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  • Author: Jeremy Waldron
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The applicability of the ideal we call 'the Rule of Law' (ROL) in international law (IL) is complicated by (1) the fact that there is no overarching world government from whom we need protection (of the sort that the ROL traditionally offers) and it is also complicated by (2) the fact that IL affects states, in the first instance, rather than individuals (for whose sake we usually insist on ROL requirements). The article uses both these ideas as points of entry into a consideration of the applicability of the ROL in IL. It suggests that the 'true' subjects of IL are really human individuals (billions of them) and it queries whether the protections that they need are really best secured by giving national sovereigns the benefit of ROL requirements in IL. For example, a national sovereign's insistence that IL norms should not be enforced unless they are clear and determinate may mean that individuals have fewer protections against human rights violations. More radically, it may be appropriate to think of national sovereigns more as 'officials' or 'agencies' of the IL system than as its subjects. On this account, we should consider the analogous situation of officials and agencies in a municipal legal system: are officials and agencies in need of, or entitled to, the same ROL protections as private individuals? If not, then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level.
  • Topic: Government, Human Rights
  • Author: Solomon T. Ebobrah
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to the Protocol to the African Charter on Human and Peoples' Rights establishing the African Court on Human and Peoples' Rights, the main function of the Court is to complement the protective mandate of the already existing African Commission on Human and Peoples' Rights. Thus, complementarity was introduced into the framework of the African human rights system. Since then, the concept of complementarity has also been brought into play in the Protocol to the Statute of the proposed African Court of Justice and Human Rights. Although the interim rules of procedure of the Court and of the Commission have sought to give meaning to the concept of complementarity, there is still very little understanding of how it will pan out in the system. Questions abound as to the exact implication it would have on the existing mechanisms of the Commission. Almost nothing has been said or written on its impact on the African Committee of Experts on the Rights and Welfare of the Child. Against this background, this article argues that complementarity in the African human rights system can be applied positively by adopting a normative approach that allows for the prescription of what the system's supervisory institutions should do and how they should relate to each other in their work. The article argues further that the justifications for the introduction of judicial organs can also be employed to prescribe complementary functions for each supervisory institution. It concludes that applying complementarity positively would require encouraging each institution to focus on its strengths with a view to strengthening the overall effectiveness of the system.
  • Topic: Human Rights
  • Political Geography: Africa
  • Author: Stefano Piedimonte Bodini
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court's approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.
  • Topic: Human Rights, International Law
  • Political Geography: Europe
  • Author: Jaye Ellis
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article explores the source 'general principles of international law' from the point of view of comparative law scholarship. The currently accepted definition of general principles and methodology for identifying such principles are critiqued. The criterion of the representativeness of the major families of legal systems, to which courts and tribunals tend to pay lip service rather than applying rigorously, is meant to anchor general principles in state consent, but is not a sound technique either for identifying principles of relevance to international law or for preventing judges from referring only to the legal systems they know best. Further - more, the emphasis on extracting the essence of rules results in leaving behind most of what is interesting and useful in what judges may have learned by studying municipal legal systems. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law.
  • Topic: Human Rights, International Law
  • Political Geography: Sri Lanka
  • Author: Thilo Rensmann
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As a tribute to Bruno Simma on the occasion of his 70th birthday this article follows the traces of two of his fellow alumni from Munich University who belonged to the first generation of 'droit-de-l'hommistes'. In the early 1940s they laid the foundations for the entrenchment of human rights in the international legal order. Ernst Rabel and Karl Loewenstein, who taught in Munich during the inter-war period, each played a significant role in breaking the mould of isolationism prevalent in German legal scholarship at the time. Hitler's rise to power, however, put an abrupt end to the internationalization of legal thought in Germany. Rabel and Loewenstein, like many other legal scholars of Jewish descent, were forced into exile. It so happened that in 1942 the two Munich alumni were invited by the American Law Institute to join a committee 'representing the major cultures of the world'. This committee was charged with the momentous task of drafting an international bill of rights for a new post-war global order. Their draft was later to become the single most important blueprint for the Universal Declaration of Human Rights. Against this backdrop the article attempts to identify the specific contribution made by Rabel and Loewenstein to the evolution of international human rights law.
  • Topic: Human Rights
  • Political Geography: Germany
  • Author: Sonia Morano-Foadi, Stelios Andreadakis
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article, based on a broader project, focuses on the interaction between the two European Courts (the Court of Justice of the European Union – ECJ and the European Court of Human Rights – ECtHR) and uses the specific area of expulsion/deportation of third country nationals (non-EU nationals) from European territory as a case study. The work examines the ECJ's and ECtHR's divergent approaches in this area of law, and it then provides some preliminary reflections on the potential of the EU Charter of Fundamental Rights and the EU's accession to the European Convention of Human Rights (ECHR) to achieve a more harmonious and convergent human rights system in Europe. It finally argues that the post-Lisbon era has the potential to enhance the protection of fundamental rights within the continent.
  • Topic: Human Rights
  • Political Geography: Europe
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There are few legal issues which still manage to evoke civic passion in the wider population. Increasingly, and sometimes for the wrong reasons, the place of religion in our public spaces has become one of them. In the age of the internet and Google we can safely assume that all readers of this Journal will have either read the Lautsi decision of the European Court of Human Rights or have read about it, thus obviating the need for the usual preliminaries. As is known, a Chamber of the Court held that the displaying in Italian public schools of the crucifix was a violation of the European Convention on Human Rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Christian Tomuschat
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It is recognized today that human rights law is not generally displaced in times of armed conflict by international humanitarian law (IHL). Yet in large part this new insight remains to be particularized as to its actual consequences. In particular, IHL is still predominantly under the influence of the concept of military necessity.
  • Topic: Human Rights
  • Author: Francesco Francioni
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing 'individualistic' perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation.
  • Topic: Environment, Human Rights
  • Author: Wolfgang S. Heinz
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two renowned scholars of international human rights protection from the University of Berne offer this excellent volume which is based on and expands the second edition of their book Universeller Menschenrechtsschutz (2008). Professor Walter Kälin was representative of the UN Secretary General on the Human Rights of Internally Displaced Persons, and from 2003 to 2008 a member of the UN Human Rights Committee. Jörg Künzli is Associate Professor of Law at the University of Berne.
  • Topic: Human Rights
  • Political Geography: United Nations