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  • Author: Elisa Morgera
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The interaction between bilateral and multilateral action is evolving in the context of 'global environmental law' – a concept that is emerging from the promotion of environmental protection as a global public good through a plurality of legal mechanisms relying on a plurality of legal orders. The notion of global public goods can thus help one better to understand recent bilateral initiatives aimed at supporting the implementation of multilateral environmental agreements and the decisions of their compliance mechanisms. Innovative linkages between the compliance system under the Convention on International Trade in Endangered Species and bilateral trade agreements recently concluded by the European Union and the US provide an example. Innovative opportunities for bilateral initiatives supporting the implementation of the 2010 Nagoya Protocol on Access and Benefit-sharing are likely to lead to even more complex inter-relationships between different legal orders. This new approach to bilateralism that aims to support the interests of the international community can be assessed in the context of earlier debates on unilateralism, with a view to emphasizing the role of international law in the identification and delivery of global public goods, and the role of global environmental law in understanding the interactions among a plurality of legal orders.
  • Political Geography: United States, Europe
  • Author: Pulat Tacar, Maxime Gauin
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We have been asked by the European Journal of International Law to write a reply to an article entitled 'State Identity, Continuity and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide'. The article accuses Turkey of 'practising a denialist policy' with regard to 'the act of genocide committed during 1915–1916', demanding that it 'make itself responsible for its own internationally wrongful acts committed against Armenians and other Christian minorities', and also accuses it of 'expanding the massacres beyond its borders into the Caucasus and the territories of the independent Republic of Armenia'. According to the same article, there is a state succession and continuation of responsibility from the Ottoman Empire to the Turkish Republic, and the Republic must assume full responsibility for and should also repair the injury caused by the Ottoman Empire.
  • Political Geography: Europe, Turkey
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: EJIL receives hundreds of unsolicited articles each year. We welcome these submissions. They are an important part of who we are. They constitute the pool from which, alongside the pieces we commission ourselves, we build our individual issues. A few of the submissions are just awful. But most are good and, naturally, we receive many more fine articles than we are able to publish. We know it is disappointing for authors to receive a rejection letter. We truly hope that authors will not give up on us if they are not always successful with this or that submission. In 21 years we have never laid bare our selection and editorial process. This is not exactly an apology: at one time or another I have sat on the Editorial, Advisory, Scientific and other such Boards of over 23 different journals and do not recall ever seeing another journal doing such. Be that as it may, I decided that both our authors and readers should know how the process works. I also compiled some basic aggregate statistics on our authors over the first 20 years of EJIL – and slightly more detailed stats from the last two years. (Relax, nothing personal – country of submission, gender, etc.) We ourselves were surprised by some of the results. But first things first: How is the selection of articles for publication made?
  • Political Geography: Europe
  • Author: Mirko Sossai
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The renewed interest in the law of belligerent occupation probably reached its peak in 2009, when various monographs were published by distinguished authors as well as by younger scholars. The book under review originated from a doctoral thesis defended by Andrea Carcano at the University of Milan. His investigation focuses on the 2003 occupation of Iraq as the ideal test-case to verify whether the existing legal regime is adequate to address the challenges posed by present-day scenarios, including Afghanistan, Congo, and the Arab–Israeli conflict. The book is divided into three parts. The first one comprises two chapters, which present respectively the legal framework of belligerent occupation and the other applicable norms of international law. Chapter I takes a historical perspective on the legal concept of occupation, which the author considers functional to the subsequent analysis for two main reasons: to investigate the underlying values guiding the development of the law of belligerent occupation; and to compare current theories regarding the role of the law in such a situation with similar arguments upheld in the past (at 13). Carcano identifies three epochs, which modelled different concepts of occupation. The first one is valid until the Modern Age and is influenced by the Roman law tradition: occupation is considered as 'conquest and exploitation of the territory'. The modern notion of occupation, defined as 'administration and effective control', emerged during the 18th century, at the time of the consolidation of sovereign states in Europe. Whereas Vattel had already in theory identified the differentiation between sovereignty and private ownership, it was August Heffter, a century later, who first recognized the legal implications of the distinction between occupatio bellica and debellatio (at 24). Finally, the last model is that of the occupation as 'transformation': Carcano identifies it as 'a military action aimed at the radical …
  • Topic: Development, International Law
  • Political Geography: Afghanistan, Europe, Israel, Paris, Arabia
  • Author: Constantin von der Groeben
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Aida Torres Pérez' Conflicts of Rights in the European Union. A Theory of Supranational Adjudication 1 is a comprehensive monograph dealing with one of the most striking normative challenges in the European Union (EU): the relationship between the European Court of Justice (ECJ) and Member State courts in adjudicating fundamental rights. Torres Pérez presents the existing spheres of fundamental rights protection in the EU and provides a thorough analysis of the conflicts that emerge where these different spheres overlap. Her volume covers a number of different approaches and provides suggestions on how to deal with these conflicts and eventually proposes a normative model for ECJ adjudication through judicial dialogue based on comparative constitutional reasoning. The book is well structured in three parts. The first part gives a brief but thorough overview of the different systems of fundamental rights protection open to EU citizens. The author describes these different systems as the multilevel protection of rights in Europe and distinguishes between human rights protection through national constitutions (constitutional rights), through the ECJ (EU fundamental rights) and through the European Convention on Human Rights (convention rights). She outlines the conflicts that arise when these different systems of fundamental rights protection overlap. In general, such conflicts may arise when different rights are considered to be fundamental (at 10) and where community members disagree regarding fundamental rights interpretation (at 11), especially concerning sensitive issues like abortion or affirmative action (at 16). A potential for conflict exists whenever states act within a field of application of EU law which includes two types of situations: (i) state acts implementing EU law, and (ii) state acts derogating from the EU basic freedoms of movement (at 16). An example of a rights conflict between German courts and the ECJ is the 'banana saga', where the courts disagreed on …
  • Topic: Human Rights, Governance
  • Political Geography: Europe
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European construct has played a decisive role in the history of the last 60 years. It has created the framework for post-war reconstruction and has ingeniously provided the inspiration and mechanisms for a historical reconciliation between nations which hitherto had gone to war with each other – the horrors of which surpass even the worst of today's excesses – in every generation for the previous two centuries. This cannot but give inspiration and a sliver of hope in the face of our own intractable conflicts. The European Coal and Steel Community, the 60th Anniversary of which we mark this year, incorporated the Schuman Declaration and combined peace and prosperity in its blueprint, whereby peace was to breed prosperity and prosperity was to consolidate peace. It has all worked out splendidly – revisionist history notwithstanding. Europe has also been a catalyst (not more) – at times the 'prize' – for the achievement and subsequent consolidation of democracy, first in Greece, Spain and Portugal, and later across Eastern Europe.
  • Topic: Politics
  • Political Geography: Europe, Eastern Europe, Libya
  • Author: Michael Waibel
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Despite its codification by the Vienna Convention more than 40 years ago, treaty interpretation in international law continues to evolve as its function of providing predictability in international relations remains as important as ever. The voluminous recent literature testifies to the continuing scholarly interest in interpretation, even if sometimes at the cost of over-theorizing. This essay reviews six books that seek to demystify the art of treaty interpretation. Written by European scholars, the books take a fresh look at interpretation but differ in their approaches and scope of analyses. While all six authors study the interpretive practice of international courts and tribunals, Gardiner, Linderfalk and Van Damme focus on treaty interpretation; Fernández de Casadevante Romani, Kolb and Orakhelashvili also examine the interpretation of decisions by international organizations, unilateral acts and customary international law. Kolb and Orakhelashvili opt for a comprehensive, theoretically-grounded approach, whereas Van Damme focuses on the interpretative practice of the WTO Appellate Body. On the strength of her perceptive and nuanced analysis of WTO jurisprudence, the book is the best guide among the six to interpretation in international law generally. In addition to Van Damme's work, the practitioner will also find Gardiner's book particularly useful.
  • Political Geography: Europe, Vienna
  • Author: Birgit Schlutter
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jürgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the 'founding principles of the polity' and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe.
  • Topic: Law
  • Political Geography: Europe, Lisbon
  • Author: Rebecca L. Zahn, Dr. jur
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is an ever-growing body of literature in law and political science on the illusive concept of Europeanization. A lot of the discussion in the literature attempts to define Europeanization and, on the basis of such a definition, to elaborate on the content of the concept. Donatella della Porta and Manuela Caiani, who both work in political science departments, contribute to this discussion by combining insights from the existing body of literature with new empirical findings in order to demonstrate the relevance of the European Union to social movements. The authors situate the discussion surrounding the involvement of social movements in the process of Europeanization within the aftermath of the failed referenda on the European Constitution in France and the Netherlands in 2005 in order to illustrate the contribution of social movements to the debates on European integration. The authors refer to the literature in the area of social movement studies.1 However, they also go beyond the field and combine insights from the literature on Europeanization with empirical research in order to address the involvement of social movements in the process of Europeanization. An example of such involvement is the European-wide campaign against the so-called 'Bolkestein' Directive in which social movements actively participated. Social movements, in this context, are defined as 'dense informal networks of collective actors involved in conflictual relations with clearly identified opponents, who share a distinct collective identity, using mainly protests as their modus operandi'.
  • Political Geography: Europe
  • Author: Hans Christian Wilms
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The ethical and legal challenges of biomedical research are among the most crucial and interesting questions in law nowadays. One of these questions concerns the regulation of research on human genetic data in transnational constellations. Genetic research promises therapies and prevention for diseases like cancer and HIV, but it is highly dependent on genetic material derived from donors of tissue or blood. For significant advancements in cancer research, for instance, a large number of genetic data of patients is needed. Such data are most effectively collected in and made available by databases or biobanks that allow the exchange of genetic data by various research facilities. To enhance the possibilities and enlarge the amount of genetic data available for researchers the European Union through its 6th Framework Programme of the European Commission under the Action Line 'Integrated biomedical information for better health' funded the so-called 'Advancing Clinico-Genomic Trials on Cancer' research project (ACGT). This project aimed to deliver to the cancer research community an integrated clinico-genomic information and communication technology environment designed to become a pan-European voluntary network connecting individuals and institutions to enable the sharing of data and tools. However, broadening the scope to the European level causes problems of integration of different national views on ethical issues and their legal framework.
  • Political Geography: Europe