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  • Author: Birgit Schlutter
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jürgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the 'founding principles of the polity' and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe.
  • Topic: Law
  • Political Geography: Europe, Lisbon
  • Author: Daphné Richemond-Barak
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the intersection between the private security and military industry and the emerging framework of global administrative law ('GAL'). I explore in this article one aspect of this intersection, namely the use of GAL to create a taxonomy of the industry's regulatory schemes. The industry is characterized by a fragmented and decentralized regulatory framework, which has yet to be presented in a complete and orderly fashion. This article fills the gap by applying GAL's methodology to the private security and military industry. Using the industry as a case study in GAL, I identify (1) international formal administration (the United Nations Working Group on Mercenaries); (2) distributed domestic administration (contract and domestic legislation); (3) hybrid modes of administration (multi-stakeholder initiatives); and (4) private modes of administration (industry associations and codes of conduct). By emphasizing – but not limiting itself to – hybrid and private modes of administration, this article describes what is an increasingly complex manifestation of global governance. Its purpose is to highlight GAL's potential in understanding and contending with the growth of the private security and military industry.
  • Topic: War, Law
  • Political Geography: Africa, United Nations
  • Author: Luigi Crema
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article looks to the first formulations of 'restrictive interpretation' to identify with precision the content and meaning of this rule. First Vattel affirmed that odious clauses should be interpreted restrictively. Then, under the Permanent Court and the first decades of the ICJ, a restrictive interpretation emerged in favour of state sovereignty. Later, with the approval of the Vienna Convention on the Law of Treaties in 1969, the interpretation favourable to state sovereignty was abandoned in favour of an alleged neutral way of interpreting treaties. However, a new restrictive interpretation (of sovereignty) was established, as an expression of the new values emerging in international law. This interpretation was obtained by means of the application of the Vienna Convention on the Law of Treaties, an explicit argument, and Latin maxims. Through a parallel analysis of jurisdictions which hear claims between private parties and states, such as the Strasbourg and the San José Courts, and the ICSID arbitrations, the article reaches the conclusion that this mode of interpretation reveals some inconsistencies. It concludes, however, that international law already has the means to address these issues.
  • Topic: Law
  • Author: Kenneth Anderson
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even 'crowded' other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.
  • Topic: United Nations, Law
  • Author: Erich Vranes
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A series of books and an even greater number of articles have examined, over the last 10 – 15 years, the interplay between WTO law and non-economic concerns, in particular those pertaining to environmental protection. Many of these works have focused inter alia on one particularly difficult issue: the question whether a WTO Member may restrict imports of goods which stem from production and processing methods which do not leave physically detectable traces on the products (so-called non-product-related process and production methods or NPR PPMs). A well-known example is the famous case of shrimp caught with devices which endanger sea turtles: such a method will not normally be physically detectable in the final product (shrimp) when it is imported into another country. Another example is products stemming from conditions of production which are perceived, by importing countries, as inhumane or otherwise problematic. Such measures are highly controversial from a legal perspective, given that some exporting countries tend to take the view that production conditions which do not affect the quality of the exported product are 'of no concern' to importing countries, so that WTO Members may not prohibit their importation. In academic writings, a series of divergent views have been taken on this issue; thus, it has repeatedly been held for example that such measures need to be justified under the GATT; moreover, it has been contended that justification may even be impossible in respect of such measures.
  • Topic: World Trade Organization, Law
  • Author: Dimitry Kochenov
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: When you are on the subway in New York, it is difficult not to notice numerous Spanish language information posters about equality and non-discrimination, such as 'Housing discrimination on the basis of sex, race, ethnic origin… is unlawful'. They not only state the law: a telephone number in the corner informs you of where to call to make sure that if you are the victim of discrimination, help is available. Have you seen such posters in a Romani language in the Prague metro? Or in Arabic on the trains around Rotterdam?
  • Topic: Law
  • Political Geography: New York, Europe
  • Author: Benedict Kingsbury
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: What constitutes 'law' in the efflorescent field of 'global administrative law'? This article argues for a 'social fact' conception of law, emphasizing sources and recognition criteria, but it extends this Hartian positivism to incorporate requirements of 'publicness' in law. 'Publicness' is immanent in public law in national democratic jurisprudence, and increasingly in global governance, where it applies to public entities rather than to identifiable global publics. Principles relevant to publicness include the entity's adherence to legality, rationality, proportionality, rule of law, and some human rights. This article traces the growing use of publicness criteria in practices of judicial-type review of the acts of global governance entities, in requirements of reason-giving, and in practices concerning publicity and transparency. Adherence to requirements of publicness becomes greater, the less the entity is able to rely on firmly established sources of law and legal recognition. 'Private ordering' comes within this concept of law only through engagement with public institutions. While there is no single unifying rule of recognition covering all of GAL, there is a workable concept of law in GAL.
  • Topic: Governance, Law
  • Author: Martin A. Schain
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Scholars have argued that the dynamics of immigration control have changed. Unlike previous waves of immigration which were controlled by national law and administration, this wave would be more difficult to control. Because of the constraints imposed by international agreements, international institutions, and national judicial authorities, controls would be embedded in international institutions and law that were assumed to be inclined to be less restrictive than national institutions and law. Looking at these patterns over the past 20 years, it now appears that international constraints on immigration control have been highly exaggerated. Indeed, international relations have become an important context for understanding the enhanced ability of states to control immigration, and to develop more muscular policies for integration. For this reason, international constraints may be less important for understanding the development of immigration policy than neo-nationalism, enhanced through intergovernmental relations in the international system. Therefore, what began as a scholarly discussion of the limits on restrictionist policies because of international constraints has developed into a discussion of the use of international relations to strengthen the effectiveness of restrictionist policies.
  • Topic: Law
  • 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
  • Author: Marcello Di Filippo
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Notwithstanding the emphasis placed on the need for concerted international action to confront the problem of terrorism, positive international law is far from treating the issue of defining the criminal notion of terrorism coherently; the discussion of such a notion is being made hostage [sic!] to the abuse of the term 'terrorism' in the course of the debate and to the confusion between an empirical description of a phenomenon and its treatment under criminal law. Proposing a core-definition approach, this article elaborates a notion based upon the basic rights of civilians and on the unacceptability of their violation by terrorist methods carried out by private organized groups. The definition proposed here, which does not recognize in the perpetrator's motivations any material relevance because of the overwhelming importance of the value infringed, is able to minimize the relevance of some abused arguments (such as state terrorism or the treatment of 'freedom fighters'), could quickly gain customary status and would prove useful in interpretation and in drafting exercises, both at international and national level. As for the inclusion of terrorism in the category of international crimes, it is submitted that two interpretive options are open: to consider the category of crimes against humanity as already able to embrace core terrorism; or to place the strong rationale underlying the stigmatization of terrorist crimes in the perspective of the gradual emerging of a discrete international crime of terrorism. National case law seems to point to the latter option, but the question does not appear settled: for this reason, the discussion regarding the prospect of an amendment to the ICC Statute expressly to include terrorist crimes continues to be of interest. An express inclusion could be useful to avoid doubts or discrepancies at national level and to solve some outstanding issues of the international community's criminal policy.
  • Topic: International Cooperation, Terrorism, Law