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  • Author: Ryan Goodman, Derek Jinks
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In earlier work, we argue that acculturation is a distinct social process by which international law influences states and that human rights law might harness this mechanism in designing effective global regimes. In this article, we consider an important objection to our work. The concern is whether acculturation institutionalizes non-compliance. The growing body of empirical evidence for global-level acculturation, in part, documents persistent forms of decoupling - suggesting that formal commitments to global culture often fail to change concrete practices of local actors. In the human rights context, this is particularly troubling, given the prevalence of seemingly disingenuous acceptance of human rights instruments by states with poor human rights records. Many critics suggest, and understandably so, that acculturation should not guide the design of international human rights regimes since any such regime would promote only shallow reforms - further entrenching the gap between formal commitments and actual practices. The problem with human rights law, on this view, is that it is under-enforced - not that it is insufficiently acculturative. In reply, we argue that acculturation generally does not impede progress toward deeper reform and, indeed, will often facilitate it.
  • Author: Stephen Gardbaum
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Universal Declaration was, of course, the first of the three global international human rights instruments which have collectively come to be known as the International Bill of Rights. Very often, however, this latter term appears within quotation marks or is prefaced by the qualifying phrase, 'so-called', signalling that there are serious, although mostly unexplored, questions about the validity of the implied comparison with domestic bills of rights. In this article, I treat the anniversary as an occasion to take stock by exploring these questions and making the comparison express. I do so by considering the two parts of the term separately. First, regarding 'bill of rights', what are the similarities and differences between the UDHR, ICCPR, and ICESCR on the one hand and domestic bills of rights on the other? In particular, to what extent or in what sense, if any, has international human rights law become constitutionalized and, thereby, similar and closer to most domestic bills of rights? Secondly, regarding 'international', do the major international human rights instruments simply duplicate domestic bills of rights or provide a generally inferior substitute for them where unavailable - as a certain strand of human rights scepticism suggests? Or do they perform any distinctive functions over and above domestic bills of rights that make a novel and unique contribution to the development of constitutionalism?
  • Author: Ernst-Ulrich Petersmann
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to J. Rawls, 'in a constitutional regime with judicial review, public reason is the reason of its supreme court'; it is of constitutional importance for the 'overlapping, constitutional consensus' necessary for a stable and just society among free, equal, and rational citizens who tend to be deeply divided by conflicting moral, religious, and philosophical doctrines. The European Court of Justice (ECJ), the European Court of Human Rights (ECtHR), and the European Free Trade Area (EFTA) Court successfully transformed the intergovernmental European Community (EC) treaties and the European Convention on Human Rights (ECHR) into constitutional orders founded on respect for human rights. Their 'judicial constitutionalization' of intergovernmental treaty regimes was accepted by citizens, national courts, parliaments, and governments because the judicial 'European public reason' protected more effectively individual rights and European 'public goods' (like the EC's common market). The 'Solange method' of cooperation among European courts 'as long as' constitutional rights are adequately protected reflects an 'overlapping constitutional consensus' on the need for 'constitutional justice' in European law. The power-oriented rationality of governments interested in limiting their judicial accountability is increasingly challenged also in worldwide dispute settlement practices. Judicial interpretation of intergovernmental rules as protecting also individual rights may be justifiable notably in citizen-driven areas of international economic law protecting mutually beneficial cooperation among citizens and individual rights (e.g. of access to courts). Multilevel economic, environmental, and human rights governance can become more reasonable and more effective if national and international courts cooperate in protecting the rule of international law for the benefit of citizens (as 'democratic principals' of governments) with due regard for human rights and their constitutional concretization in national and international legal systems.
  • Topic: Government
  • Political Geography: Europe
  • Author: Thomas Schultz
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.
  • Topic: International Law
  • Author: Ivana Radacic
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Court of Human Rights has recently proclaimed gender equality as one of the key underlying principles of the Convention. However, the Court's jurisprudence has been largely impotent in challenging gender discrimination in the member states. This article explores the reasons why this is so by analysing Article 14 sex discrimination jurisprudence and the application of the principle of gender equality in the 'Islamic headscarf' cases. The author argues that reasons lie in the Court's formalistic conceptualization of discrimination, and simplistic and paternalistic understanding of gender equality, which is insensitive to intersectionality of discrimination. The author proposes an understanding of gender equality as challenging (multiple and intersectional) forms of disadvantage. Under this approach, the question in equality jurisprudence would not be whether there was unjustified differential treatment, but rather whether the law or practice at issue perpetuated or produced subordination of women (as defined by other identity characteristics) and unequal gender (and other) relations.
  • Political Geography: Europe
486. Editorial
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Just like the Supreme Court's decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ's decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals, Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There, the gallows; chez nous, liberty. Happy Ending.
  • Topic: Human Rights
  • Political Geography: America
487. Preface
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this issue we bring to conclusion our effort, spread over the year, to mark the 60th Anniversary of the Universal Declaration of Human Rights. We already announced that we will not be attempting a synthetic retrospective of the 'life and times' of the Declaration. Instead, in this Finale we invited Jochen von Bernstorff to reflect not on the Declaration as such but on its reception in the literature – A Discourse on Discourse. 'The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law' is the illuminating result of this reflection.
  • Author: Jochen von Bernstorff
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article explores the genesis of the Universal Declaration of Human Rights and the turn to rights in international law. To this end, it focuses on how international lawyers have received the Declaration in their contemporary doctrinal and political contexts. The fact that the political and moral importance of the Declaration from the very beginning outweighed its concrete legal significance invited intriguing scholarly reflections on the symbolic dimension of the document. Despite early sceptical voices about its legal and moral value, international lawyers welcomed and reaffirmed its significance during the 1960s and 1970s. While attention turned to human rights treaty law in the 1980s, the Declaration embodied the hope for a new era of human rights protection after the end of the Cold War. Throughout the 1990s a new scholarly defence of the universal character of the Declaration could be observed, later being accompanied by new insecurity and soul-searching in the face of institutional limitations. In general, the Declaration became synonymous with the turn to individual rights in international law, and whenever there was a sense of crisis because of institutional blockades or challenged foundations, the Declaration received new and increased attention. It symbolized unity in an increasingly fragmented and contentious institutional and political environment for international human rights protection. The story of its scholarly reception is therefore also a story of the failed and perhaps unattainable attempt fully to institutionalize international human rights in a cosmopolitan legal order.
  • Topic: Cold War, Environment, Human Rights, International Law
  • Author: Mary Ann Glendon
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The topic of human rights was prominent in Pope Benedict 's address to the United Nations General Assembly in the year of the Universal Declaration's 60th anniversary. As with many of Pope Benedict's speeches, his 18 April address to the United Nations is one in which some rather complex ideas are expressed in a very condensed fashion. It is a speech that needs, as they say, to be 'unpacked'.
  • Topic: Human Rights, United Nations
  • Author: Paolo G. Carozza
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Human dignity and human rights are not lived as abstract concepts. They have tangible meaning and weight in the context and crucible of concrete human experience – history, freedom, reason, and community. This gap between universal and particular is the heart of the problem with which Christopher McCrudden's 'Human Dignity and Judicial Interpretation of Human Rights' wrestles, as well as the fulcrum of the earlier article of mine to which, in part, his work responds.
  • Topic: Human Rights
  • Author: Robert Howse
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Together with developments in international criminal justice and humanitarian law, the human rights revolution in international law has had a profound structural effect on the international legal order as a whole; we are today only beginning to discern and to digest this effect, to say nothing of the broader consequences for global politics. New actors have been empowered in the international legal system (not only individuals but various kinds of non-state collectivities as well); conceptions of responsibility have been altered; classic notions, such as territorial sovereignty and recognition of statehood, have sometimes subtly and sometimes radically been reshaped or adapted; and the balance of institutional actors charged with interpreting and applying inter-national law has shifted towards courts and tribunals (a major theme of Petersmann) and away from diplomats and their ministers.
  • Topic: Human Rights, Sovereignty, International Affairs
  • Author: Ernst-Ulrich Petersmann
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: All academics learn from discussion and criticism of their published views. Hence, I congratulated the EJIL editors, Alston in 2002 and Weiler in 2008, when they invited a response to my articles in EJIL. Following the insulting EJIL comments by Alston in 2002, this is the second time in my 37 years of academic teaching that a 'commentator' has imputed to me intoxicating views which I never expressed. Six years after the confabulations by Alston and Howse, Howse remains committed to misrepresenting rather than discussing my legal arguments. Clarifying, in fewer than 2,500 words, the reasons for this 'Alice in Wonderland non-discussion ' would have been more enlightening if my Australian and Canadian commentators had respected correct academic citation before publicly putting forth their aggressive legal phantasms. Here I want to suggest ways in which such an exchange may be more constructive.
  • Topic: Human Rights
  • Political Geography: Canada, Australia
  • Author: Francesco Francioni
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A recent survey of young Europeans' opinions of national institutions has revealed, quite surprisingly, that armed forces enjoy the highest level of trust and prestige in a number of major European countries, well above parliaments, the judiciary, the church, political parties and business enterprises. The profound motivations underlying this assessment remain unknown – one can only conjecture that they are related to the increasing sense of insecurity among young generations and perhaps with the politics of fear – fear of terrorism, of immigrants, environmental disasters, of financial doom, and of the unknown – that have become widespread at the beginning of the 21st century. What is clear, however, is that in the perception of young generations, the armed forces still embody the core function of the state as guarantor of the security of citizens within the national territory.
  • Author: Nigel D. White, Sorcha MacLeod
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Union has developed its security competence since 1992, thus putting pressure on its Member States to provide troops for the increasing number of EU peace operations being deployed to different areas of the globe. But with national militaries being rationalized and contracted the EU will inevitably follow the lead of the US, the UK, and the UN and start to use Private Military Contractors to undertake some of the functions of peace operations. This article explores the consequences of this trend from the perspective of the accountability and responsibility of both the corporation and the institution when the employees of PMCs commit violations of human rights law and, if applicable, international humanitarian law.
  • Topic: Human Rights, Humanitarian Aid
  • Political Geography: United States, United Kingdom, Europe
  • Author: Carsten Hoppe
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission's Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to pre-vent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of ' persons forming part of its armed forces ' in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory
  • Topic: Human Rights, Humanitarian Aid
  • Author: Chia Lehnardt
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article examines the present status of private military personnel under international criminal law. Perpetrators of international crimes are frequently integrated into a hierarchically structured collective, such as an army or police force. The system of order and obedience essential to the functioning of these entities, the existence of which underlies a number of principles of international criminal law, cannot be simply presumed to exist within a private military company (PMC) or between a PMC and the hiring state. As a consequence, the private nature of the company may become an issue, particularly when one considers the capacity of their personnel to commit war crimes or to incur superior or command responsibility. The article also considers problems of implementation and jurisdiction and touches briefly on the question of corporate criminal responsibility of the PMC itself. It will be argued that, in theory, international criminal law can be an efficient part of the legal regime governing the use and conduct of private military companies, although many of the legal issues discussed remain to be tested.
  • Topic: War
  • Author: Cedric Ryngaert
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: One of the main tools for ' socializing ' private military contractors (PMCs) is litigation. The threat of litigation may encourage contractors to set up their own corporate social responsibility and accountability mechanisms with a view to preventing them being hauled before courts. The article identifi es the jurisdictional opportunities and pitfalls of criminal (public law) and civil/tort (private law) litigation against PMCs in domestic courts. The focus lies on litigation for human rights abuses, with special emphasis on US proceedings, the US being the home and hiring state of the majority of PMCs active in overseas confl ict zones. It is argued that, because the chances of success of tort litigation are, in fact, rather limited in the US, given the many procedural obstacles, the criminal law avenue may prove to be more promising, if at least prosecutors show more leadership in bringing cases. Also at a deeper accountability level, criminal litigation may be preferable on the ground that criminal punishment sends a stronger accountability and deterrence signal than a mere money judgment.
  • Topic: Human Rights
  • Author: Simon Chesterman
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. The recent confi rmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain ' inherently governmental ' . The article surveys outsourcing in electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to three challenges to accountability: the necessary secrecy that limits oversight; the different incentives that exist for private rather than public employees; and the uncertainty as to what functions should be regarded as ' inherently governmental ' and thus inappropriate for delegation to private actors.
  • Topic: Government
  • Political Geography: United States
  • Author: Jean d'Aspremont
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The concept of soft law which rests on the idea that the binary nature of law is ill suited to accommodate the growing complexity of contemporary international relations has been endorsed by a large number of scholars. It has however remained under the attack of those who are commonly portrayed as positivists. Although it does not seek to rehabilitate positivism as a whole, this article will try to offer a refreshed and modernized account of the positivist objection to soft law. It will accordingly distinguish several types of softness. Such a dichotomy will help to unravel the underlying agenda of some of the staunchest supporters of the concept of soft law. The article will ultimately expound on the proneness of international legal scholars to stretch the limit of their object of study by constantly seizing materials outside the realm of international law in order to alleviate the strain inherent in the contemporary proliferation of international legal thinking.
  • Topic: International Law
  • Author: Wolfgang S. Heinz
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This volume, originally a doctoral thesis by Jeroen Gutter of Utrecht University, offers a comprehensive overview of 26 years of thematic mechanisms of the UN Commission on Human Rights. The first mechanism was the working group on enforced or involuntary disappearances in 1980, created in response to human rights violations under the military dictatorships in Argentina (1976–1983) and in Chile (1973–1980) (at 82). The volume helps to close a research lacuna as only very few authors have to date dealt in detail with the UN thematic mechanisms (e.g. Pastor Ridruejo, de Frouville, Lempinen, Rudolf and Nifosi)
  • Topic: Human Rights
  • Political Geography: Argentina, Chile