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  • Author: Sergey Sayapin
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This short article honours Professor Raphael Lemkin (1900–1959), author of the term 'genocide' and initiator of the Convention for the Prevention and Punishment of the Crime of Genocide, on the occasion of the 50th anniversary of his death. The article provides a brief overview of his career in international law and highlights Professor Lemkin's key ideas which shaped the Genocide Convention.
  • Topic: International Law
  • Author: Ana Filipa Vrdoljak
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
  • Topic: International Law, United Nations
  • Political Geography: Europe
  • Author: Amabelle C. Asuncion
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The International Court of Justice's decision on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) has exposed the unforeseen irony in the international consensus on the singular distinction of genocide as the crime of crimes. Defying expectations, this classification coupled with the conception of a 'civil genocide' has magically transformed into a legal shield which protects states from responsibility even as individual convictions are being handed down. Yet, the history of the Genocide Convention easily recalls the objective of preventing the commission of genocide by states and individuals alike. This article thus ponders on the virtue of seeking recourse under the Genocide Convention – whether against the state or the individual. In traversing this inquiry, it embarks on a comparative analysis of selected case law from the International Criminal Tribunal of Yugoslavia, the International Criminal Tribunal of Rwanda, and the International Court of Justice. As it uncovers a counterintuitive clash of jurisprudential outcome and a widening gap between the ideal and the real, the article identifies the legal bolts which need to be adjusted so that the genocide stops can be pulled in the right direction.
  • Topic: History
  • Political Geography: Yugoslavia, Rwanda
  • Author: Sarah Miller
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: European participation in controversial aspects of the 'war on terror' has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states' extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual's ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state's physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention's regional identity and its universalist aspirations.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Joel P. Trachtman
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: At a time when the Obama administration, the rest of the G20, and other governments, are emphasizing multilateral action to address global problems, such as global warming, terrorism, financial regulation, monetary policy, failed states, and public health, much is at stake in theoretical and empirical arguments about the possibility for effective collective action among groups of states. In The Perils of Global Legalism, Eric Posner argues that these efforts are largely futile. Can it be true that international law offers little or no assistance in response to global collective action problems? Posner grimly asserts that 'if a world government is not possible, then solving global collective action problems is also not possible' (at 8). If he is right, and given that the kind of world government he has in mind is indeed implausible, then the efforts of policy-makers and diplomats should immediately be diverted from efforts to craft international legal responses to global collective action problems, and reallocated to more productive pursuits. The implication of Posner's book: call home the diplomats and be content with the inefficiency implicit in unilateral action to address global collective action problems.
  • Author: Peter Hilpold
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The title of this book must raise both interest and suspicion: on the one hand, no legal subject is so intimately related to expectations and hope for the improvement of the lot of humankind as is the case with international law. On the other hand, it is also generally known that these hopes have been disappointed in an uncountable number of cases. Most of us have a personal view of what progress means, and we are fairly convinced that this opinion more or less matches that of many other consociates. However, we are hesitant explicitly to formulate a general definition of this concept and, even in politics, this concept nowadays is used rather rarely. In international law, since the advent of deconstructivism at the latest, it has become nearly impossible to argue in such categories. To speak about progress presupposes the existence of commonly shared values; it evokes a sense of a unidirectional development of culture and human society. Progress has become one of the most abused words of the 20th century. In the East it has been used to justify repression in exchange for the promise of a mythical future to come about when true communism is achieved. The concept of 'progress' in the West was more closely associated with the hope of unprecedented technological and economic advancement. As is known, in both fields disillusionment has set in. Not only has the desirability of economic growth become overshadowed by the recognition that the associated environmental problems far exceed all previous calculations, but growth itself has become a mirage for many industrialized countries. To speak of progress before 1989 smacked of deceit, afterwards it sounded utterly naïve.
  • Author: Christian Pippan
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In 1992, shortly after the dissolution of the Warsaw Pact and the Soviet Union marked the formal end point of the Cold War, Thomas Franck, who sadly passed away this year, famously proclaimed the emergence of a global 'right to democratic governance'. Against the backdrop of the dramatic political changes in Central and Eastern Europe, the progressive consolidation of democratic government in Latin America, burgeoning democratic reforms in various parts of Africa, and a rapidly increasing pro-democratic activism by the United Nations and other international organizations, he asserted that 'both textually and in practice, the international system is moving toward a clearly designated democratic entitlement, with national governance validated by international standards and systematic monitoring of compliance'.1 As is well known, Franck's thesis – which is largely grounded in the peoples' right to (internal) self-determination and a new reading of participatory norms contained in international human rights treaties – had a significant resonance in international legal scholarship and ushered in what came to be known as the 'democratic entitlement school'. Though the debate over the sweeping claim that, in the post-Cold War era, democracy is becoming – or has already become – a universal norm probably saw its heyday in the 1990s, it has, to this day, lost neither attraction nor relevance. Indeed, the claim's provocative nature (in light of international law's traditional indifference towards domestic constitutional orders), its assumptions about the kind of democracy advanced by the international system, as well as its potentially far-reaching consequences for states deemed to be in violation of the emerging norm continue to inspire scholars of international law and fuel an ongoing controversial discussion.
  • Political Geography: Europe, Latin America
  • Author: Jörg Kammerhofer
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Dr Orakhelashvili, currently lecturer in law at the University of Birmingham Law School, is a prodigious writer as well as a very conscientious and thorough scholar. His latest book on interpretation in international law shows precision in scholarship and a comprehensive grasp of the subject. It comes at a time when the process of interpretation is little understood, yet often talked about by scholars, practitioners, and tribunals alike. Despite the large amount of literature already published on the topic – the bibliography printed in Orakhelashvili\'s book (at 585–591) is just the tip of the iceberg – and regardless of the countless dicta of various international tribunals, a new and fresh look at this central nexus between international legal practice and theory is highly welcome.
  • Topic: International Law
  • Author: Lance Bartholomeusz
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Rarely is an international law reference text, let alone an article-by-article commentary on a convention, both authoritative and entertaining. Eileen Denza's third edition of Diplomatic Law is, however, an exception. Earlier editions of this text, first published in 1976 and then revised in 1998, quickly became the practitioner's standard reference. Drawing on her long and practical experience, Denza has thoroughly updated and revised the text; the third edition consolidates the reputation of Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations, as the authoritative text in its field. Since diplomacy and espionage are often (uncomfortable) bedfellows, some of the state practice reads like episodes from a spy novel.
  • Author: Zoe Pearson
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is little doubt that non-governmental organizations (NGOs) are an enduring phenomenon in international law. While the formal involvement of NGOs with the United Nations (UN) system has longevity, tracing back to provisions in Article 71 of the UN Charter, discourses of globalization have given added impetus to their presence in international law under the broad church of 'global civil society'. The Chair of the recent Panel of Eminent Persons on United Nations– Civil Society Relations set up to examine the relationship of NGOs with the UN system characterized the rise of civil society as one of the 'landmark events of our times'. 2 This visibility has meant that NGOs have increasingly become a source of debate amongst international legal scholars. Some commentators welcome the participation of NGOs in inter - national legal and political processes, while others express unease about the involvement of NGOs within the international system and question the legitimacy of this presence. The involvement of NGOs in international law therefore remains contested, and key issues about the extent and nature of their participation, their legal status and legitimacy as actors in international law are unresolved. The four volumes under review take us some steps further along in understanding the present and potential participation of NGOs in international law in a number of ways. First, these volumes provide a comprehensive picture of how the presence of NGOs in the international legal and political systems has evolved into the many varying arrangements that NGOs have with international organizations. Second, the volumes seek to engage with some of the more intractable issues; in particular, these volumes explore the challenging questions about the legitimacy of NGOs as actors in international law. Finally, these volumes highlight that this inquiry is a fundamentally inter-disciplinary exercise; going beyond legal analysis, it is important to consider the basis on which the legal status of NGOs rests.
  • Political Geography: United Nations