VALERIE EPPS, Suffolk University Law School
Email: vepps@suffolk.edu

This article investigates the reach of the United Nations Charter's legal regime created to govern the use of interstate armed force with a view to examining the permissibility of anticipatory self-defence. It examines the pre-Charter law on the use of force; the drafting and language of the Charter; and the international legal cases that address use of force. The article concludes that international law prohibits anticipatory self-defence and thus leaves no doubt that preemptive force is illegal.

BEN SAUL, University of Sydney - Faculty of Law
Email: B.Saul@usyd.edu.au

This paper focuses on the growing pressure to automatically exclude suspected terrorists from refugee status since the late 1990s including exclusion based on mere membership of terrorist organizations. As the first part of this paper shows, such pressure has emanated from the UN General Assembly, the Security Council, regional organizations, States and even the UN High Commissioner for Refugees (UNHCR). Yet, as the remainder of the paper illustrates, terrorism is not listed as a separate ground of exclusion in the 1951 Refugee Convention, and there is no internationally accepted definition of terrorist offences which could serve as a principled basis of exclusion. In the absence of an international definition of terrorism, operative legal reference to terrorism in exclusion decisions endangers refugees and violates international refugee law. This chapter argues foremost that exclusion must be based on an individual assessment of whether a person meets the specific criteria for exclusion in Article 1F of the 1951 Refugee Convention. Further, the existing exclusion grounds - though misapplied by some States in practice - are adequate and appropriate for addressing the serious challenges posed by modern terrorism.

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)
Email: RJDELAHUNTY@stthomas.edu

A recent article by the economist Samuel Brittan in The Financial Times was entitled "Make the world safe from crusaders." In his article, Mr. Brittan discussed one of the two books that most influenced him as a student. That book was Christianity, Diplomacy and War, and its author, Sir Herbert Butterfield, was one of the most eminent British historians of the twentieth century. Brittan noted that it was deeply regrettable that Butterfield's book "seems to have passed into oblivion... For there is no better antidote to the fantasies of the American neo-conservatives or the European liberal imperialists." Brittan is exactly right. Butterfield's work on the subjects of diplomacy and war, and the relationships of both to Christianity, deserves to be recollected, pondered and evaluated.

ARTHUR MARK WEISBURD, University of North Carolina at Chapel Hill - School of Law
Email: amw@email.unc.edu

State practice is an important element of international law, both as a key component of customary international law and as a crucial tool for interpreting treaties. In this paper, Professor Weisburd seeks to show that there are important flaws in the application of state practice by the International Court of Justice. The Court has relied on actual practice to determine the content of customary rules surprisingly rarely, frequently basing its conclusions instead on non-binding actions by international bodies or on its own decisions. It has reached decisions in some cases clearly inconsistent with significant and relevant state practice and in others proclaimed as rules of law formulations unsupported by state behavior. The Court has been inconsistent in its treatment of the practice of parties to treaties in cases presenting interpretation questions, sometimes proclaiming the necessity of relying on such practice while on other occasions failing even to acknowledge the existence of practice contrary to the result it reaches. This behavior by the Court is problematic for a number of reasons and, paradoxically, makes the Court itself an impediment to wider reliance on international law.

CARLOS L. YORDAN, Drew University
Email: cyordan@drew.edu

This article examines why the U.N. Security Council supported the Anglo-American project to transform Iraq, even though the international law of occupation prohibits this type of project. It is divided into four sections. Section one presents the article's framework of analysis, which is based on Detlev Vagt's (2001) conceptualization of hegemonic international law and Jose Alvarez's (2003) recent application of this concept to recent debates in international law. The second section assesses the impact American hegemony has had on international law in the post-Cold War era, arguing that American neo-liberal values and its idealized vision of intrastate order have influenced international institutions' strategies. The third section studies the UN's postwar mission in Kosovo. It not only shows how this is an example of American hegemonic international law, but it helps explain why the Security Council may have been compelled to support the Anglo-American project to transform Iraq. The last section considers the debate regarding the United Kingdom and the United States' request for a resolution legitimating its occupation of Iraq. It demonstrates that Resolution 1483 met most of the occupying powers' demands, confirming that it was an outcome of American hegemonic international law.

ALASTAIR NEIL CRAIK, University of New Brunswick, Faculty of Law
Email: craik@unb.ca

This paper considers the inter-relationship between the rules regarding innocent passage of foreign ships carrying hazardous goods through another state's territorial waters under the law of the sea, on the one hand, with the general obligations on states that arise under international environmental law in relation to transboundary environmental risks. These two sets of rules are considered in relation to a controversy between the United States and Canada over the potential siting of liquefied natural gas terminals in the Passamaquoddy Bay, which would require the shipping of liquefied natural gas through Canadian waters notwithstanding that the Canadian government has maintained that it has a sovereign right to exclude passage through these waters.

My principal conclusion is that, notwithstanding the more precautionary posture of international environmental norms, international law as a whole has generally left the discretion to undertake risk-based activities in the hands of the states undertaking those activities. In short, risk-based activities are presumed innocent and the threshold for determining non-innocence remains high. That said, the procedural obligations of international environmental law provide an opportunity for a more cooperative and contextually sensitive approach to resolving disputes involving risk-based activities, such as the Passamaquoddy Bay controversy. In essence, the rules regarding innocent passage forsake contextual sensitivity in favour of legal certainty, while the rules in relation to transboundary environmental harm call for much greater consideration of the respective rights and interests of the parties. Taken together, the rules retain overall coherence by allowing source (flag) states to undertake unilateral activities, but only after satisfying onerous procedural obligations of risk evaluation and good faith consultation.

ALASTAIR NEIL CRAIK, University of New Brunswick, Faculty of Law
Email: craik@unb.ca

Notwithstanding that when the governments of Canada, Mexico and the United States entered into the North American Agreement on Environmental Cooperation in 1993 they made a firm commitment to "consider and develop" recommendations with respect to an agreement on transboundary environmental impact assessment (TEIA), after thirteen years there remain few concrete signs of a TEIA agreement being negotiated under the auspices of the Commission for Environmental Cooperation (CEC). The inability of Canada, Mexico and the United States to achieve an agreement on TEIA is surprising given that each of the parties has a well-developed federal EIA system, both Canada and the United States are signatories to the Espoo Convention, the pre-eminent international treaty on TEIA, (although the United States has not become a party to the treaty), and environmental policy makers in Canada, Mexico and the United States have incorporated TEIA requirements into a variety of domestic and bi-lateral regulatory instruments.

In light of the lack of success in developing a tri-lateral approach to TEIA, this chapter, which forms part of a broader study on TEIA, has several objectives. Firstly, I seek to simply take stock of the current approaches to TEIA that are being employed in North America. Given the varying mechanisms used to implement TEIA, the approach taken is to look at TEIA from domestic, as well as from bi-lateral and tri-lateral perspectives, so as to provide a sense of the broad range of approaches to TEIA that exist within the region, as well as to provide some insight into the reasons why TEIA has developed in a more decentralized, demand driven manner in North America than in Europe. Out of this analysis, I make some further observations respecting approaches to negotiating a comprehensive North American TEIA agreement that are more likely to meet with success.

PAUL STEPHEN DEMPSEY, McGill University - Faculty of Law
Email: paul.dempsey@mcgill.ca
MICHAEL C. MINEIRO, McGill University Faculty of Law
Email: michael.mineiro@mail.mcgill.ca

The development of sub-orbital flight will require a further development of the international legal regime applicable to commercial space transportation.

With the inauguration of tourist flights, the technology for the use of space as a route for international transportation will follow. Ultimately, the world community needs an integrated system of laws and regulations to govern sub-orbital and orbital international transportation. An appropriate stop-gap measure may be the adoption of a new, or amendment of an existing Annex to the Chicago Convention, making ICAO's navigation and safety standards applicable to both sub-orbital and orbital flights.