The Human Dimension of International Law: Selected Papers of Antonio Cassese

623 Pages·2008·65.64 MB·English

by  Antonio Cassese

THE HUMAN DIMENSION OF
INTERNATIONAL LAW

'The Human Dimension
of International Law
Selected Papers
ANTONIO CASSESE
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British Library Catalogu~ngin Publication Data
Data available
Library of Congress Cataloging-in-Publication Data
The human dimension of international law : selected papers 1 Anton10 Cassese.
p. cm.
Includes bibliographical references and tndex.
ISBN 978-0-19-923291-8 (hardback: alk, paper) I. Internattonal law.
2. Cassese. Antonio. 3. Law teachers-Italy-Biography
I. Cassese, Antonio
KZ3395.ClS.AZ 2008
341-dc22 2008004180
Typeset byNewgen Imaging Systems (P) Ltd.. Chennai. Indla
Printed in Great Britain
on acid-free paper by
CPI Antony Rowe. Chippenham. Wiltshire
This book is a collection ofwritings ofAntonio Cassese on international humani-
tarian law, human rights law, and international criminal law. It aims to shed light
on the intellectual approach to these branches of international law taken by one
of the most original and creative lawyers of his generation.
As is customary in many countries all over Europe, as Professor Cassese turned
seventy we, a group of pupils and friends, came to think of what we could do to
'celebrate' our beloved maestro. In discussion, among the many ideas which arose
was that of compiling all the articles he had written during the course of his illus-
trious academic career. Unfortunately, our maestro had written so much that we
could easily have filled half a dozen volumes with his articles. We thus thought
that we could, although rather arbitrarily, try to select his 'best' articles. We had
scarcely started this project when we realized that we were being faced with very
difficult choices. Suddenly, however, it appeared obvious that there was indeed a
solid and unitary underlying idea in the books, articles, and activities undertaken
by Antonio Cassese ('Nino' to all his friends): 'humanity' was at the core of his
academic and professional interests, and we felt that this would indeed be an
appropriate theme to tie together the selections for this book. We then decided to
select mainly articles which were published a long time ago, or had appeared in
publications that are difficult to find today. There are a few articles included here
which are very well known, but we thought they would fit extremely well within
the scope of the book.
This book also contains a set of portraits by distinguished personalities in dif-
ferent fields, who have interacted with Nino in many different roles in his and
their professional lives. The aim of these portraits is to offer the reader an insight
into Nino's personality. Readers will also find a new paper by Professor Cassese
himself, in which he tries to take stock of his professional life and his approach to
international law through four decades of teaching, writing, and practising law
in international settings.
This selection of essays clearly show that Antonio Cassese knows that the inter-
national community remains solidly based on state sovereignty, self-interest,
and power politics. This selection of essays, however, also shows that he firmly
believes that states can come to be bound little by little to respect individuals.
%at is why he likes to describe the modern state as Gulliver tied down by the
Lilliputians with a multitude of little laces that make it difficult for him to move.
With unbeatable energy Antonio Cassese has always seen international law as this
multitude of laces, as a means to force states to face the needs of the Lilliputians,
and of humanity. For him, law is a tool to regulate society, but it is not a neutral
Preface
tool. For him, law, including international law, must have a direction. There are
values which are intrinsic to society that ought to be protected. All his writings
indicate that, consciously or unconsciously, this idea has always underpinned
Nino's academic work. The constant effort to couple this ideal source of inspir-
ation with a parallel tension towards rigorous legal analysis and stringent reason-
ing makes him a great example of a 'utopian positivist'.
Working with Nino is a privilege and a fascinating experience. All those who
know him are aware that he never stops working; how he is full of new ideas and
new projects. Sometimes you think you should try to follow his rhythms, and you
realize you will never make it. Sometimes you feel useless and are tempted to give
up. However, if you stop to reflect for one second you realize how enriching is to
be associated with him and how he gives you a sense of contributing in some way
to strengthening the common ideals of a better world. Then you feel rewarded
and find new energy to keep running, crying not to lose sight of the maestro, who
has almost certainly already launched a new endeavour.
Special thanks go to Louise Arbour, Andrew Clapham, Luigi Condorelli,
Claude Jorda, and Antonio Tabucchi for agreeing to write the 'portraits'. And
thank you, Nino, for being our roveto ardente.
The Editors*
* Paola Gaeta and Salvatore Zappala. With many thanks to the members of the Edirorial
Committee: Micaela Frulli, Luisa Vierucci, and Urrnila De.
List ofAhnowledgements
The editors and publishers would like to thank the following for permission to reproduce
in this book material which has previously been published elsewhere:
American Society of International Law for 'A New Approach to Human Rights: The
European Convention for the Prevention of Torture', from American Journal of Znter-
national Law (1989).
Editoriale Scientifica for 'Means of Warfare: the Traditional and the New Law', from
A. Cassese (ed.), Zhe New Humanitarian Law of Armed Conflict (Napoli: Editoriale
Scientifica, 1979).
GiuffrP for 'Current Trends in the Development of the Law of Armed Conflict', from
Rivista Trimestrale di Diritto Pubblico (1974).
GiuffrP for 'Remarks on the Present Legal Regulation of Crimes of States', from Essays
in Honour of Roberto Ago, vol. 111 (Milano: Giuffrt, 1987).
Giuffri: for 'The International Community, Terrorism and Human Rights', from Studi
in onore di Giuseppe Sperduti (Milano: Giuffrt, 1984).
Giuffrt. for 'The Spanish Civil War and the Development of Customary Law Concern-
ing Internal Armed Conflicts', from A. Cassese (ed.), Current Problems of International
Law (Milano: GiuffrP, 1975).
Giuffrt for 'Weapons Causing Unnecessary Suffering Are They Prohibited?', from Rivi
sta di diritto internazionale (1975).
Koninklijke BR1LLN.V. for 'Crimes against Humanity: Comments on Some Problemat-
ical Aspects', from L. Boisson de Chazournes and V. Gowlland Deabbas (eds), Zhe Inter-
national Legal System in Quest of Equity and Universality, Liber Amicorum G. Abi-Saab
(The Hague: Martinus Nijhoff, 2001).
Koninklijke BRILL N.V. for 'Legal Considerations on the International Status of Jeru-
salem', from Zhe Palestine Yedrbook of International Law (1986).
Koninklijke BRILL N.V. for 'The European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment Comes of Age', from N. Blokker & S. Muller
(eds), Towards More Effective Supervision by International Organizations (The Hague:
Martinus Nijhoff, 1994).
Koninklijke BRILL N.V. for 'Wars of National Liberation and Humanitarian Law',
from C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red
Cross Principles (The Hague: Martinus Nijhoff, 1984).
Pedone for 'La diffusion des idkes rCvolutionnaires et 1'Cvolution du droit international',
from Rivolution et droit international, SFDI, Colloque de Dijon (Paris: Pedone, 1990)
(translated from French into English and published here as 'Revolution and Internation-
al Law').
viii List ofAcknowledgementj
I'edone for 'La guerre civile et le droit international', from Revue generalP de droit inter-
nationalpublic (1986) (translated from French into English and published here as 'Civil
War and International Law').
Polity Press for 'A "Contribution" of the West to the Struggle against Hunger: the Nestle
affair', from A. Cassese, Human Rights in a Changing World (Oxford: Polity, 1990).
Polity Press for 'Abraham and Antigone. Two Conflicting Imperatives', from A. Cassese,
IriolPnce and Law in the ModPrn Age (Oxford: Polity, 1988).
Springer for the 'Prohibition of Torture and Inhuman or Degrading Treatment or Pun-
ishment', from R. St. J. MacDonald et al. (eds), 7he European Systemfor the Protection of
Human Rights (The Hague: Kluwer, 1993).
Texas International Law Journal for 'Foreign Economic Assistance and Respect for Civil
and Political Rights: Chile-A Case Study' (1979).
Wolters Kluwer Law and Business for 'The Prohibition of Indiscriminate Means of War-
fare', from R.J. Akkermann et al. (eds), Declarations on Principb. A Questfor Universal
Peace (Leyden: Sijthoff, 1977).
Contents
.. .
Tables of Cases Xlll
Tables of Legislation xxi
List ofMain Publications ofAntonio Cassese xxxvii
Portraits of Antonio Cassese
L'inaccessible itoile xlv
Louise Arbour
The Generous Cosmopolitan Taskmaster xlvii
Andrew Clapham
Nino Cassese and the Sparrow's Feet xlix
Luigi Condorelli
A Tribute to Professor Nino Cassese lii
Claude Jorda
An Attempt to Explain a Friendship Iv
Antonio Tabucchi
Soliloquy lix
Antonio Cassese
I. THE HUMAN DIMENSION OF WARS
A. General
1. Current Trends in the Development of the Law of Armed Conflict
2. The Martens Clause: Half a Loaf or Simply Pie in the Sky?
3. ?he Diffusion of Revolutionary Ideas and the Evolution of
International Law
B. Classes of Wars and Belligerents
4. Wars of National Liberation and Humanitarian Law
5. Civil War and International Law
6. The Spanish Civil War and the Development of Customary Law
Concerning Internal Armed Conflicts