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  • Author: Jenny Stoutenburg
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The discourse on environmentally induced migration has now been going on for more than a quarter of a century. Still, to this day there exists no empirical or conceptual clarity regarding the existence and number of environmentally displaced persons, as well as the terminology and legal protection mechanisms that should be applied to them. In recent years, the focus of scholarly and institutional attention has shifted from environmentally induced migration in general to migration induced by climate change, adding further complexity to an already difficult topic. Climate change-induced migration now needs to be distinguished not only from the social, economic, and political factors compelling human movement, but also from the 'background noise' of general environmental change that might cause people to seek a livelihood elsewhere.
  • Author: Ebrahim Afsah
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There are many ways of looking at the international system, but two dichotomies stand out: there are those who believe international behaviour is primarily motivated by systemic forces and those who believe that the internal composition of the individual units dramatically affects how they act internationally, and especially that democratic polities are more peaceful and law-abiding than others. Like many essentially untestable hypotheses, the debate between these two positions has resisted a clear resolution. One of the reasons the debate has been so vicious and largely unproductive lies in its implicit reliance on the other, even less testable dichotomy in international affairs, viz. the disputed nature of man as primarily good or primarily evil, which is closely linked to the legal debate about the sources of obedience to law.
  • Author: Mary Footer
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As the 10th anniversary of the launch of the WTO multilateral trade negotiations at Doha approaches, this collection of essays serves as a painful reminder that the so-called 'Doha Devel¬opment Round' is far from concluded. It also recalls how the WTO's dispute settlement system has continued to have an important 'norm-generating function'. Nowhere is this more so than in disputes involving developing countries. In some instances developing country Members initiate formal dispute settlement proceedings at the WTO precisely to promote wider reforms of their governance and administrative structures. In others the participation of Member governments in formal dispute settlement procedures at the WTO has been supported by industry and the business sector. A few developing country governments have drawn on dialogue with local civil society organizations in bringing or defending complaints with important social implications for their citizens.
  • Author: Sungjoon Cho
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This notable book is part of an ambitious project entitled 'Max Planck Commentaries on World Trade Law'. As is widely known, the concept of commentaries originates in the civil law tradition and may be traced back to what the editors of this volume dub the 'Roman legal science' (at ix), crystallized in the Corpus Juris Civilis which Justinian I commissioned one and a half millennia ago.
  • Author: Andre Stemmet
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In an interview with BBC television on 19 March 2011, British Prime Minister David Cameron described the use of force against Libya in terms of United Nations Security Council resolution 1973 (2011) as 'necessary, legal and right'. This statement once again illustrated the fact that, especially with respect to the use of force in the execution of foreign policy, justification in terms of applicable international law principles weighs heavily on the minds of statesmen. It is therefore not surprising that it is increasingly being recognized in contemporary academic discourse that international law and international politics and security are intertwined subjects and that international law provides a useful paradigm for the analysis of international relations. The momentous events of 11 September 2001, which marked the advent of asymmetric warfare, challenged the ability of especially Western democracies to deal with hitherto unknown security challenges within the established framework of international law. These developments provided fertile soil for developing a discourse on the relationship between international law and international relations and diplomacy, conducted by both academics and practitioners.
  • Political Geography: United Kingdom
  • Author: Alessandro Chechi
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This volume collects the essays presented at the workshop entitled 'National Judges and Supranational Laws: On the Effective Application of EU Law and the ECHR', hosted by the Sant'Anna School of Advanced Studies (Pisa) on 15 and 16 January 2010. The workshop gathered 21 scholars from across Europe to discuss two fundamental questions: whether domestic judiciaries handle European Union (EU) law and the European Convention of Human Rights (ECHR) in a similar manner; and whether national courts facilitate a convergence in the implementation of EU law and the ECHR in domestic legal orders.
  • Political Geography: Europe
  • Author: Alexandra Kemmerer
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In his first seminal Hague lectures, published in 1994, Bruno Simma defined the 'community interest', which in the meantime has become an indispensable component of the discipline's conceptual toolbox, as 'a consensus according to which respect for certain fundamental values is not to be left to the free disposition of States individually or inter se but is recognized and sanctioned by international law as a matter of concern to all States'. Bruno Simma, a prolific writer and, since 2003, a judge at the International Court of Justice, reconstructed in his apparently most influential publication the 'various ways in which community interest is currently marching through the time-honoured institutions of the law'.
  • Author: Jonathan Shaw
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Just after the Roman poet said it was sweet and pretty to die for the fatherland he added that even if you ran and hid death would still shoot you in the knees
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The first wave, in the 1950s and '60s, was all about Community Rights and that new legal order. In the 1970s and '80s it was, ex nihilo, Individual Human Rights. And in the 1990s and this last decade it has been Citizenship Rights, destined, according to the European Court of Justice in case after case, to become the 'fundamental' status of European Citizens. (Have you ever wondered, as I have, about the epistemic status of this most recent mantra of the ECJ? Is it a legal realist prediction? A political desideratum? A statement of judicial intent? A revolutionary manifesto – seeing that it flatly contradicts the express provisions of the Treaty which clearly assigns to European Citizenship a mere supplementary or complementary supportive role in the Citizenship arena?) Be that as it may, there can be little argument that The Individual and his or her Rights are the most common, oft cited, self-celebratory clichés in the vocabulary of European legal discourse. In celebrating the Union's 50th birthday Angela Merkel, speaking for most of us, veritably gushed about Europe's success in positioning The Individual in the centre of its construct. And so it has. Likewise, if we look for a currency which is impervious to all market vicissitudes, to derivatives, to toxic bundling, it is the currency of Rights – in all three denominations, European, Human and/or Citizenship. It is the ever ready dividend which the Union's Board of Directors is generous in showering on an ever apathetic citizenry (as evidenced by the demoralizing decline in voter turn out for Euro-Parliament elections) and which is evoked whenever a pep-talk is called for.
  • Political Geography: Europe
  • Author: Christopher Macleod
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this article I discuss the nature of crimes against humanity. The various definitions that have been used, or alluded to, in the legal literature are outlined, and it is suggested that they fall neatly into two camps by interpreting 'humanity' differently. It is proposed that any theory which adequately captures the nature of this crime must distinguish it qualitatively from other 'lower' crimes, and that only members of one camp can do this. I go on to argue for one particular way of treating the crime – regarding it as a crime which hurts all humanity – and recommend adopting a view under which we would regard all humanity as one entity.
  • Author: Marco Dani
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In FIAMM and Fedon the European Court of Justice has ruled that Community firms hit by US trade sanctions authorized by the WTO Dispute Settlement Body are not entitled to compensation from EC political institutions. The article discusses the cases in the background of current debates on the attitude of the Court of Justice towards international law and, more broadly, on European legal pluralism. From this standpoint, it provides a critical assessment of the legal issues involved in this litigation – internal status of WTO obligations, scope for manoeuvre of EC political institutions in international trade relations, liability for unlawful and lawful conduct – and offers a comparative analysis of its possible solutions, suggesting that a finding of liability for lawful conduct would have been a preferable outcome in both theoretical and substantive terms.
  • Topic: International Law
  • Political Geography: United States, Europe
  • Author: Monica Hakimi
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework is grounded in international law and intended to guide decisions in concrete cases. So after presenting and justifying the framework, the article applies it to two current debates in human rights law: when must a state protect against third-party harms committed outside its territory? And what must states do to protect women from private acts of violence? The article ends by suggesting how the same framework may inform analogous obligations outside human rights law.
  • Author: Santiago Villalpando
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article uses the emergence of the protection of community interests in international law as a theoretical framework to explain a number of legal notions and regimes, such as jus cogens, obligations erga omnes, international responsibility towards the international community as a whole, and individual criminal responsibility. With reference to various international conventions, the work of the International Law Commission, and the case law of different international tribunals, it describes how changes in social intercourse at the global level have entailed structural transformations of the international legal order, as well as tensions caused by the concurrent legal protection of community and individual interests. The article further explains how the proposed theoretical framework may be used to address several concrete issues which have arisen in the contemporary legal debate, such as the question of exceptions to the immunity of state officials from foreign criminal jurisdiction, countermeasures by states other than the injured state in international responsibility, the legal regime of jus cogens, etc.
  • Topic: International Law
  • 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: Lingjie Kong
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Very similar to trade barriers, data protection has been an obstacle to free global data flow. The European legal system on cross-border data flow set up by Directive 95/46/EC prohibits transfer of personal data to third countries which do not have an adequate data protection level. With enormous international implications, such a regionally oriented system is heavily dependent on effective monitoring of cross-border data transfer. Due to a lack of proper supervision on data transfer, it encounters many challenges, which forces the European Commission to adopt the contractual model and the corporate law model. Meanwhile, compared with issues like free trade and environmental protection, not much international consensus has been reached on cross-border data protection. As a result, bilateral, regional, and multilateral collaborations between national sovereignties are to be strengthened, to facilitate transborder data flow and to safeguard individuals' right to data protection.
  • Political Geography: Europe
  • Author: Gurdial Singh Nijar
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Seventh Meeting of the Conference of the Parties (2004) of the Convention on Biological Diversity established a mandate for the negotiation of an international regime on Access to Genetic Resources and Benefit Sharing arising from their utilization. Negotiations have been proceeding and have entered the final phase. Seven working group meetings have been held to date and there is expectation that an instrument will emerge by the final deadline – the Tenth Meeting of the Conference of the Parties in Nagoya, Japan in October 2010. A key component singled out for inclusion in the international regime relates to the recognition and protection of the rights of indigenous and local communities (ILCs) over their traditional knowledge (TK) associated with genetic resources. The Ninth Meeting of the Conference of the Parties (2008) established a Group of Technical and Legal Experts to assist the Working Group to deal with this issue. The Group met in India in June 2009 and has submitted a report. This article reflects on the key outcomes of this Expert Group report. In particular, it identifies the key issues that need to be considered and resolved for TK associated to genetic resources to form an integral and viable component of the proposed international regime.
  • Political Geography: Japan
  • Author: Marion Panizzon
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: At the outset of the 21st century and most recently since the UN High Level Dialogue on Migration and Development of 2006, the conviction has emerged that 'migration, if managed carefully, can help to raise the living standards in poor countries' (at 7). In his new book The International Law of Economic Migration, Joel Trachtman analyses political economic constraints to counter forceful, but ill-founded, evidence against opening borders to migrant workers. The book achieves a quantum leap for labour migration research, as it starts its analysis where most books end theirs.
  • Political Geography: United Nations
  • Author: Dr. Daniel Heilmann
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The law concerning the means of warfare (i.e. weapons or weapons systems in armed conflict) is arguably one of the most important areas of ius in bello. In the last 50 years, the issue of controlling the production and prohibiting the use of certain weapons has taken on an increasing urgency since technological and industrial progress has made possible the development of new types of weapons which are far more devastating than any means of warfare which existed in former times. However, there are not as many publications dedicated to this important topic as one might think. William Boothby's monograph, Weapons and the Law of Armed Conflict takes on the difficult task of giving an overview of all relevant aspects in not much more than 400 pages. The study primarily focuses on the humanitarian law aspects of the use of weapons, but to some extent also touches on aspects concerning disarmament. The dividing line between humanitarian and disarmament rules is increasingly blurred anyway, as is evidenced for example by Article 36 of Additional Protocol I to the Geneva Conventions (AP I), which advocates a preventive approach by requiring contracting parties to determine whether the study, development, or acquisition of a new weapon would be contrary to the provisions of Additional Protocol I.
  • Author: Dr. Daniel Heilmann
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The doctrine of command responsibility is one of the most important concepts which has been developed in international criminal law since the advent of that legal discipline post-World War II. Most of the very problematic issues which had originally been raised have, in the meantime, been resolved by the work of the ad hoc Tribunals and a clear structure of the elements of this mode of criminal liability has evolved. However, some aspects of the doctrine still remain highly disputed. Mettraux, in his book The Law of Command Responsibility, endeavours to give an account of the state of the doctrine in light of the jurisprudence of the International Military Tribunals (Nuremberg and Tokyo), the ad hoc Tribunals (ICTR and ICTY), and the Hybrid Courts (in particular the Special Court for Sierra Leone).
  • Author: Chandra Lekha Sriram
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Reparations are increasingly being offered, or at least recommended, in transitional justice processes, and the literature examining them has grown concomitantly. At the same time, practitioners of both peacebuilding and transitional justice have begun to recognize that the needs of women and girls have been dealt with inadequately. This volume, edited by Ruth Rubio-Marìn, a foremost expert on gender and reparations, promises to fill a critical gap, with three categories of contributions considering, as the title indicates, 'the gender of repara¬tions'. The first set of chapters examines the ways in which violations during violent conflict are gendered, targeting or incidentally affecting women and girls, but also in some cases specifically designed to emasculate men and boys. The second set of chapters considers the ways in which reparations programmes have to date failed to address the range of harms suffered, largely by females, from such violations. Finally, several of the contributions seek to offer specific recommendations for reparations programmes, including microfinance and symbolic recognition, which could better respond to those harms.
  • Author: Wolfgang S. Heinz
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: While international human rights treaties define obligations of states and subjective rights of people living under their jurisdiction, and beyond (extraterritorial obligations of human rights treaties), it has become increasingly evident that civil society activities are crucial to helping establish a strong effective human rights system in any given country. NGOs collect critical information, advise victims how to complain, complain themselves publicly about weaknesses of state agencies, and even support legal cases before national, regional, and international expert committees and courts. In a national context, this can lead to political tension with the government in power and state agencies, because human rights issues are sometimes perceived as political or politicized by those in power. In addition questions of accountability, financing, and the internal democracy of NGOs may be critically raised – sometimes to distract from the human rights criticisms initially raised by the NGOs concerned.
  • Author: Dr. Nikolaos Lavranos
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The first edition of this book, written by Peter Hilpold, professor at the University of Innsbruck, instantly became an important reference book on the relationship between the EU and the WTO, particularly on the German language market. With this third edition, Hilpold has updated the book without changing its main structure, a decision to be welcomed given that this structure, with each chapter opening with a historical perspective, is fundamental for understanding this complex topic. The book is divided into nine major chapters, which deal with the most important aspects of WTO law and its interaction with Community law. In addition, the book contains several indexes, including a useful index of persons.
  • Political Geography: Europe
  • Author: Fernando Losada Fraga
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Despite the fact that it is part of the economic freedoms on which the European integration project is said to be built, free movement of capital has never attracted the attention it deserves – at least as far as the English literature is concerned. This was understandable until the late 1980s, since this freedom was not politically fostered until then. However, two decades later just a couple of monographs are devoted exclusively to the matter, and not too many others deal with it within a broader context. The monograph under review from now on will be an indispensable reference on the matter: first, because of the depth of Hindelang's effort: it is his purpose to analyse foreign direct investment and fully to explain its scope and breadth. Therefore, he studies in detail the legal regime of the free movement of capital and its recent evolution; in fact, he scrutinizes the European Court of Justice's (ECJ) case law, which constitutes a major contribution to the debate in a field immersed in a series of continuous developments. In addition, the main importance of this book is the fact that it brings to the English literature on free movement of capital the intense and sharp German debate on economic law, and on the legal regime of capital movements in particular; and it does so acutely distinguishing the stances – and their nuances – of each relevant author towards each particular aspect of the legal regime.
  • Political Geography: Europe
  • Author: Jake Marmer
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: No abstract is available.
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There are few legal issues which still manage to evoke civic passion in the wider population. Increasingly, and sometimes for the wrong reasons, the place of religion in our public spaces has become one of them. In the age of the internet and Google we can safely assume that all readers of this Journal will have either read the Lautsi decision of the European Court of Human Rights or have read about it, thus obviating the need for the usual preliminaries. As is known, a Chamber of the Court held that the displaying in Italian public schools of the crucifix was a violation of the European Convention on Human Rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Paola Gaeta
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This symposium comprises the contributions presented by five distinguished international lawyers at the European University Institute in Florence in October 2008 on a very special occasion. Antonio Cassese ('Nino' to his friends and colleagues) had recently celebrated his 70th birthday and, as is customary in many European countries, a group of his former students and friends chose this occasion to celebrate his academic and professional career with the publication of a selection of his most important writings on the three branches of public international law he has most influenced – international humanitarian law, international human rights law, and international criminal law. The outcome was a book, The Human Dimension of International Law, published in summer 2008 by Oxford University Press, the intention of which is to shed light on Nino's intellectual approach to these three areas of public international law. The publication of this volume also provided an excellent occasion to convene a small number of friends and colleagues as a token of appreciation and admiration for his many achievements as an international lawyer. As Nino shies away from any personal limelight (indeed, I am certain he will be troubled by these few lines about him), it was decided that this meeting at the …
  • Topic: International Law
  • Political Geography: Europe
  • Author: Giorgio Gaja
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, any state to which an erga omnes obligation is owed may claim reparation in the interest of an individual who is the victim of an infringement and the beneficiary of the obligation. The ILC Articles on Diplomatic Protection should have specified that also the state of nationality may seek reparation only in the interest of the injured individual when his or her rights have been infringed.
  • Topic: International Law
  • Author: Christian Tomuschat
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It is recognized today that human rights law is not generally displaced in times of armed conflict by international humanitarian law (IHL). Yet in large part this new insight remains to be particularized as to its actual consequences. In particular, IHL is still predominantly under the influence of the concept of military necessity.
  • Topic: Human Rights
  • Author: Andrew Clapham
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This contribution reminds us that as individuals we play a role in the formation and understanding of international law. After recalling the key steps in the acknowledgement of international rights and obligations for individuals the article goes on to ask if the time has come to acknowledge that individuals can have obligations under international law that go beyond international crimes. In other words might there be international civil law obligations for the individual?
  • Topic: International Law
  • 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: Francesco Francioni
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing 'individualistic' perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation.
  • Topic: Environment, Human Rights
  • Author: B.S. Chimni
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article offers an introduction to a class approach to international law. It challenges the 'death of class' thesis and argues for the continued relevance of the category of 'class'. Among other things, the contention is that the category of 'class' subsumes without erasing the gender and race divides. Noting the emergence of a global social formation the article claims that a transnational capitalist class is shaping international laws and institutions in the era of globalization. It calls for the linking of the class critique of contemporary laws and institutions with the idea and practices of resistance, and considers in this setting the meaning of internationalism and class struggle today for an emerging transnational oppressed class. The article concludes by schematically outlining the advantages of a class approach to international law.
  • Topic: Globalization, International Law
  • Author: Mario Mendez
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It has been clear since a seminal ECJ ruling in the 1970s that the European Community is attached to a model of automatic treaty incorporation whereby the full panoply of Community law enforcement tools are available for the enforcement of Community Agreements. In the decades since, a rich body of case law has emerged concerning this growing body of treaty law to which the Community has become party. Much of this jurisprudence is testament to a maximalist approach to treaty enforcement which shares parallels with the approach to internal Community law. Most recently, however, the Intertanko ruling indicates that the ECJ is not averse to employing judicial avoidance techniques to preclude review where it is Community action that is challenged. The current trajectory of treaty enforcement is thus indicative of a twin-track approach whereby the ECJ is reluctant to transpose the maximalist approach to treaty enforcement which characterizes its contribution where action at the Member State level is challenged. Such a trajectory, built in accordance with the defensive submissions of the Community's political institutions, raises significant questions about the EU's much-vaunted commitment to international law.
  • Political Geography: Europe
  • Author: Katherine Del Mar
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article argues that the notion of 'belonging to a Party' to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of 'belonging' demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state's behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to 'belong' under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as 'international'. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.
  • Topic: International Law
  • Political Geography: Yugoslavia
  • Author: Carlo Focarelli
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Common Article 1 of the 1949 Geneva Conventions is today generally seen as a 'quasi-constitutional' international law rule, premised on the doctrine of obligations erga omnes and imposing on all contracting states an obligation to take a variety of measures in order to induce not only state organs and private individuals but also other contracting states to comply with the Conventions. The phrases 'ensure respect' and 'in all circumstances' contained therein, in particular, have been understood to imply a 'state-compliance' meaning, drawing basically upon the ICRC Commentaries to the 1949 Geneva Conventions and to the 1977 Additional Protocols. However, expressions similar to 'ensure respect' in human rights treaties, in other provisions of the Geneva Conventions themselves, and in military manuals have been given an exclusive 'individual-compliance' meaning. Lists of measures available to contracting states against other contracting states deemed to be in breach of the Conventions have been suggested without investigation of whether such measures were per se lawful or unlawful and whether their adoption was legally required, or authorized, or merely recommended under common Article 1. Measures the adoption of which is expressly required or authorized by ad hoc provisions of the Geneva Conventions have been redundantly linked to Article 1. The phrase 'in all circumstances' too has a variety of meanings already found in ad hoc provisions other than Article 1. Ultimately, the purported 'quasi-constitutional' character of common Article 1 has proved a subject of speculation. Common Article 1 is a reminder of obligations, negative and positive, to 'respect' the Geneva Conventions (according to the general pacta sunt servanda rule) which has progressively been given the meaning of a mere recommendation to adopt lawful measures to induce transgressors to comply with the Conventions.
  • Political Geography: Geneva
  • Author: Roozbeh (Rudy) B. Baker
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article will survey the new non-traditional scholarship which has emerged in international law to challenge the two long-established sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer are. The new question, the new debate, will be over what the implications of this shift in the traditional building blocks of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national (domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years the jurisprudence of these international tribunals has, aside from finding its way into customary international law, also begun to seep into the domestic (mainly criminal) law of several countries.
  • Topic: International Law
  • Author: Milagros Álvarez-Verdugo
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article focuses on the possibilities of implementing a valid multilateral system for uranium enrichment and nuclear fuel-recycling activities. The contribution to the literature is twofold. First, I identify the economic, political, and legal tensions which should be overcome in order to establish such a multilateral system: enterprises' interests in keeping their economic advantages; mistrust among states as well as mistrust in the current non-proliferation verification system; the necessity of redefining the content of the states' right to use nuclear energy for peaceful purposes. And, last but not least, the willingness to cooperate of the states currently developing those activities of enrichment and recycling. Based on that analysis, the second contribution is the definition of those formulae for cooperation which would be the most appropriate for tackling the problems detected, as they could pave the way to the transition towards a multilateral system of worldwide reach.
  • Topic: Economics
  • Author: Lindsey Cameron, Rebecca Everly
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article reviews five major recent works on the phenomenon of the administration of territory by international actors. Covering both legal and policy elements of the works, it delves into how the scholars treat the purported legitimacy deficit often associated with this activity. It then addresses the authors' approaches to the key international law questions, including the legal status of internationally administered territories, the legal basis for administration, the legal framework governing administrators' acts, and, finally, the accountability of the international actors involved.
  • Topic: International Law
  • Author: Wolfgang S. Heinz
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two renowned scholars of international human rights protection from the University of Berne offer this excellent volume which is based on and expands the second edition of their book Universeller Menschenrechtsschutz (2008). Professor Walter Kälin was representative of the UN Secretary General on the Human Rights of Internally Displaced Persons, and from 2003 to 2008 a member of the UN Human Rights Committee. Jörg Künzli is Associate Professor of Law at the University of Berne.
  • Topic: Human Rights
  • Political Geography: United Nations
  • Author: Mia Swart
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Sometimes, one can judge a book by its cover. The strikingly beautiful cover of this book on justice and reconciliation in South Africa is more than a mere decoration. As the editors of this exciting collection on transitional justice explain, the artwork on the cover was created by modern San artist Andry Kashivi and depicts the struggle for acceptance and belonging, 'for citizenship and reconciliation' in the new South Africa. The San communities of the !Xun and Khwe live on the margins of South Africa and on the brink of poverty. In the introduction to the book, the editors take trouble to explain the symbolic link between the marginalization of the San people and the quest for legal and political transformation in South Africa. The book's emphasis on the art of transformation extends beyond the description of the artwork. In quite a literal sense the book addresses (among other themes) the transformative function of art in the chapter by Carrol Clarkson entitled 'Drawing the Line: Justice and the Art of Reconciliation'. Clarkson analyses post-apartheid South African art, and in doing so she illustrates and explains the re-drawing of lines, specifically the 'lines that reconfigure the margins of exposure of one to the other' (at 288). The inclusion of this chapter adds freshness and originality to a collection of chapters on transitional justice, a field which cannot always be said to be characterized by great originality (or intellectual vigour).
  • Political Geography: South Africa
  • Author: Paul David Mora
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Over a distinguished career, Lady Hazel Fox CMG QC has come to be recognized as one of the leading publicists in the law of state immunity. In the introductory chapter to the second edition of her monograph, Lady Fox recognizes that the law in this area is simply not static. Since the initial publication of the monograph in 2002, two significant developments have taken place and the revised second edition provides an excellent up-to-date and authoritative account of both.
  • Author: Ebrahim Afsah
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Currently prevailing notions of the state have been considerably shaped by Max Weber's definition which distinguished the state from other socio-political communities through its monopoly on the use of legitimate violence to enforce its administrative decisions. In order to make this normative claim effective, the state needs to have the necessary coercive instruments (military, police, penitentiaries, etc.) at its disposal. At least in the industrialized nations there has therefore been a linear increase in the strength and reach of the state. This seemingly perennial increase in the ability of the state to engineer social outcomes, if necessary through the use of coercive means, was fuelled by a steady increase in economic production and a corresponding enlargement of the relative share of public spending. The lasting recessions in the aftermath of 1973, however, dramatically altered this overall picture. The end of full employment, seemingly unlimited economic growth, and attendant tax revenue exposed fundamental structural limits of statehood. This set in motion an ongoing academic and public discourse on the appropriate functional scope of a weakening state in an increasingly globalizing world which appeared far less amenable to deliberate political control, given pressures towards greater efficiency, competitiveness, and rationalization.
  • Topic: Economics
  • Author: Ebrahim Afsah
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Almost in the middle of the Indian Ocean lies the Chagos Archipelago, a place which visually comes fairly close to the image most people have of paradise. Unfortunately for its inhabitants, the islands are also very conveniently located, a fact which led the United States and United Kingdom to expel these people from their apparent paradise into abject destitution in order to turn the place into one of the world's most important military bases. Vine's book is the best account of this sordid tale so far.
  • Political Geography: United States, United Kingdom
  • Author: Aaron Fellmeth
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This book presents an engaging and thorough study of a seemingly intractable international trade dispute, primarily between the United States and Europe, over the dissemination of genetically engineered foods. The United States and several other countries have increasingly approved transgenic (also known as 'genetically modified' or 'GM') foods for public consumption, while the European Community (EC) has strongly resisted the introduction of this new technology. From 1998 to 2004, the EC imposed a moratorium on approvals for the marketing of transgenic foods in the EC. It continues to approve new marketing requests desultorily and to pursue an effective moratorium on the cultivation of transgenic species today, despite losing a challenge before the WTO Dispute Settlement Body brought by the United States.
  • Political Geography: United States, Europe
  • Author: Nellie Munin
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since its establishment in 1957, the European Union or, to be more precise, the European Economic Community was motivated by the vision of a single market, where the peoples of Europe would be able to conduct economic transactions without suffering from barriers to trade. EU law, EU legislation, and its interpretation by the European Court of Justice (ECJ) are aimed at promoting the single market vision, based on the four freedoms, one of which is the free movement of persons. These legally-established freedoms aim at removing obstacles to trade. Obstacles to the free movement of persons may include direct or indirect discrimination of employees at work. Discrimination may be based on grounds of religion, race, or sex. This book concentrates on the last.
  • Topic: Economics
  • Political Geography: Europe
  • Author: Dimitry Kochenov
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Michael Gazzaniga's brilliant study of neuropsychology of split-brain patients was based on the analysis of the condition of a tiny sample of subjects. Some aphasia studies produce convincing results working with two or three subjects: more are simply difficult to find. It is generally accepted, however, that in order to reach sound conclusions a representative sample of subjects is usually needed. Samantha Currie's book, claiming to be 'of a socio-legal nature' (at 4) uses a sample of 44 Poles working in the UK (at 211) to back 'socio-legal research' on the condition of half a billion European citizens, should one judge the book by what is on the cover. Constant references to the 'empirical data generated for the research which forms the basis of this book' (at 38), i.e. references to the 44 interviews conducted, sound like misplaced irony when used to agree with the findings based on infinitely more substantial samples, like UK Government statistics including 715,000 registrations (at 69).
  • Political Geography: United Kingdom, Europe
  • Author: Stefan Martini
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Arranging the newly arrived items, the book-seller is confronted with the conundrum of where to place the books under review here. At first glance, both dwell on similar subjects: rule of law here, rule of law there. Indeed, they deal with related questions: how can the rule of law be conceptualized and how is it put into meaningful practice within the conglomerate of European institutions? Furthermore, what is the specific role of this 'elusive' (Wennerström, at 41) concept? Both contribute to the emerging field of research on the rule of law. They enrich the debate on cross-fertilization of legal regimes as well as on how to balance commonality and difference in European cooperation. Moreover, both books promise the reader an insider's insight, Francis G. Jacobs being a former Advocate General at the ECJ, and Erik O. Wennerström having worked at the European Commission.
  • Political Geography: Europe
  • Author: Laura Coyne
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: No abstract is available.
  • Author: J.H.H. Weiler
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: For at least 20 years I have been conducting guerrilla warfare against legal publishers on the matter of copyright. Whenever I get a copyright form I either 'forget' to send it back to the publisher (in more than half the cases no one seems to notice or care) or, if they do insist, I always cross out the critical language concerning my intellectual property (they usually ask you to make them a gift of your copyright) and replace it with a handwritten grant of a non-exclusive licence. I was challenged only once. I informed the publisher of the journal in question (Blackwell) that if they were unhappy they should feel free to drop my piece. That did not happen. The first footnote proudly displayed.
  • Author: J.H.H. Weiler
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Several interconnected factors call for a re-examination of treaty interpretation. I will mention only three of many. First is the much noted – and contested – notion of fragmentation of international law. Here the focus is on the emergence of different regimes, self-contained or otherwise, which manage different jurisdictions and confront different materials. One important question which follows is, do they or should they all share a similar hermeneutic?
  • Topic: International Law
  • Author: George Letsas
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article offers an account of the judicial philosophy which underpins the European Court of Human Rights' approach to treaty interpretation. The first part argues that Strasbourg's interpretive ethic has been dismissive of originalism and textualism and has favoured instead the moral reading of the Convention rights. The second part of the article explains why Strasbourg's interpretive ethic is fully justified, by offering an account of the nature of treaty interpretation in general. It argues that treaty interpretation is intrinsically an evaluative task in identifying the moral values which normatively constrain the projects that states pursue on the international plane. Treaty interpretation is only derivatively an exercise in discovering drafters' intentions and in determining the meaning of treaty provisions. Which interpretive methods an adjudicative body should use depends on the nature of the treaty in question and the moral value in play.
  • Topic: International Relations
  • Political Geography: Europe
  • Author: Leena Grover
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article seeks to initiate a dialogue within international criminal law (ICL) on treaty interpretation. The state of the art is reviewed and three fundamental interpretive dilemmas are identified and analysed. In the author's view, these dilemmas need to be addressed before a method of interpretation for crimes in Articles 6, 7, and 8 of the Rome Statute of the International Criminal Court can be formulated and operationalized. The 'normative dilemma' highlights how the normative tensions underlying ICL might be perpetuated by the interpretive imperatives in Articles 21(3) and 22(2) of the Rome Statute. The 'interpretive aids dilemma' concerns the respective roles of the Elements of Crimes and custom as aids to interpreting crimes in the Rome Statute. The 'inter-temporal dilemma' pertains to whether these crimes are 'frozen' or are to be interpreted in light of relevant and applicable legal developments. Throughout, the aforementioned dilemmas are grafted onto Article 31 of the Vienna Convention on the Law of Treaties to illustrate that they are, at their core, universal problems of interpretation.
  • Topic: International Law
  • Political Geography: Vienna
  • Author: Lucas Lixinski
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article examines the jurisprudence of the Inter-American Court of Human Rights in several areas of adjudication which initially did not fall under the instrument, such as environmental rights, international humanitarian law, and investors' rights. In all these areas, the Court has used instruments 'foreign' to the Inter-American system as a means to expand the content of rights in the American Convention. As a result, the umbrella of protection of this instrument, and the reach of the Court, is far greater than originally envisaged. After analysing the specific provision on interpretation of the American Convention on Human Rights as compared to the equivalent mechanisms in the Vienna Convention on the Law of Treaties, the article analyses several case studies of expansionism in the case law of the Court, asking throughout the analysis the question whether this helps the unity or the fragmentation of international law. The article argues that this exercise in expansionism, albeit imperfect, eventually contributes to the unity of international law. In this sense, this expansionism happens within controlled boundaries, and the use of external instruments is more of a validation of findings the Court could make based solely on the Inter-American instruments, rarely creating new rights.
  • Topic: Human Rights, International Law
  • Political Geography: America, Vienna
  • Author: Isabelle Van Damme
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article analyses how the Appellate Body in practice expresses its interpretation of the WTO covered agreements, and discusses whether the Appellate Body's hermeneutics is different from that of other international courts and tribunals. It shows that it is impossible to discern the Appellate Body's hermeneutics from the practical exposition of how it interprets treaties. It also addresses the alleged particularity of the Appellate Body's hermeneutics. The key thread is the function of treaty interpretation in the development of the judicial function in the WTO. From the outset, the Appellate Body made the conscious choice to function as if it were a court. This exercise of the judicial function relates to the tasks and powers of the international judge and transcends the mere mandate and context of a particular court or tribunal as established in its constitutive document and other procedural rules. The Appellate Body's use of principles of interpretation has been instrumental in making acceptable its early choice to function as a court and to build its judicial identity. After 15 years of jurisprudence, the response of WTO members and the broader audience for the Appellate Body's decisions shows general acceptance of this initial, but perhaps not unavoidable, choice and the strategy to achieve this objective. In turn, this response has prompted less formalism in the Appellate Body's recent interpretations of the WTO treaties.
  • Author: Riccardo Pavoni
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article focuses on the principle of mutual supportiveness as a key legal tool to address tensions between competing regimes, with specific reference to the articulation of the WTO system with other subject areas protecting essential interests of the international community, such as in particular the right to health, cultural diversity, and environmental protection. It argues that the multiple references to mutual supportiveness found in recent treaties and other legal instruments should not be briskly dismissed as mere political statements devoid of any normative significance. On the contrary, while such reiterated references are important in terms of progressive consolidation of a general principle of international law, mutual supportiveness seems to be characterized by two remarkable legal dimensions. The first is its interpretative dimension, which serves the purpose of disqualifying solutions to tensions between competing regimes involving the application of conflict rules. The second is the law-making dimension of mutual supportiveness which comes into play when efforts at reconciling competing rules have unsuccessfully been exhausted. This dimension implies a duty to pursue good faith negotiations aimed at the conclusion of law-making instruments, including treaty amendments, which clarify the relationship between the competing regimes at hand. This duty is especially important for the ongoing WTO Doha negotiations which call into question non-trade regimes and values, for instance the fair and equitable use of biological resources under the 1992 Biodiversity Convention. Most importantly, either for its nature as a general principle or for its recognition as a standard internal to the WTO, mutual supportiveness under the guise of a duty to negotiate in good faith would also bind WTO Members which are not parties to the competing treaty regime which needs accommodation in WTO law.
  • 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: Juliet Chevalier-Watts
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Articles 1 and 2 of the European Convention on Human Rights, when read together, require a proper and adequate official investigation into deaths resulting from the actions of state agents, both from the use of lethal force, and also in situations arising from the negligence of agents that leads to a death. The article considers the extent of the obligation to carry out an effective investigation since its explicit recognition by the European Court of Human Rights in the case of McCann and Others v. United Kingdom. The article assesses the jurisprudence of the duty to investigate in order to determine whether the obligation is now placing too onerous a burden on member states in order to comply with their duties under the Convention, or whether the duty does indeed secure the right to life, as is intended. To assess the original proposition, the article considers the jurisprudence of the duty to investigate in relation to the following applications: early forays into the application of the duty; fatalities arising from non-lethal force; the influential quartet of cases arising out of the Northern Ireland troubles; recent judgments concerning cases arising out of the conflict in Chechnya; and finally through to a critical review of the effectiveness of the European Court.
  • Topic: Human Rights
  • Political Geography: United Kingdom, Europe
  • Author: Frank Hoffmeister
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In its 2009 Draft Articles on international responsibility of international organizations, the International Law Commission advocated a set of rules on attribution of conduct to the organization (Draft Articles 5–8) and additional rules on the organization's responsibility in connection with the Act of a State (Draft Articles 13–18). Moreover, it included a Draft Article 63 on lex specialis. The present article examines whether such a special rule exists for the European Union and its Member States, in particular with respect to the attribution of conduct of EU Member States to the Union where they act in the execution of EU law. It therefore reviews international case law in the field of trade, human rights, investment protection, and the law of the sea as well as the special rules of the European Union itself. The author concludes that such a rule does indeed exist and makes a suggestion for a formulation thereof.
  • Topic: International Law
  • Author: Anne-Sophie Tabau, Sandrine Maljran-Dubois
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The universality of climate change challenges and interdependence in the reduction of greenhouse gas (GHG) emissions called for a collective response in a multilateral framework. However, because of discrepancies on the appropriate design for an international regime the European Community (EC) took the lead on the international stage in the negotiation and the application of the Kyoto Protocol. Thus, an international regime – a mixed agreement to which both the EC and its Member States are parties – and a regional regime in the framework of the European Union coexist. In both regimes, one of the core challenges remains to ensure the effective application of the law, which requires the setting up of compliance control mechanisms. At the international level, an innovative non-compliance procedure organizes a continuous monitoring which combines traditional techniques with more intrusive procedures. The system is also remarkable as regards the legal qualification of and reaction to non-compliance situations. For its part, the EC created a specific non-contentious mechanism and can make use of a reinforced jurisdictional armory and a reinforced sanctioning power. The EC's control mechanism should be able to take over from the Kyoto Protocol non-compliance mechanism in order to reinforce the effectiveness of adopted rules. Through the study of these mechanisms' interactions, this article aims to assess the capacity of the control system as a whole to ensure the very credibility of the Protocol and the reliability of the international and European economic tools to reduce GHG emissions at least cost. Finally, it allows the envisaging of the possible evolutions of the legal regime of the fight against climate change.
  • Political Geography: Europe
  • Author: Sergio Dellavalle
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Daniele Archibugi. The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy. Princeton: Princeton University Press, 2008. Pp. 298. $29.95. ISBN: 9780691134901. Anthony Carty. Philosophy of International Law. Edinburgh: Edinburgh University Press, 2007. Pp. 255. $80.00. ISBN: 9780748622559. Andrew Hurrell. On Global Order: Power, Values, and the Constitution of International Society. Oxford: Oxford University Press, 2007. Pp. 354. £65.00. ISBN: 9780199233106. Peter Niesen, , Benjamin Herborth (eds.). Anarchie der kommunikativen Freiheit. Frankfurt a. M.: Suhrkamp, 2007. Pp. 765€16.00. ISBN: 9783518294208. Mortimer N. S. Sellers. Republican Principles in International Law: The Fundamental Requirements of a Just World Order. New York: Palgrave Macmillan, 2006. Pp. 266. £65.00. ISBN: 9781403997449. Helen M. Stacy. Human Rights for the 21st Century: Sovereignty, Civil Society, Culture. Stanford (California)Stanford University Press, 2009. Pp. 260. $21.95. ISBN: 9780804760959. Abstract Theories of global order are traceable back to two main paradigms, particularism and universalism, the first of them asserting that true global order is a chimaera, the second affirming that a worldwide political and legal system securing peace and human rights protection is both desirable and feasible. Against this background, the article analyses some recent contributions to the question of the conditions for the establishment of a worldwide system guaranteeing peaceful and cooperative interaction. The authors of the books under review share the commitment to the universalistic view, but substantiate it by resorting to distinct theoretical presuppositions. By outlining the different frameworks, the article presents the books being discussed as inspiring inputs on the way to the renewal of universalism at the beginning of the 21st century.
  • Topic: Human Rights
  • Author: Jan Klabbers
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International lawyers have long held international organizations in high esteem. Paul Reinsch, arguably the first author to write comprehensively on the law of international organizations about a century ago and largely responsible for laying the foundations for the functionalist approach to international organizations, already welcomed them as working for the common global good. The sentiment culminated in Nagendra Singh's classic statement that organizations serve the 'salvation of mankind'. States were considered bad; organizations, by contrast, were considered inherently good.
  • Topic: United Nations
  • Author: Anne-Laurence Brugère
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 'Every constitution encounters the difficult problem of distinguishing interpretation and adaptation, progressive development and amendment'. The question whether, and to what extent, the practice of an organization does not merely interpret but also modify its constitutive instrument lies at the very heart of Thomas Grant's volume on Article 4 of the United Nations Charter. The volume, divided into seven chapters, is based on a thorough account of the United Nations' practice from 1945 onwards in the matter of admission, from the 'early years' (Chapter 2) to the present day controversies over Kosovo and Taiwan (Chapters 5 and 6). Grant highlights perfectly the shift in 1955–1956 from a rigorous process over admission to the presumed right of states to membership; that is to say, from the wartime alliance to the universal organization (Chapter 3). This, in turn, raises the question of the legal justification for this change, a key issue addressed in Chapter 4 which this book review will concentrate on. The legal framework applicable to admission is examined in the first and last chapters. Chapter 1 intends to give an overview of the provisions of the Charter governing admission, though it deals exclusively with the procedural mechanism set out in Article 4(2). As for Chapter 7, it examines the legal con - sequences for a state of being admitted to the United Nations.
  • Topic: United Nations
  • Political Geography: Taiwan, Kosovo
  • Author: Christina Binder
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Treaties are the major legal instruments governing inter-state relations and an indispensable tool for diplomacy: since 1945 some 54,000 treaties have been registered with the United Nations, still representing only about 70 per cent of treaties which have entered into force.
  • Topic: United Nations
  • Author: Niels Peterson
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The theory of customary international law is one of the big mysteries of international law scholarship. Every student of international law knows what customary law is. And yet, nobody knows what it actually is. Article 38(1)(b) of the Statute of the International Court of Justice defines custom as consistent state practice coupled with an opinion iuris . Although legal scholarship has filled whole libraries trying to come up with a set of rational criteria to identify these two elements, there remain many open questions. In his new book on Customary International Law, Brian Lepard intends to advance legal scholarship in the search for answers. He promises to 'develop a new theory of customary international law that . . . helps to solve its theoretical and practical puzzles' (at 11–12).
  • Author: Ekaterina Yahyaoui Krivenkno
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two notions constantly re-emerge in present-day research on issues arising under the general heading of constitutionalization of international law: sovereignty and cosmopolitanism. The former is regarded as being rather an impediment to the projects of international constitutionalism, the latter as a distant future goal, but both to be reinterpreted and readapted to modern realities and aspirations of researchers engaged in the theorization of international constitutionalism.
  • Author: Eric Stein
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: All is well In heaven and hell And …
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: These are challenging times for the European Union. Internally, important, even fundamental, decisions are on the agenda as the Union struggles with the Euro crisis and its underlying economic fissures. (Mercifully, the scapegoating of the USA as an escape from facing Europe's very own breathtaking governmental and private-sector financial and fiscal irresponsibility has all but disappeared – mercifully, since facing reality unflinchingly is a necessary condition for dealing with it effectively.) What is subprime in Europe is the decisional structure of the Union: the European Politburo – President of the Commission, newly-minted President of the Council, tired-old-more-senseless-than-ever rotating Member State Presidency, recycled High Representative answerable to two bosses and thus to none – has proven at best irrelevant to the real actors in you know where (Berlin, Paris, the formidable Merkel, the erratic Sarkozy), at worst distracting – was the able President of the Council's productive moves really helped by the forced tango with his opposite number at the Commission? About a year after the entry into force of the Treaty of Lisbon, it is clear that at least some of the principal objectives intended by the new decisional structure at the top are turning out to be as ineffective (some claim laughable) as critics anticipated.
  • Political Geography: Europe, Lisbon
  • Author: Dapo Akande, Sangeeta Shah
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.
  • Topic: Government, International Law
  • Political Geography: America
  • Author: Henning Grosse Ruse-Khan, Thomas Jaeger, Robert Kordic
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article discusses atypical acts of the European Union (EU) concerning intellectual property (IP) protection within the EU's internal legal order and its external relations. Internally, atypical acts are used in IP for flexible pre- and post-regulation purposes or for soft guidance and steering. Yet in IP and elsewhere, those flexibilities come at the cost of deficits in democratic legitimacy, legality, and legal certainty. Atypical acts are also common in the external trade relations of the EU. Like more formal conduct of trade relations by means of international agreements, they focus on the enforcement of IP rights. The less formal (and legal) character of these acts often allows them to be more policy-driven and so makes it easier to address key political concerns relevant for EU external trade relations in a more flexible and current manner. Some of these policies are subsequently turned into 'hard' law –for example in the course of the negotiations over the controversial Anti-Counterfeiting Trade Agreement (ACTA). Based on the comparative analysis of the role of atypical acts in the EU's internal legislation for IP vis-à-vis their role in external action, this article explores possibilities of limiting the drawbacks while preserving the benefits of a use of atypical acts in external policies.
  • Political Geography: Europe
  • Author: Sarah M.H. Nouwen, Wouter G. Werner
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International criminal justice has become a weapon in political struggles in Uganda and Sudan. In this light, this article discusses the political meaning of the International Criminal Court's judicial interventions. It argues that the ICC, presented by its advocates as a legal bastion immune from politics, is inherently political by making a distinction between the friends and enemies of the international community which it purports to represent. Using original empirical data, the article demonstrates how in both Uganda and Sudan warring parties have used the ICC's intervention to brand opponents as hostis humani generis, or enemies of mankind, and to present themselves as friends of the ICC, and thus friends of the international community. The ICC Prosecutor has at times encouraged this friend–enemy dichotomy. These observations do not result in a denunciation of the Court as a 'political institution'. On the contrary: they underline that a sound normative evaluation of the Court's activities can be made only when its political dimensions are acknowledged and understood.
  • Political Geography: Uganda, Sudan
  • Author: Mehrdad Payandeh
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article analyses H.L.A. Hart's concept of international law from the perspective of anaytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart's view that international law is 'law' but not a 'legal system'. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart's general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart's methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart's analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.
  • Topic: International Law
  • Author: Sujitha Subramanian
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In Microsoft v. Commission, Microsoft was ordered by the European Court of First Instance (CFI) to license interface information to its competitors on reasonable terms and to supply a fully functioning version of Windows Personal Computer Operating System without Windows Media Player. Microsoft claimed that the remedies infringed the minimum standards of IP protection provided by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, the CFI refused to examine the TRIPS provisions, on the basis that international agreements do not prevail over primary Community law, and in any case, the TRIPS agreement permits members to restrain anti-competitive abuse of IP rights. This article examines the issues that arise from this position: first, is the Microsoft decision TRIPS compliant? Secondly, to what extent is the EU bound to its obligations under the TRIPS Agreement? The article highlights the lack of a clear-cut hierarchy of norms and illustrates how EU law is placed within a multi-layered governance structure involving national law and international law. The article finds that the EU does not engage in consistent interpretation or application of the TRIPS provisions.
  • Political Geography: Europe
  • Author: Helen Keller, Andreas Fischer, Daniela Kuhne
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The purpose of this article is to give new impetus to the topical debate on reforming the ECHR in the wake of the Interlaken Conference, at which the ECHR states parties agreed on a roadmap for the future evolution of the Convention system. We highlight two issues which have so far been underexposed in the literature. First, reform measures relating to the new admissibility criterion, just satisfaction, and the pilot judgment procedure are only partially promising, because they are premised on the condition of their being applicable telle quelle in all the states parties. If Convention reforms are to be effective, they must take due account of differing realities relating to a country's human rights situation and the quality of its judiciary. Secondly, given the very high proportion of so-called manifestly ill-founded applications, the Court's practice of rejecting them without giving reasons leads it into a legitimacy problem. We suggest a new provision in the Rules of Court which makes the Court's practice concerning the handling of manifestly ill-founded applications more transparent.
  • Political Geography: Europe
  • Author: Wenhua Shan, Sheng Zhang
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As a follow-up study on the external investment policy of the EU, this article attempts to analyse the relevant provisions in the Lisbon Treaty and assesses their legal implications on the international investment treaty practice of the Union and its Member States. It first briefly reviews the EU's foreign investment competence before the Treaty of Lisbon, followed by an assessment of the different views concerning the interpretation of the Lisbon Treaty provision including 'foreign direct investment' under the common commercial policy. The practical legal implications of the change are discussed in the third part, including intra- and extra-EU investment treaty practices. It is concluded that while the change is significant and will greatly enhance the treaty-making competence of the EU in external investment areas, it is only a half way success toward a full common investment policy (CIP). Potential paths to achieve the ultimate goal are also briefly explored.
  • Political Geography: Lisbon
  • Author: Thomas Kleinlein
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The idea of a 'constitutionalization' of international law and international institutions owes much to a long tradition of idealistic international law scholarship. It gained momentum with the end of the Cold War, only to be frustrated some years later. US hegemonic tendencies after 9/11, the unauthorized invasion of Iraq in 2003, and the impasse of the Doha Development Round in the WTO are only some of the factors demonstrating that the dissolution of the Eastern Bloc had not signalled the end of history. These setbacks, however, did not render the academic discourse on 'constitutionalization' of global governance silent, and there is now a burgeoning literature on the subject. Recently, three books have stimulated the discussion: Ruling the World?, edited by Jeffery L. Dunoff and Joel P. Trachtman, and the two books under review.
  • Topic: Cold War, International Law
  • Political Geography: United States
  • Author: Kirsten Sellars
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: When the international criminal tribunals were convened in Nuremberg and Tokyo in the mid-1940s, the response from lawyers was mixed. Some believed that the Second World War was an exceptional event requiring special legal remedies, and commended the tribunals for advancing international law. Others condemned them for their legal shortcomings and maintained that some of the charges were retroactive and selectively applied. Since then, successive generations of commentators have interpreted the tribunals in their own ways, shaped by the conflicts and political concerns of their own times. The past two decades have seen the establishment of new international courts, and an accompanying revival of interest in their predecessors at Nuremberg and Tokyo. Recent commentaries have analysed the founding documents, the choice of defendants, the handling of the charges, the conduct of the cases – and also the legal and political legacies of the tribunals. They demonstrate that long-standing disagreements over antecedents, aims and outcomes have still not been settled, and that the problems inherent in some of the original charges have still not been solved, despite the appearance of similar charges within the remit of the International Criminal Court today.
  • Topic: Crime, War
  • Political Geography: Tokyo
  • Author: Robbie Sabel
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It may be that only in Middle East negotiations would the interpretation of a century-old letter from a British official addressed to a tribal Sheikh be considered a topical legal issue. The reality is, however, that the parties in the Middle East conflict are still interpreting, for example, the 1915 correspondence between Sir Henry McMahon, the British High Commissioner in Egypt, and Sharif Hussein of Mecca. Kattan's book is an invaluable, albeit partisan, resource book for those of us who enjoy delving into such minutiae of the legal arguments of Israelis and Palestinians.
  • Political Geography: Middle East, Palestine, Egypt
  • Author: Toby King
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since 11 September 2001, countries across the world have adopted an enormous range of anti-terrorism laws with the potential to undermine even the most basic and long-established human rights. Fundamental principles such as habeas corpus and public trial before an independent and impartial tribunal have been thrown into question. Administrative detention without trial is no longer, in Justice John Paul Stevens's words, 'the hallmark of the totalitarian state', but already a reality in some democracies and under serious consideration in others.
  • Topic: Human Rights
  • Political Geography: Germany, United Nations
  • Author: Valentina Sara Vadi
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Does Man have a right to culture? Can people freely express their own cultural distinctiveness, be it in a language, physical appearance, or a specific set of norms and values? Should the state intervene to support and protect cultural rights of individuals, minority groups, or even the majority? And what role can the international community play in this endeavour to further cultural rights? Can a careful and balanced scrutiny of cultural claims contribute to a constructive 'dialogue among civilizations'? Does culture necessarily clash with other human rights? Notwithstanding early case law and the formal entry of cultural rights into the human rights catalogue after World War II, cultural rights have been neglected for a long time and have been less developed than civil, political, economic, and social rights. The book under review gives an excellent and systematic overview of the existing law and practice concerning cultural rights and, by offering answers to the questions mentioned above, surely contributes to the development of legal doctrine.
  • Topic: Economics, Human Rights
  • Author: Ronnie R.F. Yearwood
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is without a doubt a growing academic and popular literature about the World Trade Organization (WTO), and more broadly inter¬national trade law. Reading Patterson and Afilalo, I came away with the feeling that, given time, this book may be one of those books that straddle both worlds. Given that there is often a divide between academic and popular works, I think that this is a work which should be welcomed. It is well written and, importantly for a book that could cross over into a wider market than academia, it reads with the ease of a story. Patterson and Afilalo deserve credit for being good storytellers. They weave a seamless story about the changing nature of the state and the corresponding changes in the international trading system. Crediting Philip Bobbitt they posit that the fall of communism in 1989 was not the Fukuyama ‘end of history’ so much as the start of the ‘market state’. They argue that, as the state can no longer promise to protect its citizens from external attack, the strategic ground of its legitimacy is changing (at Chapter 1). It also cannot meet its welfare function of maintaining legal regimes for the enhancement of wealth, protection, or health. Therefore the ‘State is moving from a regime of (legal) entitlements to one of incentives’ the writers argue (at 6). The state in its current form has lost control over what were generally seen as domestic issues, such as wealth transfer and protection of property. They argue that understanding the current global trading system lies in being able to explain the relationship between the state and global trade. For example, they argue that globalization was not simply a result of the technological communications revolution. They write that ‘the establishment of comparative advantage as the normative foundation of global trade created a global web of economic actors thereby making it necessary for them to communicate rapidly and efficiently in a single market’ (at 85). Therefore they contend that Bretton Woods contained the seeds of its own demise in providing the structural mechanisms which created global actors not pinned to the state (at 86). Further, for Patterson and Afilalo, the current constitutional order of the state as having the power to create and enforce law in its jurisdiction and beyond, with the world as a subdivision of national economies, no longer holds true. They highlight that ‘the overlapping of ownership and spread of production has for quite some time made it difficult to identify a particular product as belonging to one nation versus another’ (at 6).
  • Author: Marc Jacob
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The title could hardly be more portentous. The Past and Future of EU Law. All of it. In one volume. Luckily, neither the more down-to-earth subtitle – The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty – nor the various contributions in this intriguing collection, edited by Miguel Poiares Maduro and Loїc Azoulai, insist on the title's totalizing flight of fancy.
  • Political Geography: Europe
  • Author: Dimitry Kochenov
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The study of European law is finally saved from the dark age of narcissistic ideology of sui generis thinking. That 'the EU is unique' is probably true, but certainly not from the point of view of legal studies. Notwithstanding the first stages of the study of EU law inspired by federative thinking (especially with the help of American scholars versed in federalism theory), the philosophy of EU law soon entered a state of flux where it long remained. This was because of two important factors: short-sighted dogmatism and unrestricted self-love. Important contributions from brilliant jurists, among them Koen Lenaerts and Jean-Claude Piris, were unable to reverse the trend. As the mantra goes, the 'European Union is not a state and not an international organisation sensu stricto' – hence it is absolutely unique, sui generis. Moreover, since 'Europe is not a state, it is not a federation'.
  • Political Geography: Europe
383. Last Page
  • Author: Leslie Williams
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I am not finished Gorging on the verdure of July— Dear cathedral architects, I'm often sure we'll be received In a big Delft sky.
384. Editorial
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: For many years I taught a Seminar on the legal aspects of the Arab–Israeli conflict at Harvard Law School. It was unlike any other of my courses or seminars. The participants, students and researchers, were more passionate and engaged than normal. As expected, there was always a group of passionate pro-Israelis (mostly but not exclusively Jewish). There was always a group of passionate pro-Arabs, or, at times it felt, anti-Israelis (mostly but, of course, not exclusively Jewish). Sure, they came to learn, but mostly they came to learn how to sharpen the arguments for ' their ' side in the conflict. ' Lawfare ' – the continuation of warfare through other means – well describes the gestalt . There were, of course, also a few who came to learn, understand, disentangle myth from reality, sort out the facts and, normatively, seek a modicum of truth and justice in a conflict which often seems to pit right against right, and wrong against wrong. But not once did this latter group constitute a critical mass.
  • Political Geography: Israel, Arabia
  • Author: Bruno Simma
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The ESIL Conference at which this article was originally presented as the Keynote Speech was devoted to the topic of “ International Law in a Heterogeneous World ” . The article attempts to demonstrate that heterogeneity does not exclude the universality of international law, as long as the law retains – and further develops – its capacity to accommodate an ever larger measure of such heterogeneity. After developing three different conceptions, or levels, of what the term ' universality ' of international law is intended to capture, the article focuses on international rules, (particularly judicial) mechanisms, and international institutions which serve the purpose of reconciling heterogeneous values and expectations by means of international law. The article links a critical evaluation of these ways and means with the different notions of universality by inquiring how they cope with the principal challenges faced by these notions. In so doing, it engages a number of topics which have become immensely popular in contemporary international legal writing, here conceived as challenges to universality: the so-called ' fragmentation ' of international law; in close connection with this first buzzword the challenges posed by what is called the ' proliferation ' of international courts and tribunals; and, finally, certain recent problems faced by individuals who find themselves at the fault lines of emerging multi-level international governance. The article concludes that these challenges have not prevented international law from forming a (by and large coherent) legal system. Most concerns about the dangers of fragmentation appear overstated. As for the ' proliferation ' of international judicial institutions, the debate on fragmentation has made international judges even more aware of the responsibility they bear for a coherent construction of international law. They have managed to develop a set of tools for coping with the undesirable results of both phenomena. Despite some evidence of competition among international courts for ' institutional hegemony ' , such competition has hitherto been marked by a sense of responsibility on the part of all concerned. Thus, from the viewpoint of a practitioner, the universality of international law is alive and well; there is no need to force the law into the Procrustean bed of ' constitutionalization ' .
  • Topic: International Affairs
  • Author: Dino Kritsiotis
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article considers the prominence that threats of force have had in international political life since the end of the Cold War, and how we tend to overlook these threats in favour of the actual uses of force. Security Council Resolution 678 of November 1990 is one such example. Emblematic of the rule of law and its New World Order, it is often invoked for the 'authorisation' it gave to Member States of the United Nations 'co-operating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area' - but this provision was made contingent upon whether 'Iraq on or before 15 January 1991 fully implements [previous] resolutions'. We examine the range of circumstances in which threats of force have arisen and find that these go beyond the archetypal 'close encounter' between states - such as the Cuban Missile Crisis of 1962 and the 'threats of force' directed against Iraq prior to Operation Desert Fox (1998) and Operation Iraqi Freedom (2003). Making use of the jurisprudence of the International Court of Justice from its Nuclear Weapons advisory opinion (1996), we advance the idea of a prohibition of the application of force, and consider the logistics of its operation in state practice; first, in the recent relations between the United States and Iran and, then, through a modern reprise of the facts of the Corfu Channel Case of April 1949. We allude to the importance of the legislative background and purpose behind this prohibition, constantly reflecting upon the intricacies of state relations in which this provision of the United Nations Charter seeks to make its mark.
  • Topic: Security, Cold War, Government, United Nations
  • Political Geography: United States, Iraq, Kuwait
  • 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: 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: Janine Natalya Clark
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: To date, 20 defendants at the International Criminal Tribunal for the former Yugoslavia (ICTY) have pleaded guilty. Such guilty pleas have generally been accepted by the Trial Chambers as mitigating circumstances on the grounds, inter alia, that they can facilitate reconciliation in the former Yugoslavia. Yet as these guilty pleas are frequently induced through plea bargains, in which important concessions are accorded to defendants, this necessarily raises fundamental questions about whether guilty pleas can and do in fact foster reconciliation. The purpose of this article, therefore, is to explore this posited link between guilty pleas and reconciliation which, in turn, is one dimension of the broader linkage that the Tribunal makes between its work and reconciliation. It will focus on two particular claims made by the Tribunal - that guilty pleas aid reconciliation by helping to establish the truth and that when defendants acknowledge responsibility for their crimes, this may help to provide victims with closure. It will seek to demonstrate that both of these assertions are flawed, and will conclude by addressing some of the broader issues and questions raised by the ICTY's use of plea bargains, in particular the critical relationship between plea bargains and outreach work.
  • Political Geography: Yugoslavia
  • Author: Roda Mushkat
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In a series of influential articles, Ryan Goodman and Derek Jinks, professors at Harvard Law School and University of Texas Law School respectively, have proposed a distinctly sociological approach to analysing compliance with human rights law. The conceptual framework which they have constructed for this purpose is grounded in the notion of acculturation, a well-established social process whose dynamics in the international legal context has been examined by the two authors in a multi-step fashion, featuring a progression from general model-building to elaborate responses to specific issues raised by critics. Their latest contribution on the subject falls predominantly into the latter category. It is entitled ' Incomplete Internationalization and Compliance with Human Rights Law ' and has been recently published in the European Journal of International Law .
  • Topic: Human Rights, International Affairs
  • Political Geography: Europe, Texas
  • Author: Ryan Goodman, Derek Jinks
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In previous work, we have urged elaboration of theoretical models of how and when international human rights law influences state practice. More specifically, we have argued that acculturation is a distinct mechanism by which international human rights law influences states and that the distinctive features of acculturation might inform legal regime design in a variety of ways. In this brief essay, we have the pleasure of responding to Professor Roda Mushkat's thoughtful reflections on our work. Her critical remarks, in our view, provide a valuable springboard for explicitly clarifying some important aspects of our theoretical position. And, more importantly, her remarks illustrate the importance of developing an integrated theory of human right regime design – one that accounts for the full range of mechanisms by which international law influences states. More specifically, her remarks prompt us to underscore three important points.
  • Topic: Human Rights
  • Author: Barbara Delcourt
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This book is the second of a new collection called 'doctrine(s)', edited by Emmanuelle Jouannet (Professor of International Law at Paris I and Deputy Director of the Centre d'étude et de recherche en droit international/ CERDIN). The first one was dedicated to Martti Koskenniemi's works. This second volume brings together seminal articles, by Nathaniel Berman and translated from English, which deserve, without a doubt, to be presented to a French speaking public under this label 'doctrine'. All articles are underpinned by a consistent line of thought which is epitomized in Emmanuelle Jouannet's presentation. Far from being a mere description of the content of Berman's articles, or a kind of hagiographic introduction, her presentation contains elements of explanation, be they personal or more linked to the academic or political environment, which prove to be very useful in order fully to grasp the richness and the complexity of his analyses. Indeed, Nathaniel Berman can hardly be classified into ready-made categories of legal doctrines. Being inspired by different disciplines, among others history and psychoanalysis, he offers a truly original perspective on colonialism and nationalism which sheds light on international law and, more precisely, on the conditions under which these political phenomena have been tackled by case law, diplomats, and legal scholars.
  • Topic: International Law
  • Author: William Abresch
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Studies of targeted killing are often situated within the politically fraught debate over Hellfi re missile attacks on suspected terrorists. The scope of Melzer's analysis is, then, refreshingly broad, covering equally sniper shots used to end hostage stand-offs, poison letters sent to insurgent commanders, and commando raids launched with orders to liquidate opponents. These diverse practices are marked off from other uses of lethal force by states, such as soldiers shooting in a firefight, with a precise and intuitively satisfying definition. Melzer defines targeted killing as a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that 'the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims').
  • Topic: International Law
  • Author: Jean Allain
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Trafficking in Human Beings: Modern Slavery is a PhD thesis defended within the Faculty of Political Science of the Sant'Anna School of Advanced Study, an institution associated with the University of Pisa, Italy; Silvia Scarpa is now Lecturer in International Law at Tuscia University of Viterbo and Research Fellow at the Sant'Anna School.
  • Author: Alexander Orakhelashvili
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It is indisputable that the fight against impunity for the perpetrators of serious international crimes is a fundamental policy of the international community. As the International Court of Justice emphasized in the Arrest Warrant case, the functionally and temporarily limited immunity of the foreign minister of the Congo was not the same as according impunity to that official, because the number of ways of prosecuting him remained intact ( Arrest Warrant of 11 April 2000, Merits, General List No. 121, 14 February 2002, paras 60 – 61). The efforts to combat impunity for the perpetrators of serious crimes are conducted by two methods. The first method relates to establishing international tribunals, which has been the case since the Nuremberg and Tokyo Tribunals in the aftermath of World War II. This method is limited, because international tribunals necessarily have limited jurisdiction. They cannot address the problems of impunity in general, but only those aspects of it which are covered by their mandate as specified in their statutes. Even if this mandate is quite general, as is the case with the International Criminal Court (ICC), the actual extent to which impunity will be combatted still depends on the voluntary decision of states to become party to the Statute. The second method reflects the limited nature of international criminal tribunals. The remaining problems of impunity are addressed through the exercise of jurisdiction by national courts. This is reflected in the fact that the multiplication of international criminal tribunals over the past 15 years has not caused any decline in the activities of national courts in this field. Quite the contrary; the growth of international criminal jurisdiction has been accompanied by the equally remarkable growth of national criminal jurisdiction to address international crimes, including those committed extraterritorially.
  • Topic: United Nations, War
  • Political Geography: Democratic Republic of the Congo, Tokyo
  • Author: Kirsten Schmalenbach
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The monograph at hand is based upon the author's PhD thesis, successfully defended before the University of Amsterdam in 2005. Although it is not indicated by the main title, International Institutional Veil in Public International Law, the book deals mainly with the many different aspects of the law of treaties concluded between, or with, international organizations. The choice of the title is a result of the author presenting the topic with a broad foundation, in the context of which she thoroughly scrutinizes the specific nature of international organizations and their independence in dependence.
  • Topic: International Organization, International Affairs
  • Author: Stephan Sberro
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Although not often explicitly mentioned, culture is always at the centre of law and politics. Furthermore, it is certainly a study area which is steadily growing in international relations too. Thus any book which aims to help academics and practitioners to clarify the meaning, importance, and implications of culture in social sciences should be welcomed. Paul Meerts' Culture and International Law, based on the annual Conference of the Hague Academic Coalition held on 16 and 17 April 2007 in The Hague, is such a book.
  • Topic: International Relations, International Law, Politics
  • 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: Stephan W. Schill
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International investment law is one of the fastest-growing areas of international law today. Only a decade ago, the current surge in investor – state arbitrations, having cumulated in approximately 300 investment treaty disputes, was beyond imagination. At the same time, investment treaties enshrine principles of international investment law, rather than hard and fast rules. Almost unavoidably, international investment law therefore became coined more by the dispute settlement activities of arbitral tribunals which entertain claims between foreign investors and host states brought under investment treaties rather than by diplomatic exchange, intergovernmental negotiation, and inter-state treaty-making. Similarly, international investment law transpires and develops more in view of arbitral precedent and case law than on the basis of traditional textual approaches to treaty interpretation. Nonetheless, applying investment treaties in practice as well as studying and understanding the field not only requires knowledge about the jurisprudential developments but also demands awareness of the historic, economic, and customary international law context of foreign investment activities.
  • Topic: International Law