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  • Author: Jan Klabbers
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The theory of functionalism dominates the law of international organizations, explaining why organizations have the powers they possess, why they can claim privileges and immunities, and often how they are designed as well. Yet, the theory of functionalism is rarely spelt out in any detail, and its origins have remained under-explored. The purpose of the present article is to outline how functionalism came about by focusing on the 'pre-history' of international institutional law. To that end, the article studies the work of a number of late 19th, early 20th century authors on the law of international organizations, paying particular attention to the writings of Paul Reinsch. It turns out that functionalism, as developed by Reinsch, was inspired by his familiarity with colonial administration: colonialism and international organization both manifested cooperation between states. While this is no reason to discard functionalism, it does provide an argument for viewing international organizations more critically than functionalism habitually does.
  • Topic: Law
  • Author: Stéphanie Dagron
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Lawrence O. Gostin's new book begins with the sentence '[t]his is a unique moment to offer a systematic account of global health law' and he is right. The book under review is published at a time when the most influential international institutions are emphasizing the necessity for multilateral cooperation in the field of public health. For example, the United Nations General Assembly (UNGA) addresses this point in its current deliberations on the post-2015 Millennium Development Goals Agenda. Contemporary globalization has irrevocably made borders porous to capital, services, goods, and persons. Global social, economic, and political changes, such as increasing industrialization, urbanization, environmental degradation, migration, drug trafficking, and the marketing strategies of transnational corporations (e.g., in the food, pharmaceutical, and tobacco industries) have a significant impact on health. This impact is transnational and intersectoral: global health hazards go beyond the control of individual nation states and extend beyond the restricted field of health care.
  • Topic: Economics, Health, Migration, United Nations, Food, Law
  • Author: Birgit Lode
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Already back in 1987 the Brundtland report by the World Commission on Environment and Development stressed that '[n]ational and international law is being rapidly outdistanced by the accelerating pace and expanding scale of impacts on the ecological basis of development'. Since then international environmental law regimes have multiplied and an up-to-date introduction to the constantly evolving field of international environmental law is very welcome, not least due to the lack of equally concise alternatives in the introductory literature. Aimed at filling this gap, Timo Koivurova with his Introduction to International Environmental Law chooses an approach well suited to the student readers he primarily intends to address. The book dispenses with footnotes, tables of treaties, and a comprehensive bibliography. Instead, a manageable number of endnotes accompany each chapter, preceded by a set of questions and research tasks, and followed by suggestions for further reading and websites addressing the respective topics. Thereby, the subject matter is presented in the most general fashion possible without making concessions to the scientific nature of the book, allowing '[i]nternational environmental law and politics [to] speak for themselves' (at xix). Moreover, in order to make the information provided easily accessible and comprehensible by a broad range of readers the book includes several boxes going into more detail on, e.g., specific cases, conventions, institutions, or environmental disasters. It illustrates topics and sometimes presents them from a different angle by adding photographs and figures, clarifying essentials as well as sparking the readers' imagination.
  • Topic: Environment, Politics, Law
  • Author: Bernard M. Hoekman, Petros C. Mavroidis
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Plurilateral agreements in the context of the World Trade Organization (WTO) allow sub-sets of countries to agree to commitments in specific policy areas that only apply to signatories and thus allow for ‘variable geometry’ in the WTO. Plurilateral agreements share a number of features with preferential trade agreements (PTAs), which are increasingly used by governments to liberalize trade in goods and services. This article discusses the current institutional framework that governs these two alternatives and distinguishes them from the general, non-discriminatory agreements that are negotiated among – and apply to – all WTO members. Current WTO rules make it much more difficult to pursue the plurilateral route than to negotiate a PTA. We review the arguments for and against making it easier for ‘issue-specific’ clubs to form in the WTO and discuss how concerns raised by some WTO members regarding the potential negative impact of plurilateral agreements on the multilateral trading system might be addressed. We take the view that action to facilitate the negotiation of plurilateral agreements in the WTO should be considered and that the potential downsides for the multilateral trading system can be managed.
  • Topic: Economics, Political Economy, World Trade Organization, Law
  • Political Geography: Europe, Italy
  • Author: Oren Perez
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The objective of the present article is to develop a better understanding of the institutional dynamic of transnational regulatory scientific institutions (RSIs). RSIs play a significant role in the transnational regulatory process by mediating between the scientific community and policy-making bodies. I argue that RSIs have a hybrid structure involving both political-legal and epistemic authority. The hybrid structure of RSIs – their capacity to exert both normative and epistemic authority – constitutes an innovative response to the demand of modern society for scientific certainty and to the scarcity of normative power in the international domain. This hybrid nature has a triple structure involving three complementary pairs: law~science, law~non-law and science~pseudoscience. I examine the way in which RSIs cope with the challenge of maintaining their epistemic and legal authority against the tensions generated by their hybrid structure. The discussion of hybrid authority is related to the problem of scientific uncertainty. I examine this theoretical argument drawing on an in-depth analysis of three RSIs that reflect the institutional diversity of the RSI network: the Intergovernmental Panel on Climate Change, the International Commission on Non-Ionizing Radiation Protection and the European Committee of Homeopaths. I conclude with a discussion of some of the policy issues associated with the institutional design of RSIs. The policy discussion refers, first, to the risk posed by RSIs’ hybrid structure to their internal stability and, second, to some potential adverse social impacts that need to be considered alongside RSIs’ projected benefits.
  • Topic: International Law, Science and Technology, Law, Regulation
  • Political Geography: Europe, Italy
  • Author: Stefan Talmon
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Methodology is probably not the strong point of the International Court of Justice or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the Court’s jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law, but the legal literature also has had little to say on this subject. In view of the fact that determining the law has also always meant developing, and ultimately creating, the law it is surprising that the question of the Court’s methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law. It starts by defining the terms ‘induction’ and ‘deduction’ and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom and demonstrates that the main method employed by the Court is neither induction nor deduction but, rather, assertion.
  • Topic: International Law, Law, Legal Theory , Courts
  • Political Geography: Europe, The Hague
  • Author: Helen Keller, Cedric Marti
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article proposes a shift of perspective concerning the implementation of European Court of Human Rights (ECtHR) judgments. Acknowledging that implementation of the Court’s judgments is primarily of a political and domestic nature, the authors argue that the process has become increasingly internationalized and judicialized by the ECtHR in recent years. Taking a broad, three-tiered perspective that distinguishes between the pre-judgment stage, the judgment itself and the post-judgment stage, the authors analyse the means by which the ECtHR has engaged in implementation of its judgments and explore the benefits of judicialization in this area to secure a key aspect in guaranteeing effective protection and the long-term future of the European Convention on Human Rights system, namely full and timely judgment compliance.
  • Topic: Human Rights, International Law, Law, Courts
  • Political Geography: Europe, France
  • Author: André Nollkaemper
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This brief Comment responds to Jan Klabbers’ recent article, ‘The Transformation of International Organizations Law’. It focuses on three points: the polemical style and disengagement with substance in the article; the question of whether we can do without some form of functionalism; and the further question of what it means to speak of ‘responsibility beyond functionalism’.
  • Topic: International Law, International Organization, Law, Critique
  • Political Geography: Europe, Global Focus
  • Author: J.H.H. Weiler
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to 'celebrate' Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of articles which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.
  • Topic: Development, Law
  • Political Geography: Europe
  • Author: Morten Rasmussen
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This is the abstract only. The full article is published in Int J Constitutional Law (2014) 12 (1): 136–163 doi:10.1093/icon/mou006 Did the famous Van Gend en Loos judgment constitute a breakthrough for a constitutional practise in European law or was it merely drawing the logical legal consequences of earlier case law and of the Treaties of Rome? Based on comprehensive archival studies, this article argues that neither earlier case law nor the Treaties of Rome can fully account for the judgment. Instead, Van Gend en Loos represented a genuine revolution in European law. Prompted by the legal service of the European Commission, the European Court of Justice (ECJ) took a decisive step towards addressing two major problems of international public law, namely the lack of uniform application of European law by national courts across the six member states and the lack of primacy granted to international law in several member states. The judgment was based on a new teleological and constitutional understanding of the Treaties of Rome developed by the legal service, and took the first step towards establishing an alternative enforcement system. The ECJ would already in 1964 take the second step by introducing primacy in the Costa v. E.N.E.L. judgment. The new enforcement system remained highly fragile, however, due to the dependency on the cooperation of national courts through the preliminary reference system. As a result, the full effects of the Van Gend en Loos judgment were only felt after the Single European Act (1986) pushed reluctant national governments and courts to finally come to terms with the legal order the ECJ had developed.
  • Topic: Government, Law
  • Political Geography: Europe