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  • Author: Mason Hill
  • Publication Date: 01-2018
  • Content Type: Journal Article
  • Journal: Harvard Journal of Middle Eastern Politics and Policy
  • Institution: The John F. Kennedy School of Government at Harvard University
  • Abstract: This is the first in a three part series on Turkish constitutionalism one year after the 2017 constitutional referendum. Constitutions are nations’ mission statements, and articulate pre-political commitments that turn residents into citizens, and borders into a nation. In Turkey, generations of political leaders have used constitutional reform as an opportunity to set their political agenda and highlight their priorities. The 2017 referendum must be understood in the context of a democracy where voters have experienced successive constitutional reforms aimed at complementing the mission each new generation of leaders gives itself. A view of modern Turkish history reveals the tendency of leaders to use constitutional reform to address deficiencies in their respective administrations, and reflects the latent tension between populism, military intervention, and constitutional integrity.
  • Topic: Politics, History, Law, Reform, Constitution
  • Political Geography: Europe, Turkey, Middle East
  • Author: Charles Leben
  • Publication Date: 01-2016
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article sets out to re-examine Hebrew sources in the doctrine of the law of nations of the 17th century, from Gentili’s De Jure Belli Libri Tres (although it strictly belongs to the 16th century since it was first published in 1598) to Pufendorf’s De Jure Naturae et Gentium (1672). It incontrovertibly confirms the importance of Jewish sources in the general intellectual education of the founding fathers of international law and in their general political philosophy while limiting their role with respect to the construction of international law in the strict and contemporaneous sense of the term.
  • Topic: International Law, Religion, Political Theory, History, Law, Judaism
  • Political Geography: Europe, Mediterranean
  • Author: Bernard M. Hoekman, Petros C. Mavroidis
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Plurilateral agreements in the context of the World Trade Organization (WTO) allow sub-sets of countries to agree to commitments in specific policy areas that only apply to signatories and thus allow for ‘variable geometry’ in the WTO. Plurilateral agreements share a number of features with preferential trade agreements (PTAs), which are increasingly used by governments to liberalize trade in goods and services. This article discusses the current institutional framework that governs these two alternatives and distinguishes them from the general, non-discriminatory agreements that are negotiated among – and apply to – all WTO members. Current WTO rules make it much more difficult to pursue the plurilateral route than to negotiate a PTA. We review the arguments for and against making it easier for ‘issue-specific’ clubs to form in the WTO and discuss how concerns raised by some WTO members regarding the potential negative impact of plurilateral agreements on the multilateral trading system might be addressed. We take the view that action to facilitate the negotiation of plurilateral agreements in the WTO should be considered and that the potential downsides for the multilateral trading system can be managed.
  • Topic: Economics, Political Economy, World Trade Organization, Law
  • Political Geography: Europe, Italy
  • Author: Oren Perez
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • 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
  • 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: Helen Keller, Cedric Marti
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Courts
  • Political Geography: Europe, France
  • Author: André Nollkaemper
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Critique
  • Political Geography: Europe, Global Focus
  • Author: Federico Casolari
  • Publication Date: 09-2014
  • Content Type: Journal Article
  • Journal: The International Spectator
  • Institution: Istituto Affari Internazionali
  • Abstract: Review of: Competition Damages Actions in the EU: Law and Practice, by David Ashton and David Henry, Edward Elgar, 2013
  • Topic: Law
  • Political Geography: Europe
  • Author: J.H.H. Weiler
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to 'celebrate' Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of articles which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.
  • Topic: Development, Law
  • Political Geography: Europe
  • Author: Morten Rasmussen
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This is the abstract only. The full article is published in Int J Constitutional Law (2014) 12 (1): 136–163 doi:10.1093/icon/mou006 Did the famous Van Gend en Loos judgment constitute a breakthrough for a constitutional practise in European law or was it merely drawing the logical legal consequences of earlier case law and of the Treaties of Rome? Based on comprehensive archival studies, this article argues that neither earlier case law nor the Treaties of Rome can fully account for the judgment. Instead, Van Gend en Loos represented a genuine revolution in European law. Prompted by the legal service of the European Commission, the European Court of Justice (ECJ) took a decisive step towards addressing two major problems of international public law, namely the lack of uniform application of European law by national courts across the six member states and the lack of primacy granted to international law in several member states. The judgment was based on a new teleological and constitutional understanding of the Treaties of Rome developed by the legal service, and took the first step towards establishing an alternative enforcement system. The ECJ would already in 1964 take the second step by introducing primacy in the Costa v. E.N.E.L. judgment. The new enforcement system remained highly fragile, however, due to the dependency on the cooperation of national courts through the preliminary reference system. As a result, the full effects of the Van Gend en Loos judgment were only felt after the Single European Act (1986) pushed reluctant national governments and courts to finally come to terms with the legal order the ECJ had developed.
  • Topic: Government, Law
  • Political Geography: Europe
  • Author: Sophie Robin-Olivier
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of ('direct effect') EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, 'Revisiting Van Gend en Loos' leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).
  • Topic: Law
  • Political Geography: Europe
  • Author: Kal Raustiala, Christopher Sprigman
  • Publication Date: 07-2013
  • Content Type: Journal Article
  • Journal: Foreign Affairs
  • Institution: Council on Foreign Relations
  • Abstract: Given that Chinese counterfeiting has benefits as well as costs, and considering China's historical resistance to Western pressure, trying to push China to change its approach to intellectual property law is not worth the political and diplomatic capital the United States is spending on it.
  • Topic: Economics, Law
  • Political Geography: United States, China, Europe
  • Author: Philip Hanson
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: The International Spectator
  • Institution: Istituto Affari Internazionali
  • Abstract: The Russian economy, though so far in better shape than Europe, is facing the possibility of very slow growth in the near future. Its tendency to volatility was demonstrated in 2008-09, when Russian GDP fell more than that of any other large country. Looking at that experience and at current concerns, it seems that Russia has both demand-side (slow world growth, uncertain future oil prices) and supply-side (falling labour-force) problems. The continuing failure to provide secure property rights for business probably compounds these difficulties.
  • Topic: Oil, Law
  • Political Geography: Russia, Europe
  • Publication Date: 09-2013
  • Content Type: Journal Article
  • Journal: PRISM
  • Institution: Institute for National Strategic Studies (INSS)
  • Abstract: It's an honor to return to the National Defense University. Here, at Fort McNair, Americans have served in uniform since 1791– standing guard in the early days of the Republic, and contemplating the future of warfare here in the 21st century.
  • Topic: Cold War, Terrorism, Law
  • Political Geography: Pakistan, America, Europe
  • Author: Triadafilos Triadafilopoulos, Karen Schönwälder
  • Publication Date: 04-2012
  • Content Type: Journal Article
  • Journal: German Politics and Society
  • Institution: German Politics and Society Journal
  • Abstract: This article probes the consequences of Germany's 1999 citizenship reform as it pertains to the incorporation of immigrants. We maintain that the law's principled rejection of dual citizenship and related stipulation that children born into German nationality via the law's revolutionary jus soli provision choose between their German citizenship or that of their non-German parents between the ages of eighteen and twenty-three is unfair, potentially unconstitutional, and likely unworkable in administrative terms. We also argue that the decline in naturalization rates in Germany since 2000 is due to a combination of legal, administrative, and symbolic barriers in the law, as well as a lack of incentives for naturalization for immigrants from European Union member states and other rich industrialized countries. We believe that progress in the area of incorporation will require a shift in outlooks on the part of German political elites, such that immigrants are seen as potential members of a diverse community of free and equal citizens rather than untrustworthy and threatening outsiders.
  • Topic: Law
  • Political Geography: Europe, Germany
  • Author: Laurens Lavrysen
  • Publication Date: 06-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: During the last two decades the European Union has become a major actor in the field of asylum law. Meanwhile, human rights law, in particular the European Convention on Human Rights (ECHR), has become of paramount importance in this field. This paper highlights certain areas of concern in the European Asylum System from the viewpoint of the ECHR. It particularly focuses on the Dublin II Regulation, the reception conditions and the detention of asylum seekers.
  • Topic: Human Rights, Law
  • Political Geography: Europe, Dublin
  • Author: Herman Voogsgeerd
  • Publication Date: 06-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading 'solidarity'. In this article two basic questions will be addressed. The first question will address the 'old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test 'light' in order to limit the interference of EU law with the essence of fundamental rights.
  • Topic: Economics, Human Rights, Law
  • Political Geography: Europe
  • Author: Rubén Perina
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: Americas Quarterly
  • Institution: Council of the Americas
  • Abstract: The OAS needs to strengthen its election observation missions.
  • Topic: Governance, Law
  • Political Geography: United States, Europe
  • Author: Birgit Schlutter
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jürgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the 'founding principles of the polity' and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe.
  • Topic: Law
  • Political Geography: Europe, Lisbon
  • Author: Killian S. O'Brien
  • Publication Date: 09-2011
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Following in the aftermath of the Arab Spring, Europe's southern marine borders have been the showplace of human tragedies previously unseen on this scale and the issue of refugees on the high seas has assumed a newfound importance. This article examines the flawed system provided by the 'Constitution of the Oceans', the UN Convention on the Law of the Sea for the protection of the lives of migrants at sea. It submits that international refugee law is well-equipped to assume a greater responsibility in ensuring the protection of those involved. Although the concept of non-refoulement cannot be stretched ad absurdum, it may still be reasonably interpreted as providing a temporary right to disembark for the purpose of processing possible asylum applications. In the long-term, a system of burden-sharing and permanent, yet flexible, reception agreements remain the only sustainable solution.
  • Topic: United Nations, Law
  • Political Geography: Europe, Arabia
  • Author: Dimitry Kochenov
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: When you are on the subway in New York, it is difficult not to notice numerous Spanish language information posters about equality and non-discrimination, such as 'Housing discrimination on the basis of sex, race, ethnic origin… is unlawful'. They not only state the law: a telephone number in the corner informs you of where to call to make sure that if you are the victim of discrimination, help is available. Have you seen such posters in a Romani language in the Prague metro? Or in Arabic on the trains around Rotterdam?
  • Topic: Law
  • Political Geography: New York, Europe
  • Author: A. Füsun Arsava
  • Publication Date: 03-2005
  • Content Type: Journal Article
  • Journal: Uluslararasi Iliskiler
  • Institution: Uluslararasi Iliskiler
  • Abstract: Although the founding treaties of the European Communities were not declared as the founding treaties of a legal community, they had the features of a constitution from the beginning onward. The constitutional features of the founding treaties were concrete facts especially regarding principles of state of law included in the treaties. But the order of law that stemmed from the current founding treaties was complex. That development came into being without the will of the European peoples. The ultimate goal of the EU Constitution today is to complete the process of constitutionalization with the contribution of European peoples. The more the constitution stresses upon the priority of law, democracy, fundamental rights, freedoms as constitutional principles and the more it shapes institutional structure on democratic foundations, the faster the constitutionalization process will be complete and the discussion about the legitimacy of the EU will come to an end. That will make the acceptance of the EU law beyond any doubt.
  • Topic: Law
  • Political Geography: Europe
  • Author: A. Füsun Arsava
  • Publication Date: 06-2004
  • Content Type: Journal Article
  • Journal: Uluslararasi Iliskiler
  • Institution: Uluslararasi Iliskiler
  • Abstract: The discussion over the proposed derogations regarding the establishment of the United Cyprus Republic on the basis of Annan Plan and its EU membership has been the main motive in writing this paper. Since the acceptance of these derogations as secondary law stipulations could have resulted in a risk of annulment on the basis of their being in breach of primary EU law, some attention was paid to the possibility of accepting them as part of the accession agreement, thus rendering onto them primary law status. In connection with these discussions, this paper discusses the validity of derogations as primary law rules vis-à-vis founding treaties of the Union within the context of hierarchy of different norms in the EU legal system.
  • Topic: Law
  • Political Geography: Europe, Cyprus