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  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I think it is difficult to contest that the most important state player in world affairs over the last one hundred years – and consistently so over this period – has been the United States of America. World War I – into which, to borrow from Christopher Clark's justly celebrated book, we 'sleepwalked' – marks a useful starting point. It is not only the fairly important role America played in bringing WWI to an end that signals the beginning of this era, but also the no less important role it played in shaping the aftermath. Wilson's 14 points were considered at the time 'idealistic' by some of the yet-to-be 'Old Powers'. But by dismantling the Ottoman Empire through the principle of self-determination (not at that time a universal legally binding norm) it was an early swallow to the demise, a mere generation later, of all other colonial empires and the truly decisive reshaping of the balance of power in the post-WWII world. The US played an equally cardinal role in ideating and realizing the United Nations Organization and the Universal Declaration of Human Rights – two lynchpins of our current world order.
  • Topic: Human Rights, War
  • Political Geography: United States, America, Gaza
  • Author: Michelle Leanne Burgis-Kasthala
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This study employs a select ethnography of Palestinian workers in the field of international law and human rights to explore how an epistemic community gives content and meaning to international law in its professional and personal life. Through a series of interviews conducted in the West Bank in the wake of the Palestinian attempt to gain full United Nations membership in September 2011, the article constructs a meta-narrative about the nature of international legal discourse as spoken on the Palestinian periphery. It shows how speakers of international law are required to restate or over-state the distinction between law and politics so as to sustain their hope and desire for Palestinian statehood in the face of despair about its protracted denial. The article then is an exploration about the politics of meaning making through international law and a call for methodological hybridity within the discipline of international law.
  • Topic: Human Rights, International Law, Politics, United Nations
  • Author: Sara De Vido
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Water has been a challenging issue over the centuries. From questions of national boundaries and navigation, quite common in the past, to the development of a human right to water, this essential element for human life has always spurred debate among international lawyers, economists, political scientists, geographers, and anthropologists. The reason may be found in the scarcity of water, a phenomenon which affects both developed and developing countries. Much has been written on the topic, but the three books under review significantly contribute to a critical analysis of some pertinent legal issues related to water. The title of each monograph reflects the purpose of the respective study. Hence, International Law for a Water-Scarce World by Brown Weiss starts from the acknowledgement that 'the fresh water crisis is the new environmental crisis of the 21st century' (at 1) and provides an integrated analysis of water law, which considers climate implications, river basins, and the availability and quality of fresh water. Boisson De Chazournes' Fresh Water in International Law investigates the status of fresh water in international law. The choice of the titles of the chapters is particularly evocative. Thus, after a chapter on regulation of fresh water use, the book continues with chapters on the 'Economization' of the law applicable to fresh water, its 'Environmentalization', followed by its 'Humanization', and 'Institutionalization Trends in Fresh Water Governance', before focusing on dispute settlement mechanisms. The use of the ending '-zation' gives the immediate impression of the evolution of the law on fresh water resources, which now includes several separate but clearly interrelated aspects. The title of the third book, written by Thielbörger, deserves attention for two elements, the first being the letter 's' inside the parentheses and the second being the adjective 'unique' used for identifying the human right to water. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right pursues a different purpose from the two other books under review which adopt a more comprehensive approach. Thielbörger's book (based on his doctoral dissertation) studies the human right to water from a comparative and international perspective, emphasizing the complexity of a right which is strictly linked to other rights but constitutes at the same time a right of its own.
  • Topic: Development, Human Rights, International Law
  • Author: Stéphanie Hennette Vauchez
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Building on the heightened attention that the optic of judicial selection receives in the world of international courts, this article focuses its attention on one particular criterion that is gaining in importance in that respect: gender. By choosing the European Court of Human Rights as a case in point, the article provides a unique analysis of the history of the 2004 Resolution of the Council of Europe's parliamentary assembly that formulated a rule of gender balance on the list of candidates presented by states for the post of judge at the Court. It first unearths the dynamics that allowed the adoption of the rule as well as all of the fierce opposition it triggered as well as the ways in which counter-mobilization eventually prevailed and watered down the initial rule, with the help of states, the Committee of Ministers and the Court itself (which delivered its first advisory opinion on the topic in 2008). It then looks beyond the static analysis of the rule as a mere constraint and addresses in a more dynamic fashion the multiple interpretations, strategies and, ultimately, politics it opens up. By providing a unique qualitative, comparative and exhaustive analysis of the curriculum vitae of all the 120-odd women who were ever listed as candidates to the Strasbourg judicial bench (1959–2012), the article delivers original data and analyses both the features that women candidates put forth when listed for the job and the strategies of states with regard to the gender criterion. It concludes that while there is a strong proportion of candidates that support the notion that states do not differentiate according to gender or require different qualities from men and women candidates, there is a comparable proposition that contrarily indicates that the world of international judicial appointments is far from gender neutral.
  • Topic: Human Rights, Politics
  • Political Geography: Europe
  • Author: Françoise Tulkens
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Having spent almost 14 years as a judge at the European Court of Human Rights, the author responds to and shares the critical view expressed by Hennette Vauchez in her article on the presence of women judges at the European Court of Human Rights. Some steps forward have admittedly been made through the voluntary action of the Council of Europe Parliamentary Assembly, but there has also been resistance in the implementation of these new rules. The gains are fragile and there are risks of regression. This situation confirms Kenney's analysis: women's progress is not natural, inevitable nor irreversible. A reaction is all the more necessary and urgent since, in the coming months of 2015 and subsequently, many elections of judges to the Court will take place, due in particular to the non-renewable nine-year term of office of judges introduced by Protocol No. 14 to the European Convention on Human Rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Fionnuala Ní Aoláin
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article responds to a thoughtful intervention by Stéphanie Hennette Vauchez documenting the selection process for women seeking judicial appointment to the European Court of Human Rights. Written in the context of the author's experience as candidate for appointment to the Court, the analysis concentrates on the gendered dimensions of international institutional cultures, habits and practices that frame selection to judicial office as much as any formally applicable rules. I explore the ways in which ostensible access to international judicial bodies conceals the manifold ways in which Courts are coded masculine, and how female candidacy requires careful deliberation on performance, presentation and identity. Drawing on 'new institutionalism' theory, I underscore that female presence alone rarely undoes embedded institutional practices. Rather, transforming institutional practices and values must parallel female presence, thereby redefining the institution and the forms of power it exercises. The article concludes by reflecting on the importance of feminist judging, and argues that it is precisely the transformative political and legal changes sought by self-defined feminists that may stand the best chance of undoing the structures, habits and practices that continue to exclude women from being appointed and from engaging on terms of full equality when they arrive.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Paolo Lobba
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Litigation concerning domestic restrictions on Holocaust denial has produced a 30-year-long jurisprudence of the European Court and European Commission of Human Rights. In spite of solemnly declared principles on free speech, the Strasbourg organs have progressively developed an exceptional regime in this regard based on the 'abuse clause' envisaged under Article 17. Had this detrimental treatment remained confined to its original sphere, it could have perhaps been considered as a negligible issue. However, the scope of the abuse clause was extended to encompass a growing class of utterances, including the denial of historical facts other than the Nazi genocide. This piece begins by examining the Strasbourg case law on Holocaust denial, with a view to enucleating the effects, scope and conditions of applicability of the special regime based upon Article 17. Once the shortcomings implied by this detrimental discipline have been exposed, it shall be argued that all expressions should be dealt with under the ordinary necessity test, in which the abuse clause ought to operate as an interpretative principle. In the alternative, and as a minimum, the Court should pay due regard to the political and social context of the country where restrictions on free speech were enforced, setting aside the uniquely harsh treatment reserved for Holocaust denial.
  • Topic: Genocide, Human Rights
  • Political Geography: Europe
  • Author: Ineta Ziemele, Lasma Liede
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article addresses the issue of reservations to human rights treaties in the light of the work done by the International Law Commission and its Special Rapporteur, Mr Alain Pellet. Section 1 gives a short historical background for the topic. Section 2 provides a concise overview of the variety of arguments that have been raised in the debate on the character of human rights treaties and the permissibility of reservations to those treaties, as well as their relationship with the reservations regime established under the Vienna Convention on the Law of Treaties. Section 3 gives a number of specific examples of reservations permitted under the human rights treaties and describes the approach taken by some human rights treaty bodies in that respect. It also depicts the manner in which some of these bodies have dealt with the intricate issue of the consequences of impermissible reservations. Section 4 analyses the guidelines adopted by the ILC and offers some reflection on their contribution to the development of international treaty law on this topic. Section 5 concludes by praising the comprehensive work of the ILC on the subject.
  • Topic: Human Rights, International Law
  • Political Geography: Vienna
  • Author: Andrew Williams
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The orthodox view of the ECHR and its Court as regime in the context of both the EU and UK has been that it has considerable value albeit with systemic flaws. The purpose of this article is to challenge this orthodoxy. Four inter-related submissions are made: that the ECHR has failed human rights conceptually (1); 'good' or lauded decisions of the ECtHR cannot remedy or sufficiently counter-balance this conceptual failure (2); 'bad' decisions further expose and exacerbate the failure (3); the procedural problems of the ECHR regime may contribute to the underlying failure of concept but their resolution cannot solve it (4). These submissions are to provoke a more intense assessment of value and how such value could be enhanced. It may be too late to see any influence on the accession process but this does not reduce the relevance of the critique for the future of human rights in both the EU and the UK. Ultimately an approach to the ECHR system needs to determine whether it continues to be lauded or its influence resisted (thus seeking reform or replacement - the alternative candidates being the EU Charter and/or a national Bill of Rights) and retained only as an iconic scheme of moral importance.
  • Topic: Human Rights
  • Political Geography: United States, Europe
  • Author: Stelios Andreadakis
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This reaction piece responds to the article by Andrew Williams entitled 'The European Convention on Human Rights, the EU and the UK: Confronting a Heresy'. In his article, Williams contends that we should not further support the 'orthodox' view that the Convention (ECHR) has been very successful in protecting and promoting human rights across Europe, offering four submissions to that end. It will be argued that Dr Williams' submissions regarding the ECHR's success and the European Court of Human Rights (ECtHR)'s role are not well supported and justified. The relationship between the ECHR and a future UK Bill of Rights will also be explored in the piece, as there is no sufficient link between the author's arguments about the ECHR regime and the UK legal system, making it rather artificial to refer to the UK as a possible model for human rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Rosa Rafaelli
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This short article aims to further the discussion over horizontal review between international organizations started by Deshman in her analysis of the role of the Parliamentary Assembly of the Council of Europe after the H1N1 pandemic. The article compares the historical evolution of the European Parliament to that of the Parliamentary Assembly and examines how the EP's involvement with issues such as human rights and international relations served to build its identity, to gain international recognition, and to obtain more formal powers. It suggests possible additional reasons explaining the PA's willingness to perform horizontal review over action carried out by the WHO, and potential paths for future developments.
  • Topic: International Relations, Human Rights
  • Political Geography: Europe
  • Author: Loveday Hodson
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Her normative prescriptions, in other words, by insisting on a framework of constitutional pluralism and rejecting other forms of legal pluralism, leave aside the many other powerful global institutions and bodies that generate rules and norms, other than the UN Security Council or other UN bodies on which the book concentrates. While it is clear that the UN is the predominant global security organization, and the one with military power at its service, there are also many other organizations and bodies which have morphed or are morphing, as Cohen puts it in the book, into global governance institutions. Yet the book's focus on the need for political communities which participate in an overarching 'political community of communities' seems to leave many of these other important sites of legal and political authority out of the picture, and to reject as inadequate some of the more modest but perhaps also more currently feasible legal reform proposals which have been made.
  • Topic: Human Rights, International Law
  • Author: Erika George
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two recent publications present a defence of the right to health as it is articulated in international law and also provide insights into the array of impediments to realizing the health right. Despite a perceived conceptual lack of coherence and a limited appreciation of its relevance among health care professionals identified in these two books, the right to health has nevertheless succeeded in capturing greater attention in global policy circles. Local health care system reform initiatives around the globe increasingly make reference to the right to health. Both books are particularly helpful additions to the literature in light of recent advances in the development of the health right. Yet, each offers a very different assessment of its present status and prognosis for its future development.
  • Topic: Human Rights, Health Care Policy
  • Author: Erik Voeten
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article responds to the valuable contribution by Dia Anagnostou and Alina Mungiu- Pippidi in which they analyse how nine countries implemented European Court of Human Rights judgments that found violations of Articles 8–11 of the European Convention on Human Rights. Their conclusion that capacity plays an important role in the implementation of ECtHR judgments is certainly correct. In this short response, I highlight various aspects of the authors' analysis where they make problematic choices with regard to data and statistical methods. First, I describe and use a more comprehensive dataset that allows us to reach more generalizable conclusions. Secondly, I show how survival analysis is a more appropriate framework than logit or linear regression for analysing these data. Thirdly, I argue that the difficulty of the implementation task needs to be accounted for in any analysis of cross-country variation in implementation. My re-analysis shows that low capacity countries attract judgments that are more difficult to implement. The analysis also uncovers a subtle relationship between time, institutional capacity, and checks and balances. High capacity helps willing politicians to implement judgments quickly. Yet, among judgments that have been pending longer, countries with higher capacity are no quicker to implement than lower capacity countries. By contrast, checks and balances initially slow down implementation but help to eventually ensure begrudging implementation.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Rosa Freedman
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: National courts have long understood the UN to have absolute immunity from their jurisdiction, based upon provisions in the UN Charter and the Convention on Privileges and Immunities of the UN. While state immunity has evolved over recent decades, allowing restrictive immunity that distinguishes between acts jure imperii and those jure gestionis, questions have arisen as to whether that doctrine applies to international organizations and, specifically, the UN. The counterbalance to the UN's absolute immunity is the requirement that it provide alternative mechanisms for resolving disputes. This raises concerns about accountability and internal review. Case law from various courts demonstrates an increasing willingness to attempt to challenge absolute immunity on the basis that the bar to jurisdiction violates claimants' rights to access a court and to a remedy. In all of those cases, individuals' ability to access alternative mechanisms for dispute resolution has been used to show that their rights have been realized. Recent events concerning the 2010 cholera outbreak in Haiti may lead to a challenge to the UN's absolute immunity. The UN has deemed those claims to be 'not receivable', which denies the claimants their rights to access a court and to a remedy. In October 2013, lawyers for the Haiti cholera victims filed a class action in the Southern District of New York, seeking to challenge the UN's immunity by bringing the Organization before a national court. This article explores whether the events in Haiti may provide the first successful, human rights-based challenge to the UN's absolute immunity.
  • Topic: Human Rights
  • Political Geography: New York
  • Author: Moria Paz
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual's cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national-political compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant culture and language of the majority. The minority can still maintain its distinct language, but only at its own cost. The slippage between the promise of rights and their actual interpretation carries some important political and economic benefits, but the resulting legal outcome does not provide the robust protection of diversity to which lip service is paid. Importantly, the assimilationist nature of the jurisprudence is not indifferent to human rights. However, instead of advancing maximal linguistic diversity as a pre-eminent norm, the regime that is applied by judicial bodies supports a different set of human rights: those protecting linguistic minorities from discrimination, and promoting equal access of the group to market and political institutions. The result is a tension between two human rights values: pluralism and equality.
  • Topic: Human Rights, Culture
  • Author: Loveday Hodson
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article places the UN Women's Committee at its centre in order to consider the normative implications of having a space within the realm of international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women. It suggests that the Committee's importance has largely been overlooked, which is a considerable oversight. The Committee is uniquely positioned to contribute to the transformation of human rights norms, occupying, as it arguably does, positions simultaneously at the centre and at the periphery of international law. In particular, this article examines the jurisprudence that has emerged under the individual complaints procedure of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and questions how far the Committee has been able to develop women's rights in recent years into a body of law that departs from the normative and structural limitations of international human rights laws.
  • Topic: Human Rights
  • Political Geography: United Nations
  • Author: Wolfgang Hoffmann-Riem
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article analyses the activities of the European Commission for Democracy through Law. Addressed are the standards applied in the Commission's opinions, especially on constitutional provisions and other legal norms or drafts. The article looks at the impact that these (non-binding) opinions have on the states concerned as well as on the European Court of Human Rights. Though recommendations are sometimes disregarded, most states do react positively, at least in part. To some extent the Commission could enhance the effect of its opinions by joining forces with other relevant institutions in the field, especially the Council of Europe and the European Commission. Endorsing and implementing recommendations gives states an opportunity to share in the reputation that comes with being part of a community founded on Human Rights, the Rule of Law, and Democracy. An overall assessment is made of the Commission's approach to its work.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Seline Trevisanut
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Many are the threats that challenge the security of the oceans today. Piracy, which was thought to be relegated to history and adventure books (and films), has re-appeared and threatens human lives but also, cynically more importantly for states, the safe transport of goods. The seas provide the main route for trade in goods worldwide. Their security is an imperative for a globalized economy. In the 2008 Report on Oceans and the Law of the Sea, the UN Secretary General identified seven specific threats to maritime security: (1) piracy and armed robbery; (2) terrorist acts against shipping, offshore installations, and other maritime interests; (3) illicit trafficking in arms and weapons of mass destruction (WMD); (4) illicit trafficking in narcotic drugs and psychotropic substances; (5) smuggling and trafficking of persons at sea; (6) illegal, unreported, and unregulated (IUU) fishing; and (7) international and unlawful damage to the marine environment.
  • Topic: Human Rights