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- Author: Sara De Vido
- Publication Date: 02-2015
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: Water has been a challenging issue over the centuries. From questions of national boundaries and navigation, quite common in the past, to the development of a human right to water, this essential element for human life has always spurred debate among international lawyers, economists, political scientists, geographers, and anthropologists. The reason may be found in the scarcity of water, a phenomenon which affects both developed and developing countries. Much has been written on the topic, but the three books under review significantly contribute to a critical analysis of some pertinent legal issues related to water. The title of each monograph reflects the purpose of the respective study. Hence, International Law for a Water-Scarce World by Brown Weiss starts from the acknowledgement that 'the fresh water crisis is the new environmental crisis of the 21st century' (at 1) and provides an integrated analysis of water law, which considers climate implications, river basins, and the availability and quality of fresh water. Boisson De Chazournes' Fresh Water in International Law investigates the status of fresh water in international law. The choice of the titles of the chapters is particularly evocative. Thus, after a chapter on regulation of fresh water use, the book continues with chapters on the 'Economization' of the law applicable to fresh water, its 'Environmentalization', followed by its 'Humanization', and 'Institutionalization Trends in Fresh Water Governance', before focusing on dispute settlement mechanisms. The use of the ending '-zation' gives the immediate impression of the evolution of the law on fresh water resources, which now includes several separate but clearly interrelated aspects. The title of the third book, written by Thielbörger, deserves attention for two elements, the first being the letter 's' inside the parentheses and the second being the adjective 'unique' used for identifying the human right to water. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right pursues a different purpose from the two other books under review which adopt a more comprehensive approach. Thielbörger's book (based on his doctoral dissertation) studies the human right to water from a comparative and international perspective, emphasizing the complexity of a right which is strictly linked to other rights but constitutes at the same time a right of its own.
- Topic: Development, Human Rights, International Law
- 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
- Political Geography: Europe
- 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: Damian Chalmers, Luis Barroso
- 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): 105–134 doi:10.1093/icon/mou003 Three transformational developments flowed from Van Gend en Loos: the central symbols and ideals of EU law; an autonomous legal order with more power than traditional treaties; and a system of individual rights and duties. The judgment also set out how each of these developments was to be deployed. The symbols and ideals were set out to proclaim EU authority rather than to go to what the EU did. What the EU did was, above all, government through law. The EU legal order was conceived, above all, therefore, as a vehicle for the expression of EU government. This, in turn, shaped the allocation of individual rights which were predominantly granted only where they furthered the realization of the collective objectives of EU government. Conceiving EU law as governmental law also left a profound and negative effect on EU legal meaning. This became shaped by EU law being reduced to something to sustain activities valued by EU government rather than to provide a wider, more emancipatory imaginary.
- Topic: Development, Government
- Political Geography: Europe
- Author: Ana Filipa Vrdoljak
- Publication Date: 02-2011
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: The protection of minorities in modern international law is intimately connected with and fuelled the recognition of the crimes of persecution and genocide. Minority protection represented the proactive component of the international efforts to ensure the contribution of certain groups to the cultural heritage of humankind. Prohibition and prosecution of persecution and genocide represented the reactive element of these same efforts. The restitution of cultural property to persecuted groups by the international community was recognition that their ownership and control of these physical manifestations was necessary for the realization of this purpose. In this article, I consider the emergence, contraction, and revival of the interconnection between minority protection, the prevention and punishment of genocide, and the protection and restitution of cultural heritage over the last century-long development of international law. It is argued that the central aim driving and interweaving these initiatives is the effort to ensure the continuing contribution of each group to the cultural heritage of all humanity.
- Topic: Development, International Law
- Author: Gabriella Blum
- Publication Date: 02-2011
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: The prevailing view of the form which the effort to regulate non-international armed conflicts should take has been summarized by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić interlocutory appeal on jurisdiction: '[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife'.This mirroring approach of emulating the laws applicable in international armed conflicts in the non-international context was subsequently adopted by the drafters of the Rome Statute of the International Criminal Court in 1998; the drafters chose to include a list of war crimes applicable in cases of non-international armed conflicts which resembled (though was still narrower than) the list of crimes applicable in international conflicts. The recent Kampala ICC review conference expanded the non-international crimes list, further narrowing the gap between the 'international' and the 'non-international' lists of crimes.Taking a similar position, the 2005 study on customary international humanitarian law (IHL) published by the International Committee of the Red Cross concluded that all but a handful of the rules identified as customary applied in international and non-international armed conflicts equally.Given the traditional resistance by states to assuming the same degree and range of constraints which apply in international armed conflicts in internal ones, humanitarian advocates have sought to advance the regulation of internal armed conflicts by supplementing IHL with norms borrowed from international criminal law (ICL) and international human rights laws (IHRL). The resulting international law of internal armed conflicts has thus been a patchwork of norms which ostensibly apply to all non-international armed conflicts, drawn from the IHL of international conflicts, ICL, and IHRL, often proving to be incoherent, unworkable, and ineffective. Sandesh Sivakumaran's contribution to this volumetakes a critical view of the path …
- Topic: Development, Government, International Law
- Author: Fernando Losada Fraga
- Publication Date: 02-2011
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: When the current economic crisis began, political leaders all around the world spread the idea that capitalism needed somehow to be reformed. 1 A couple of years later one might think that not much has been achieved in that direction and blame politicians for their lack of will. However, it is not so clear that reforms – even if the political will existed – would be easy to realize. As Danny Nicol argues, the neoliberal conception of capitalism is constitutionally shielded as a result of the content and the development of different but coexisting legal regimes such as the World Trade Organization (WTO) or the European Union (EU), and of the activism of the European Court of Human Rights (ECtHR). Describing the resulting 'constitutional protection of capitalism' is precisely what this book is about: Nicol tries to determine to what extent national politics are predetermined by the ongoing economic integration. Or, putting it differently, his research aims at explaining how much room for manoeuvre states, and in particular the United Kingdom, maintain now that the international and European economic integration treaties they ratified years ago have evolved in an unexpected way. The author thus identifies two trends 'that have pervaded the evolution of transnational regimes' (at 156), namely their widened scope and their enhanced binding character, and claims that such developments have a special impact on the freedom of Parliament to decide, 2 a freedom which, as we must bear in mind, is at the core of British constitutionalism. Both the title and the cover of this book, in which the symbol of the British Parliament, Big Ben, blurs among the buildings of the City, are very explicit about the national perspective from which this book approaches transnational regimes. The book is structured in five chapters. The first describes the …
- Topic: Development, Economics, Government
- Author: Mirko Sossai
- Publication Date: 02-2011
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: The renewed interest in the law of belligerent occupation probably reached its peak in 2009, when various monographs were published by distinguished authors as well as by younger scholars. The book under review originated from a doctoral thesis defended by Andrea Carcano at the University of Milan. His investigation focuses on the 2003 occupation of Iraq as the ideal test-case to verify whether the existing legal regime is adequate to address the challenges posed by present-day scenarios, including Afghanistan, Congo, and the Arab–Israeli conflict. The book is divided into three parts. The first one comprises two chapters, which present respectively the legal framework of belligerent occupation and the other applicable norms of international law. Chapter I takes a historical perspective on the legal concept of occupation, which the author considers functional to the subsequent analysis for two main reasons: to investigate the underlying values guiding the development of the law of belligerent occupation; and to compare current theories regarding the role of the law in such a situation with similar arguments upheld in the past (at 13). Carcano identifies three epochs, which modelled different concepts of occupation. The first one is valid until the Modern Age and is influenced by the Roman law tradition: occupation is considered as 'conquest and exploitation of the territory'. The modern notion of occupation, defined as 'administration and effective control', emerged during the 18th century, at the time of the consolidation of sovereign states in Europe. Whereas Vattel had already in theory identified the differentiation between sovereignty and private ownership, it was August Heffter, a century later, who first recognized the legal implications of the distinction between occupatio bellica and debellatio (at 24). Finally, the last model is that of the occupation as 'transformation': Carcano identifies it as 'a military action aimed at the radical …
- Topic: Development, International Law
- Political Geography: Afghanistan, Europe, Israel, Paris, Arabia
- Author: Luis Castellvi Laukamp
- Publication Date: 02-2011
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: Dialogue, this noble art, which, like many other things, was invented by the Greeks, is always a sort of collaboration, a way of trying to attain the truth. Perhaps this is why Plato used it as a literary vehicle when he wrote his Socratic dialogues, a corpus of pieces in which he laid the foundations of Western philosophy. Deeply impressed by the death of his mentor Socrates, Plato wrote some of the most brilliant and insightful works of all time, perhaps in order to keep on debating with his master after his death. In all likelihood, no-one since has ever had the same great ability to create such architectures of thought. His enjoyable and entertaining dialogues deal with essential topics such as the nature of time, politics, love, and death. Not only is his style concise and meticulous, with a proverbial ability to pose the right questions, but also didactic and kind. His dialogues enable all participants to engage in an inquiry which, despite not always being successful in reaching the desired goal, has at least proved to be a fundamental tool in the development of all expressions of human thought. The book under review is inspired, mutatis mutandis, by this very same philosophy regarding dialogue. As its editors (Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza) point out in their introduction, '[t]he process of fragmentation of the international legal order and the absence of constitutional devices governing the connections between the various legal regimes can be reduced to a rational picture only through the activity of the judges' (at 23). This is why judges play a key role in creating and developing links between the different legal systems which constitute our multi-level judicial environment. The increasingly complex nature of the interaction between national and international judges has often been
- Topic: Development, Government, Politics, Law
- Political Geography: Greece
- Author: Dereje Zeleke Mekonnen
- Publication Date: 05-2010
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: The restive Nile basin which has long been identified as a flashpoint prone to conflict embarked on a new path of cooperation with the launching of the Nile Basin Initiative (NBI). Anchored in a Shared Vision 'to achieve sustainable socio-economic development through the equitable utilization of, and benefits from, the common Nile Basin water resources', the NBI has provided a convenient forum for the negotiation of a Cooperative Framework Agreement (CFA) to set up a permanent, inclusive legal and institutional framework. Negotiation of the CFA has, however, faced a serious impasse as a result of the introduction of the concept of 'water security'. The introduction of this non-legal, indeterminate, and potentially disruptive concept is, indeed, a regrettable detour to a virtual blind-alley. The justifications for this fateful decision are totally unfounded and specious. The decision rather makes sense as an unwarranted move pushing into further obscurity the already intractable Nile waters question, at best, and a logical cul-de-sac in the decade-long negotiations which have arguably fallen prey to the hegemonic compliance-producing mechanism of 'securitization' sneaked in under the veil of 'water security', at worst. Resolution of the Nile waters question should thus first be extricated from the morass of 'water security' and then be sought nowhere but within the framework of international water law.
- Topic: Development
- Political Geography: Europe
- Author: Luigi Condorelli
- Publication Date: 02-2010
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: The author presents various critical comments on several developments of international law in fields which have been particularly studied and practised by Antonio Cassese. Some final reflections focus on the question whether international lawyers can realistically cherish feelings of optimism as to the development of international law in a humane direction, or whether instead the study of the past and the present ought not rather to impel one towards disillusioned pessimism.
- Topic: Development, International Law
- Author: Christian J. Tams
- Publication Date: 04-2009
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: Whether states can use force against terrorists based in another country is much discussed. The relevant provisions of the UN Charter do not provide a conclusive answer, but have to be interpreted. The present article suggests that in the course of the last two decades, the Charter regime has been re-adjusted, so as to permit forcible responses to terrorism under more lenient conditions. In order to illustrate developments, it juxtaposes international law as of 1989 to the present state of the law. It argues that the restrictive approach to anti-terrorist force obtaining 20 years ago has come under strain. As far as collective responses are concerned, it is no longer disputed that the Security Council could authorize the use of force against terrorists; however, it has so far refrained from doing so. More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.
- Topic: Security, Development, International Law, Terrorism, United Nations
- Author: Tullio Treves
- Publication Date: 04-2009
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: Attacks against ships off the coast of Somalia have brought piracy to the forefront of international attention, including that of the Security Council. SC Resolution 1816 of 2008 and others broaden the scope of the existing narrow international law rules on piracy, especially authorizing certain states to enter the Somali territorial waters in a manner consistent with action permitted on the high seas. SC resolutions are framed very cautiously and, in particular, note that they 'shall not be considered as establishing customary law'. They are adopted on the basis of the Somali Transitional Government's (TFG) authorization. Although such authorization seems unnecessary for resolutions adopted under Chapter VII, there are various reasons for this, among which to avoid discussions concerning the width of the Somali territorial sea. Seizing states are reluctant to exercise the powers on captured pirates granted by UNCLOS and SC resolutions. Their main concern is the human rights of the captured individuals. Agreements with Kenya by the USA, the UK, and the EC seek to ensure respect for the human rights of these individuals surrendered to Kenya for prosecution. Action against pirates in many cases involves the use of force. Practice shows that the navies involved limit such use to self-defence. Use of force against pirates off the coast of Somalia seems authorized as an exception to the exclusive rights of the flag state, with the limitation that it be reasonable and necessary and that the human rights of the persons involved are safeguarded.
- Topic: Security, Development, Government, Human Rights
- Political Geography: Kenya, United States, United Kingdom, Somalia
- Author: Ramin Moschtaghi
- Publication Date: 04-2009
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: The book is a collection of essays contributing to comparative studies on the constitutional systems of Middle Eastern countries, with particular reference to Afghanistan, Iran, Iraq, and Turkey. While the first four essays – by Darling, Arjomand, Brown, and Mayer – provide a comparative and general analysis of their respective topics, the last four essays – by Shambayat, Bilgin, Rubin, and Arato – are country case studies. The authors are mostly scholars of political and social science; Linda Darling is a historian and Ann Elizabeth Mayer is the sole lawyer among the authors. The impressive list of authors includes internationally recognized experts. Although there are a number of publications on the constitutional law of most of the individual states examined here, the unique feature of this book is that it is one of the first, or even the first, which describes the constitutional development in a large variety of Islamic, Middle Eastern countries in a broad comparative perspective, highlighting peculiarities, similarities, and problems of the different legal systems.
- Topic: Development
- Political Geography: Afghanistan, Iraq, Iran, Turkey, Middle East
- Author: Ole Kristian Fauchald
- Publication Date: 04-2008
- Content Type: Journal Article
- Journal: European Journal of International Law
- Institution: European Journal of International Law
- Abstract: This empirical analysis of the use of interpretive arguments by ad hoc tribunals of the International Centre for the Settlement of Investment Disputes covers almost 100 cases decided during the past 10 years. The cases are analysed with a view to determining which arguments the tribunals use and how the arguments are used in light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The analysis provides a basis for addressing the extent to which ICSID tribunals contribute to creating a predictable legal framework in which the interests of investors, states, and third parties are taken properly into account; the extent to which ICSID tribunals contribute to a coherent development of international investment law; and whether ICSID tribunals contribute to a 'fragmentation' of international law. Despite ICSID tribunals being ad hoc tribunals that solve legal disputes on the basis of heterogeneous legal sources, the article indicates that there is a tendency among ICSID tribunals to contribute to a homogeneous development of the methodology of international law. Nevertheless, the article concludes that ICSID tribunals could do significantly more to align their approaches to interpretive arguments with those of other international tribunals.
- Topic: Development, Law
- Political Geography: Vienna