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  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I can think of no 'happy ending' scenario to this unfolding saga: like malaria, it is a malaise that has nested since British accession back in 1973, and erupts from time to time, though the current eruption is potentially of fatal proportions.
  • Author: Jan Klabbers
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article discusses the ongoing transformation of international organizations law. It first provides an overview (an anatomy) of the paradigmatic theory concerning the law of international organizations: the theory of functionalism. Subsequently, it investigates how functionalism came about and how, from the 1960s onwards, its flaws increasingly became visible. The argument, in a nutshell, is that functionalism, as a theory concerned with relations between international organizations and their member states, has little or nothing to say about the effects of international organizations on third parties – non-member states, individuals and others. Moreover, it is often applied to entities that can hardly be deemed 'functional' in accordance with the theory. All of this is increasingly viewed as problematic and forces functionalism to adapt. Whether it can do so is questionable, though, since some of its problems are structural rather than contingent. Things are illustrated by the invocation of the United Nations's possible responsibility for causing (or failing to prevent) the outbreak of cholera in Haiti.
  • Author: Janina Dill
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article introduces three ways in which a state at war can attempt to accommodate the often contradictory demands of military necessity and humanitarianism – three 'logics' of waging war. The logics of sufficiency, efficiency and moral liability differently distribute the harm and destruction that waging war inevitably causes. International law demands belligerents follow the logic of sufficiency. Contemporary strategic imperatives, to the contrary, put a premium on waging war efficiently. Cross-culturally shared expectations of proper state conduct, however, mean killing in war ought to fit the logic of moral liability. The latter proves entirely impracticable. Hence, a belligerent faces a choice: (i) renounce the right and capacity to use large-scale collective force in order to meet public expectations of morally appropriate state conduct (logic of liability); (ii) defy those expectations as well as international law and follow strategic imperatives (logic of efficiency) and (iii) follow international law (logic of sufficiency), which is inefficient and will be perceived as illegitimate. This is the 21st-century belligerent's trilemma.
  • Topic: International Law
  • Author: Amanda Alexander
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article questions the conventional histories of international humanitarian law, which view international humanitarian law as the heir to a long continuum of codes of warfare. It demonstrates instead that the term international humanitarian law first appeared in the 1970s, as the product of work done by various actors pursuing different ends. The new idea of an international humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions. Nevertheless, many of the provisions of the Protocols remained vague and contested, and their status, together with the humanitarian vision of the law they outlined, was uncertain for some time. It was only at the end of the 20th century that international lawyers, following the lead of human rights organizations, declared Additional Protocol I to be authoritative and the law of war to be truly humanitarian. As such, this article concludes that international humanitarian law is not simply an ahistorical code, managed by states and promoted by the International Committee of the Red Cross. Rather, it is a relatively new and historically contingent field that has been created, shaped and dramatically reinterpreted by a variety of actors, both traditional and unconventional.
  • Topic: International Law
  • Political Geography: Geneva
  • Author: Bart L. Smit Duijzentkunst
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: When a peace process involves contention over land boundaries, parties may consent to resolve their dispute through arbitration. Yet while tribunals resolve disputes on paper, their awards often fail to bring peace in practice. Initial consent to arbitration does not guarantee a successful outcome: once granted, consent can wax and wane, it can be delivered under duress and it can be withdrawn as fast as it is given. This article explores the consent management dynamics that shape – and are shaped by – the arbitral process. Drawing on scholarship from peacekeeping and relational contract theory, it develops a model that explains why consent to arbitration differs from consent to a peace process. It then applies the model to examine strategies that tribunals have used to bridge this gap. Case studies involving the Brčko District in Bosnia and Herzegovina, the Eritrea–Ethiopia Boundary Commission and the Abyei arbitration demonstrate how arbitrators manipulate procedural and substantive law to maintain consent. The three cases also offer insights into the varying success of consent management strategies. The article plots these cases onto the model to draw lessons for future arbitrations on the basis of one simple but crucial question: 'Who should consent to what?'
  • Political Geography: Ethiopia
  • Author: Ulf Linderfalk
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Although treaty interpretation is undoubtedly an activity governed by international law, and by Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties (VCLT) in particular, some commentators continue repeating the pre-Vienna adage that treaty interpretation is a matter of art and not science, the implication of which is that no understanding of a treaty provision can ever be explained rationally. As the present article argues, this idea of interpretation must be rejected. While, sometimes, an assumed meaning of a treaty cannot be justified based on international law simpliciter, many times it can still be explained based on the structural framework of Articles 31–33 of the VCLT. Consequently, any characterization of treaty interpretation in the abstract as either art or science is misplaced. Whether treaty interpretation is an art or a science remains a question of fact inextricably tied to the approach taken by each and every law-applying agent in particular cases.
  • Topic: International Law
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world.
  • Political Geography: France
  • Author: Stéphanie Hennette Vauchez
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Building on the heightened attention that the optic of judicial selection receives in the world of international courts, this article focuses its attention on one particular criterion that is gaining in importance in that respect: gender. By choosing the European Court of Human Rights as a case in point, the article provides a unique analysis of the history of the 2004 Resolution of the Council of Europe's parliamentary assembly that formulated a rule of gender balance on the list of candidates presented by states for the post of judge at the Court. It first unearths the dynamics that allowed the adoption of the rule as well as all of the fierce opposition it triggered as well as the ways in which counter-mobilization eventually prevailed and watered down the initial rule, with the help of states, the Committee of Ministers and the Court itself (which delivered its first advisory opinion on the topic in 2008). It then looks beyond the static analysis of the rule as a mere constraint and addresses in a more dynamic fashion the multiple interpretations, strategies and, ultimately, politics it opens up. By providing a unique qualitative, comparative and exhaustive analysis of the curriculum vitae of all the 120-odd women who were ever listed as candidates to the Strasbourg judicial bench (1959–2012), the article delivers original data and analyses both the features that women candidates put forth when listed for the job and the strategies of states with regard to the gender criterion. It concludes that while there is a strong proportion of candidates that support the notion that states do not differentiate according to gender or require different qualities from men and women candidates, there is a comparable proposition that contrarily indicates that the world of international judicial appointments is far from gender neutral.
  • Topic: Human Rights, Politics
  • Political Geography: Europe
  • Author: Françoise Tulkens
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Having spent almost 14 years as a judge at the European Court of Human Rights, the author responds to and shares the critical view expressed by Hennette Vauchez in her article on the presence of women judges at the European Court of Human Rights. Some steps forward have admittedly been made through the voluntary action of the Council of Europe Parliamentary Assembly, but there has also been resistance in the implementation of these new rules. The gains are fragile and there are risks of regression. This situation confirms Kenney's analysis: women's progress is not natural, inevitable nor irreversible. A reaction is all the more necessary and urgent since, in the coming months of 2015 and subsequently, many elections of judges to the Court will take place, due in particular to the non-renewable nine-year term of office of judges introduced by Protocol No. 14 to the European Convention on Human Rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Fionnuala Ní Aoláin
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article responds to a thoughtful intervention by Stéphanie Hennette Vauchez documenting the selection process for women seeking judicial appointment to the European Court of Human Rights. Written in the context of the author's experience as candidate for appointment to the Court, the analysis concentrates on the gendered dimensions of international institutional cultures, habits and practices that frame selection to judicial office as much as any formally applicable rules. I explore the ways in which ostensible access to international judicial bodies conceals the manifold ways in which Courts are coded masculine, and how female candidacy requires careful deliberation on performance, presentation and identity. Drawing on 'new institutionalism' theory, I underscore that female presence alone rarely undoes embedded institutional practices. Rather, transforming institutional practices and values must parallel female presence, thereby redefining the institution and the forms of power it exercises. The article concludes by reflecting on the importance of feminist judging, and argues that it is precisely the transformative political and legal changes sought by self-defined feminists that may stand the best chance of undoing the structures, habits and practices that continue to exclude women from being appointed and from engaging on terms of full equality when they arrive.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Paolo Lobba
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Litigation concerning domestic restrictions on Holocaust denial has produced a 30-year-long jurisprudence of the European Court and European Commission of Human Rights. In spite of solemnly declared principles on free speech, the Strasbourg organs have progressively developed an exceptional regime in this regard based on the 'abuse clause' envisaged under Article 17. Had this detrimental treatment remained confined to its original sphere, it could have perhaps been considered as a negligible issue. However, the scope of the abuse clause was extended to encompass a growing class of utterances, including the denial of historical facts other than the Nazi genocide. This piece begins by examining the Strasbourg case law on Holocaust denial, with a view to enucleating the effects, scope and conditions of applicability of the special regime based upon Article 17. Once the shortcomings implied by this detrimental discipline have been exposed, it shall be argued that all expressions should be dealt with under the ordinary necessity test, in which the abuse clause ought to operate as an interpretative principle. In the alternative, and as a minimum, the Court should pay due regard to the political and social context of the country where restrictions on free speech were enforced, setting aside the uniquely harsh treatment reserved for Holocaust denial.
  • Topic: Genocide, Human Rights
  • Political Geography: Europe
  • Author: Helmut Philipp Aust
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Cities are beginning to assert themselves as internationally relevant actors. This is particularly noticeable in the climate change context. This development has so far not been accorded a great deal of attention by international lawyers. The review essay discusses four new books by political scientists which offer us a closer look at the political dimension of 'global cities', a term originally coined by sociologist Saskia Sassen. The four books under review as well as this essay pay particular attention to the C40 association – a movement of self-styled city leaders in climate change governance. This group of cities has developed numerous ties with international organizations and private corporations. The review essay analyses how cooperative endeavours such as C40 challenge our understanding of the relationship between the city and the state and assesses how international law as a discipline could come to terms with these developments. It is argued that international law should fulfil two functions in this regard: recognition and contestation. Whereas cities may not yet be recognized subjects of international law, they are moving closer to this illustrious circle. In any case, their law-making processes are beginning to have a significant impact on processes of global governance.
  • Topic: Climate Change, International Law, Governance
  • Author: Jochen von Bernstorff
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Global economic justice as a topic of moral philosophy and international law is back on the intellectual agenda and figures prominently in feuilletons, blogs and academic publications. A wave of recent studies by both international lawyers and moral philosophers on the dark side of economic globalization and the role of international law in this context is as such a remarkable phenomenon. The essay engages with diverging scholarly perspectives on global justice and international law as represented in the four volumes under review. Three substantive questions structure the non-comprehensive sketch of the global justice debate: (i) Is the current international economic order unjust? (ii) Can existing international legal rules and institutions be transformed or developed into a more just economic order? (iii) What is the potential role of international lawyers in this context?
  • Topic: Economics, Globalization, International Law
  • Author: Andreas Th. Müller
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Anne Peters' most recent book is an equally important and topical contribution to the international law discourse. At the core of her voluminous œuvre lies, as the subtitle indicates, the question of the 'legal status of the individual in public international law'. At the same time, the title Beyond Human Rights conveys the idea that the co-director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and former president of the European Society of International Law does not cover the subject matter in its entirety but, rather, has opted to leave aside, or rather to presuppose, the very area of international law where one would be inclined to look first for insight and inspiration, namely international human rights law. As the author acknowledges herself, international human rights are 'the pivotal and completely undisputed element of the international legal status of the individual' (at 27). In contrast, Peters' own study sets out for the more open and uncharted territory of so-called 'simple' rights and duties. It is with this peculiar perspective that the book seeks to tackle its guiding question – that is, how the phenomenon of a strongly increasing number of individual rights and duties that may be observed in contemporary international law 'can be described, systematised, and evaluated in a legally sound manner' (at 2).
  • Author: Annamaria Viterbo
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Developments over the last years have dramatically changed the field of monetary law. In the aftermath of the global financial crisis, the presence of the International Monetary Fund (IMF) in mainstream media has become constant, with international lawyers increasingly focusing on financial and monetary issues. Accordingly, international economic law studies and debates have gained a prominence unseen before. Nevertheless, in spite of the great importance the IMF has acquired, academic publications dedicated to it remain rather scarce. Therefore, the book Poteri e interventi del Fondo monetario internazionale by Giovanna Adinolfi comes at a time when an in-depth reflection on the IMF is greatly needed, thus filling a gap in academic research.
  • Author: Elaine Kellman
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Poverty and the International Economic Legal System is an edited collection of essays arising out of a conference held at the University of Basel in October 2011 with the intention of establishing a research agenda on the specific and previously under-explored relationship between poverty and international laws of trade, investment and finance. The book is divided into four parts. Following a brief introductory section in Part 1, contributions in Part 2 examine how the international laws of trade, investment, arbitration and finance impact on states' abilities to fulfil their duty to reduce poverty. Adopting a capabilities approach, Part 3 addresses the effects of international economic law on populations that are particularly susceptible to poverty or its effects, and, in Part 4, contributors take a step back to consider the key question underpinning the book – that is, whether states actually have duties to reduce poverty and, if so, what the character of such duties is. Given the breadth of the material considered, this review will focus on Parts 2 and 4.
  • Author: Andrew Guzman
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the classic novel, Frankenstein , Doctor Frankenstein creates a living creature in the hope of cheating death. The monster turns against Doctor Frankenstein and kills several people, causing the doctor to regret his decision to make the monster in the first place. When states establish an international organization (IO), they create an institution with a life of its own. In doing so, states risk the institution becoming a monster and acting contrary to their interests. In contrast to Frankenstein, however, states are aware of this risk and are able to guard against it. This article explains that much of the existing landscape of international organizations has been formed by the state response to this 'Frankenstein problem'. The effort by states to avoid creating a monster explains, among other things, why there are so many IOs, why they vary so widely in scope, and the manner in which they are permitted (and not permitted) to affect international law and international relations. The article also identifies the four types of activities that IOs are typically allowed to undertake and explains how states choose which activities to place within which organizations. In addition to providing a new analytical perspective on IOs and how states use them, the article advances the normative argument that states have been too conservative. As if they learned the lessons of Frankenstein too well, states have been reluctant to give IOs the authority necessary to make progress on important global issues. Though there is a trade-off between the preservation of state control over the international system and the creation of effective and productive IOs, states have placed far too much weight on the former and not nearly enough on the latter.
  • Political Geography: United Nations
  • Author: Gerardo Vidigal
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Among the innovations accompanying the transformation of GATT into the WTO was the remarkable strengthening of multilateral institutions. While the paradigmatic change brought about by the institutionalization of the multilateral trading system has been generally acknowledged, its impact on WTO law-making has been largely overlooked. Much of the debate has concentrated on whether and to what extent 'external' international legal rules should be taken into account by WTO adjudicators. An analysis of the WTO jurisprudence, however, evidences a different approach. The interpretation (and, to some extent, modification) of WTO rules depends not on the bilateral relations between the parties to a particular dispute, which may affect the application as between them of the multilateral rules, but on the establishment – through subsequent agreement, subsequent practice, or broader normative evolution – of a 'common understanding' of the membership. Once established, a new interpretation is not limited to the context of a particular dispute, but affects the WTO rights and obligations of all members. As a result, the bilateral logic that ordinarily determines legal relations between states based on individual consent gives way to a multilateral logic, which allows a degree of normative change while preserving the integrity of the WTO legal system.
  • Author: Marko Milanovic, Linos-Alexander Sicilianos
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This Symposium examines the International Law Commission's work on reservations, specifically its recently completed Guide to Practice on Reservations to Treaties. The topic is very technical and the Guide itself gigantic, standing, together with its commentaries, at over 600 pages. The topic of reservations to treaties has been on the ILC's agenda since 1993; its Special Rapporteur, Professor Alain Pellet, produced 17 reports with many addenda and annexes. The ILC's work was so seemingly endless that it inspired (gentle and good-natured) parody. But now it has indeed come to an end. It needs to be assessed, and the purpose of this Symposium is to initiate that debate.
  • Topic: International Law
  • Author: Alain Pellet
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The purpose of this article is to revisit the long saga of the ILC Guide to Practice on Reservations to Treaties, as the Special Rapporteur has lived it for nearly 18 years and 16 reports. In its first part, the article recounts the elaboration procedure, pointing in particular to the elements of innovation and flexibility introduced in the process. The main one is the very type of instrument adopted, namely a Guide to Practice, and not a set of draft Articles that would eventually become a convention. In the second part, the main issues having retained the attention of the ILC, as well as of the other international bodies and of the academic community, are briefly recalled: the question of the unity or diversity of regimes, the permissibility of reservation and the status of the author of an impermissible reservation were among the most debated issues. Finally, the article explains the structure of the Guide to Practice.
  • Topic: International Law