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  • Author: André Nollkaemper
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article assesses how, 50 years after the ECJ delivered its judgment in Van Gend en Loos (VGL), the doctrine of direct effect of international law has fared outside the European Union. While obviously the core of VGL (that is, that it is EU law, not national law, which requires direct effect) is not replicated anywhere else in the world, the courts of a considerable number of states have been able to give direct effect to international law. Against the background of an exceedingly heterogeneous practice, this article argues that the concept of direct effect is characterized by a fundamental duality. Direct effect may function as a powerful sword that courts can use to pierce the boundary of the national legal order and protect individual rights where national law falls short. But more often than not, the conditions of direct effect legitimize the non-application of international law and shield the national legal order from international law. International law provides support for both functions. But above all, it defers the choice between these functions to national courts. The practice of direct effect of international law exposes how national courts play a critical political function at the intersection of legal orders.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Morten Rasmussen
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This is the abstract only. The full article is published in Int J Constitutional Law (2014) 12 (1): 136–163 doi:10.1093/icon/mou006 Did the famous Van Gend en Loos judgment constitute a breakthrough for a constitutional practise in European law or was it merely drawing the logical legal consequences of earlier case law and of the Treaties of Rome? Based on comprehensive archival studies, this article argues that neither earlier case law nor the Treaties of Rome can fully account for the judgment. Instead, Van Gend en Loos represented a genuine revolution in European law. Prompted by the legal service of the European Commission, the European Court of Justice (ECJ) took a decisive step towards addressing two major problems of international public law, namely the lack of uniform application of European law by national courts across the six member states and the lack of primacy granted to international law in several member states. The judgment was based on a new teleological and constitutional understanding of the Treaties of Rome developed by the legal service, and took the first step towards establishing an alternative enforcement system. The ECJ would already in 1964 take the second step by introducing primacy in the Costa v. E.N.E.L. judgment. The new enforcement system remained highly fragile, however, due to the dependency on the cooperation of national courts through the preliminary reference system. As a result, the full effects of the Van Gend en Loos judgment were only felt after the Single European Act (1986) pushed reluctant national governments and courts to finally come to terms with the legal order the ECJ had developed.
  • Topic: Government, Law
  • Political Geography: Europe
  • Author: Francesca Martines
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Van Gend en Loos (VGL) decision established the conceptual premises of a crucial issue to shape the relationships between the European Union and international law: the function of direct effect as a powerful instrument to guarantee that the rules of one system are complied with in another legal order. However, if compared with direct effect of EU legal rules, the issue of the effects of EU international agreements is made more complicated by the combination of the more traditional question of the self-executing character of international agreement provisions and the narrow meaning of direct effect. The former issue, strongly affected by the technique of incorporation and the rank of international law obligations within the incorporating legal order, goes to the heart of the constitutional architecture of the EU legal order where a balance is to be found between the obligation to comply with international law and the integrity of the EU legal order. The latter notion concerns instead the relationship between the private person and the legal rule and defines the special character of the EU which distinguishes it from international law. Since such a quality of EU rules cannot be automatically applied to international law rules incorporated in the EU legal order it must be verified case by case. This is the reason why, for the present author, the double test approach, first applied by the ECJ in VGL, is the right test to determine direct effect of EU international agreements, but cannot be applied to verify the self-executing effect of international law in the traditional (broader) meaning.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Sophie Robin-Olivier
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of ('direct effect') EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, 'Revisiting Van Gend en Loos' leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).
  • Topic: Law
  • Political Geography: Europe
  • Author: Hélène Ruiz Fabri
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: WTO law does not require its direct effect in domestic legal orders. Whilst the stances taken in these are diverse, showing that direct effect is not denied on the whole to WTO law, all the major trading members of the WTO deny it. The fact that, in a case where a WTO member does not comply and is targeted by trade sanctions, the economic actors who in practice bear the burden of these sanctions are deprived of any recourse, may be considered unfair enough to question again the denial of direct effect. The analysis focuses notably on the EU where the debate has expanded more than anywhere else and concludes that direct effect should, even in the name of fairness or justice, be handled with caution.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Jan Komarek
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This essay argues, contrary to the widespread beliefs that prevailed after 1989, that the experience of post-communist countries and their peoples, both before and after 1989, can bring something new to our understanding of Europe's present predicament: sometimes as an inspiration, sometimes as a cautionary tale. The lessons offered by post-communist Europe concern some deeply held convictions about the very nature of the EU and its constitutional structure. Only if this experience is absorbed in Europe as its own will post-communist countries truly return to Europe – and Europe become united. The cautionary tales of post-communist Europe concern the worrying consequences of the suppression of social conflicts 'in the name of Europe'. Such conflicts often get translated into identitary politics, which in the context of European integration often turn against the Union. The second lesson concerns the ill fate of Havel's existential revolution. The attempts of some European constitutionalists to reform individualistic emphasis of the integration project are problematic for the same reason: they turn attention away from politics, where real solutions need to be found. This relates to the third suggestion made here: that the experience of living in a collective dream of socialism can be used as an inspiration rather than as something that needs to be erased from the collective memory of Europe.
  • Political Geography: Europe
  • Publication Date: 02-2014
  • 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 patholo-gies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our schol-arly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photo-graph: people shot up; the ravages of pollution and all other manner of photojournalism. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photo-graphs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring.
  • Political Geography: Europe
  • Author: Alina Mungiu-Pippidi, Dia Anagnostou
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Over the past couple of years, international law and international relations scholarship has shifted its focus from the question of whether human rights treaties bring any state-level improvements at all to investigations in the domestic context of the factors and dynamics influencing state compliance. In this direction, and focusing on the European Court of Human Rights, this study inquires into the factors that account for variable patterns of state compliance with its judgments. Why do national authorities in some states adopt a more prompt and responsive attitude in implementing these judgments, in contrast to other states that procrastinate or respond reluctantly? On the basis of a large-N study of the Strasbourg Court's judgments and a comparison across nine states, this article argues that variation in state implementation performance is closely linked to the overall legal infrastructure capacity and government effectiveness of a state. When such capacity and effectiveness are high and diffused, the adverse judgments of the Strasbourg Court are unlikely to be obstructed or ignored, even when the government, political elites, or other actors are reluctant and not in favour of substantive remedies.
  • Topic: International Relations, International Law
  • Political Geography: Europe
  • Author: Erik Voeten
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article responds to the valuable contribution by Dia Anagnostou and Alina Mungiu- Pippidi in which they analyse how nine countries implemented European Court of Human Rights judgments that found violations of Articles 8–11 of the European Convention on Human Rights. Their conclusion that capacity plays an important role in the implementation of ECtHR judgments is certainly correct. In this short response, I highlight various aspects of the authors' analysis where they make problematic choices with regard to data and statistical methods. First, I describe and use a more comprehensive dataset that allows us to reach more generalizable conclusions. Secondly, I show how survival analysis is a more appropriate framework than logit or linear regression for analysing these data. Thirdly, I argue that the difficulty of the implementation task needs to be accounted for in any analysis of cross-country variation in implementation. My re-analysis shows that low capacity countries attract judgments that are more difficult to implement. The analysis also uncovers a subtle relationship between time, institutional capacity, and checks and balances. High capacity helps willing politicians to implement judgments quickly. Yet, among judgments that have been pending longer, countries with higher capacity are no quicker to implement than lower capacity countries. By contrast, checks and balances initially slow down implementation but help to eventually ensure begrudging implementation.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Alexandra Kemmerer
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As usual, international law comes in late. It was already in the golden years of new world orders and geopolitical shifts after the end of the Cold War that historiography began its global turn. Of course, there had been pioneers and path-breakers before, but it was only in the 1990s that an ambiance of globalization and trans-nationalization triggered new approaches on a larger scale. An actual experience of political, economic and cultural interconnectedness put historiographical emphasis on transfers, networks, connections and cooperation, on transformation and translation.Historical analysis was called to overcome not only the boundaries of the nation-state, but also the limitations of material and epistemic Eurocentrism in its various forms. During the past decade, there has been a growing interest in global histories in many parts of the world.
  • Topic: International Law
  • Political Geography: Africa, Europe