonomy Allan Rosas: Constming International Lazv and Order Jarna Petman: The Problem of E vd and International Law Merja Pentikiiinen: The Right to Speak for the Women9 Cam:M ay Aho Women Pa&ia)ate? The Case ofthe Hob See in the UN Esa Paasivirta: Human Rights, Dqlomay and Sanctions: Aspects to Ruman Rights Clauses' in the External Agreements ofthe Eztropean Union Tuomas Ojanen: The times they are a-changm' - the Reaction ofEuropean Courts and National Courts Gregor Noll: Force, Partisanshq, Dislocation: AnE ssay on International LWin the State ofthe Exceptional Rein Miillerson: International Law Between Anarch and Hegemo n3, Timo Makkonen: Between Anti-Essentialism and Anti-E ve ything -I s There Anything? On Critique, Cross-D i~ci$li~ariEayn d Culture P2vi Leino: When Every Picture Tells a Stop- The European Court ofJustice and the Jksaw Pu7xle $External Hman Rights Competence 261 Marja Lehto: Terrorirm in International Law - an Empty Box or Pandora? Box? 29 1 Tuomas Kuokkanen: Putting Gentle Pressare on Parties: Recent Trends in the Practice ofthe l~hentdtionCo mmittee under the Convention on Long-range Transboundary Air Pollution 31 5 Erkki I<ourula: Questions and Observations Relating to the International Criminal Court 327 Timo Koivurova: What Is the P7iinciple of Due Diligence? Jan IUabbers: (CIa n't Get No) Recognition: Subjects Doctrine and the Emergence won-State Actors 351 P2vi Kaukoranta: Negotiation ofthe Treaty on Open Skies Revisited Finnish Featzlres 37 1 Marie Jacobsson: Mam'time Security: an Individual or a Collective Re~;ponsibility? Joni Heliskosh: Fundamental Rights versas Economic Freedom in the European Union: Which Paradigm 41 7 Lauri Hannikainen: The World after I I September 200 1: Is the Prohibition ofthe Use of Force Disintegrating? 445 Rolf Einar Fife: The Duty to Render Assistance at Sea: Some ReJlections after Tampa 469 Ove Bring: Dag Hummarsk$d and the Ime of Humanitam'an Intervention 485 Index Cases Introduction There are two questions which both of us are persistently confronted with whenever we go abroad. The first is whether we know of any possibdity of acquiring a copy of From Apolo~to Utopia, out of print as the book has been for years. The second goes something like this: 'So you work with Martti Koskennierni? Tell me, how old is he? Given the man's prolific work, he must be at least in his late 60s or so, right? . . . Is he frightfully grumpy?' Ths book aims to answer, for once and for all, at least the first part of this second question: it celebrates the fact that our colleague Martti Koskenniemi is turning 50 in March 2003. (And, just for the record, he is not frightfully grumpy. Not too often, at any rate.) Martti's birthday placed us in a bit of problem for, what does one buy such a close friend and colleague? The obvious reply, with any academic, would Cave been to buy him a book. But, as they say, he already has a book; rooms full of them, in fact. And he tends to receive more books at alarming speed. As a memorable birthday present, then, buymg a book would not have been the easy solution it might have been with others. A piece of music would have been a possibility, of course, but musical taste is rather indwidual. While our tastes to some extent overlap -we are the only three people we know who own Tom Waits's debut album, to name just one example - we stiU felt that music would have been both too personal and too impersonal at the same time. A work of art would have been another possibility, but here too, taste is an individual thmg - there was also the consideration that in order to hang something on the living room wall, Martti's family really ought to have had a say as well. So, on we pondered. But not for long untd we came up with ths idea: a book of friendship in Martti's honour. Now that may seem, at first sight, a bit overdone. After all, he is only turning 50, not 70 or 99. Yet it so happens that in Finland, it is a trachtion that leading scholars will be offered a Festscknj upon turning 50. Happily, we gave in to the demands of Finnish academic culture and started promptly organizing the present collection. In fact, we did more than that. We not only gave in to Finnish culture, seizing the opportunity to promote some of it, but we also set out to celebrate Nordic international legal scholarship at large. In so doing, we set out to pay homage to Martti's roots in Finland and the Nordic world. Martti is, of course, cosmopolitan, equally at home in New York, Helsinki, Cambridge or Paris, fluent in a handful of languages and able to switch between those languages without a glitch. Yet, he is also very much a Finn - a chap from Turku, who loves to present the national dsh Vorschmack to unsuspecting frrst-time visitors from abroad, and have it accompanied by some Finnish Schnapps (some of the more suspecting ones say that Schnapps is indeed the only way in which Vorfchmack, a curious combination of minced meat and ansjovis, can be made palatable - lots of Schnapps). This chap is known to be more than a little proud of the circumstance that as a Nordc citizen, he can travel from Helsinki to Copenhagen without having to worry about his passport. A happy circumstance too, given his occasional absent-mindedness. In other words, this collection is not just a convenient birthday present, but also a celebration of Nordic international legal scholarship. For that reason, we invited a number of scholars of either Nordic descent or living and working in one of the Nordrc states to contribute. Our selection of authors was done on the basis of three elements, if only to prevent us from having to edit a massive multi-volume work: there is a surprising amount of international lawyers and would-be international lawyers working in the Nordic countries. (Since Finland and Sweden only recently joined the EU, we decided from the outset to treat EU law as included in international law; we also decided, for the purposes of this book, to regard Estonia as Nordic.) First, gven the fact that we cannot postpone birthdays and wanted to produce a handsome and manageable volume on time, we invited people whom we trusted were able to work with a strict deadline and with strict page limtations. While some of the invitees had to withdraw in the end, the present volume is testimony that our judgment was fairly decent. Second, given the sheer numbers of Nordic international lawyers and the time-pressure involved, we decided to only invite people who could already boast a publication record; h s w ould minimize, so we hoped, the editorial tasks. And third, in order to underline the idea that this is a liber amicomm, a book of friendship, we decided only to invite people with whom at least one of us was on a first-name basis, under the happy slogan that a friend of either one of us is most likely also a friend of Mami7s.I n the end, we approached some 35 people, a few of whom immediately had to regretfully reply not to have the time to deliver, and a further few of whom had to cancel their participation at a later stage. Introduction 3 The abundantly positive response, we think, bears witness to the regard in which Martti is held amongst his Nordic colleagues, be they colleagues from his days with the Foreign Ministry (in fact the publication of this very book was enabled by the financial assistance of the Division for Public International Law and Treaties of the Finnish Mimstry for Foreign Affairs - for this we are grateful) or be they academic colleagues. It also underhes the extent to which Martti has been at the vanguard of developments. He is not just the leading Finnish international lawyer, but he has almost single-handedly put Nordic international legal scholarship on the map. It is no coincidence that Finnish and Nordic scholarship have made great leaps forward over the last decade or so, and it is most definitely no coincidence that people can speak, without overdosing on irony, about a 'Helsinki school' of international law. In large part this is due to the inspirational example set by Martti. Indeed, whenever we are abroad, there is a question precedmg the two questions mentioned above, and it goes something like this: 'So you're from Helsinki, you say? Well, then surely you must know Martti Koskenniemi?' Yes, we surely do, and we are very happy to be working with him. This volume is but a small token of our immense appreciation. Happy birthday, Martti. Helsinkr, 18 March 2003 the edrtors