Council Authority Research Articles

The Paradox of the International Law of Military Occupation: Sovereignty and the Reformation of Iraq

One of the myriad of questions confronting international law as a result of the invasion and occupation of Iraq has been whether and how the need to reconstruct Iraq economically and politically can be reconciled with the demands of the law of military occupation. Moreover, did the occupying powers adequately address this problem prior to the handover of power to Iraqi authorities on 28 June 2004? This article explores some of the key issues raised in this context. It analyses the juridical basis for the law of military occupation and then examines some of the key political, institutional and economic reforms that have been instituted in Iraq. Three potential sources of authority for these reforms are suggested and then critically examined as to their validity and scope. These are the vicarious authority arguably provided by the Iraqi Governing Council (IGC), Security Council authority which may supervene conventional international humanitarian law in this area and, of course, the authority provided by the treaties regulating military occupation themselves, in particular article 43 of the Hague Regulations.

The Will and Authority of the Security Council after Iraq

One year after the invasion of Iraq, what lessons are to be drawn about the role of the Security Council in peace and security? This article looks at the issue by considering the nature of the Security Council in its dual functions as a forum for diplomacy and a corporate body for executive action. The idea of the Security Council's possessing a separate will in its executive function is developed. The article stresses the importance for the authority of the Council of that organ expressing its will within the legal parameters of the Charter and international law. It is argued that similar legal parameters are also applicable to the permanent members in exercising their power of veto and in interpreting resolutions. Further, when interpreting resolutions member states should not misconstrue the will of the Council. The Iraq crisis of 2003 raised all these issues and, further, necessitated a reappraisal of the rules of international law governing the use of force. This article considers the relationship between diminution in Council authority and erosion of the rules of the UN Charter governing the threat or use of force in international relations.

"Vexatious and an Abuse of the Process of the Court": The Assets Company v Mere Roihi Cases

The history of the Assets Co v Mere Roihi decision, a well-known early Privy Council authority on indefeasibility of title under the Torrens system of land registration, illustrates the vulnerability of Maori to irregular land acquisition methods during the late 19th century. It also highlights the inadequacies of the Native Land Court system at the time. The author argues that the policy demands for legal certainty created a hidden and undue cost on the Maori participants: as a result of the case, Maori lost their main opportunity to gain redress for effectively or actually fraudulent dealings in their lands, and for mistakes made by the Land Court.

Widening access and student non‐completion: an inevitable link? Evaluating the effects of the Top‐Up Programme on student completion

This paper explores the links between socio‐economic disadvantage, non‐completion in higher education and preparation initiatives. It does this through investigating the effectiveness of the Top‐Up Programme, a preparation course for 17 and 18 year olds from schools that have low participation rates in higher education. The University of Glasgow, on behalf of the West of Scotland Wider Access Forum, has responsibility for running the Top‐Up Programme. It is part of the Scottish Higher Education Funding Council and local education authority funded GOALS (Greater Opportunity of Access and Learning with Schools) Project. The paper examines the hypothesis that students who undertake programmes such as the Top‐Up Programme can counteract the effects of disadvantage through being prepared academically. The investigation is undertaken within the contexts of widening access research and theoretical models of student non‐completion. This study reviewed the available data for the 44 schools involved in the Top‐Up Programme, their levels of disadvantage as defined by their participation rates in higher education, and levels of non‐completion at the University of Glasgow. This revealed that groupings of schools with extremely low participation levels have higher non‐completion rates than less disadvantaged schools. At the same time, the authors attempted to investigate this finding further through examining a group of 44 similar comparative schools. The students' perceptions of the effectiveness, in terms of preparation for higher education, of undertaking the Top‐Up Programme were also assessed by conducting interviews and administering questionnaires to the Top‐Up students and other groups of students. The Top‐Up students perceived that it had provided highly relevant preparation and had eased the transition from school to higher education. The effectiveness of the Top‐Up Programme was also quantified by reviewing the pass/fail rates of the first‐year students who had undertaken Top‐Up in comparison to those who had come from the comparative groups. The results indicated that the Top‐Up students were progressing at better rates than the other groups despite many more having come from the extremely low participation schools, known to be ‘at risk’. The main outcome determined was that there is a link between attending an extremely low participation rate school and non‐completion, despite similar pre‐entry qualifications to other students. This indicates that disadvantage continues to impact on students' achievements throughout their educational careers. We argue that the result has implications for both wider access policies and non‐completion research.

Der Traktat des Antonio Roselli "De Conciliis ac Synodis Generalibus": Historisch-kanonistische Darstellung und Bewertung (review)

Der Traktat des Antonio Roselli Conciliis ac Synodis Generalibus. Historisch-kanonistische Darstellung und Bewertung, By Thomas A. Weitz. [Konziliengeschichte. Reihe B: Untersuchungen.] (Paderborn: Ferdinand Schoningh. 2002. Pp. xli, 463. euro67.40.) Antonio Roselli (ca. 1380-1466) as shown in this study was a man of some unusual characteristics. he had a career at the papal curia, hut when he composed his major tracts that are at the heart of this book, he wrote as an advocate of the rights and powers of the emperor. he wrote also as a member of that generation who came during or after the relative successes of the Council of Constance, the problems of the Council of Basel, and the open break in the Latin Church between the papacy and the council resulting in a polarized Church, and finally the limited success at Ferrara-Florence in unification between the Latin Western Church and the Greek and Eastern Churches while the Eastern Roman Empire was disappearing from history. His major writings were De potestate imperatoris ac pape (first draft in 1438) and a later Monarchta. He taught at various places until 1461, when he was almost eighty, and finally died in December, 1466, leaving behind a variety of writings and a complex problem of the textual history and relationship between some of these works, which Weitz attempts to resolve and explain, but the major thrust of the book is in the title, the emphasis on Roselli's views on the authority of councils and synods. For Roselli the starting point was that God had decreed that human society should be ruled by one, i.e., Roselli's monarchist view on both civil and ecclesiastical society. Since he was influenced by Dante and dedicated his Monarchia to Emperor Frederick III, this should hardly be surprising. Thus imperial authority is directly from God and modeled after the hierarchy in heaven. When Roselli then treats the policies and actions of the papacy and the papalist writings, he is willing to assert that papal striving for universal rule could be judged as heresy since it went against the divine order of things. Not surprisingly, Roselli's Monarchia, like Dante's, would end up on the Index after his death. The major portion of this study considers the question of Roselli's lifetime: the authority and role of the general council in the Church, which he addressed in his De conciliis dedicated to the Doge of Venice. Roselli defined a council, gave the causes when a council should/could be summoned, and by whom. …

Nato's Role in the Collective Security System

The article discusses NATO military activities carried out since the end of the Cold War. The great majority of these activities were conducted not under the provisions of the Washington Treaty, and in particular article 5, but rather on the basis of ad hoc decisions adopted by the North Atlantic Council in accordance with the Alliance strategic doctrines. These developments did not amount to a tacit revision of the Washington Treaty, nor rendered indispensable such a revision, although ad hoc decisions could be considered as international accords concluded in simplified form. Different legal grounds were invoked to justify – not always convincingly – these activities, which consisted of peacekeeping operations, implementation of peace accords, and military coercive measures. The most striking feature of NATO involvement in the management of international crises, in any event, remains the progressive erosion of UN Security Council authority, which culminated with the intervention in Kosovo. The recent crisis in Iraq, however, demonstrates that there is no agreement among NATO members on whether obtaining an authorization from the Security Council before resorting to force is a legal requirement or a matter of political expediency. Attention will finally be paid to the activities recently carried out under article 5 of the Washington Treaty, and in particular the naval operations conducted on the Mediterranean Sea and the measures taken to protect Turkey in the context of the United States led military campaign against Iraq.

Cross‐border asset protection: an offshore perspective

Considers the ability of an applicant to reach assets in offshore jurisdictions, showing that there is a difference between the offshore world and the rest of the world; most of the “traditional” offshore states are covered by Privy Council precedent and authority and are out of step with legislative changes in England, and obviously it is in the interest of these locations to attract only legitimate commercial funds. Discusses what can be done to prevent defendants from using offshore jurisdictions from melting away assets: freezing orders in aid of foreign proceedings, extra‐territorial freezing orders, and territorial enforcement orders. Cites some relevant legal cases in England, Australia, Canada, and the offshore world, which includes the Bahamas, the Channel Islands, Bermuda, etc; these cases include the Mareva injunction, the Siskina judgment, Mercedes‐Benz AG v Leiduck etc.

The Continuing Contributions of Ronald St. J. Macdonald to UN Charter and Peace and Security Issues

SummaryIn this article, the author focuses in particular on Macdonald’s writings on the relationship between the International Court of Justice and the UN Security Council. After considering the continuing uncertainties in that relationship, the author argues that the emerging practice of “evolving reinterpretation” of Security Council Chapter VII resolutions suggests yet another important role for the court — that of guardian of Security Council authority through authoritative, judicial interpretation of purported Security Council authorizations to use force.

Legitimacy, Power, and the Symbolic Life of the UN Security Council

The Charter of the United Nations gives the Security Council enormous formal powers, but it. does not give it direct control of the tools with which to enact those powers. As many have noted, much of the power of the Council is contingent on the voluntary coop eration of states, measured in variables such as the contribution to peacekeeping missions and the national enforcement of sanctions re gimes.1 It is often also noted that this voluntary compliance depends also on states' perceptions of the legitimacy of the Council and its ac tions.2 However, the central role that legitimacy plays in supporting the power of the Council is rarely investigated. After Inis Claude's state ment of the matter in 1966, the issue has not been revisited.3 The contingent nature of Council authority means its effect in the international system is both broader and narrower than the formal pow ers of the UN Charter?narrower because the Cold War stunted the de velopment of the four-policemen idea, but broader because the high so cial status of the Council signals a deep pool of capital that it can draw on to induce compliance by states. This article expands the traditional emphasis of international organization (IO) studies from the black letter of treaties and charters to a perspective that takes into ac count actual practices and the power of symbols around the Security Council. Taking seriously the symbolic power of the Council helps us to see the reasons behind certain otherwise inexplicable phenomena in in ternational relations (IR) and allows us to ask questions regarding the legitimacy of the Council that were previously hidden from view. Most political conflicts have symbolic payoffs at their root, which a concern only with studying material gains will inevitably misunderstand. This is an important problem with respect to the Security Council because so much of what makes the Council a significant actor in international pol itics is a result of the informal development of its role in international society. This is both a cause and a consequence of the distribution of material rewards and costs. We miss much that is interesting in social 35

The Long Awaited Reform of the German Works Constitution Act

German law guaranteeing works councils is not a datum. The thrust of legislation has changed significantly on a number of occasions since 1920. The most recent legal change in the form of the Works Constitution Reform Act marks a controversial swing in favor of works council formation and authority. The present paper evaluates the new legislation from an economic perspective. We link the crucial terms of the new legislation to extant empirical evidence on the incidence of works councils, the availability of alternative employee involvement mechanisms, and the impact of the institution on performance by establishment size. Given the limitations of the evidence, which are shown to have relaxed the constraints on legislative innovation, we also offer some new empirical findings based on a matched-plants approach, using a nationally representative sample of establishments. This empirical strategy in principle offers improved estimates of the effects of works councils on establishment performance. Although the results of this exercise differ somewhat from earlier analyses, they provide little support for the recent legislative changes.

Intervention and State Sovereignty: Breaking New Ground

It has been a long time since the international community was united and confident in its handling of complex, human-made emergencies. The generally acknowledged success of the military response to Iraq after its invasion of Kuwait in 1990, and of peacekeeping operations such as those in Cambodia, Namibia, and Mozambique in the early 1990s, gave way to the debacle of the international in Somalia in 1992-1993; the pathetically inadequate response to genocide in Rwanda in 1994; and the utter inability of the UN presence to prevent the murderous ethnic cleansing in Srebrenica in 1995. NATO's in Kosovo in 1999 brought matters to an intensely controversial head. Security Council members were divided; the justification for military action without new council authority was asserted but largely unargued; the moral or justification for the action, on the face of it much stronger, was clouded by allegations that the triggered more carnage than it averted; and the means by which the NATO allies waged the war continue, justly or not, to be much criticized. UN Secretary-General Kofi Annan defined the problem in the starkest and clearest terms in his address to the General Assembly in September 1999, going so far as to suggest that the classical concept of state may have to yield in some circumstances to the sovereignty of the individual: If is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica--to gross and systematic violations of human rights that offend every precept of our common humanity? ... But surely no principle--not even sovereignty--can ever shield crimes against humanity.... Armed must always remain the option of last resort, but in the face of mass murder, it is an option that cannot be relinquished. [1] He described the unfinished political business in these terms: It is essential that the international community reach consensus--not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on ways of deciding what action is necessary, and when, and by whom. [2] The immediate response to the secretary-general's challenge was a General Assembly debate, which, perhaps unsurprisingly, revealed more division than emerging consensus. Those delegates who chose to emphasize the virtues of either intervention, on the one hand, or the protection of state sovereignty, on the other, far outnumbered those seeking to find a workable accommodation between the two concepts. Disappointing as this initial response may have been, a number of efforts have since been made by governments--as well as academics, who continue to make voluminous, and often very helpful, contributions to the debate--to initiate a more systematic discussion of the issues at stake. The United Kingdom, for example, has produced a paper recommending specific criteria to guide the Security Council in its deliberations on intervention. [3] In the public arena, the most prominent and important of the early government responses to the secretary-general's challenge have been the studies commissioned by Denmark, through the Danish Institute of International Affairs (DUPI); [4] the Netherlands, through its Advisory Council on International Affairs; [5] and Sweden, through its International Commission on Kosovo, chaired by Richard Goldstone and Carl Tham. [6] In one way or another, all have retained the terminology of humanitarian intervention and argued for a distinction to be drawn between legal and legitimate interventions. The New International Commission There was still, however, an evident need for the issues to be addressed in some way that recognized the starkness of the divisions--essentially, between North and South--evident on the floor of the General Assembly, and for some effort to be made to bridge them, not only intellectually but politically. …

Humanitarian Intervention After Kosovo: Emergent Norm, Moral Duty or the Coming Anarchy? 1

In March I999 the North Atlantic Treaty Organization (NATO) justified the use of force against the Federal Republic of Yugoslavia (FRY) on the grounds that it was necessary to avert an impending humanitarian catastrophe. This action was so controversial because it was the first time since the founding of the United Nations (UN) that a group of states, acting without explicit Security Council authority, defended a breach of the sovereignty rule primarily on humanitarian grounds.2 The international reaction to NATO's intervention has been mixed: on the one hand, it has been welcomed by those who argue that

Minnesota News Council: Principles, Precedent, and Moral Authority

This study addresses the Minnesota News Council's moral authority-that is, its ability to serve as a referent for the ethical or moral choices of others-and how its authority might be affected by perceptions of its legitimacy. After analyzing all of the Council's 125 written determinations, we argue that the Council's legitimacy and authority could be enlarged by clearer statements of ethical principles, explicit expressions of standards of conduct, and more consistent references to past determinations.

Aerobic capacity, weight gain and psychotropic medication.

The relationship between physical health and psychological wellbeing is a complex one, with each impacting upon the other to one degree or another. Psychiatric patients are often reported to be not as physically healthy as their counterparts in the general population, with reports of increased weight gain and decreased activity. This study of two classifications of psychiatric patients in a high security psychiatric establishment was an attempt to ascertain if such a relationship existed between physical fitness, psychopathology, weight gain and medication levels. Using standardized tests to assess two parameters of health-related fitness--Harpenden skinfold callipers to estimate percentage body fat (BF), and a submaximal cycle ergometer ride for aerobic capacity (VO2 max)--results were compared with the general population using the Allied Dunbar National Fitness Survey (Sports Council and Health Education Authority, 1992) as a reference. The results indicate significant differences in aerobic fitness between the two groups (P < 0.01) and such differences could be a cause for concern and may constitute a threat to both physiological and mental wellbeing.

Crime by Design: An Exploratory Investigation

This paper extends and develops Newman's (1972) theory of defensible space, by investigating changes in criminal activity as a result of a re-development programme initiated by a district council and local police authority. As part of a re-development programme, the housing estate underwent changes in environmental and residential design as part of a crime prevention campaign to reduce criminal activity. The offence types: burglary, criminal damage, theft of a motor vehicle and theft from a motor vehicle were assessed both before and after the implementation of the redevelopment programme. Problems in analysing qualitative data were overcome by using a non-metric multidimensional scaling analysis, Partial Order Scalogram Analysis (POSA). The crime site profiles of all four offences were shown to be qualitatively and quantitatively different in the ‘new’ estate. It was found that, where access by both roads and footpaths had been restricted, the crime site profile changed favouring features such as a corner and terraced and identifying a new, vulnerable property. Reported offences relating to motor vehicles reduced significantly. However, incidences of both burglary and criminal damage increased. It was argued that this shift in offence type was an example of ‘displacement theory’, whereby, due to the restrictions imposed in the new estate, the criminal activity had been displaced towards an alternative offence.

Creating integrated service systems for homeless persons with mental illness: the ACCESS Program. Access to Community Care and Effective Services and Supports.

The Access to Community Care and Effective Services and Supports (ACCESS) demonstration program was initiated in 1993 by the U.S. Department of Health and Human Services as part of a national agenda to end homelessness among persons with serious mental illness. Demonstration projects have been established in nine states to develop integrated systems of care for this population. This paper provides an overview of the ACCESS program and presents definitions of services integration and systems integration. Evaluating the effectiveness of integration strategies is a critical aspect of the program. The authors describe the evaluation design and the integration strategies being evaluated and summarize findings from a formative evaluation of the project's first two years. The evaluation revealed several problems that were addressed by providing technical assistance to the states. States were helped to articulate a broader mission of addressing system-level barriers, develop an expanded plan, strengthen the authority of interagency councils, involve leaders at the state and agency levels, and develop joint funding strategies.

The Licensee's Period of Grace: Bellotti Reconsidered

At present the law fails to provide an adequate balance between the interests of licensor and licensee when a licensor revokes a licence but gives an unreasonably short notice. The prevailing orthodoxy has followed the Court of Appeal decision in Minister of Health v. Bellotti. This article will argue that the consequences of this decision have proved disastrous for both licensors and licensees. In direct conflict with Bellotti is the Privy Council authority of Canadian Pacific Railway Company v. The King.

The Devilish Pope: Eugenius IV as Lucifer in the Later Works of Juan de Segovia

Early in his career, when he still trusted in the power of councils to effect reform, Martin Luther wrote: [The Romanists] are not empowered to prohibit a council or, according to their pleasure, to determine its decisions in advance, to bind it and to rob it of freedom. But if they do so, I hope to have shown that of a truth they belong to the community of Antichrist and the devil.” Some seventy years before Luther's appeal to the German nobility, however, the Spanish theologian and noted conciliarist, Juan de Segovia, who championed the authority of councils throughout his career, had already drawn a more startling connection between the chief “Romanist” opponent of councils and the spiritual adversaries of Christendom. For, in several works written in the 1450s, Segovia identified Pope Eugenius IV with Lucifer.

Two dons in politics: Thomas Cranmer and Stephen Gardiner, 1503–1533

ABSTRACTThis article contrasts the early careers of Thomas Cranmer and Stephen Gardiner, two Cambridge dons of approximately the same generation who diversified into politics in the late 1520s. It attempts to assess their developing attitudes to the religious changes of the period, and considers the nature of humanism in Cambridge University; it suggests, with the aid of new evidence, that in the 1520s, Cranmer was more conventional in his religion than Gardiner, but already showed an especial interest in the authority of a general council. Attention is drawn to their similar patterns of church preferment up to 1531. The crucial change in both men's careers is here seen as occurring in 1532; this change projected them in opposite theological directions for the rest of their intertwined careers. Gardiner took a leading part in the church authorities' unsuccessful attempt at taking a firm stand against Henry VIII's plans, while Cranmer made a clear breach with the medieval rules on clerical celibacy by marrying the niece of a Lutheran theologian.

Media Commentary

Click to increase image sizeClick to decrease image size Additional informationNotes on contributorsRobin MossDr J. R. Moss is Head of Educational Broadcasting, Independent Television Commission, 33 Foley Street, London W1P 7LB. A Forum Chairman of the Educational Television Association, he was a member of the Board of the Health Education Council and Health Education Authority for England, between 1983 and 1994.