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  • Author: Alan Desmond
  • Publication Date: 01-2018
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article critically examines the evolving practice of the European Court of Human Rights (ECtHR) towards the definition and use of the concepts of family life and private life in cases involving migrants who seek to resist deportation by invoking Article 8 of the European Convention on Human Rights. The examination reveals an approach on the part of the Court that has the effect of shrinking the protection potential of Article 8 for migrant applicants, allowing state interest in expulsion to carry the day. This is symptomatic of Strasbourg’s deference to state sovereignty in the realm of migration. While the ECtHR has issued a number of landmark rulings roundly vindicating migrants’ rights, these are the exception to the rule of Strasbourg’s deference to state powers of immigration control. This approach has far-reaching implications for migrants in the member states of the Council of Europe. The article concludes by highlighting the tools at the Court’s disposal that could be employed to construct a more human rights-consistent approach in this strand of jurisprudence, which is an issue all the more relevant in light of the growing number of migrants seeking to establish a life in Europe.
  • Topic: Human Rights, International Law, Migration, Sovereignty, Courts
  • Political Geography: Europe, France
  • Author: Luke Glanville
  • Publication Date: 10-2017
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: While histories of human rights have proliferated in recent decades, little attention has been given to the history of thinking about duties to protect these rights beyond sovereign borders. We have a good understanding of the history of duties of sovereign states to ensure the safety and well-being of their own citizens and of the right of other states to forcefully intervene when these duties are violated. But the story of the development of thinking about duties to assist and protect the vulnerable beyond borders remains to be told. This article defends the importance of excavating and examining past thinking about these duties. It then sketches key aspects of Western natural law thinking about such duties, from Francisco de Vitoria through to Immanuel Kant, claiming that such study holds the promise of exposing from where ideas that prevail in international law and politics have come and retrieving alternative ideas that have been long forgotten but that may reward renewed consideration. It concludes by briefly outlining how three such retrieved ideas might be of particular use for those seeking to push international law and politics in a more just direction today.
  • Topic: Human Rights, International Law, Sovereignty, History, Humanitarian Intervention, Philosophy
  • Political Geography: Europe, Global Focus
  • Author: Angelika Nussberger
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Modern international law of the 21st century seems to be characterized by a farewell to the Westphalian understanding of state sovereignty, by the empowerment of the individual and by transnational solutions to common problems in a globalized world. This overview, however, is not true for Russian international law. The ‘powerful idea of Russia’s civilizational distinctness from the West’ is underlying the post-Soviet practice in international law (at 190). This is the main thesis of Lauri Mälksoo’s study on ‘Russian approaches to international law’. Russia was different, Russia is different and Russia is proud of being different.
  • Topic: International Law, Sovereignty, United Nations, History , Intellectual History
  • Political Geography: Russia, Europe, Crimea
  • Author: Ann Hertogen
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: In an increasingly interdependent world, state sovereignty is inherently limited in order to protect the equal sovereignty of other states. However, identifying the precise constraints on states is a different and far more difficult question. The traditional answer is found in the Lotus principle, which consecrates a freedom to act unless explicitly prohibited by international law. The principle has rightly come under attack because of its incompatibility with the needs of a modern international community. This is usually followed by calls to disregard the precedential value of the Permanent Court of International Justice’s Lotus judgment on which it is based. This article defends the Lotus judgment but argues that the principle is the wrong reading of the majority opinion and that it fails to create the right conditions for interstate co-existence and cooperation, the twin goals of international law identified by the majority. The article then examines the meaning of ‘co-existence’ for contemporary international law and weighs the principle of ‘locality’ as an additional criterion that ought to be considered when resolving conflicting claims of jurisdiction.
  • Topic: International Law, Sovereignty, International Affairs, Courts
  • Political Geography: Europe, Turkey, France
  • Author: John R. Morss
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article offers a re-examination of the international legal status of what is here termed the Vatican/Holy See complex (VHS), focusing on claims to statehood. The problematic ‘effect’ of Vatican City, of the Holy See, of the papacy and of associated entities is interrogated at the level of international law, entering as little as possible into administrative or theological distinctions. The various grounds cited as supporting status amounting to statehood are argued to be inadequate. The continuing exchange of representatives with states by the VHS is missionary and hierarchical in character and is reflective neither of the reciprocity of peers nor of customary obligation going to law. Agreements entered into by the papacy with the Kingdom of Italy (the Lateran Pacts) in 1929, relating to the status of the geographical territory known as Vatican City, cannot be determinative of international status. Nor can membership of international agreements and organizations confer a status amounting to statehood. Events and practices since 1929 have not substantially altered international status as of 1870. The Roman Catholic Church is but one of many faith-based international movements, and since the eclipse of the papal state nearly one-and-a-half centuries ago, the status in international law of its temporal headquarters in Rome should not be privileged.
  • Topic: International Law, Religion, Sovereignty, History
  • Political Geography: Europe, Italy, Vatican city
  • Author: Erika de Wet
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article examines how two prominent criteria for permissible military intervention by invitation as developed in doctrine are currently implemented by states as well as how this impacts the prohibition of the use of force. Controversies concern, in particular, the determination of the authority entitled to extend the invitation, as recently illustrated by the Russian claim that its military intervention in the Crimea was based on the invitation of (former) President Yanukovych. Does the inviting authority need to enjoy democratic legitimacy and/or be in de facto control of a state’s territory? Furthermore, it remains highly contentious whether an invitation for forcible intervention may be extended during a civil war. By analysing modern state practice in Africa – where most of the contemporary invitations for military assistance occur – and comparing it with recent developments in other regions, the author concludes that effective control rather than democratic legitimacy is (still) the point of departure for determining the legitimate government of a state. Once recognized, incumbent governments enjoy a large discretion when inviting military assistance from foreign governments. They seem to retain the right to military assistance even in situations of civil war and while exercising limited control over the territory.
  • Topic: International Law, Sovereignty, United Nations, Military Intervention
  • Political Geography: Africa, Russia, Europe, Crimea
  • Author: Dino Kritsiotis
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article presents a critical engagement with the issue of force and intervention undertaken with the consent of the state in whose territory it ultimately occurs and offers a critical assessment of Erika de Wet’s article ‘The Modern Practice of Intervention by Invitation in Africa and Its Implication for the Prohibition of the Use of Force’. It considers the different interpretative approaches suggested for consent and the Charter of the United Nations’ prohibition of force as well as the principle or principles that have come to govern the issuing of valid consent in international law. The contribution turns to some of the methodological positions taken in exploring the continuing validity of the so-called ‘effective control principle’ in modern African practice, and, as it does so, it probes the utility of questions for the jus ad bellum of ‘other’ international law (such as developments within the jus in bello and the law on self-determination).
  • Topic: International Law, Sovereignty, United Nations, Military Intervention
  • Political Geography: Africa, Europe
  • Author: James W. Nickel
  • Publication Date: 08-2014
  • Content Type: Journal Article
  • Journal: Ethics & International Affairs
  • Institution: Carnegie Council
  • Abstract: Like people born shortly after World War II, the international human rights movement recently had its sixty-fifth birthday. This could mean that retirement is at hand and that death will come in a few decades. After all, the formulations of human rights that activists, lawyers, and politicians use today mostly derive from the UN Universal Declaration of Human Rights, and the world in 1948 was very different from our world today: the cold war was about to break out, communism was a strong and optimistic political force in an expansionist phase, and Western Europe was still recovering from the war. The struggle against entrenched racism and sexism had only just begun, decolonization was in its early stages, and Asia was still poor (Japan was under military reconstruction, and Mao's heavy-handed revolution in China was still in the future). Labor unions were strong in the industrialized world, and the movement of women into work outside the home and farm was in its early stages. Farming was less technological and usually on a smaller scale, the environmental movement had not yet flowered, and human-caused climate change was present but unrecognized. Personal computers and social networking were decades away, and Earth's human population was well under three billion.
  • Topic: Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, International Affairs
  • Political Geography: United States, Japan, China, Europe, Asia, United Nations
  • Author: Andrew Gilmour
  • Publication Date: 08-2014
  • Content Type: Journal Article
  • Journal: Ethics & International Affairs
  • Institution: Carnegie Council
  • Abstract: Ever since the Charter of the United Nations was signed in 1945, human rights have constituted one of its three pillars, along with peace and development. As noted in a dictum coined during the World Summit of 2005: "There can be no peace without development, no development without peace, and neither without respect for human rights." But while progress has been made in all three domains, it is with respect to human rights that the organization's performance has experienced some of its greatest shortcomings. Not coincidentally, the human rights pillar receives only a fraction of the resources enjoyed by the other two—a mere 3 percent of the general budget.
  • Topic: Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, International Affairs
  • Political Geography: Europe, United Nations
  • Author: Jens Bartelson
  • Publication Date: 08-2014
  • Content Type: Journal Article
  • Journal: Ethics & International Affairs
  • Institution: Carnegie Council
  • Abstract: Sovereignty apparently never ceases to attract scholarly attention. Long gone are the days when its meaning was uncontested and its essential attributes could be safely taken for granted by international theorists. During the past decades international relations scholars have increasingly emphasized the historical contingency of sovereignty and the mutability of its corresponding institutions and practices, yet these accounts have been limited to the changing meaning and function of sovereignty within the international system. This focus has served to reinforce some of the most persistent myths about the origin of sovereignty, and has obscured questions about the diffusion of sovereignty outside the European context.
  • Topic: Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, International Affairs
  • Political Geography: Europe