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  • Author: Rafael Domingo
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Emer de Vattel (1714–1767), in his influential work The Law of Nations, established a new international statist paradigm which broke with the classical partition of the law into the three realities of 'persons, things and actions' (personae, res, actiones). This new paradigm substituted the state for the person, downgraded the generic concept of 'things' to the obligations among states in their relations, and changed the focus of the concept of 'action' to that of 'war' as a legal remedy to resolve conflicts between and among states. This international paradigm (or statist paradigm) has survived almost up to our time in international praxis. Nonetheless, today the statist paradigm appears to be in every way insufficient, since it does not consider humanity as a genuine political community, nor does it reflect the three-dimensionality of the global law phenomenon. The transformation of the law that governs our international community (international law) into a law that is capable of properly ordering the new global human community (global law) demands the creation of a new paradigm, originating in the following conceptual triad: global human community, global issues, and global rule of law. In the construction of this new global paradigm, cosmopolitan constitutionalism could play a key role.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Petros C. Mavroidis, Juan A. Marchetti
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Uruguay Round services negotiations saw the light of day amidst pressures from lobbies in developed countries, unilateral retaliatory actions, and ideological struggle in the developing world. The final outcome, the GATS, certainly characterized by a complex structure and awkward drafting here and there, is not optimal but is an important first step towards the liberalization of trade in services. This article traces the GATS negotiating history, from its very beginning in the late 1970s, paying particular attention to the main forces that brought the services dossier to the multilateral trading system (governments, industries, and academics), and the interaction between developed and developing countries before and during the Uruguay Round. We will follow the actions, positions, and negotiating stances of four trading partners – Brazil, the European Union, India, and the United States – that were key in the development of the GATS. Finally, we will, indicatively at least, try to attribute a 'paternity' (or, rather, a 'maternity') to some key features and provisions of the agreement.
  • Topic: Government
  • Political Geography: United States, Europe, India, Brazil
  • Author: Christian J. Tams
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In their 'mission statement', the European Journal's founding editors announced the launch of an occasional focus section devoted to the work of international lawyers who stood for particular aspects of the 'European Tradition in International Law', rather boldly set in the singular. Previous focus sections have assessed the continuing relevance of (and typically celebrated) the likes of, for example, George Scelle, Roberto Ago, Alfred Verdross, Hans Kelsen, and Max Huber.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Ronagh McQuigg
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the question of how states have responded to the comments of the United Nations Committee against Torture through an analysis of eight Western European states. It is concluded that the Committee's recommendations have had a substantial impact in four of the states surveyed, however only a limited effect in two other states, and little or no impact in the two remaining states. These findings lead to concerns as regards the effectiveness of the Committee against Torture. The article focuses on the Concluding Observations made by the Committee on the reports submitted by the states in question.
  • Topic: International Law
  • Political Geography: Europe, United Nations
  • Author: Stefano Piedimonte Bodini
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court's approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.
  • Topic: Human Rights, International Law
  • Political Geography: Europe
  • Author: Fernando Losada Fraga
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Free movement of capital and freedom of establishment are among the very few areas of the European Union's internal market law the limits of which still need clarification. The political relevance of both freedoms is remarkable, particularly in the current context of economic crisis. This was proven again last summer when the government of Portugal overruled Portugal Telecom shareholders' decision to sell to Telefónica part of their shares in Vivo. The conflict between Member States' desire to protect strategic public interests through the fostering of 'national champions' and the economic freedoms as conceived in the EU treaties has usually been solved by the Court of Justice of the European Union (ECJ) in favour of the latter.
  • Political Geography: Europe
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I have no intention of listing all of Antonio Cassese's many distinctions and achievements as one of the great international lawyers of his generation. Readers of EJIL will be familiar with all of that, and Wikipedia (a decent entry) is just one click away. It is the person behind the public figure who is of interest. One has to be personal. I met Nino for the first time in 1978. I was a young(ish) Assistant at the European University Institute. He was a Professor 'down town' in Florence. Relations between the faculty at the University and the EUI on the top of the hill were frosty. At best an entente cordiale. Nino would have none of that. He embraced me and within months of my arrival invited me, first to his home, and then to contribute to a major project he was directing on Parliamentary Control of Foreign Policy. I was asked by him to write the Report on the European Communities. It was a telling moment. The late Christoph Sasse, distinguished professor of EC law from Hamburg, was indignant: 'a role for a Professor, not an Assistant'. Nino had no patience for that stuff either. He really did not know me all that well and was taking a risk. But it was typical of him: reaching out, welcoming, having faith, including the young, foreigners. It galvanized me. It was, too, a lesson for life.
  • Political Geography: Europe
  • Author: Sonia Morano-Foadi, Stelios Andreadakis
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article, based on a broader project, focuses on the interaction between the two European Courts (the Court of Justice of the European Union – ECJ and the European Court of Human Rights – ECtHR) and uses the specific area of expulsion/deportation of third country nationals (non-EU nationals) from European territory as a case study. The work examines the ECJ's and ECtHR's divergent approaches in this area of law, and it then provides some preliminary reflections on the potential of the EU Charter of Fundamental Rights and the EU's accession to the European Convention of Human Rights (ECHR) to achieve a more harmonious and convergent human rights system in Europe. It finally argues that the post-Lisbon era has the potential to enhance the protection of fundamental rights within the continent.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Abigail C. Deshman
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A diverse set of national and international bodies is increasingly commenting upon other organizations' compliance with 'global administrative law' norms, creating a complex network of inter action and review. Although many forms of interaction can be identified and observed, horizontal review between international organizations appears to be relatively rare. This article examines one instance in which review did emerge: the Parliamentary Assembly of the Council of Europe's criticisms of the transparency and accountability of the World Health Organization (WHO) during the H1N1 pandemic. Two key questions arise from the case study. First, what structural or institutional features allowed inter institutional review to take place? And, secondly, why would two institutions have such divergent views of an international organization's accountability and transparency? The analysis suggests that a key factor in allowing horizontal review to occur is diversity in institutional composition – in terms either of membership, distribution of power between members, or interests represented by members. In this case study, the Parliamentary Assembly represented the interests of states' legislative branches, whereas the WHO representatives reflect the interests of states' executive branches. Variations in baseline assumptions regarding the WHO's function in regulating infectious disease response and to whom it should be accountable may partially explain the substantive divergence of opinion.
  • Political Geography: Europe
  • 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