Search

You searched for: Content Type Journal Article Remove constraint Content Type: Journal Article Political Geography Europe Remove constraint Political Geography: Europe Journal European Journal of International Law Remove constraint Journal: European Journal of International Law Topic International Law Remove constraint Topic: International Law
Number of results to display per page

Search Results

  • Author: Lauri Mälksoo
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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, Europe
  • Author: Rein Müllerson
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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
  • Author: Kirsty Gover
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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, Governance
  • Political Geography: Europe, Canada, United Nations, Australia, New Zealand, United States of America
  • Author: Ilias Bantekas
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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, Land Law
  • Political Geography: Europe, Greece, Ottoman Empire
  • Author: Oren Perez
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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, Regulation
  • Political Geography: Europe, Italy
  • Author: Stefan Talmon
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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 , Courts
  • Political Geography: Europe, The Hague
  • Author: Guy Fiti Sinclair
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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 , State Formation
  • Political Geography: Europe, United Nations
  • Author: Ilias Plakokefalos
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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 , Courts
  • Political Geography: Europe, The Hague
  • Author: Daniel Joyce
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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, Freedom of Expression
  • Political Geography: Europe, Global Focus, United States of America
  • Author: Sungjoon Cho, Thomas H. Lee
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • 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, Courts
  • Political Geography: China, Europe, United States of America