Search

You searched for: Content Type Journal Article Remove constraint Content Type: Journal Article Publication Year within 25 Years Remove constraint Publication Year: within 25 Years Journal European Journal of International Law Remove constraint Journal: European Journal of International Law
Number of results to display per page

Search Results

  • Author: Panagiotis Delimatsis
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A necessity test is a tool that reflects the balance between each country's prerogative to regulate in its own jurisdiction and the multilateral interest in progressive liberalization of services trade. Experience gained in goods trade indicates that the principle of necessity can be a useful proxy allowing the judiciary of the World Trade Organization (WTO) to draw the dividing line between legitimate regulation and protectionist abuse. This article explores the possibility of creating a necessity test that would be applicable to all services sectors. Such a horizontal test may yet emerge from the current negotiations within the Working Party on Domestic Regulation (WPDR), which aim to fulfil the legal mandate contained in Article VI(4) of the General Agreement on Trade in Services (GATS or the 'Agreement'). At the core of this mandate, as clarified by various negotiating documents, lies the requirement that Members ensure that domestic regulatory measures relating to licensing, qualifications, and technical standards do not constitute unnecessary barriers to trade in services.
  • Topic: World Trade Organization
  • Author: Charlotte Streck, Jolene Lin
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Kyoto Protocol's Clean Development Mechanism (CDM) is the first global market mechanism in international environmental law. It has been much lauded for its success. However, doubts whether the CDM governance structure is robust enough to meet the challenges of regulating an international market mechanism in the long term are emerging. The Executive Board (EB)'s decision-making practice is often not predictable and many of its decisions have come as a surprise to project participants and technical project experts. Members of the EB often have multiple responsibilities which result in a complicated situation of conflicting interests. Finally, private sector participants in the CDM who have been aversely affected by EB decisions have no right of recourse and essentially little if any due process rights. This article argues that incorporating mechanisms to promote procedural fairness and creating an appeals process for aggrieved CDM participants will promote transparency and accountability in the CDM decision-making processes. This is essential for the sound operation of the CDM regulatory regime which will have a direct positive effect on the international carbon market. After conducting a comparative analysis of other regimes in which international bodies take decisions that directly affect individuals, most notably the system of targeted sanctions of the UN Security Council and the Anti-Doping Regime, as well as examining the World Bank Inspection Panel and the European Ombudsman as models of international review mechanisms, the authors set out proposals for reform of the CDM, including professionalizing the EB and the panels, securing better and more consistent funding, the elimination of political interference, and the introduction of administrative law-like processes.
  • Topic: Security, Governance, Reform
  • Political Geography: Europe
473. Editorial
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Book reviews, seemingly so simple, are, as any book review editor will know, so challenging. They are, now more than ever, indispensable. Word processing, digital research and, more generally, the industrialization and commercialization of academia, have made the manufacturing of books faster and easier. There are many more law books published today than ever before. Book reviews are not only a way of keeping up with what is published, but also of getting a sense of the content and value of books one simply has to read, of books one should, but never would, read, of books that one neither should nor could read (but which one's library ought to purchase) and, finally, a rare species of a book review, those titles with which one should not bother at all, e.g., so many of those conference 'edited' books (which normally means a motley bag of uneven quality with no academic editing at all and often not even copy editing). The same features of contemporary academia and publishing are responsible for the plethora of 'learned' journals, the articles in many of which are rarely read by anyone but the author and, perhaps a hapless editor and referee. And then there are the Working Paper series (which these days are, thank God for small mercies, never actually on paper, Occasional Research series, and the Blogsphere which renders, say, yesterday's World Court decision already old news tomorrow.
  • Author: Magdalena Ličková
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: For Member States of the European Union, participation in this supranational organization has increased the number of difficulties in the international arena. Occasionally, the expanding legislative activity of the European institutions reaches out beyond the borders of the European legal system and incidentally affects the EU Member States' autonomous relations with third parties. Consequently the EU and its members, often with success, seek third parties' consent to exceptional treatment. Because of their number and significance, such derogations have inspired this article to inquire into their expansion and legal status under international law. Even though the EU-related exceptions have not created an international customary rule, the article observes that European integration shapes international rules in diverse fields and adjusts them to its needs. Since European integration is designed to administer and regulate an increasing number of issues, the autonomous international obligations of the EU Member States may become an obstacle. Because the European Union is likely to continue using special treatment in the future, it is important to assess how far the supranational exception can go in order to accommodate all interests at stake.
  • Political Geography: Europe
  • Author: Andrea Bianchi
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is an almost intrinsic relationship between jus cogens and human rights. Peremptory human rights norms, as projections of the individual and collective conscience, materialize as powerful collective beliefs. As such, they inherently possess an extraordinary force of social attraction that has an almost magical character. This article investigates the legal effects of peremptory human rights norms at both the systemic and contextual levels. If these norms have been successful in providing the societal body with a set of identity values, they have dramatically failed to operate as an ordering factor of social practices. To wonder why this is so and to see what can be done (and by whom) to enhance their impact on the contextual level is the main goal of this article.
  • Topic: Human Rights
  • Author: Kjetil Mujezinovic Larsen
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article addresses the issue of whether conduct in international peace operations is attributable to the troop contributing states or to the United Nations, taking the European Court of Human Rights' admissibility decision in the Behrami and Saramati cases as a point of reference. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attributable to the United Nations. The article examines the content of the 'ultimate authority and control' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view difficult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's decision, when seen in connection with previous case law, in practice renders the European Convention on Human Rights irrelevant in international peace operations.
  • Topic: Human Rights, International Organization, United Nations
  • Political Geography: Europe
  • Author: Marcello Di Filippo
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Notwithstanding the emphasis placed on the need for concerted international action to confront the problem of terrorism, positive international law is far from treating the issue of defining the criminal notion of terrorism coherently; the discussion of such a notion is being made hostage [sic!] to the abuse of the term 'terrorism' in the course of the debate and to the confusion between an empirical description of a phenomenon and its treatment under criminal law. Proposing a core-definition approach, this article elaborates a notion based upon the basic rights of civilians and on the unacceptability of their violation by terrorist methods carried out by private organized groups. The definition proposed here, which does not recognize in the perpetrator's motivations any material relevance because of the overwhelming importance of the value infringed, is able to minimize the relevance of some abused arguments (such as state terrorism or the treatment of 'freedom fighters'), could quickly gain customary status and would prove useful in interpretation and in drafting exercises, both at international and national level. As for the inclusion of terrorism in the category of international crimes, it is submitted that two interpretive options are open: to consider the category of crimes against humanity as already able to embrace core terrorism; or to place the strong rationale underlying the stigmatization of terrorist crimes in the perspective of the gradual emerging of a discrete international crime of terrorism. National case law seems to point to the latter option, but the question does not appear settled: for this reason, the discussion regarding the prospect of an amendment to the ICC Statute expressly to include terrorist crimes continues to be of interest. An express inclusion could be useful to avoid doubts or discrepancies at national level and to solve some outstanding issues of the international community's criminal policy.
  • Topic: International Cooperation, Terrorism, Law
  • Author: Caroline Henckels
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The proliferation of free trade agreements which share dispute settlement jurisdiction with the WTO has added to claims of disintegration within international trade law. Recent WTO jurisprudence is indicative of the limits of WTO members' ability to invoke provisions of an FTA as a 'jurisdictional defence' where the dispute implicates trade measures under both WTO and FTA rules. Such uncertainty in the law has the potential not only to create issues of incoherent jurisprudence, but also to threaten the stability and predictability of the multilateral trading system. These issues are likely to continue to arise as FTAs continue to grow in abundance while the Doha round is stalled. Based on analysis of a selection of state-state disputes before other fora such as the International Court of Justice, this article argues that in the interest of the effective administration of justice, the WTO's judicial organ should use its inherent power of comity to decline to exercise jurisdiction so that the dispute can be resolved by an FTA tribunal where a dispute is inextricably connected with a dispute under an FTA and that exercising jurisdiction would not be reasonable in the circumstances.
  • Topic: World Trade Organization
  • Author: Arnold N. Pronto
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In their timely and thought-provoking book, Alan Boyle and Christine Chinkin explore contemporary methods of making international law. With the expansion of international law, and its increased specialization, it is no longer the case that it is 'made' by a finite number of entities (states) through a handful of intergovernmental processes. Instead, international law is made in a large number of for a, including a variety of multilateral processes, tribunals and the organs of international organizations. In addition, although states remain the primary makers of international law, they are joined by other participants such as international organizations and judges, as well as entities which are influential in the making of international law, including non-governmental organizations and even individuals. The authors' approach is to seek to draw generalized inferences from an analysis of the processes, both within and beyond the United Nations, which led to the adoption (or not) of several significant international instruments and other documents. Although their treatment of the subject-matter is not without its difficulties, it nonetheless provides a useful overview, which should be of interest to the academic and practitioner alike. The book is also significant for the fact that, in reviewing the range of modern international law instruments, the authors inadvertently provide an insight into the modern sources of international law, particularly as regards the significance of the interplay between different types of law-making instruments. The present writer offers his perspective on the treatment of the question of participation in international law-making, the impact of NGOs in the making of international law, consensus-based decision-making, the role of innovation in securing consensus, and the concept of 'soft law'.
  • Author: Christopher McCrudden
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Universal Declaration on Human Rights was pivotal in popularizing the use of 'dignity' or 'human dignity' in human rights discourse. This article argues that the use of 'dignity', beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common understanding of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context-specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to significant judicial manipulation, increasing rather than decreasing judicial discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of substantive interpretations of human rights guarantees which appear to be intentionally, not just coincidentally, highly contingent on local circumstances. Despite that, however, I argue that the concept of 'human dignity' plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication.