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  • Author: Hannah Woolaver
  • Publication Date: 01-2019
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: If a state withdraws from a treaty in a manner that violates its own domestic law, will this withdrawal take effect in international law? The decisions to join and withdraw from treaties are both aspects of the state’s treaty-making capacity. Logically, international law must therefore consider the relationship between domestic and international rules on states’ treaty consent both in relation to treaty entry and exit. However, while international law provides a role for domestic legal requirements in the international validity of a state’s consent when joining a treaty, it is silent on this question in relation to treaty withdrawal. Further, there has been little scholarly or judicial consideration of this question. This contribution addresses this gap. Given recent controversies concerning treaty withdrawal – including the United Kingdom’s exit from the European Union, South Africa’s possible withdrawal from the International Criminal Court, and the threatened US denunciation of the Paris Agreement – and the principles underlying this body of law, it is proposed that the law of treaties should be interpreted so as to develop international legal recognition for domestic rules on treaty withdrawal equivalent to that when states join treaties, such that a manifest violation of domestic law may invalidate a state’s treaty withdrawal in international law.
  • Topic: International Law, Treaties and Agreements, European Union, Courts, State Actors
  • Political Geography: United Kingdom, Europe, South Africa, United States of America
  • Author: Surabhi Ranganathan
  • Publication Date: 04-2019
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this article, I argue for a critical recognition of the law of the sea, as it developed from the post-war period, as fostering a ‘grab’ of the ocean floor via national jurisdiction and international administration. I discuss why we should view what might be discussed otherwise as an ‘enclosure’ or ‘incorporation’ of the ocean floor within the state system as its grab. I then trace the grounds on which the ocean was brought within national and international regimes: the ocean floor’s geography and economic value. Both were asserted as givens – that is, as purely factual, but they were, in fact, reified through law. The article thus calls attention to the law’s constitutive effects. I examine the making of this law, showing that law-making by governments was influenced by acts of representation and narrative creation by many non-state actors. It was informed by both economic and non-economic influences, including political solidarity and suspicion, and parochial as well as cosmopolitan urges. Moreover, the law did not develop gradually or consistently. In exploring its development, I bring into focus the role played by one influential group of actors – international lawyers themselves.
  • Topic: Economics, International Law, History, Law of the Sea, Maritime
  • Political Geography: Europe, Oceans
  • Author: Paz Andrés Sáenz De Santa María
  • Publication Date: 07-2019
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the European Union’s (EU) treaty practice from the perspective of the international law of treaties, focusing on its most significant examples. The starting point is the EU’s attitude towards the codification of treaty law involving states and international organizations. The article discusses certain terminological specificities and a few remarkable aspects, such as the frequent use of provisional application mechanisms as opposed to much less use of reservations, the contributions regarding treaty interpretation, the wide variety of clauses and the difficulties in determining the legal nature of certain texts. The study underlines that treaty law is a useful instrument for the Union and is further enriched with creative contributions; the outcome is a fruitful relationship.
  • Topic: International Law, Treaties and Agreements, European Union, Courts
  • Political Geography: Europe, European Union
  • Author: Alan Desmond
  • Publication Date: 01-2018
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article critically examines the evolving practice of the European Court of Human Rights (ECtHR) towards the definition and use of the concepts of family life and private life in cases involving migrants who seek to resist deportation by invoking Article 8 of the European Convention on Human Rights. The examination reveals an approach on the part of the Court that has the effect of shrinking the protection potential of Article 8 for migrant applicants, allowing state interest in expulsion to carry the day. This is symptomatic of Strasbourg’s deference to state sovereignty in the realm of migration. While the ECtHR has issued a number of landmark rulings roundly vindicating migrants’ rights, these are the exception to the rule of Strasbourg’s deference to state powers of immigration control. This approach has far-reaching implications for migrants in the member states of the Council of Europe. The article concludes by highlighting the tools at the Court’s disposal that could be employed to construct a more human rights-consistent approach in this strand of jurisprudence, which is an issue all the more relevant in light of the growing number of migrants seeking to establish a life in Europe.
  • Topic: Human Rights, International Law, Migration, Sovereignty, Courts
  • Political Geography: Europe, France
  • Author: Itamar Mann
  • Publication Date: 04-2018
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article explores the trope of the ‘legal black hole’ to reveal questions of legal theory arising from contemporary migrant drownings. The theme was popularized during what was then called the ‘war on terror’, but its trajectory is longer and more complex. Its material history, as well as its intellectual history within legal scholarship, suggest three distinct ‘legacies’ of legal black holes: the counterterrorism legacy; the migrant-detention legacy; and the legacy of the maritime legal black hole. The tripartite division provides a conceptual typology of instances where persons are rendered rightless. While the two former types are characterized by de facto rightlessness due to a violation of international law, the latter exposes a seldom acknowledged, yet crucial, characteristic of international law; the age-old doctrine on the division of responsibilities between states and individuals at land and at sea is now creating the conditions in which some people are rendered de jure rightless. Moreover, the typology sheds light on the specifically legal reasons for the seeming failure to end mass drowning of migrants and refugees in the Mediterranean Sea. Tracing the ways in which people become de jure rightless is ultimately suggested as a broader research agenda for scholars of international law.
  • Topic: Human Rights, International Law, Migration, Maritime
  • Political Geography: Europe, Mediterranean
  • Author: Leora Bilsky, Rachel Klagsbrun
  • Publication Date: 04-2018
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Cultural genocide, despite contemporary thinking, is not a new problem in need of normative solution, rather it is as old as the concept of genocide itself. The lens of law and history allows us to see that the original conceptualization of the crime of genocide – as presented by Raphael Lemkin – gave cultural genocide centre stage. As Nazi crime was a methodical attempt to destroy a group and as what makes up a group’s identity is its culture, for Lemkin, the essence of genocide was cultural. Yet the final text of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) does not prohibit cultural genocide as such, and it is limited to its physical and biological aspects. What led to this exclusion? In this article, we examine the various junctures of law, politics and history in which the concept was shaped: the original conceptualization by Lemkin; litigation in national and international criminal courts and the drafting process of the Genocide Convention. In the last part, we return to the mostly forgotten struggle for cultural restitution (books, archives and works of art) fought by Jewish organizations after the Holocaust as a countermeasure to cultural genocide. Read together, these various struggles uncover a robust understanding of cultural genocide, which was once repressed by international law and now returns to haunt us by the demands of groups for recognition and protection.
  • Topic: Genocide, International Law, History, Culture, Courts, Holocaust
  • Political Geography: Europe, Germany
  • Author: Alexandra Adams
  • Publication Date: 07-2018
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article analyses the over 20 years’ jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda with respect to the crime of rape. It discusses how the attitude towards the prosecution of sexual crimes has changed since the Tribunals work began and what impact its jurisprudence has had on other attempts to define rape (elements of crime [EOC]). The article explores in depth the various definitions of rape given by the different chambers of both Tribunals. Consequently, it examines if the ultimate definition of the Kunarac chamber will prevail in international law. Not only are the weaknesses of the Kunarac definition that followed a pure consent approach revealed but the EOC of rape that opted for a combination of the coercion approach with one aspect of the lack-of-consent doctrine (incapacity) also face criticism. This leaves only one response – namely, that the elements of rape in international criminal law today can only be based upon a newly conducted comparison of national laws, thereby reflecting the general principles of the major legal systems of the world. The strongest accomplishment of both Tribunals concerning the crime of rape therefore lies not in the clarification of the elements of rape but, rather, in the revelation of a law-finding method, which is indispensable to the rudimentary field of international criminal law.
  • Topic: International Law, War Crimes, Gender Based Violence , Courts, Rape
  • Political Geography: Europe, Yugoslavia, Rwanda
  • Author: Veronika Fikfak
  • Publication Date: 10-2018
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.
  • Topic: Human Rights, International Law, Reform, Courts
  • Political Geography: Europe, France
  • Author: Alejandro Chehtman
  • Publication Date: 01-2017
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Drones constitute an incremental advance in weapons systems. They are able to significantly reduce overall, as well as collateral, damage. These features seem to have important implications for the permissibility of resorting to military force. In short, drones would seem to expand the right to resort to military force compared to alternative weapons systems by making resorting to force proportionate in a wider set of circumstances. This line of reasoning has significant relevance in many contemporary conflicts. This article challenges this conclusion. It argues that resorting to military force through drones in contemporary asymmetrical conflicts would usually be disproportionate. The reason for this is twofold. First, under conditions of radical asymmetry, drones may not be discriminatory enough, and, thereby, collateral damage would still be disproportionate. Second, their perceived advantages in terms of greater discrimination are counteracted by the lesser chance of success in achieving the just cause for war. As a result, resorting to military force through drones in contemporary asymmetrical conflicts would generally be disproportionate not because of the harm they would expectedly cause but, rather, because of the limited harm they are ultimately able to prevent. On the basis of normative argument and empirical data, this article ultimately shows that we need to revise our understanding of proportionality not only at the level of moral argument but also in international law.
  • Topic: International Law, War, Military Affairs, Weapons , Drones
  • Political Geography: Afghanistan, United States, Europe
  • Author: Noëlle Quénivet
  • Publication Date: 04-2017
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article investigates whether international law prohibits the prosecution of children for war crimes and, if it does not, whether it should do so. In particular, the interplay between restorative and retributive post-conflict justice mechanisms, on the one hand, and juvenile rehabilitative justice mechanisms, on the other, is discussed in detail. The article suggests that in certain, narrow, circumstances children having committed war crimes should be prosecuted.
  • Topic: Conflict Resolution, Human Rights, International Law, Children, War Crimes, Transitional Justice
  • Political Geography: Afghanistan, Europe, Democratic Republic of Congo
  • Author: Merris Amos
  • Publication Date: 07-2017
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: National debates concerning the appropriate role of the European Court of Human Rights (ECtHR) in the United Kingdom (UK) recently intensified with the suggestion by the government that the UK might leave the European Convention on Human Rights system. It has been argued that a British Bill of Rights, to replace the current system of national human rights protection provided by the Human Rights Act 1998, would provide better protection than the ECtHR, making its role in the national system redundant. Claiming that the ECtHR is legitimate and has an impact that is usually illustrated by the transformative power of judgments more than 10 years’ old, have not provided a convincing answer to this claim. In this article, rather than legitimacy or impact, the value of the ECtHR to the objective of protecting human rights through law is assessed. Three different levels of value are identified from the relevant literature and then applied to the judgments of the Court concerning the UK from 2011 to 2015 to determine what has happened in practice. It is concluded that given that the UK government’s objective remains to protect human rights through law, although some types of value are now more relevant than others, overall the potential value of the Court to the UK in achieving this objective is still clearly evident.
  • Topic: Human Rights, International Law, Courts
  • Political Geography: United Kingdom, Europe
  • Author: Luke Glanville
  • Publication Date: 10-2017
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: While histories of human rights have proliferated in recent decades, little attention has been given to the history of thinking about duties to protect these rights beyond sovereign borders. We have a good understanding of the history of duties of sovereign states to ensure the safety and well-being of their own citizens and of the right of other states to forcefully intervene when these duties are violated. But the story of the development of thinking about duties to assist and protect the vulnerable beyond borders remains to be told. This article defends the importance of excavating and examining past thinking about these duties. It then sketches key aspects of Western natural law thinking about such duties, from Francisco de Vitoria through to Immanuel Kant, claiming that such study holds the promise of exposing from where ideas that prevail in international law and politics have come and retrieving alternative ideas that have been long forgotten but that may reward renewed consideration. It concludes by briefly outlining how three such retrieved ideas might be of particular use for those seeking to push international law and politics in a more just direction today.
  • Topic: Human Rights, International Law, Sovereignty, History, Humanitarian Intervention, Philosophy
  • Political Geography: Europe, Global Focus
  • Author: Catherine O'Rourke
  • Publication Date: 10-2017
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: While international law has typically waxed and waned in feminist favours, contemporary feminist engagements reveal a strongly critical, reflective thrust about the costs of engaging international law and the quality of ostensible gains. To inform this reflection, this article draws on feminist scholarship in international law – and a specific feminist campaign for the implementation of United Nations Security Council Resolution 1325 (2000) on Women, Peace and Security in Northern Ireland – to distil three distinct feminist understandings of international law that underpin both theory and advocacy. International law is understood, first, as a system of rules to which states are bound; second, as an avenue for the articulation of shared feminist values; and, third, as a political tool to advance feminist demands. The study finds that feminist doctrinalists, and those working within the institutions of international law, share concerns about the resolution’s legal deficiencies and the broader place of the Security Council within international law-making. These concerns, however, are largely remote for local feminist activists, who recognize in the resolution important political resources to support their mobilization, their alliances with others and, ultimately, it is hoped, their engagement with state actors. The article concludes that critical reflection on feminist strategy in international law is usefully informed by more deliberate consideration of its legal, political and normative dimensions as well as by an awareness that these dimensions will be differently weighted by differently situated feminist actors.
  • Topic: International Law, United Nations, Women, Feminism
  • Political Geography: Europe, Northern Ireland
  • Author: Charles Leben
  • Publication Date: 01-2016
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article sets out to re-examine Hebrew sources in the doctrine of the law of nations of the 17th century, from Gentili’s De Jure Belli Libri Tres (although it strictly belongs to the 16th century since it was first published in 1598) to Pufendorf’s De Jure Naturae et Gentium (1672). It incontrovertibly confirms the importance of Jewish sources in the general intellectual education of the founding fathers of international law and in their general political philosophy while limiting their role with respect to the construction of international law in the strict and contemporaneous sense of the term.
  • Topic: International Law, Religion, Political Theory, History, Law, Judaism
  • Political Geography: Europe, Mediterranean
  • Author: Timothy Meyer
  • Publication Date: 01-2016
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article argues that the form of international agreements – binding hard law agreements versus non-binding soft law agreements – can be partially explained by states’ interests in promoting renegotiation in the presence of uncertainty and shifting power. I make this argument in three steps. First, I explain that states regularly use unilateral non-compliance as a renegotiation strategy. Second, I argue that making an agreement soft facilitates this use of unilateral non-compliance. Third, I analyse the conditions – uncertainty characterized by common interests (but not uncertainty characterized by distributive concerns) and shifting power – under which facilitating renegotiation through soft law will appeal to states. In particular, I argue that in the presence of these conditions preventing renegotiation creates long-term costs for states that can inhibit short-term cooperation. In effect, under these conditions the shadow of the future can inhibit cooperation rather than support it, as is conventionally thought. These conditions are common to many major contemporary subjects of international cooperation in a way they were not during the latter half of the 20th century, partially explaining the increased importance of soft law to contemporary international governance.
  • Topic: International Relations, International Law, International Trade and Finance, Treaties and Agreements, United Nations
  • Political Geography: Europe, United Nations, Global Focus
  • Author: Timothy Meyer
  • Publication Date: 01-2016
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article argues that the form of international agreements – binding hard law agreements versus non-binding soft law agreements – can be partially explained by states’ interests in promoting renegotiation in the presence of uncertainty and shifting power. I make this argument in three steps. First, I explain that states regularly use unilateral non-compliance as a renegotiation strategy. Second, I argue that making an agreement soft facilitates this use of unilateral non-compliance. Third, I analyse the conditions – uncertainty characterized by common interests (but not uncertainty characterized by distributive concerns) and shifting power – under which facilitating renegotiation through soft law will appeal to states. In particular, I argue that in the presence of these conditions preventing renegotiation creates long-term costs for states that can inhibit short-term cooperation. In effect, under these conditions the shadow of the future can inhibit cooperation rather than support it, as is conventionally thought. These conditions are common to many major contemporary subjects of international cooperation in a way they were not during the latter half of the 20th century, partially explaining the increased importance of soft law to contemporary international governance.
  • Topic: International Law, International Trade and Finance, Treaties and Agreements, United Nations
  • Political Geography: Europe, United Nations, Global Focus
  • Author: Nora Markard
  • Publication Date: 07-2016
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The EU and its member states are progressively involving third countries in their border control measures at sea. Relevant instruments of cooperative migration control range from capacity building measures to joint patrols in third-country territorial waters and shared surveillance intelligence on ship movements. So far, the discussion on migration control at sea has mainly focused on the illegality of ‘push-backs’ of migrant boats by EU member states to their point of departure. By contrast, the increasing incidence of departure prevention or ‘pull-backs’ by third countries in the service of EU member states has been largely neglected. In particular, such measures raise grave concerns with respect to the right to leave any country, including one’s own. Of central importance during the Cold War, this human right is of no lesser relevance at Europe’s outer borders. This paper explores to what extent departure prevention and pull-back measures are compatible with the right to leave and the law of the sea and discusses the responsibility of EU member states for internationally wrongful acts committed by third countries in such cooperative migration control scenarios.
  • Topic: Human Rights, International Law, Migration, Border Control, Maritime
  • Political Geography: Europe, European Union
  • Author: Simon Chesterman
  • Publication Date: 10-2016
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international or ganizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.
  • Topic: International Law, International Organization, History, Courts, Colonialism
  • Political Geography: Japan, China, Europe, India, Asia
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: From time to time, we are asked about the relationship between EJIL and the European Society of International Law (ESIL). That relationship is simple: the Journal and the Society are two separate, but mutually supportive and complementary entities. Indeed, past and present EJIL Editors can boast, with parental pride, of having been present at the conception, as well as the birth, of the Society! From its inception, membership in ESIL has included automatic online and print subscriptions to EJIL – including very soon a tablet version.The relationship has only strengthened in recent years, with ESIL Presidents and Presidents-elect serving ex officio on the EJIL Board. It is in the spirit of that growing bond that we wholeheartedly share in ESIL's 10-year celebrations, and have invited the following Guest Editorial from its leadership.
  • Topic: International Relations
  • Political Geography: Europe
  • Author: Jochen von Bernstorff
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The article aims to contribute from a history of science angle to the recent debate on the relation between legal scholarship, utopian ideals, and practice, which was spurred by the EJIL Symposium on Antonio Casseses Realizing Utopia and subsequent publications in this journal. It defends a conception of legal scholarship that keeps a reflexive distance vis--vis practice and current political trends in international relations. It focuses on traditional background assumptions of international legal scholarship, which constantly threaten this reflexive distance. Arguably these background assumptions are a 19th century legacy and today in a context of fragmentation and globalization stand in the way of developing the full potential of international legal scholarship as a medium of societal reflection. The classic role of the scholar as a law reformer in the current context turns out to be more problematic than it may have been in the past. Inspired by Kelsenian concerns and Nietzschean metaphorics, the article instead suggests that international legal scholarship functions as a cooling medium for the overheated discursive operations of the political, economic and legal subsystems of World Society./p