Content Type: Journal Article / Political Geography: Europe / Publication Year: within 25 Years and within 10 Years / Topic: International Law

1. Extradition in the Criminal Procedural Legislation of Ukraine:" Compliance With The European Standards

Author:: Victoriia Rohalska, Oksana Bronevytska, and Gediminas Buciunas
Publication Date:: 02-2022
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: The importance of legal regulation of extradition in the system of legal aid in criminal proceedings is determined both by the national interests of states and the interests of international cooperation in combating transnational and international crimes. The objective of this paper was to get the answer to the main question of this research - Did the provisions of the law on extradition in Ukraine meet international standards? A set of general and special scientific, and philosophical methods of scientific research were used while preparing this article, to clarify the approaches to the extradition procedure of different countries and in practice. The results of the research suggested that the current criminal procedure legislation of Ukraine in the sphere of extradition generally meets European standards. Although, there are some gaps in the national legal regulation of extradition that may adversely affect the observance of the rights and freedoms of persons to whom it is applied.
Topic:: Human Rights, International Cooperation, International Law, European Union, and Extradition
Political Geography:: Europe and Ukraine

2. Interpretation and Application of the ECHR: Between Universalism and Regionalism

Author:: Mattias Guyomar
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract::  e protection of human rights guaranteed by the Council of Europe, in particular through the Convention for the Protection of Human Rights and Fundamental Freedoms and the supervision exercised by the European Court of Human Rights, has a dual dimension: its universal vocation goes hand in hand with the regional nature of its implementation. Tensions between universalism and regionalism play out in a fruitful and productive way.
Topic:: Human Rights, International Law, Regionalism, Universalism, and European Court of Human Rights (ECHR)
Political Geography:: Europe

3. Enforcement of the European Union Law Before the Albanian Constitutional Court and the High Court

Author:: Gentjan Skara and Bojana Hajdini
Publication Date:: 09-2021
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: With the entry into force of the Interim Agreement in 2005 between the EU and Albania, Albanian judges had the obligation to partly apply several provisions of the agreement (the EU law) even in the pre-accession stage. This position was reinforced in 2009, with the ratification of the Stabilisation and Association Agreement, which laid down the obligation of the Albanian government to approximate its existing and future legislation in line with EU acquis and ensure proper implementation. Consequently, as of 2009, Albanian courts had to apply the EU law. The application of the EU law by Albanian courts entails the duty of judges with a twofold task: firstly, to construe their arguments in line with EU law or as close as possible, and secondly, to set aside the domestic law which is found to be incompatible with the EU law. This paper outlines some Albanian courts' decisions concerning applying the EU Law before accession to the European Union. The paper argues that Albanian judges have adopted a ‘Euro-friendly’ approach by referring to the EU Law and SAA agreement even in the pre-accession period. Nevertheless, looking closely at court decisions, the EU law is applied as a persuasive source of law to support the court’s decision and not to explain the importance of relying on EU law or CJEU case law.
Topic:: International Cooperation, International Law, European Union, and Constitution
Political Geography:: Europe and Albania

4. Integrated Space Situational Awareness Systems: SDA and SSA – Advantages and Limitations

Author:: Malgorzata Polkowska
Publication Date:: 01-2021
Content Type:: Journal Article
Journal:: Polish Political Science Yearbook
Institution:: Polish Political Science Association (PPSA)
Abstract:: SDA (Space Domain Awareness) and SSA (Space Situational Awareness – SSA) have been defined as comprehensive knowledge of space objects and the ability to track, understand, and predict their future location. The purpose of the article is to present SSA initiatives to protect space systems, which are now recognized as fundamental assets of the sustainable development of each country. The destruction of even a part of the space infrastructure can have severe consequences for the security of citizens and economic activity. These systems assume the combination of all data obtained by various entities operating in space and Earth to create a common database. The SSA system was created based on the US military programme SDA (Space Domain Awareness); SSA and SDA are almost similar, but SDA is a new term replacing SSA, which existed previously. SDA is a better and improved SSA. Increasingly, the SSA programme is part of national and EU space strategies, but it is not yet possible to include it in international space law.
Topic:: International Cooperation, International Law, European Union, and Space
Political Geography:: Europe

5. The Political and Legal Landscape of the Alaska Phenomenon

Author:: Ye. Zinkov
Publication Date:: 01-2020
Content Type:: Journal Article
Journal:: International Affairs: A Russian Journal of World Politics, Diplomacy and International Relations
Institution:: East View Information Services
Abstract:: ThE PROBLEM of the acquisition and sale of Alaska, and to whom it belongs, excites the minds of researchers to this day. There are supposi- tions that once the first Russians had traversed Siberia, they settled in Alaska during the second half of the 16th century.1 The next period, in which Alaska gets mentioned by Russian people, dates to 1648, in connection with the names of the Cossack Semyon Dezhnev and his associate Fedot Popov, who circumvented the Asian continent, then passed from the Arctic Ocean to the Pacific Ocean basin.2 Later on, an official expedition was organized; its commander, Vitus Bering, announced in 1728 his discovery that Asia and America did not have a land bridge between them.3 The first legal documentation of Alaska’s coastline took place on August 21, 1732, when the crew of the St. Gabriel, under the leadership of surveyor Mikhail Gvozdev and navigator Ivan Fyodorov (or K. Moshkov, according to other sources), recorded its contours without going ashore. From this date began the jurisdictional affiliation of Alaska with the Russian Empire. however, the territory for a long time contin- ued to be developed on the basis of civil law. The bureaucrats of the Russian Empire did not duly administer the land in Alaska. This situation contributed to the consolidation of legal relations within civil society on the territory along the lines of the Novgorod Republic.
Topic:: International Law, Law, Land, and Jurisdiction
Political Geography:: Russia, Europe, North America, Alaska, and United States of America

6. Gas Finds for the People?

Author:: Jason Beckett
Publication Date:: 06-2020
Content Type:: Journal Article
Journal:: Cairo Review of Global Affairs
Institution:: School of Global Affairs and Public Policy, American University in Cairo
Abstract:: Public international law—tied as it is to existent western-centric neo-colonial structures—will likely block the natural gas finds in the Eastern Mediterranean from benefiting regional states.
Topic:: Energy Policy, International Cooperation, International Law, Natural Resources, and Gas
Political Geography:: Africa, Europe, Middle East, and Mediterranean

7. U.S. Complicity in the 2014 Coup in Kiev as a Violation of International Law

Author:: A. Vyleghanin and K. Kritsky
Publication Date:: 01-2019
Content Type:: Journal Article
Journal:: International Affairs: A Russian Journal of World Politics, Diplomacy and International Relations
Institution:: East View Information Services
Abstract:: FIVE YEARS AGO, a coup d’état took place in Kiev. Following demon- strations and arson attacks, a mob seized several government institutions, including the administration building and residence of the constitutional- ly elected president of Ukraine, Viktor Yanukovich. Some members of the Ukrainian president’s security detail who were protecting his residence from illegal seizure were wounded and killed.1 Alexander Turchinov, one of the coup leaders, began serving as the president of Ukraine even though no Ukrainian presidential election had been held. The coup in Kiev led primarily to the U.S. assuming a leading role in Ukraine’s governance – something it had neither during the period of the Russian Empire nor the Soviet era. The February 2014 overthrow of the president in Kiev that took place without elections and in violation of the Ukrainian Constitution de facto divided the country into regions that recognized the new authorities in Kiev and those that opposed the coup (primarily the southern and eastern regions of Ukraine). This occurred not only because the Ukrainian presi- dent was unconstitutionally removed from power but primarily because the “installation” of the putschist government was accompanied by vio- lence, and ethnic and linguistic persecution. In March 2014, the Autonomous Republic of Crimea left the new, “post-coup” Ukraine in accordance with the provision of the UN Charter on the right of peoples to self-determination. Subsequently, following a referendum in Crimea, a treaty on Crimea’s reunification with Russia was signed. A confrontation between the new regime in Kiev* and residents of Donetsk and Lugansk Regions turned into a protracted armed conflict. The forcible replacement in Kiev of a constitutionally elected head of state (Yanukovich) with an unconstitutional leader (Turchinov) directly impacted Russia’s national interests. Russians and Ukrainians lived together within a single state, the Russian Empire, from the 17th century until 1917. During the Soviet period, the border between the Russian Soviet Federative Socialist Republic and the Ukrainian Soviet Socialist Republic did not have international legal significance. It was an administrative bor- der. After the collapse of the Soviet Union, the independent UN member states (Russia and Ukraine) that replaced them continued to maintain close economic and other ties. Their continued integration, including through joint participation in the Customs Union, objectively met the strategic interests of Ukraine and Russia. A friendly Ukraine is also important to Russia from a national securi- ty standpoint, considering NATO’s expansion toward Russia’s borders that began in the early 1990s – i.e., NATO’s absorption of all former member states of the Warsaw Pact, including Poland and even the former Soviet republics of Latvia, Lithuania and Estonia. Russia’s leadership has repeatedly stressed the inadmissibility of dragging Ukraine into NATO. Words about “fraternal” relations between the peoples of Russia and Ukraine are no exaggeration: Millions of family members (both Russians and Ukrainians) live on opposite sides of the Russian-Ukrainian border,2 and at least one-third of Ukraine’s population speaks Russian as a native language. In this context, it is not surprising that Moscow considered the U.S.- orchestrated seizure of power from the head of state in Kiev an event affecting its vital interests. Something else is remarkable: The U.S. administration said that the events in Ukraine, far away from the American mainland, “constitute an unusual and extraordinary threat to the national security and foreign policy of the United States.”4 Westerners promulgated a very different assessment of the forced ouster of Ukrainian President Viktor Yanukovich in 2014. The U.S. called it a “people’s rev- olution” and said that the mob action organized in part by the U.S. ambas- sador in Kiev (including the killing of Berkut fighters, the state guard of the Ukrainian president) was a legitimate way of expressing the will of the “Ukrainian people.”
Topic:: International Cooperation, International Law, Military Strategy, and Conflict
Political Geography:: Russia, Europe, Ukraine, Middle East, South America, Syria, Venezuela, North America, and United States of America

8. Reconciling the Irreconcilable? – The Extraterritorial Application of the ECHR and its Interaction With IHL

Author:: Severin Meier
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article examines the extraterritorial application of the European Convention on Human Rights (ECHR) during international armed conflict. After a brief discussion of the different historic origins of international human rights law and international humanitarian law (IHL), the article examines the test for establishing jurisdiction under Article 1 of the ECHR. A critical analysis of some contentious legal issues regarding derogations completes the picture of when jurisdiction is established. Subsequently, the article considers the interaction between the ECHR and IHL in international armed conflicts and concludes by arguing that a balance must be found between protecting human rights in international armed conflicts while not interfering unduly with IHL.
Topic:: Human Rights, International Law, and Conflict
Political Geography:: Europe

9. From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal

Author:: Hannah Woolaver
Publication Date:: 01-2019
Content Type:: Journal Article
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, and State Actors
Political Geography:: United Kingdom, Europe, South Africa, and United States of America

10. Ocean Floor Grab: International Law and the Making of an Extractive Imaginary

Author:: Surabhi Ranganathan
Publication Date:: 04-2019
Content Type:: Journal Article
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, and Maritime
Political Geography:: Europe and Oceans

11. The European Union and the Law of Treaties: A Fruitful Relationship

Author:: Paz Andrés Sáenz De Santa María
Publication Date:: 07-2019
Content Type:: Journal Article
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, and Courts
Political Geography:: Europe and European Union

12. Where Fools Rush In: Why Armed Intervention Failed to Create Political Reconciliation in Somalia

Author:: Joseph P. Alessi
Publication Date:: 03-2018
Content Type:: Journal Article
Journal:: Studies of Changing Societies Journal (SCS)
Institution:: Studies of Changing Societies Journal (SCS)
Abstract:: To be successful in today's world, leaders must understand the idea of culture. When the word culture is associated with leadership, many might first think of the culture that leadership creates within the framework of an organization. But for leaders who must operate in a tumultuous world connected by modern media, the word literally refers to the understanding of the people and places where they intend to inject themselves. Where Fools Rush In is a study of the failed U.N. and U.S. interventions to create stability and political reconciliation in Somalia from 1992 to 1995, due to the cultural misunderstanding of U.N. and U.S. leaders that created flawed mission objectives. World leaders must make difficult decisions when intervening in the political and social strife of nations when faced with the reality of human catastrophe and genocide. The questions will always remain as to if, how much, and what kind of intervention must occur. The choices are simple: standby, do nothing and watch, or intervene. What international leaders must understand is that, regardless of the boundaries and governmental systems implanted in former colonial and Cold War territories, the people developed their own systems of social organization and governance that predated European or U.S intrusion. When chaos erupts in these areas and the vestiges of these former systems collapse, the indigenous people more often than not return to their deeply entrenched cultural systems to create stability in these regions. Therefore, it is paramount for intervening parties to fully understand these cultural systems and implications if they hope to achieve any level of success. Ultimately, U.N. and U.S. leaders failed in Somalia because they failed to understand the people and their culture. Rather, they ignored it and viewed the situation from purely an ethnocentric western political perspective.
Topic:: International Law, United Nations, Humanitarian Intervention, Conflict, and Violence
Political Geography:: Africa, Europe, North America, Somalia, and United States of America

13. The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy: EU Treaty Imperatives and Rule of Law Conditionality in the Foreign Trade and Development Nexus

Author:: Till Patrik Holterhus
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article demonstrates that Arts. 21 and 3 (5) of the Treaty on European Union (TEU) as well as Arts. 205, 207 (1), 208 (1), 209 (2) of the Treaty on the Functioning of the European Union (TFEU), legally oblige the European Union (EU) to promote the rule of law in its foreign trade and development policy. Furthermore, it is shown that, in the context of such promotion, the EU applies not a rudimentary but a sophisticated concept of the rule of law – quite similar to the concept of the rule of law that has developed within the Union. To fulfill the legal obligation to promote the rule of law abroad, the EU employs, as a key instrument, the legal mechanism of conditionality, not only through autonomous instruments but also in its contractual international relationships (carrot-and-stick policy). The EU’s foreign policy in the trade and development nexus, in particular when it comes to the promotion of the rule of law, can, therefore, be considered a process, to a large extent, determined and organized the of law.
Topic:: International Law, International Trade and Finance, Sovereignty, and European Union
Political Geography:: Europe

14. The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?

Author:: Floris Tan
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain.
Topic:: Human Rights, International Law, and Rule of Law
Political Geography:: Europe

15. The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?

Author:: Alan Desmond
Publication Date:: 01-2018
Content Type:: Journal Article
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, and Courts
Political Geography:: Europe and France

16. Maritime Legal Black Holes: Migration and Rightlessness in International Law

Author:: Itamar Mann
Publication Date:: 04-2018
Content Type:: Journal Article
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, and Maritime
Political Geography:: Europe and Mediterranean

17. The Return of Cultural Genocide?

Author:: Leora Bilsky and Rachel Klagsbrun
Publication Date:: 04-2018
Content Type:: Journal Article
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, and Holocaust
Political Geography:: Europe and Germany

18. The Legacy of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and Their Contribution to the Crime of Rape

Author:: Alexandra Adams
Publication Date:: 07-2018
Content Type:: Journal Article
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, and Rape
Political Geography:: Europe, Yugoslavia, and Rwanda

19. Changing State Behaviour: Damages before the European Court of Human Rights

Author:: Veronika Fikfak
Publication Date:: 10-2018
Content Type:: Journal Article
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, and Courts
Political Geography:: Europe and France

20. The ad bellum Challenge of Drones: Recalibrating Permissible Use of Force

Author:: Alejandro Chehtman
Publication Date:: 01-2017
Content Type:: Journal Article
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, and Drones
Political Geography:: Afghanistan, United States, and Europe

21. Does and Should International Law Prohibit the Prosecution of Children for War Crimes?

Author:: Noëlle Quénivet
Publication Date:: 04-2017
Content Type:: Journal Article
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, and Transitional Justice
Political Geography:: Afghanistan, Europe, and Democratic Republic of Congo

22. The Value of the European Court of Human Rights to the United Kingdom

Author:: Merris Amos
Publication Date:: 07-2017
Content Type:: Journal Article
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, and Courts
Political Geography:: United Kingdom and Europe

23. The Responsibility to Protect beyond Borders in the Law of Nature and Nations

Author:: Luke Glanville
Publication Date:: 10-2017
Content Type:: Journal Article
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, and Philosophy
Political Geography:: Europe and Global Focus

24. Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions

Author:: Catherine O'Rourke
Publication Date:: 10-2017
Content Type:: Journal Article
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, and Feminism
Political Geography:: Europe and Northern Ireland

25. The EU Commission and the Fragmentation of International Law: Speaking European in a Foreign Land

Author:: Avidan Kent
Publication Date:: 11-2016
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Abstract:: The debate on the fragmentation of International Law has been relatively dormant in recent years. However, recent events demonstrate not only that this debate should be re-awoken, but also that some key elements of this debate must be reconsidered. Notably, while the fragmentation of International Law has often been discussed from the perspective of courts and judges, this article examines the view and the impact of a different institutional actor – the Commission of the European Union. This contribution analyzes a series of amicus briefs that were submitted in a number of investment treaties-based cases. These briefs, which were recently disclosed to the author, reflect a certain radicalization of the European Court of Justice’s view concerning the place and the role of the EU’s legal system within the international legal order. This article discusses the problematic implications that the Commission’s approach may have on the international legal order, as well as possible future pathways.
Topic:: Environment, Human Rights, International Cooperation, International Law, European Union, and Trade
Political Geography:: Europe

26. Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe

Author:: Charles Leben
Publication Date:: 01-2016
Content Type:: Journal Article
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, and Judaism
Political Geography:: Europe and Mediterranean

27. Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation

Author:: Timothy Meyer
Publication Date:: 01-2016
Content Type:: Journal Article
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, and United Nations
Political Geography:: Europe, United Nations, and Global Focus

28. Backlash against International Courts in West, East and Southern Africa: Causes and Consequences

Author:: Karen J. Alter, James T. Gathii, and Laurence R. Helfer
Publication Date:: 01-2016
Content Type:: Journal Article
Abstract:: This article discusses three credible attempts by African governments to restrict the jurisdiction of three similarly situated sub-regional courts in response to politically controversial rulings. In West Africa, when the Court of the Economic Community of West African States (ECOWAS) upheld allegations of torture by opposition journalists in Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the East African Court of Justice (EACJ) and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to restructure the EACJ in ways that have significantly affected the Court’s subsequent trajectory. In Southern Africa, after the Southern African Development Community (SADC) Tribunal ruled in favour of white farmers in disputes over land seizures, Zimbabwe prevailed upon SADC member states to suspend the Tribunal and strip its power to review complaints from private litigants. Variations in the mobilization efforts of community secretariats, civil society groups and sub-regional parliaments explain why efforts to eliminate the three courts or narrow their jurisdiction were defeated in ECOWAS, scaled back in the EACJ and largely succeeded in the SADC.
Topic:: Civil Society, Human Rights, International Law, and Courts
Political Geography:: Kenya, Africa, Europe, South Africa, Zimbabwe, and Gambia

29. Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation

Author:: Timothy Meyer
Publication Date:: 01-2016
Content Type:: Journal Article
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, and United Nations
Political Geography:: Europe, United Nations, and Global Focus

30. The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries

Author:: Nora Markard
Publication Date:: 07-2016
Content Type:: Journal Article
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, and Maritime
Political Geography:: Europe and European Union

31. Asia's Ambivalence about International Law and Institutions: Past, Present and Futures

Author:: Simon Chesterman
Publication Date:: 10-2016
Content Type:: Journal Article
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, and Colonialism
Political Geography:: Japan, China, Europe, India, and Asia

32. Full Issue: Emerging Domains of Security

Author:: Meg Guliford, Thomas McCarthy, Alison Russell, Michael M. Tsai, Po-Chang Huang, Feng-tai Hwang, Ian Easton, Matthew Testerman, Nikolas Ott, Anthony Gilgis, Todd Diamond, Michael Wackenreuter, Sebastian Bruns, Andrew Mark Spencer, Wendy A. Wayman, and Charles Cleveland
Publication Date:: 09-2015
Content Type:: Journal Article
Journal:: Fletcher Security Review
Institution:: The Fletcher School, Tufts University
Abstract:: The theme of this special edition is “Emerging Domains of Security.” Coupled with previously unpublished work developed under a prior “Winning Without War” theme, the articles therein honor Professor Martel’s diverse, yet forward-leaning, research interests. This edition maintains the journal’s four traditional sections of policy, history, interviews, and current affairs. Our authors include established academics and practitioners as well as two Fletcher students, Nikolas Ott and Michael Wackenreuter. Each of the articles analyzes critical issues in the study and practice of international security, and our authors make salient arguments about an array of security-related issues. The articles are borne out of countless hours of work by FSR’s dedicated editorial staff. I deeply appreciate the time and effort they devoted to the publication of this volume. They are full-time graduate students who masterfully balanced a host of responsibilities.
Topic:: Security, Defense Policy, Intelligence, International Cooperation, International Law, History, Military Affairs, Counter-terrorism, Cybersecurity, Navy, Conflict, Space, Interview, Army, Baath Party, and Norms
Political Geography:: China, Iraq, Europe, Middle East, Taiwan, Germany, Asia-Pacific, Global Focus, and United States of America

33. F.F. Martens and His Time: When Russia Was an Integral Part of the European Tradition of International Law

Author:: Lauri Mälksoo
Publication Date:: 02-2015
Content Type:: Journal Article
Abstract:: This introductory article opens the symposium which examines the legacy of the Russian international lawyer Friedrich Fromhold von (or Fyodor Fyodorovich) Martens (1845–1909). In the first section, the article critically reviews previous research and literature on Martens and discusses the importance of the Martens diaries that are preserved in a Moscow archive. In the second section, the article offers an intellectual portrait of Martens and analyses the main elements in his international legal theory as expressed in his textbook. In particular, his claim that international law was applicable only between 'civilized states' is illuminated and discussed.
Topic:: International Law
Political Geography:: Russia and Europe

34. F.F. Martens – Man of the Enlightenment: Drawing Parallels between Martens' Times and Today's Problems

Author:: Rein Müllerson
Publication Date:: 02-2015
Content Type:: Journal Article
Abstract:: This article concentrates on two controversial aspects of the writings of Friedrich Fromhold Martens – his treatment of the so-called mission civilisatrice of European nations and the potential clash of the two roles an international lawyer may have to perform: in the service of international law and representing national interests of his/her country or other clients. Both of these aspects in Martens' work have not lost their topicality; it is illuminating to draw parallels between his time and today's world.
Topic:: International Law
Political Geography:: Europe

35. Settler-State Political Theory, 'CANZUS' and the UN Declaration on the Rights of Indigenous Peoples

Author:: Kirsty Gover
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: When the UN General Assembly voted in 2007 to adopt the Declaration on the Rights of Indigenous Peoples (UNDRIP), only Australia, Canada, New Zealand and the USA cast negative votes. This article argues that the embedding of indigenous jurisdictions in the constitutional orders of these states via negotiated political agreements limits their capacity to accept certain provisions of the UNDRIP. Once the agreement-making process is set in motion, rights that do not derive from those bargains threaten to undermine them. This is especially true of self-governance and collective property rights, which are corporate rights vested to historically continuous indigenous groups. Since these rights cannot easily be reconciled with the equality and non-discrimination principles that underpin mainstream human rights law, settler governments must navigate two modes of liberalism: the first directed to the conduct of prospective governance in accordance with human rights and the rule of law and the second directed to the reparative goal of properly constituting a settler body politic and completing the constitution of the settler state by acquiring indigenous consent. Agreements help to navigate this tension, by insulating indigenous and human rights regimes from one another, albeit in ways not always supported by the UNDRIP.
Topic:: Human Rights, International Law, United Nations, and Governance
Political Geography:: Europe, Canada, United Nations, Australia, New Zealand, and United States of America

36. Land Rights in Nineteenth-Century Ottoman State Succession Treaties

Author:: Ilias Bantekas
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: Ottoman state practice in the field of state succession in the 19th century displayed strict adherence to the European notions of international law. This is evident from the ratification of cession treaties, attention to reciprocity, the use of mediation and reliance on the existing laws of war principles, including the legal effects of occupation, conquest and the rights and duties of belligerents. This article focuses on state succession treaties with Greece since they represented the paradigm for all future treaties, and it examines the Islamic origin of Ottoman land regulation. The Ottomans succeeded in attaching a further condition to their cession arrangements with the new Greek state, namely the latter’s obligation to respect the property rights of Muslim citizens. This arrangement brought into play the application of Ottoman land law, to which Greece was under no obligation to succeed. This body of law, particularly the set of property rights bestowed under it, became a focal point in the ensuing state succession negotiations. It was the actual basis of Muslim property rights – a precursor to contemporary property rights – and a sine qua non element of Ottoman practice in the law of state succession. In this light, Ottoman land law and institutions should correctly be considered to be general principles of law – with origins from the Quran and the early caliphates – as well as regional custom, at least in the territories liberated from Ottoman rule, which continued to apply and enforce it not only among Muslims but also in the property relations of the indigenous ethnic communities.
Topic:: International Law, Islam, Treaties and Agreements, History, and Land Law
Political Geography:: Europe, Greece, and Ottoman Empire

37. The Hybrid Legal-Scientific Dynamic of Transnational Scientific Institutions

Author:: Oren Perez
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: The objective of the present article is to develop a better understanding of the institutional dynamic of transnational regulatory scientific institutions (RSIs). RSIs play a significant role in the transnational regulatory process by mediating between the scientific community and policy-making bodies. I argue that RSIs have a hybrid structure involving both political-legal and epistemic authority. The hybrid structure of RSIs – their capacity to exert both normative and epistemic authority – constitutes an innovative response to the demand of modern society for scientific certainty and to the scarcity of normative power in the international domain. This hybrid nature has a triple structure involving three complementary pairs: law~science, law~non-law and science~pseudoscience. I examine the way in which RSIs cope with the challenge of maintaining their epistemic and legal authority against the tensions generated by their hybrid structure. The discussion of hybrid authority is related to the problem of scientific uncertainty. I examine this theoretical argument drawing on an in-depth analysis of three RSIs that reflect the institutional diversity of the RSI network: the Intergovernmental Panel on Climate Change, the International Commission on Non-Ionizing Radiation Protection and the European Committee of Homeopaths. I conclude with a discussion of some of the policy issues associated with the institutional design of RSIs. The policy discussion refers, first, to the risk posed by RSIs’ hybrid structure to their internal stability and, second, to some potential adverse social impacts that need to be considered alongside RSIs’ projected benefits.
Topic:: International Law, Science and Technology, Law, and Regulation
Political Geography:: Europe and Italy

38. Determining Customary International Law: The ICJ's Methodology between Induction, Deduction and Assertion

Author:: Stefan Talmon
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: Methodology is probably not the strong point of the International Court of Justice or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the Court’s jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law, but the legal literature also has had little to say on this subject. In view of the fact that determining the law has also always meant developing, and ultimately creating, the law it is surprising that the question of the Court’s methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law. It starts by defining the terms ‘induction’ and ‘deduction’ and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom and demonstrates that the main method employed by the Court is neither induction nor deduction but, rather, assertion.
Topic:: International Law, Law, Legal Theory, and Courts
Political Geography:: Europe and The Hague

39. State Formation, Liberal Reform and the Growth of International Organizations

Author:: Guy Fiti Sinclair
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: This article argues that the growth of international organizations over the past century has been imagined and carried out in order to make modern states on a broadly Western model. The proliferation of international organizations and the expansion of their legal powers, through both formal and informal means, raise profound questions regarding the relationship between international law’s reforming promise and its imperialist perils. The article proposes a new analytic framework for understanding these phenomena, focusing on the rationalities of international organizations’ powers and the technologies through which they are made operable. It argues that both the growth of international organizations and the cultural processes of state formation are impelled by a dynamic of liberal reform that is at once internal and external to law. That dynamic and the analytic framework proposed here are both illustrated and exemplified through a critical account of the emergence of international organizations in the 19th century.
Topic:: Imperialism, International Law, International Organization, History, and State Formation
Political Geography:: Europe and United Nations

40. Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity

Author:: Ilias Plakokefalos
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: This article addresses the preliminary steps that must be taken in order to study the problems stemming from overdetermination in the law of state responsibility. Overdetermination, broadly defined, is the existence of multiple causes (multiple wrongdoers, external natural causes, contribution to the injury by the victim and so on) contributing towards a harmful outcome. As relationships among states become more and more complex, there is a corresponding increase in the complexity of the potentially harmful outcomes of these relationships. The fact that the harm caused may originate in diverse sources (overdetermination) poses challenges to the law of state responsibility. These challenges pertain to most aspects of state responsibility, yet their dimension regarding causality has not been studied in depth. The confusion surrounding causal analysis conducted by international adjudicatory bodies leads to decisions that are not convincing in their determination of responsibility in causal terms. The argument of the article is twofold. First, it holds that the concept of causation in international law is unclear, especially in relation to overdetermination, and it must be clarified. Second, it holds that a clearer concept of causation can provide useful guidance to the decision-making process of international courts and tribunals: the clear and principled application of causal tests will, in turn, lead to clearer reasoning. A clearer judicial reasoning will improve the foreseeability of the judicial outcome, will provide better guidance for the parties before a court and will lead to a fairer judicial process.
Topic:: International Relations, International Law, Legal Theory, and Courts
Political Geography:: Europe and The Hague

41. Internet Freedom and Human Rights

Author:: Daniel Joyce
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: This article considers whether the Internet has become so significant, for the provision of, and access to, information and in the formation of political community and associated questions of participation, that it requires further human rights protection beyond freedom of expression. In short, should Internet freedom be configured as a human right? The article begins by considering the ubiquity of the Internet and its significance. A wider historical view is then taken to understand Internet freedom in terms of its lineage and development from earlier debates over freedom of expression and the right to communicate, through to the recognition of the significance of an information society and the need for Internet regulation on the international plane. The current debate over Internet freedom is then analysed with particular focus given to Hillary Clinton’s speech on Internet freedom and its subsequent articulation by Special Rapporteur Frank La Rue. The concluding part introduces the critical work of Evgeny Morozov and Jaron Lanier to an international law audience in order to deepen the debate over Internet freedom and to point to the concept’s limitations and dangers. It is too early to say whether a ‘right to Internet freedom’ has achieved universal recognition, but this article makes the case that it is worth taking seriously and that Internet freedom may need its own category of protection beyond freedom of expression.
Topic:: Human Rights, International Law, History, Regulation, Internet, and Freedom of Expression
Political Geography:: Europe, Global Focus, and United States of America

42. Double Remedies in Double Courts

Author:: Sungjoon Cho and Thomas H. Lee
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: This article uses an ongoing trade controversy litigated in US courts and the World Trade Organization dispute resolution system as a vehicle for exploring different models to deal with parallel adjudications in different legal systems between the same or related parties on the same issue. In lieu of more traditional models of subordination or first-to-decide sequencing, the article proposes an engagement model as a solution to the double-courts, single-issue problem.
Topic:: International Law, International Trade and Finance, World Trade Organization, and Courts
Political Geography:: China, Europe, and United States of America

43. Faith, Ritual and Rebellion in 21st Century (Positivist) International Law

Author:: Mónica García-Salmones Rovira
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: In this review of three works (Jörg Kammerhofer’s Uncertainty in International Law: A Kelsenian Perspective; Jean d’Aspremont’s Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules ; and International Legal Positivism in a Post-Modern World, a collection of essays edited by Kammerhofer and d'Aspremont), Mónica García-Salmones Rovira argues that: Theological statements about morality and law to the effect that they ought to be autonomous or that they ought to coincide defy reality, history and common sense and suffer from intellectual inconsistency. On the contrary, from our long legal history appear at least two clear facts about the relationship between morality and law. First, they both conflate in the same acting individual. Second, in the legal sphere, the individual always acts in communication with other individuals. Whether one aims at investigating the normative principles of the first fact, of what makes a good lawyer, or of the second, of what makes good law and the related issue of responsibility, we are always thinking in terms of practical action. Probably, it is in that practical province where international law has its greater emancipatory potential in a post-modern world.
Topic:: Human Rights, International Law, Religion, and Legal Theory
Political Geography:: Europe and Italy

44. Reut Yael Paz. A Gateway between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law.

Author:: Robert Howse
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: This rich and erudite work provides a valuable scholarly apparatus for understanding the writing and teaching of four important figures in international law and international relations. Three of them, Hans Kelsen, Hans Morgenthau and Hersch Lauterpacht, are well known; the fourth, Erich Kaufmann, much less so. The general thesis of the book is that to understand fully the personal and intellectual trajectories of all of these figures, one needs to appreciate the specific German–Jewish experience, from emancipation through the Shoah, the particular situation of the Jews in the legal profession and the academy in Germany, and the responses of these thinkers to experiences of persecution, discrimination and exile due to their Jewish family backgrounds as well as to the establishment of the State of Israel.
Topic:: International Relations, International Law, Judaism, History, Intellectual History, and Zionism
Political Geography:: Europe, Germany, and Israel

45. Tana Johnson. Organizational Progeny. Why Governments are Losing Control over the Proliferating Structures of Global Governance

Author:: Matthias Goldmann
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: According to mainstream functionalist theories of international law and relations, international organizations are vehicles of states, tied to their masters by meticulous legal instructions. As Jan Klabbers recently pointed out in this journal,1 functionalism was based on the idea of establishing peace by channelling international relations into the purportedly technical, a-political realm of international organizations. Research of the last couple of decades has profoundly rebutted the assumption that international organizations are a-political. They have been discovered, among others, to serve as platforms for the formation of epistemic communities, as agorae for political deliberation and contestation or to use their bureaucratic potential and the flexibility of their mandates to establish a degree of independence from their principals. The book by Tana Johnson, professor of political science at Duke University, adds another important perspective that has not been explored so far. She turns our attention to the fact that institutional design might matter for the international organization’s independence from member states. As chief witness for her thesis, she summons the Intergovernmental Panel on Climate Change (IPCC). Originally a brainchild of the US government, it is today a fairly independent institution fallen from grace with its master. Johnson argues that it owes its independence to the influence of international bureaucracies – that is, staff of other international organizations, upon the process that led to its establishment. The thesis puts the spotlight on the fact that a majority of new international organizations that saw the light of the day during the last decades was fostered by pre-existing international organizations.
Topic:: International Relations, Climate Change, International Law, International Organization, and Governance
Political Geography:: United States and Europe

46. James C. Hathaway, Michelle Foster. The Law of Refugee Status

Author:: Rosemary Byrne
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: The claims made by migrants seeking protection under the 1951 Convention Relating to the Status of Refugees (Refugee Convention) have created a staggering body of state practice emerging from the interpretation by national courts of what is the earliest universal human rights treaty. The first edition of James Hathaway’s The Law of Refugee Status, alongside Guy Goodwin-Gill and Jane McAdam’s The Refugee in International Law, is one of the essential texts on every refugee lawyer’s bookshelf. Now in its second edition, co-authored by Hathaway and Michelle Foster, The Law of Refugee Status is likely to maintain its standing.
Topic:: International Law, Treaties and Agreements, United Nations, Refugees, and Courts
Political Geography:: Europe, United Nations, and Mediterranean

47. Arnaud de Nanteuil. Droit International de l'investissement

Author:: Eric De Brabandere
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: There clearly is no dearth in publications dealing with the burgeoning field of international investment law. And one might wonder whether another handbook is needed on the subject. Yet Arnaud de Nanteuil’s Droit International de l’investissement has certain features that make the book of particular interest. Notably, it constitutes the first francophone handbook exclusively dedicated to international investment law.
Topic:: International Law, International Trade and Finance, Treaties and Agreements, and Courts
Political Geography:: Europe and France

48. Stephen Allen. The Chagos Islanders and International Law

Author:: Peter H. Sand
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: The tale of the Chagos Archipelago (British Indian Ocean Territory, BIOT) raises a wide spectrum of transnational legal questions, all across the fields of human rights, environment and disarmament. Last-born of the Empire’s colonies, the BIOT was established – and systematically depopulated – for the sole purpose of accommodating a strategic US military base during the Cold War years in 1965–1966. The territory has since generated extensive litigation in the national courts of the United Kingdom (UK) and the USA as well as proceedings in the European Court of Human Rights and an arbitration under Annex VII of the Convention on the Law of the Sea (UNCLOS). Stephen Allen, senior lecturer at the University of London’s Queen Mary College, has long followed and commented on legal developments in the Chagos cases as an observer. The focus of his attention remains the plight of the native Chagossians, a small Kreol-speaking people of African and Malgasy origin, whose exile (mainly to Mauritius, the Seychelles and the UK) has lasted for more than 40 years.
Topic:: Environment, Human Rights, Imperialism, International Law, History, Courts, Disarmament, and Displacement
Political Geography:: Britain, United States, Europe, and Chagos Islands

49. Schizophrenie du droit international

Author:: Ekaterina Yahyaoui Krivenko
Publication Date:: 04-2015
Content Type:: Journal Article
Abstract:: A poem by Ekaterina Yahyaoui Krivenko.
Topic:: Globalization, Human Rights, International Law, and Constitution
Political Geography:: Europe and Global Focus

50. Who Wants What? – Final Offer Arbitration in the World Trade Organization

Author:: Jaime Tijmes
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: The World Trade Organization’s (WTO) Dispute Settlement Understanding (DSU) favours negotiated settlements for disputes. However, arbitrations according to Article 22.6 of the DSU have been carried out as compulsory conventional arbitrations, even though such arbitrations do not offer strong incentives for the parties to reach a settlement. For quite some time, scholars have studied other forms of arbitration that may encourage settlements more strongly, such as final offer arbitration. Yet this form of arbitration has received rather limited attention in the academic discussion about dispute settlement under the WTO. This article explores to what extent final offer arbitration might make sense for settling WTO disputes and concludes that it would be suitable for arbitrations pursuant to Article 22.6 of the DSU, specifically for setting the level of suspension of obligations and, under certain circumstances, for deciding on so-called cross-retaliation pursuant to Article 22.3 of the DSU. Before negotiations start, parties to a dispute should agree on final offer arbitration if arbitration should be deemed necessary. Such an agreement might be expressed in a pre-emptive joint proposal on procedural aspects. Amendment of the DSU would then be unnecessary.
Topic:: International Law, International Trade and Finance, Treaties and Agreements, and World Trade Organization
Political Geography:: Europe and Global Focus

51. Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR

Author:: Lorna McGregor
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: The presumption that courts are the principal forum for dispute resolution continues to be eroded. Alternative forms of dispute resolution (ADR), including agreement-based ADR (such as mediation and conciliation) and adjudicative ADR (such as arbitration), continue to proliferate and are increasingly institutionalized, leading to their characterization as ‘appropriate’ or ‘proportionate’ dispute resolution. Interestingly, despite these developments, the position of international human rights law (IHRL) on two key questions regarding ADR and proportionate dispute resolution (PDR) is unclear. These questions are, first, the standards of justice expected of ADR/PDR (whether entered into voluntarily or mandatorily). Second, the permissible circumstances in which parties to a dispute can be required to use ADR/PDR instead of, or before, accessing courts. The attributes and challenges with ADR/PDR have been discussed extensively in socio-legal studies, feminist literature and the dedicated ADR/PDR literature. This article seeks to bring this vast theory on the diversification and institutionalization of dispute resolution into IHRL. Through the lens of the European Court of Human Rights, this article examines the types of tests that supranational bodies currently employ and advances a framework for assessing the choice, design and implementation of ADR/PDR in the future.
Topic:: Human Rights, International Law, Legal Theory, and Courts
Political Geography:: Europe, France, and European Union

52. International Investment Law and the European Union: Towards a New Generation of International Investment Agreements

Author:: Catharine Titi
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: For about half a century, the European investment treaty model has been associated with European Union (EU) member states’ bilateral investment treaty practice, often referred to as their ‘best practices’. Member state bilateral investment treaties, which are liberal instruments strongly protective of investor interests, have remained relatively unchanged over the years, in contrast with their North American counterparts, which have come to represent a new type of investment treaty, cognizant for the first time of the contracting parties’ right to regulate. With the entry into force of the Treaty of Lisbon and the exercise of the EU’s new competence over the conclusion of treaties covering foreign direct investment, Europe marks its distances with the old approach of the member states and appears eager to set its own ‘model’. While broadly in harmony with the new generation of North American investment treaties, the nascent EU policy aims to improve international investment law in innovative ways, targeting both substantive and procedural protections, and leading to a yet newer generation of international investment treaties. The present article explores this new EU standard, which is set to change the face of international investment law as we know it.
Topic:: International Law, Treaties and Agreements, Foreign Direct Investment, and European Union
Political Geography:: Europe and European Union

53. International Investment Law and the European Union: A Reply to Catharine Titi

Author:: Martins Paparinskis
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: Reasonable people might disagree whether the European Union (EU) is likely to make a significant and commendable contribution to international investment law. This article addresses two issues of relevance for this discussion. First, it considers the appropriateness of evaluating evelopments in international investment law in terms of balance between investor protection and the right to regulate. Second, the contribution of the recent EU practice is briefly examined, finding it less interesting and innovative than one might have expected.
Topic:: International Law, European Union, Regulation, and Finance
Political Geography:: Europe and European Union

54. The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action

Author:: Devon Whittle
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: The United Nations Security Council (UNSC) is, in many ways, a unique institution. It exercises legislative, judicial and executive powers; operates with few legally binding checks and balances and has even been described as being ‘unbound by law’. The Council has broad powers to maintain international peace and security, most notably under Chapter VII of the UN Charter, and its decisions are binding on UN members. At the same time, some of the Council’s actions have been labelled as ultra vires and the lack of a binding, legal oversight mechanism to reign in Council action has been decried. Accepting that there is a difficulty in imposing legally binding checks and balances on the UNSC, this article argues that approaching the Council’s Chapter VII powers as a form of emergency powers may help to illuminate the role that non-legal restraints can play in curbing its power. In particular, this article uses Oren Gross’ ‘extra-legal measures model’ to conceptualize the Chapter VII regime and restraints upon it. It shows how the extra-legal measures model offers a descriptive account of UNSC action under Chapter VII and then builds on the gaps in the application of the model to the Council to highlight areas for the development of better restraints, in particular, in areas that may be missed by a traditional legal analysis.
Topic:: International Law, United Nations, International Security, and Peacekeeping
Political Geography:: Europe and United Nations

55. Applying the Extra-Legal Measures Model to Humanitarian Interventions: A Reply to Devon Whittle

Author:: Oren Gross
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: In ‘The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action’, Devon Whittle analogizes the United Nations Security Council’s Chapter VII powers to domestic emergency powers. He then seeks to apply the extra-legal measures (ELM) model of emergency powers, which I developed some 20 years ago, to exercise by the Council of its Chapter VII powers. This brief comment seeks to expand the discussion of ELM in international affairs beyond the collective security system by exploring the application of ELM in the setting of unilateral humanitarian intervention.
Topic:: International Law, Treaties and Agreements, United Nations, International Security, and Humanitarian Intervention
Political Geography:: Europe, Kosovo, United Nations, and Syria

56. Title to Territory in the Post-Colonial Era: Original Title and Terra Nullius in the ICJ Judgments on Cases Concerning Ligitan/Sipadan (2002) and Pedra Branca (2008)

Author:: Sookyeon Huh
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: This article approaches two International Court of Justice judgments on the cases concerning Ligitan/Sipadan (2002) and Pedra Branca (2008) from the perspective of the law of territory in the post-colonial context, showing that the Court managed to free the concepts of ‘original title’ from ‘terra nullius’. It is prefatorily explained that the concepts of ‘original title’ and ‘terra nullius’, which operate in combination, had both functioned as bases for the traditional law of territory and as unilateral justification for colonization by European powers. By contrast, analysis of the two recent judgments illustrates that the Court contrived to separate the two concepts from the context of colonialism by avoiding the determination of the islands as ‘terra nullius’ and expanding the concept of ‘original title’ while preserving the existing framework of law of territory. The problem is presented with a caveat, however; overemphasizing the significance of ‘original title’ in the post-colonial context might lead to disregard for the foundations of title to territory, that is effective control of territory and its legitimizing logic, on which the territorial order of today’s international society is based.
Topic:: International Law, Post Colonialism, Territorial Disputes, and Courts
Political Geography:: Europe, Indonesia, Malaysia, and Singapore

57. How Should States Own? Heinisch v. Germany and the Emergence of Human Rights-Sensitive State Ownership Function

Author:: Mikko Rajavuori
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: State ownership is thriving. Emerging economies are extending their growing economic power outward through sovereign wealth funds. State-owned multinationals have become top sources of foreign direct investment. Bailouts have recreated powerful state ownership structures in regions where private ownership has traditionally prevailed. The state is back – in shareholder capacity. Approaching the rise of state ownership from a human rights perspective, this article submits that a new conceptualization of state ownership function is emerging. State ownership provides a strong link connecting corporate actions with the international human rights system. Yet the conventional methods used to integrate state ownership in human rights treaty bodies’ discretion seem unable to grasp the changing economic role of governments in the global economy. The article suggests that the notion of the ‘public shareholder’, introduced by the European Court of Human Rights in Heinisch v. Germany (2011), provides a useful lens for interrogating how states should govern the human rights performance of corporations through ownership. When exposed to the recent practice of a range of United Nations treaty bodies, internationalizing state ownership activity becomes framed in human rights terms. In this vision, the whole ownership function becomes a site for turning companies in the state’s portfolio into responsible corporate citizens who take the impact of human rights seriously. Specifically, treaty bodies should advise states to seek human rights governance through private mechanisms in the capacity of the shareholder. In the process, human rights’ checks and balances should constitute a counterweight for market-based initiatives that regulate state activity in the capacity of the shareholder.
Topic:: Human Rights, International Law, Treaties and Agreements, Foreign Direct Investment, Economies, and Courts
Political Geography:: Europe, Norway, and Germany

58. The International Civil Servant in Theory and Practice: Law, Morality, and Expertise. Review of Carsten Stahn and Henning Melber (eds). Peace Diplomacy, Global Justice and International Agency: Rethinking Human Security and Ethics in the Spirit of Dag Hammarskjöld; Roger Lipsey. Hammarskjöld: A Life; Lise Namikas. Battleground Africa: Cold War in the Congo, 1960–1965; Anne Orford. International Authority and the Responsibility to Protect

Author:: Guy Fiti Sinclair
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: Reflecting upon the ambiguous relationship between international civil servants and international law in both theory and practice, this review essay examines several recent books that address the life and legacy of Dag Hammarskjöld, the second Secretary-General of the United Nations. Drawing upon recent theoretical work regarding international organizations, the essay argues that the authority of international civil servants should be understood as operating through three distinct yet interconnected modalities of discourse and practice: legal, moral and expert. Moreover, a comprehensive account of the authority exercised by international civil servants must take account of how they respond to any tensions that arise between their bases of authority as well as of their shifting relations with other ‘global governors’. The essay considers the depiction of Hammarskjöld by each of the books under review, highlighting the sometimes overlooked interconnections between the different sources of authority upon which he drew and suggesting some starting points for an alternative, integrated account of his thought and practice.
Topic:: Civil Society, Diplomacy, International Law, International Organization, and Humanitarian Intervention
Political Geography:: Africa and Europe

59. Gregory Shaffer (ed.). Transnational Legal Ordering and State Change , Terence C. Halliday, Gregory Shaffer (eds). Transnational Legal Orders

Author:: Lars Viellechner
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: The two collections fill a major gap in law and globalization scholarship. In rich detail, they supply empirical material on the current transformation of law that has long been sought after. The studies in the first volume stand out in particular as they employ methods of empirical social research and focus on change in non-Western countries. From this material, other researchers will greatly benefit in the years to come. At the same time, the two volumes add a highly convincing conceptual approach to the field. Indeed, their guiding category of the transnational is very promising in contrast to many others proposed for similar purposes. As the editors properly assert, it best expresses that most patterns of order neither reach out globally nor circumvent the state. Indeed, the recursive interaction of different levels of order appears to be one of the dominating modes of law production today, which is well captured by the term. Nevertheless, some obscurity and doubt about the conceptions of transnational legal ordering and order remain.
Topic:: Globalization, International Law, Sociology, and Legal Theory
Political Geography:: Europe, Asia, and North America

60. Isabelle Ley. Opposition im Völkerrecht: Ein Beitrag zur Legitimation internationaler Rechtserzeugung [Opposition in International Law: A Contribution to the Legitimation of International Law-Making]

Author:: Jan Klabbers
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: Isabelle Ley, in her exemplary dissertation defended at Humboldt University, takes the emergence of regulatory international law as her starting point and aims to investigate how its democratic legitimacy could be enhanced. For her, democracy is not just a matter of particular institutions or practices but, rather, of open and possibly oppositional politics. Building on the work of Claude Lefort and, in particular, Hannah Arendt, she develops a framework for discussing democracy in international law conceptualized as the possibility for opposition. A democratic polity is one where every participant has the possibility of helping to take care of the common world, as Arendt might have put it, and presupposes open politics. This politics is, so to speak, politics for the sake of politics or politics in the Olympic spirit: what matters is not so much winning but taking part; what matters is not so much which policies will be adopted but the political process itself. Following Aristotle, taking part in public affairs is viewed as the most salient manifestation of human excellence: man being a political animal, he can do no better than take part in the political process – this is where individual happiness is achieved and, therewith, the ultimate justification of democracy.
Topic:: International Law, International Organization, Political Theory, and Democracy
Political Geography:: Europe and Germany

61. Michael Fakhri. Sugar and the Making of International Trade Law

Author:: Anna Chadwick
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: Michael Fakhri in his book Sugar and the Making of International Law takes inspiration from Antony Anghie, a scholar who famously disrupted prevalent conceptions of public international law. Using sugar as a ‘trace element’, Fakhri follows Anghie’s lead in retracing the historical origins of international trade law in order to challenge pervasive perceptions about this legal regime. What he is keen to demonstrate is that free trade, like state sovereignty, is not something that international institutions are merely officiating. Rather, the meaning of this concept has shifted over time as it has been applied by different institutions and actors within the international legal order to differential effect. It has been both conditioned by, and received the conditioning of, broader political, economic and social forces. Critically, it is as much the product of international institutions governing trade as it is their purpose.
Topic:: Agriculture, Imperialism, International Law, International Trade and Finance, History, World Trade Organization, and Economy
Political Geography:: Britain, Europe, and Global Focus

62. Mark Toufayan, Emmanuelle Tourme-Jouannet, Hélène Ruiz Fabri (eds). Droit international et nouvelles approches sur le tiers-monde: entre répétition et renouveau [International Law and New Approaches to the Third World: Between Repetition and Renewal]

Author:: Makane Moïse Mbengue
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: The volume under review publishes the proceedings of a colloquium held at the University of Paris in July 2010. The aim of this colloquium was to fill a lacuna that characterizes the contemporary francophone international legal scholarship. Indeed, as noted by the editors in their foreword to the book, after a prolific period during the 1970s and 1980s, French and francophone scholars have gradually lost interest in Third World-related issues and ignored this topic in their research and teachings. This trend is regrettable and unfortunate because despite some progress and improvements, international relations are still marked by significant inequalities and disparities between rich and poor countries, while several regions of the world remain in a situation of extreme poverty. Therefore, there is an urgent need to renew and revive the reflection of French-speaking international lawyers on their discipline by inciting them to critically question the present existence and effects of the rules of international law relating to the Third World in the current globalized context. To achieve this goal, Mark Toufayan, Emmanuelle TourmeJouannet and Hélène Ruiz Fabri had the idea of bringing together, in Paris, francophone and anglophone scholars and prominent representatives of the critical Third World Approaches to International Law (TWAIL). TWAIL scholars were invited to expose their ideas and thoughts, and their French-speaking counterparts were asked to react and comment on these thoughts.
Topic:: Development, Human Rights, Imperialism, International Law, Post Colonialism, Third World, and History
Political Geography:: China, Europe, France, South Africa, and Chile

63. Evelyne Schmid. Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

Author:: Mara Tignino
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: Evelyne Schmid’s new book, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law, aims to provide a bridge between developing practice and existing knowledge. At the heart of her book lies the question of how, or to what extent, violations of ESCR are addressed in international criminal proceedings and transitional justice mechanisms. She criticizes the current marginalization of ESCR abuses in scholarship on international criminal law and bemoans the reality that ‘efforts to address the legacy of widespread human rights abuses display a bias towards civil and political rights’. While some have argued for an expansion of international criminal law to account more directly for violations of ESCR, Schmid claims such an expansion is unnecessary; in her view, such violations already fall within the scope of international crimes.
Topic:: Genocide, Human Rights, International Law, United Nations, War Crimes, Courts, and Transitional Justice
Political Geography:: Europe, North Korea, Cambodia, United Nations, and Myanmar

64. Lauri Mälksoo. Russian Approaches to International Law

Author:: Angelika Nussberger
Publication Date:: 07-2015
Content Type:: Journal Article
Abstract:: Modern international law of the 21st century seems to be characterized by a farewell to the Westphalian understanding of state sovereignty, by the empowerment of the individual and by transnational solutions to common problems in a globalized world. This overview, however, is not true for Russian international law. The ‘powerful idea of Russia’s civilizational distinctness from the West’ is underlying the post-Soviet practice in international law (at 190). This is the main thesis of Lauri Mälksoo’s study on ‘Russian approaches to international law’. Russia was different, Russia is different and Russia is proud of being different.
Topic:: International Law, Sovereignty, United Nations, History, and Intellectual History
Political Geography:: Russia, Europe, and Crimea

65. Humanity Considerations Cannot Reduce Wars Hazards Alone: Revitalizing the Concept of Military Necessity

Author:: Yishai Beer
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: The exercise of brute force by militaries, though common, reflects professional incompetency. A well-trained military has an inherent interest in enhancing its operational effectiveness and constraining unnecessary brutality. The law of armed conflict, however, generally ignores the constraining effect of the necessity principle, originally intended to allow only the minimally necessary use of force on the battlefield. Consequently, the prevailing law places the burden of restricting the exercise of brute military force upon humanitarian considerations (and the specific norms derived from them). Humanity alone, however, cannot deliver the goods and substantially reduce war’s hazards. This article challenges the current dichotomy between the two pillars – mistakenly assumed to be polar opposites – of the law of armed conflict: necessity and humanity. It calls for the transformation of the military’s self-imposed professional constraining standards into a revised legal standard of necessity. Though the necessity principle justifies the mere use of lethal force, it should not only facilitate wielding the military sword but also function simultaneously as a shield, protecting combatants and non-combatants alike from excessive brutality. The suggested transformation would bind and restrain the prospective exercisers of excessive force, political and military alike, and restrict the potential damage that might be caused both intentionally (to combatants) and collaterally (to non-combatants). The combined effect of the current changes in war’s pattern and the law of armed conflict, in the military and social thinking of recent decades, and the new strategies available due to the development of new military technologies have all created a new war environment – one that may be ready to leverage the constraining potential of military professionalism into a binding legal standard and norms.
Topic:: Conflict Prevention, International Law, Treaties and Agreements, and War
Political Geography:: Russia, United States, and Europe

66. Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights Judgments

Author:: Helen Keller and Cedric Marti
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: This article proposes a shift of perspective concerning the implementation of European Court of Human Rights (ECtHR) judgments. Acknowledging that implementation of the Court’s judgments is primarily of a political and domestic nature, the authors argue that the process has become increasingly internationalized and judicialized by the ECtHR in recent years. Taking a broad, three-tiered perspective that distinguishes between the pre-judgment stage, the judgment itself and the post-judgment stage, the authors analyse the means by which the ECtHR has engaged in implementation of its judgments and explore the benefits of judicialization in this area to secure a key aspect in guaranteeing effective protection and the long-term future of the European Convention on Human Rights system, namely full and timely judgment compliance.
Topic:: Human Rights, International Law, Law, and Courts
Political Geography:: Europe and France

67. Bridging Comparative and International Law: Amicus Curiae Participation as a Vertical Legal Transplant

Author:: Anna Dolidze
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: Legal transplants scholarship has thoroughly examined the transnational diffusion of legal institutions. Although Article 38 of the Statute of the International Court of Justice acknowledges that international law draws upon domestic legal systems, the exchange of legal institutions between states and international law has yet to receive similar treatment. This article highlights the process of vertical diffusion – that is, the borrowing of legal institutions between the nation-state and international law. Vertical diffusion takes place in two forms: downward and upward diffusion. Scholarship on the internalization and vernacularization of international law has highlighted the process of downward diffusion. This article offers a theory of internationalization of law and the emergence of internationalized legal transplants. It draws on a study of the internationalization of the amicus curiae participation procedure from the United Kingdom to the European Court of Human Rights. Three main conditions must be present for internationalization: the institution’s structural transformation that results in a law-making opportunity, norm entrepreneurs, and access to the decision-making body. The study of internationalized legal transplants is important to have a more fine-grained perspective on the making of international law. The evidence of the diffusion of legal institutions between domestic law and international law also creates a bridge between international law and comparative law scholarship.
Topic:: Human Rights, International Law, Legal Theory, and Courts
Political Geography:: United Kingdom, Europe, and France

68. Anti-Discrimination Exceptionalism: Racist Violence before the ECtHR and the Holocaust Prism

Author:: Ruth Rubio-Marín and Mathias Möschel
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: Over the past years, the European Court of Human Rights has significantly developed and strengthened its Article 14 non-discrimination jurisprudence, including in a number of ground-breaking international law cases establishing increased state responsibility with regard to ethnic segregation in education and gender violence. However, in the type of cases that constitute a large part of its non-discrimination case load, namely physical violence against racial minorities, the Court has so far failed to adequately address Article 14 discrimination claims raised by the victims. We posit that this could be caused in part by what we call the ‘Holocaust Prism’. Put briefly, the experience of the Holocaust has shaped the manner in which continental European courts understand racism and race discrimination, at least (or especially) when it is combined with violence. Paradoxically, this entails that in the most heinous cases of race discrimination, the discrimination threshold is raised to the level of criminal conduct. Moreover, to the extent that it is, only the ethnic dimension of such discrimination is foregrounded even in cases that present obvious intersectional (for example, ethnicity plus gender) dimensions. We exemplify this phenomenon by discussing recent case law on forced sterilization of Roma women and argue that the Court should become aware of this issue, recognize intersectional discrimination and align its case law on racist violence with the discrimination doctrine emerging in its gender violence and educational race segregation cases, both for the sake of internal consistency and to better capture the structural nature of racial discrimination in Europe.
Topic:: International Law, Ethnicity, Gender Based Violence, Holocaust, Roma, and Discrimination
Political Geography:: Europe and Czech Republic

69. Letting Lotus Bloom

Author:: Ann Hertogen
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: In an increasingly interdependent world, state sovereignty is inherently limited in order to protect the equal sovereignty of other states. However, identifying the precise constraints on states is a different and far more difficult question. The traditional answer is found in the Lotus principle, which consecrates a freedom to act unless explicitly prohibited by international law. The principle has rightly come under attack because of its incompatibility with the needs of a modern international community. This is usually followed by calls to disregard the precedential value of the Permanent Court of International Justice’s Lotus judgment on which it is based. This article defends the Lotus judgment but argues that the principle is the wrong reading of the majority opinion and that it fails to create the right conditions for interstate co-existence and cooperation, the twin goals of international law identified by the majority. The article then examines the meaning of ‘co-existence’ for contemporary international law and weighs the principle of ‘locality’ as an additional criterion that ought to be considered when resolving conflicting claims of jurisdiction.
Topic:: International Law, Sovereignty, International Affairs, and Courts
Political Geography:: Europe, Turkey, and France

70. The International Legal Status of the Vatican/Holy See Complex

Author:: John R. Morss
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: This article offers a re-examination of the international legal status of what is here termed the Vatican/Holy See complex (VHS), focusing on claims to statehood. The problematic ‘effect’ of Vatican City, of the Holy See, of the papacy and of associated entities is interrogated at the level of international law, entering as little as possible into administrative or theological distinctions. The various grounds cited as supporting status amounting to statehood are argued to be inadequate. The continuing exchange of representatives with states by the VHS is missionary and hierarchical in character and is reflective neither of the reciprocity of peers nor of customary obligation going to law. Agreements entered into by the papacy with the Kingdom of Italy (the Lateran Pacts) in 1929, relating to the status of the geographical territory known as Vatican City, cannot be determinative of international status. Nor can membership of international agreements and organizations confer a status amounting to statehood. Events and practices since 1929 have not substantially altered international status as of 1870. The Roman Catholic Church is but one of many faith-based international movements, and since the eclipse of the papal state nearly one-and-a-half centuries ago, the status in international law of its temporal headquarters in Rome should not be privileged.
Topic:: International Law, Religion, Sovereignty, and History
Political Geography:: Europe, Italy, and Vatican city

71. Functionalism! Functionalism! Do I Look Like Functionalism?

Author:: Laurence Boisson de Chazournes
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: In his EJIL Foreword, Jan Klabbers argues that the contemporary application of functionalism, understood as organizations being assigned functions, in order both to realize the common good and to deepen inter-state cooperation, is something of a theoretical straitjacket. However, can functionalism really be described as a ‘one-size-fits-all’ concept? It is the contention of this Comment that there are, in fact, different manifestations of the concept, including neo-functionalism and formal or informal functionalism. New realities in this field also reflect an evolved conception of functionalism, such as the increasing diversity of actors affected by, and influencing, international organizations, as well as the fact that institutions have become authorities in their own right. As a consequence, we may also observe the emergence of principles, often referred to as global administrative law principles, aimed at dealing with these new realities. The article recognizes that a functional orientation in designing the mandates of international organizations has contributed to overlaps and inefficiency. However, it argues that efforts have been made in pursuance of greater efficiency.
Topic:: International Law, International Organization, and World Trade Organization
Political Geography:: Europe and Global Focus

72. Saving the Scarecrow

Author:: André Nollkaemper
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: This brief Comment responds to Jan Klabbers’ recent article, ‘The Transformation of International Organizations Law’. It focuses on three points: the polemical style and disengagement with substance in the article; the question of whether we can do without some form of functionalism; and the further question of what it means to speak of ‘responsibility beyond functionalism’.
Topic:: International Law, International Organization, Law, and Critique
Political Geography:: Europe and Global Focus

73. The Original Sin (and Salvation) of Functionalism

Author:: Guy Fiti Sinclair
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: This Comment interrogates the central and determining role accorded to functionalism in Jan Klabbers’ account of international organizations (IOs) law in his recent article, ‘The EJIL Foreword: The Transformation of International Organizations Law’. Specifically, it expresses doubts regarding Klabbers’ designation of functionalism as the dominant, paradigmatic theory of IOs law; questions whether the article’s account of functionalism’s historical origins is persuasive; and argues that the ‘rise and fall’ narrative set forth in the article presents an overly sanitized picture of IOs law, largely free from political struggle. The development of IOs law has been more contested than Klabbers’ narrative suggests; minimizing that contestation carries the danger of closing off possibilities for reimagining IOs law today.
Topic:: International Relations, International Law, International Organization, and Critique
Political Geography:: Europe and Global Focus

74. The Transformation of International Organizations Law: A Rejoinder

Author:: Jan Klabbers
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: Jan Klabbers responds to critiques by Laurence Boisson de Chazournes, André Nollkaemper and Guy Fiti Sinclair of his EJIL Foreword.
Topic:: International Relations, International Law, International Organization, and Critique
Political Geography:: Europe and Global Focus

75. The Modern Practice of Intervention by Invitation in Africa and Its Implications for the Prohibition of the Use of Force

Author:: Erika de Wet
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: This article examines how two prominent criteria for permissible military intervention by invitation as developed in doctrine are currently implemented by states as well as how this impacts the prohibition of the use of force. Controversies concern, in particular, the determination of the authority entitled to extend the invitation, as recently illustrated by the Russian claim that its military intervention in the Crimea was based on the invitation of (former) President Yanukovych. Does the inviting authority need to enjoy democratic legitimacy and/or be in de facto control of a state’s territory? Furthermore, it remains highly contentious whether an invitation for forcible intervention may be extended during a civil war. By analysing modern state practice in Africa – where most of the contemporary invitations for military assistance occur – and comparing it with recent developments in other regions, the author concludes that effective control rather than democratic legitimacy is (still) the point of departure for determining the legitimate government of a state. Once recognized, incumbent governments enjoy a large discretion when inviting military assistance from foreign governments. They seem to retain the right to military assistance even in situations of civil war and while exercising limited control over the territory.
Topic:: International Law, Sovereignty, United Nations, and Military Intervention
Political Geography:: Africa, Russia, Europe, and Crimea

76. Interrogations of Consent: A Reply to Erika de Wet

Author:: Dino Kritsiotis
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: This article presents a critical engagement with the issue of force and intervention undertaken with the consent of the state in whose territory it ultimately occurs and offers a critical assessment of Erika de Wet’s article ‘The Modern Practice of Intervention by Invitation in Africa and Its Implication for the Prohibition of the Use of Force’. It considers the different interpretative approaches suggested for consent and the Charter of the United Nations’ prohibition of force as well as the principle or principles that have come to govern the issuing of valid consent in international law. The contribution turns to some of the methodological positions taken in exploring the continuing validity of the so-called ‘effective control principle’ in modern African practice, and, as it does so, it probes the utility of questions for the jus ad bellum of ‘other’ international law (such as developments within the jus in bello and the law on self-determination).
Topic:: International Law, Sovereignty, United Nations, and Military Intervention
Political Geography:: Africa and Europe

77. Domestic Violence as a Human Rights Issue: Rumor v. Italy

Author:: Ronagh J.A. McQuigg
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: This article focuses on the recent developments concerning domestic violence within the context of the Council of Europe. Since 2007, the European Court of Human Rights has issued a series of important judgments in cases involving domestic violence. The most recent of these is Rumor v. Italy, in which the Court issued its judgment on 27 May 2014. The article analyses this case in the context of the Court’s previous jurisprudence on domestic violence. In addition, on 1 August 2014, the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence entered into force, and the article will include a number of reflections on the potential held by this Convention. No violation of the European Convention on Human Rights was found in Rumor; however, the question of whether Italy would have been in breach of the provisions of the new Convention, to which it is a party, had this Convention been in force at the time of the relevant events, will be examined.
Topic:: Human Rights, International Law, Women, Gender Based Violence, and Courts
Political Geography:: Europe and Italy

78. EJIL Editors’ Choice of Books 2015

Author:: Sarah Nouwen, Christian Tams, Jan Klabbers, and Jean d'Aspremont
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: At the end of 2014, we invited the EJIL Board members to reflect on the books that had had a significant impact on them during the year. Their contributions, posted on EJIL: Talk!, were met with great interest and curiosity. As the end of another year approaches, we decided once more to invite our Board members to look back on their reading in 2015. In the following pieces Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont write about the books they read or re-read this year and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.
Topic:: Human Rights, International Law, History, and Courts
Political Geography:: Africa, Europe, and South Sudan

79. Surabhi Ranganathan. Strategically Created Treaty Conflicts and the Politics of International Law

Author:: Sabrina Safrin
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: Treaty conflicts may be inevitable, but what do we make of conflict by design? In Strategically Created Treaty Conflicts and the Politics of International Law, Surabhi Ranganathan thoughtfully explores nations’ purposeful creation of conflicts between treaties to advance their political goals and to restrict the impact of treaties to which they object. Essentially, states fight legal fire with legal fire. If they object to a multilateral treaty regime, they create another regime that effectively conflicts with, or cabins, the treaty regime that they object to rather than simply walking away.
Topic:: International Law, Treaties and Agreements, Book Review, and Law of the Sea
Political Geography:: Europe and United States of America

80. M. Sornarajah. Resistance and Change in the International Law on Foreign Investment

Author:: Harm Schepel
Publication Date:: 10-2015
Content Type:: Journal Article
Abstract:: In 1994, Muthucumaraswamy Sornarajah published the first edition of his treatise, The International Law on Foreign Investment. There, he sought to demonstrate that investment law as a separate branch of international law was ‘in the process of development’ and could and should be isolated for separate study. Organizing his material from the disparate sources of domestic law, contract-based arbitration and public international law along the overarching tension between the interests of developing countries and those of traditionally capital-exporting states, his stated aim was to ‘help in the identification of the nature of the disputes’, which would lead, in turn, to the ‘formulation of acceptable solutions’. The treatise was a well-timed pioneering effort that rightfully earned the author a lasting reputation as one of the founding fathers and towering figures of the academic discipline. There seems to be no one better placed, then, to ask, 20 years on, what happened or, rather, what went wrong. Investment law has developed with breathtaking speed into a (very) separate branch of international law – yes – but almost entirely on the waves of treaty-based investor–state arbitration, which has all but eclipsed contractual and domestic processes, at least in terms of academic interest. And this system has, in the eyes of Sornarajah and many others, rather spectacularly failed to lead to ‘acceptable solutions’, especially for developing countries.
Topic:: International Law, Treaties and Agreements, Foreign Direct Investment, Neoliberalism, and Book Review
Political Geography:: Europe and United States of America

81. The Worlds of European Constitutionalism, Gráinne de Búrca and J.H.H. Weile

Author:: Bertil Emrah Oder
Publication Date:: 10-2014
Content Type:: Journal Article
Journal:: Insight Turkey
Institution:: SETA Foundation for Political, Economic and Social Research
Abstract:: This edited volume on European constitutionalism is a compendium of essays with different interpretations on the constitutional authority and nature of the European Union (EU). This issue has faced various challenges in the last decade not only by national courts and referenda, but also vis-à-vis other international and regional actors, such as United Nations (UN) and European Court of Human Rights (ECHR).
Topic:: Human Rights, International Law, and United Nations
Political Geography:: Europe

82. The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Author:: David S. Koller
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: This article responds to Daniel Bethlehem's assertions that globalization is diminishing the importance of geography, and thereby challenging the Westphalian order on which international law is constructed. It contends that international law does not take geography as it is but actively creates and sustains a state-based geography. It argues that the challenges Bethlehem identifies are not new but are inherent in international law's efforts to impose a state-based order on a global world. The question is not whether international lawyers will respond to these challenges, but how they will respond. Will they follow Bethlehem in reinforcing a statist order, or will they place sovereignty of states in the service of the global human community?
Topic:: Globalization and International Law
Political Geography:: New York and Europe

83. The Ever-Ending Geography of International Law: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem

Author:: Carl Landauer
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: Daniel Bethlehem makes a convincing case in 'The End of Geography' that the growing challenges of our contemporary world require a move from our state-centred international legal system. This reply places Bethlehem's voice among a growing list of those who either describe or prescribe a move from the traditional Westphalian state system. It argues, however, that the challenges have always been transboundary and that the Westphalian state system has never been as strong or as long-lived as envisaged by its critics.
Topic:: International Law
Political Geography:: New York and Europe

84. The Beneficiaries of TRIPs: Some Questions of Rights, Ressortissants and International Locus Standi

Author:: Christopher Wadlow
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: The rights and remedies of private parties under the three principal global treaties for the protection of intellectual property are restricted to persons having the status of ressortissants under the relevant treaty, and by the general law of diplomatic protection. Two largely neglected issues arise in relation to ressortissants, which the treaties do not expressly resolve. The first concerns whether the obligations which state A assumes towards the nationals of state B can be enforced by states other than B. The second is whether the obligations assumed by a state under one of these treaties extend to that state's own nationals. It is suggested that the Bananas III and Havana Club decisions have effectively resulted in unlimited locus standi for WTO members to complain of breaches of TRIPs, including the incorporated provisions of the Paris and Berne conventions. The answer to the second question is more tentative, but it is suggested that there may be greater opportunities for arguing that the provisions of TRIPs are binding on states in relation to their own nationals, including incorporated Paris and Berne Articles, than there were under either of those earlier treaties on their own.
Topic:: International Law
Political Geography:: Europe and Paris

85. The Duality of Direct Effect of International Law

Author:: André Nollkaemper
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: This article assesses how, 50 years after the ECJ delivered its judgment in Van Gend en Loos (VGL), the doctrine of direct effect of international law has fared outside the European Union. While obviously the core of VGL (that is, that it is EU law, not national law, which requires direct effect) is not replicated anywhere else in the world, the courts of a considerable number of states have been able to give direct effect to international law. Against the background of an exceedingly heterogeneous practice, this article argues that the concept of direct effect is characterized by a fundamental duality. Direct effect may function as a powerful sword that courts can use to pierce the boundary of the national legal order and protect individual rights where national law falls short. But more often than not, the conditions of direct effect legitimize the non-application of international law and shield the national legal order from international law. International law provides support for both functions. But above all, it defers the choice between these functions to national courts. The practice of direct effect of international law exposes how national courts play a critical political function at the intersection of legal orders.
Topic:: International Law
Political Geography:: Europe

86. Direct Effect of International Agreements of the European Union

Author:: Francesca Martines
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: The Van Gend en Loos (VGL) decision established the conceptual premises of a crucial issue to shape the relationships between the European Union and international law: the function of direct effect as a powerful instrument to guarantee that the rules of one system are complied with in another legal order. However, if compared with direct effect of EU legal rules, the issue of the effects of EU international agreements is made more complicated by the combination of the more traditional question of the self-executing character of international agreement provisions and the narrow meaning of direct effect. The former issue, strongly affected by the technique of incorporation and the rank of international law obligations within the incorporating legal order, goes to the heart of the constitutional architecture of the EU legal order where a balance is to be found between the obligation to comply with international law and the integrity of the EU legal order. The latter notion concerns instead the relationship between the private person and the legal rule and defines the special character of the EU which distinguishes it from international law. Since such a quality of EU rules cannot be automatically applied to international law rules incorporated in the EU legal order it must be verified case by case. This is the reason why, for the present author, the double test approach, first applied by the ECJ in VGL, is the right test to determine direct effect of EU international agreements, but cannot be applied to verify the self-executing effect of international law in the traditional (broader) meaning.
Topic:: International Law
Political Geography:: Europe

87. Is There a Case – Legally and Politically – for Direct Effect of WTO Obligations?

Author:: Hélène Ruiz Fabri
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: WTO law does not require its direct effect in domestic legal orders. Whilst the stances taken in these are diverse, showing that direct effect is not denied on the whole to WTO law, all the major trading members of the WTO deny it. The fact that, in a case where a WTO member does not comply and is targeted by trade sanctions, the economic actors who in practice bear the burden of these sanctions are deprived of any recourse, may be considered unfair enough to question again the denial of direct effect. The analysis focuses notably on the EU where the debate has expanded more than anywhere else and concludes that direct effect should, even in the name of fairness or justice, be handled with caution.
Topic:: International Law
Political Geography:: Europe

88. Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter

Author:: Alina Mungiu-Pippidi and Dia Anagnostou
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: Over the past couple of years, international law and international relations scholarship has shifted its focus from the question of whether human rights treaties bring any state-level improvements at all to investigations in the domestic context of the factors and dynamics influencing state compliance. In this direction, and focusing on the European Court of Human Rights, this study inquires into the factors that account for variable patterns of state compliance with its judgments. Why do national authorities in some states adopt a more prompt and responsive attitude in implementing these judgments, in contrast to other states that procrastinate or respond reluctantly? On the basis of a large-N study of the Strasbourg Court's judgments and a comparison across nine states, this article argues that variation in state implementation performance is closely linked to the overall legal infrastructure capacity and government effectiveness of a state. When such capacity and effectiveness are high and diffused, the adverse judgments of the Strasbourg Court are unlikely to be obstructed or ignored, even when the government, political elites, or other actors are reluctant and not in favour of substantive remedies.
Topic:: International Relations and International Law
Political Geography:: Europe

89. Towards a Global History of International Law? Editor's Note

Author:: Alexandra Kemmerer
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: As usual, international law comes in late. It was already in the golden years of new world orders and geopolitical shifts after the end of the Cold War that historiography began its global turn. Of course, there had been pioneers and path-breakers before, but it was only in the 1990s that an ambiance of globalization and trans-nationalization triggered new approaches on a larger scale. An actual experience of political, economic and cultural interconnectedness put historiographical emphasis on transfers, networks, connections and cooperation, on transformation and translation.Historical analysis was called to overcome not only the boundaries of the nation-state, but also the limitations of material and epistemic Eurocentrism in its various forms. During the past decade, there has been a growing interest in global histories in many parts of the world.
Topic:: International Law
Political Geography:: Africa and Europe

90. The Spectre of Sources

Author:: Rose Parfitt
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: The editors of this impressive and timely volume, Anne Peters and Bardo Fassbender, begin their Introduction (at 2) with the following statement of purpose: [W]e, the editors and authors, [have] tried to depart from ... the 'well-worn paths' of how the history of international law has been written so far — that is, as a history of rules developed in the European state system since the 16th century which then spread to other continents and eventually the entire globe.
Topic:: International Law
Political Geography:: Europe

91. Is there a Role for Islamic International Law in the History of International Law?

Author:: Nahed Samour
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: Overcoming Eurocentrism is one of the self-proclaimed aims of the editors of The Oxford Handbook of the History of International Law. In the following, I shall offer a critique of the Handbook from a largely Islamic international law perspective as (but) one example of a supranational non-European legal system. The depth of the volume covering a variety of times, spaces, and themes provides us with a much awaited tool against the 'gaps' and the 'forgetfulness' of how today's doctrines and practices of international law came about, not shying away from the voices that question the narrative of international law serving peace and justice. The Handbook is therefore laudable for a number of things.
Topic:: International Law and Islam
Political Geography:: Europe

92. Statelessness: An Invisible Theme in the History of International Law

Author:: Will Hanley
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: The Oxford Handbook is a welcome and necessary intervention in the history of international law. In the introduction, the editors signal their reformist programme: out with the progressive, triumphalist narrative; in with the dark side of international law and its side tracks outside the European experience. In addition to this programme, the project displays two further signs of its serious intent to change the field. First, the authors embarked on a truly collective project, including a week of face-to-face consultation, in a rare effort to define a reasonably unified agenda. Scholarly redirection is a social as well as an intellectual undertaking, and the community built around this volume marks its purposefulness. Secondly, the book's scope is massive: more than five dozen chapters, more than three dozen authors, and more than 1,000 pages of text provide the bulk necessary to accomplish the paradigm shift that the editors intend. The extensive range of the book, especially in its 'Regions' section, does what is necessary to transform globalizing intent into actuality. It is a foundational volume, and any scholarly edifice building upon it will have a broader footprint than was previously possible.
Topic:: International Law
Political Geography:: Europe

93. Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law

Author:: Anne-Charlotte Martineau
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: Last Spring, the Rechtskulturen programme, an initiative of the Wissenschaftskolleg zu Berlin at the Transregionale Studien Forum, invited me to participate in a symposium on the Oxford Handbook of the History of International Law – a robust book of 1250 pages. I was asked to 'critically assess' the Handbook's 'global history' approach, that is, to assess whether it was a successful step in 'overcoming Eurocentrism' in the history of international law. The symposium turned out to be a wonderful event, a gathering of historians, anthropologists, political scientists, and lawyers, where I became very conscious of my own professional language but where I also experienced a willingnesss to transcend disciplinary boundaries and biases. The following remarks should be interpreted as a continuation of that discussion. Before looking at some of the contributions in the Handbook that did depart from 'well-worn paths' (to use the editors' expression) (3), I would like to say few words about the 'global history' approach (1) and the unfortunate resilience of Eurocentric voices in the Handbook (2).
Topic:: International Law
Political Geography:: Europe

94. Prospects and Limits of a Global History of International Law: A Brief Rejoinder

Author:: Anne Peters and Bardo Fassbender
Publication Date:: 02-2014
Content Type:: Journal Article
Abstract:: As we remarked in the Introduction to our Handbook, it is exciting but also risky to leave a well-worn path (at 2). It means meeting unforeseen obstacles. We were quite aware of the fact that if we wanted to shed light on historical developments in international law which so far had remained in darkness or obscurity, we had to be prepared to encounter the unexpected and not so readily understood – that is, accounts and narratives which call into question conventional wisdom and which, at least initially, pose additional problems rather than providing easy answers. We knew that new research on issues which had rarely been examined before would not be perfect or 'complete'. In other words, we expected, and in fact expressly invited, criticism of a work which tried to break new ground.
Topic:: International Law
Political Geography:: Europe

95. What Future for Human Rights?

Author:: James W. Nickel
Publication Date:: 08-2014
Content Type:: Journal Article
Abstract:: Like people born shortly after World War II, the international human rights movement recently had its sixty-fifth birthday. This could mean that retirement is at hand and that death will come in a few decades. After all, the formulations of human rights that activists, lawyers, and politicians use today mostly derive from the UN Universal Declaration of Human Rights, and the world in 1948 was very different from our world today: the cold war was about to break out, communism was a strong and optimistic political force in an expansionist phase, and Western Europe was still recovering from the war. The struggle against entrenched racism and sexism had only just begun, decolonization was in its early stages, and Asia was still poor (Japan was under military reconstruction, and Mao's heavy-handed revolution in China was still in the future). Labor unions were strong in the industrialized world, and the movement of women into work outside the home and farm was in its early stages. Farming was less technological and usually on a smaller scale, the environmental movement had not yet flowered, and human-caused climate change was present but unrecognized. Personal computers and social networking were decades away, and Earth's human population was well under three billion.
Topic:: Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
Political Geography:: United States, Japan, China, Europe, Asia, and United Nations

96. The Future of Human Rights: A View from the United Nations

Author:: Andrew Gilmour
Publication Date:: 08-2014
Content Type:: Journal Article
Abstract:: Ever since the Charter of the United Nations was signed in 1945, human rights have constituted one of its three pillars, along with peace and development. As noted in a dictum coined during the World Summit of 2005: "There can be no peace without development, no development without peace, and neither without respect for human rights." But while progress has been made in all three domains, it is with respect to human rights that the organization's performance has experienced some of its greatest shortcomings. Not coincidentally, the human rights pillar receives only a fraction of the resources enjoyed by the other two—a mere 3 percent of the general budget.
Topic:: Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
Political Geography:: Europe and United Nations

97. From Empire to Sovereignty — and Back?

Author:: Jens Bartelson
Publication Date:: 08-2014
Content Type:: Journal Article
Abstract:: Sovereignty apparently never ceases to attract scholarly attention. Long gone are the days when its meaning was uncontested and its essential attributes could be safely taken for granted by international theorists. During the past decades international relations scholars have increasingly emphasized the historical contingency of sovereignty and the mutability of its corresponding institutions and practices, yet these accounts have been limited to the changing meaning and function of sovereignty within the international system. This focus has served to reinforce some of the most persistent myths about the origin of sovereignty, and has obscured questions about the diffusion of sovereignty outside the European context.
Topic:: Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
Political Geography:: Europe

98. Scientific Reason and the Discipline of International Law

Author:: Anne Orford
Publication Date:: 05-2014
Content Type:: Journal Article
Abstract:: International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today's highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.
Topic:: International Law
Political Geography:: Europe

99. Kevin Jon Heller and Gerry Simpson (eds). The Hidden Histories of War Crimes Trials

Author:: Milan Kuhli
Publication Date:: 05-2014
Content Type:: Journal Article
Abstract:: The book The Hidden Histories of War Crimes Trials – edited by Kevin Jon Heller and Gerry Simpson – is a compilation of 21 contributions to a conference convened in Melbourne at the end of 2010. The project aims at a scholarly recovery of accounts of war crimes trials that were ‘either neglected or under-rehearsed’ (at 1) in the discipline of international criminal law. Accordingly, the contributions tell ‘stories about familiar but under-explored and misunderstood landmarks in the conventional history of international criminal law’ as well as about trials that have been less analysed in this field (at 1). Gregory S. Gordon’s illustrative chapter on the trial of Peter von Hagenbach (chapter 2) is a story of the first kind, whereas Benjamin E. Brockman-Hawe’s comprehensive account of the Franco-Siamese tribunal for the Colonial Era (chapter 3) exemplifies the latter type.
Topic:: International Law and War
Political Geography:: Europe

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COLUMBIA UNIVERSITY PRESS