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  • Author: Jean d'Aspremont
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Although going down a different path, this article reaches similar conclusions to those formulated by Susan Marks. It starts by showing that the years 1989–2010 can be hailed as an unprecedented epoch of international law during which domestic governance came to be regulated to an unprecedented extent. This materialized through the coming into existence of a requirement of democratic origin of governments which has been dubbed the principle of democratic legitimacy. However, this article argues that the rapid rise of non-democratic super-powers, growing security concerns at the international level, the 2007–2010 economic crisis, the instrumentalization of democratization policies of Western countries as well as the rise of some authoritarian superpowers could be currently cutting short the consolidation of the principle of democratic legitimacy in international law. After sketching out the possible rise (1) and fall (2) of the principle of democratic legitimacy in the practice of international law and the legal scholarship since 1989, the article seeks critically to appraise the lessons learnt from that period, especially regarding the ability of international law to regulate domestic governance (3) and the various dynamics that have permeated the legal scholarship over the last two decades (4). In doing so, it sheds some light on some oscillatory dynamics similarly pinpointed by Susan Marks in her contribution to this journal.
  • Topic: International Law
  • Author: Michael Waibel
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Despite its codification by the Vienna Convention more than 40 years ago, treaty interpretation in international law continues to evolve as its function of providing predictability in international relations remains as important as ever. The voluminous recent literature testifies to the continuing scholarly interest in interpretation, even if sometimes at the cost of over-theorizing. This essay reviews six books that seek to demystify the art of treaty interpretation. Written by European scholars, the books take a fresh look at interpretation but differ in their approaches and scope of analyses. While all six authors study the interpretive practice of international courts and tribunals, Gardiner, Linderfalk and Van Damme focus on treaty interpretation; Fernández de Casadevante Romani, Kolb and Orakhelashvili also examine the interpretation of decisions by international organizations, unilateral acts and customary international law. Kolb and Orakhelashvili opt for a comprehensive, theoretically-grounded approach, whereas Van Damme focuses on the interpretative practice of the WTO Appellate Body. On the strength of her perceptive and nuanced analysis of WTO jurisprudence, the book is the best guide among the six to interpretation in international law generally. In addition to Van Damme's work, the practitioner will also find Gardiner's book particularly useful.
  • Political Geography: Europe, Vienna
  • Author: Sergey Ripinsky
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Stephan Schill's book, The Multilateralization of International Investment Law, stands apart from the rest of the literature on international investment law which has burgeoned in the past few years. In contrast to most publications on the market, this volume, adapted from the author's Ph.D. thesis, does not attempt to summarize and systematize the developments in arbitral practice. Instead, it reveals an important and previously unexplored dimension of the investment treaty phenomenon by presenting an original vision of the landscape formed by more than 3,000 international investment agreements (IIAs). The author advances and substantiates the seemingly counter-intuitive thesis that these predominantly bilateral instruments do not result in chaotic fragmentation but, taken together, 'function analogously to a truly multilateral system' (at 15).
  • Author: Chris Stephen
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The field of international criminal law (ICL) is synonymous with the crowded courtroom and the infamous individual in the dock; Adolf Eichmann, Slobodan Milošević, Saddam Hussein, and now Radovan Karadžić. The actions of such individuals have taken place within the various conflicts and mass atrocities that have proven to be lamentably frequent both during the last century and now into this one. In the aftermath of this sustained bloodshed, trials, whether national (Klaus Barbie in France, John Demjanjuk in Germany) or international (Jean Kambanda before the International Criminal Tribunal for Rwanda (ICTR)), have constituted a frequent (David Scheffer's pronouncement of 'tribunal fatigue' suggests perhaps too frequent) reflex reaction by states and have formed the backbone of ICL. Beginning with the Leipzig trials, then via Nuremberg and Tokyo, Yugoslavia and Rwanda to the creation of the International Criminal Court (ICC), successive tribunals have sought to build upon the strengths (and weaknesses) of their predecessors. For example, the recent rise of hybrid courts such as the Special Tribunal for Lebanon and Extraordinary Chambers in the Courts of Cambodia (ECCC) can be attributed, at least in large part, to the flaws of previous international judicial institutions; a perceived lack of legitimacy, huge running costs, and detachment from victims, communities, and the locus delicti. The evolution of ICL thus proceeds through a series of trials and error.
  • Political Geography: France, Cambodia, Tokyo, Lebanon
  • Author: Birgit Schlutter
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • 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: Rebecca L. Zahn, Dr. jur
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is an ever-growing body of literature in law and political science on the illusive concept of Europeanization. A lot of the discussion in the literature attempts to define Europeanization and, on the basis of such a definition, to elaborate on the content of the concept. Donatella della Porta and Manuela Caiani, who both work in political science departments, contribute to this discussion by combining insights from the existing body of literature with new empirical findings in order to demonstrate the relevance of the European Union to social movements. The authors situate the discussion surrounding the involvement of social movements in the process of Europeanization within the aftermath of the failed referenda on the European Constitution in France and the Netherlands in 2005 in order to illustrate the contribution of social movements to the debates on European integration. The authors refer to the literature in the area of social movement studies.1 However, they also go beyond the field and combine insights from the literature on Europeanization with empirical research in order to address the involvement of social movements in the process of Europeanization. An example of such involvement is the European-wide campaign against the so-called 'Bolkestein' Directive in which social movements actively participated. Social movements, in this context, are defined as 'dense informal networks of collective actors involved in conflictual relations with clearly identified opponents, who share a distinct collective identity, using mainly protests as their modus operandi'.
  • Political Geography: Europe
  • Author: Hans Christian Wilms
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The ethical and legal challenges of biomedical research are among the most crucial and interesting questions in law nowadays. One of these questions concerns the regulation of research on human genetic data in transnational constellations. Genetic research promises therapies and prevention for diseases like cancer and HIV, but it is highly dependent on genetic material derived from donors of tissue or blood. For significant advancements in cancer research, for instance, a large number of genetic data of patients is needed. Such data are most effectively collected in and made available by databases or biobanks that allow the exchange of genetic data by various research facilities. To enhance the possibilities and enlarge the amount of genetic data available for researchers the European Union through its 6th Framework Programme of the European Commission under the Action Line 'Integrated biomedical information for better health' funded the so-called 'Advancing Clinico-Genomic Trials on Cancer' research project (ACGT). This project aimed to deliver to the cancer research community an integrated clinico-genomic information and communication technology environment designed to become a pan-European voluntary network connecting individuals and institutions to enable the sharing of data and tools. However, broadening the scope to the European level causes problems of integration of different national views on ethical issues and their legal framework.
  • Political Geography: Europe
  • Author: Karl Doehring
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: With Impressions, as the name indicates, we wish to provide a forum for a more personal, historical-contextual approach to book reviewing. We have asked some of our older, possibly wiser, scholars of public international law to revisit a book which very much influenced their thinking, a book that indeed made a lasting impression on them. Rather than presenting a critical assessment of the book, our reviewers will offer personal reflections on the impact a book has had on their own thinking as well as its past and continued relevance for public international law scholarship.
259. Midas
  • Author: Laura Coyne
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Midas Midas that tough, successful alchemist Before his time Could turn the wind to gold, …
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Given the promised September UN move by the Palestinian Authority it is of interest to recall some of the circumstances surrounding the birth of Israel. There are some interesting historical parallels and some differences. In public opinion and Hollywood movies, Israel was born with a UN midwife: UNGA Resolution 181, the famous Partition Resolution of 29 November 1947 (http://www.youtube.com/watch?v=ZpNpueivtWQ). The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! 'De Facto Solidarity' was not, apparently, invented with the Schuman Declaration.
  • Topic: International Law
  • Political Geography: Palestine, Jerusalem
  • Author: Rafael Domingo
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Emer de Vattel (1714–1767), in his influential work The Law of Nations, established a new international statist paradigm which broke with the classical partition of the law into the three realities of 'persons, things and actions' (personae, res, actiones). This new paradigm substituted the state for the person, downgraded the generic concept of 'things' to the obligations among states in their relations, and changed the focus of the concept of 'action' to that of 'war' as a legal remedy to resolve conflicts between and among states. This international paradigm (or statist paradigm) has survived almost up to our time in international praxis. Nonetheless, today the statist paradigm appears to be in every way insufficient, since it does not consider humanity as a genuine political community, nor does it reflect the three-dimensionality of the global law phenomenon. The transformation of the law that governs our international community (international law) into a law that is capable of properly ordering the new global human community (global law) demands the creation of a new paradigm, originating in the following conceptual triad: global human community, global issues, and global rule of law. In the construction of this new global paradigm, cosmopolitan constitutionalism could play a key role.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Monique Chemillier-Gendreau
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The changes which have occurred in the world and the failure of the mechanism of collective security oblige lawyers to open a new critical approach to international law. In this context, it is important to come back to the French movement known as Critique du droit, and more especially to the work produced in the Reims Colloquia under Professor Chaumont's authority. This theoretical contribution points out the link between the norms of law and the concrete conditions of their formation. It considers the compulsory nature of norms as a result of a compromise between several contradictions, and by doing so, it opens a new window on the understanding of law. But, today, this theory has to be completed by a deeper analysis of the concept of sovereignty. The consequence of this core concept is the contractual nature of most norms of international law. It is quite impossible to build a universal international law, the emergence of general imperative norms being hitherto too weak. International law, dominated by sovereignty, is inadequate to protect world society.
  • Topic: International Law
  • Author: Solomon T. Ebobrah
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to the Protocol to the African Charter on Human and Peoples' Rights establishing the African Court on Human and Peoples' Rights, the main function of the Court is to complement the protective mandate of the already existing African Commission on Human and Peoples' Rights. Thus, complementarity was introduced into the framework of the African human rights system. Since then, the concept of complementarity has also been brought into play in the Protocol to the Statute of the proposed African Court of Justice and Human Rights. Although the interim rules of procedure of the Court and of the Commission have sought to give meaning to the concept of complementarity, there is still very little understanding of how it will pan out in the system. Questions abound as to the exact implication it would have on the existing mechanisms of the Commission. Almost nothing has been said or written on its impact on the African Committee of Experts on the Rights and Welfare of the Child. Against this background, this article argues that complementarity in the African human rights system can be applied positively by adopting a normative approach that allows for the prescription of what the system's supervisory institutions should do and how they should relate to each other in their work. The article argues further that the justifications for the introduction of judicial organs can also be employed to prescribe complementary functions for each supervisory institution. It concludes that applying complementarity positively would require encouraging each institution to focus on its strengths with a view to strengthening the overall effectiveness of the system.
  • Topic: Human Rights
  • Political Geography: Africa
  • Author: Petros C. Mavroidis, Juan A. Marchetti
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Uruguay Round services negotiations saw the light of day amidst pressures from lobbies in developed countries, unilateral retaliatory actions, and ideological struggle in the developing world. The final outcome, the GATS, certainly characterized by a complex structure and awkward drafting here and there, is not optimal but is an important first step towards the liberalization of trade in services. This article traces the GATS negotiating history, from its very beginning in the late 1970s, paying particular attention to the main forces that brought the services dossier to the multilateral trading system (governments, industries, and academics), and the interaction between developed and developing countries before and during the Uruguay Round. We will follow the actions, positions, and negotiating stances of four trading partners – Brazil, the European Union, India, and the United States – that were key in the development of the GATS. Finally, we will, indicatively at least, try to attribute a 'paternity' (or, rather, a 'maternity') to some key features and provisions of the agreement.
  • Topic: Government
  • Political Geography: United States, Europe, India, Brazil
  • Author: Christian J. Tams
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In their 'mission statement', the European Journal's founding editors announced the launch of an occasional focus section devoted to the work of international lawyers who stood for particular aspects of the 'European Tradition in International Law', rather boldly set in the singular. Previous focus sections have assessed the continuing relevance of (and typically celebrated) the likes of, for example, George Scelle, Roberto Ago, Alfred Verdross, Hans Kelsen, and Max Huber.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Frank Bodendiek
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article concentrates on the core issue of Walther Schücking's scientific efforts and his literary production as a publicist – the idea of international organization. It begins by situating Schücking's methodological approach, notably his desire to move beyond legal positivism, before moving on to analyse Schücking's specific understanding of the notion of international organization. Schücking argued that the general motto 'peace through law' should be attained by a 'republican organization' of the world and stated that a relevant trend towards a true rule of law on the international level was already on its way. In fact, Schücking went even further and postulated a world confederation 'Weltstaatenbund' as the centrepiece of the reform of international law and the key for the realization of all further progress in the field. Having assessed features of Schücking's reform programme, which he put forward with considerable consistency, the article argues that Schücking is rightly seen as a pioneer who broke new ground in analysing the phenomenon of international organization. The biography of Walther Schücking displays a very colourful picture of a most industrious legal scholar who in fact had the strong ambition to have an effect on the 'real world' outside the academic community. A short glance at the bibliography of Walther Schücking reflects his intent of having an effect on very different addressees. However, on closer inspection, it is immediately clear that – in particular in the years before World War I – Schücking's scientific efforts as well as his literary production as a publicist very much focused on one core issue: the concept of 'international organization.
  • Topic: International Organization
  • Author: Mónica García-Salmones
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this article I discuss four pacifist traditions in international law in play during the 20th century, in the context of the Symposium on Walther Schücking. The article addresses the fact that these pacifist traditions have contributed to shaping the way in which we view international law today and how we understand our current world. Essentially, we see the globe as an entity legally organized through treaties, international courts for dispute settlement, and international organizations with worldwide jurisdiction. The science of law tries, with difficulty, to grasp all these phenomena in a unitary manner. Moreover, pacifism has influenced our choice of legal techniques. At the core of the pacifist traditions lies the wish of a group of pacifist intellectuals, among them Walther Schücking, to achieve a peaceful transition to what they viewed as an unavoidable state of economic interdependence on a global scale. Their specific purpose was peace – 'peace through law'. Beyond that, it occurred to almost none of them to question the beneficial aspects of their internationalist projects and the economic interdependence behind them. Peace was raised then to the level of the highest good. Who would dare dethrone it? This article suggests that we live in an era of pacifist international law. The article also takes the approach that the very existence of a variety of pacifist traditions shows that political pluralism may coexist with pacifism. Peace is indisputably a common good and pacifism does not necessarily prevent politics from continuing to flourish.
  • Topic: International Law
  • Author: Ole Spiermann
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In 1930, it was seen as critical by many to have a German jurist elected to the bench of the Permanent Court of Justice, and this was indeed achieved by the election of Walther Schücking. It may seem a paradox that in the following years where, in many cases, the Permanent Court exercised self-restraint and embraced arguments based on state sovereignty, probably the greatest supporter of notions of international organization and community to be associated with the work of the Permanent Court, namely Walther Schücking, occupied a permanent position on the bench. But then his 'optimism' was simply an extrapolation of the state on to the international level, leaving key values such as state sovereignty essentially unaffected. The interest in Schücking's contributions to the work of the Permanent Court lies not least in the fact that, even today, many lawyers approach international law in manners similar to his.
  • Topic: International Law, International Organization
  • Political Geography: Germany
  • Author: Jost Delbrück
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Based on a short recapitulation of Schücking's family background and his formative years as a law student and young scholar, the article then focuses on Schücking as a left-liberal politician and – strongly influenced by Kant's tract on Perpetual Peace – as an adherent to a progressive international legal order based on the Organization of the World and the rule of law. Schücking participated in the Versailles Peace Conference and in this capacity supported the League of Nations project. However, he became increasingly critical with regard to the Versailles Peace Treaty which he held to be shortsighted and prone to lead to another World War. He withdrew from his political activities and concentrated on developing his concept of an international law as a dynamic tool to induce the necessary process of peaceful change.
  • Topic: International Organization, Politics
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Roaming Charges, a new feature of EJIL, is aimed at enhancing the 'book experience' – a moment of reflection as well as aesthetic pleasure disconnected from any specific research interest and the usual cerebral activity of reading a learned article. It will feature different locales or scenes from around the world, which, in their way, have something to say – without words – about our present condition. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – the title of this feature was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photographs. Take a moment – enjoy, reflect. If you are online, pause before the next click.
  • Topic: International Law
  • Author: Ronagh McQuigg
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the question of how states have responded to the comments of the United Nations Committee against Torture through an analysis of eight Western European states. It is concluded that the Committee's recommendations have had a substantial impact in four of the states surveyed, however only a limited effect in two other states, and little or no impact in the two remaining states. These findings lead to concerns as regards the effectiveness of the Committee against Torture. The article focuses on the Concluding Observations made by the Committee on the reports submitted by the states in question.
  • Topic: International Law
  • Political Geography: Europe, United Nations
  • Author: Stefano Piedimonte Bodini
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court's approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.
  • Topic: Human Rights, International Law
  • Political Geography: Europe
  • Author: Alexander Orakhelashvili
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The present contribution will not provide yet another analysis of the law of immunities in relation to international crimes; this has been done elsewhere. It is instead a response to certain views put forward by Dapo Akande and Sangeeta Shah. Akande and Shah disagree with my own conclusion that jus cogens can, and does, prevail over state immunity. They however advance an alternative approach favouring the denial of immunity, and their conclusion as to the lifting of immunity in civil proceedings manifests that the disagreement is not as wide as it could seem. The aim of this contribution is to clarify whether, in attacking my views, Akande and Shah have moved the debate forward, or made an original case against the primacy of jus cogens. The following analysis will demonstrate that these objections to the primacy of jus cogens over immunities rely only on factors and evidence that support the conclusions reached in that contribution, disregard the evidence that would stand in their way, and ascribe to some authorities the impact they have never been intended to produce.
  • Topic: International Relations
  • Author: Dapo Akande, Sangeeta Shah
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We are grateful to Alexander Orakhelashvili for engaging with the points we make in our recent EJIL article on immunity and international crimes.1 He has written widely on this issue and his view that international law immunities are not available in judicial proceedings for violations of jus cogens norms is well known. In our article, we disagree with that view and show why that understanding of the relationship between jus cogens norms and international law immunities is untenable. However, it would be wrong to say, as he says, that we 'attack' his views (or indeed those of others who share that same perspective). There is, we believe, a reasonable disagreement of view. As is well known, international law provides two types of immunity for state officials from the jurisdiction of foreign states. The first type are 'status' immunities ('personal' immunities or immunities ratione personae) and the second is an 'official act' immunity ('functional' immunity or immunity ratione materiae). In our view, international law confers two types of 'status' immunity: the first type is limited to foreign heads of state and heads of government; it is absolute and applies even in cases alleging international crimes and even where the individual is abroad on private visit. The second type of immunity ratione personaeapplies only to those abroad on special mission (and therefore in the host state with its consent) and only for the duration of such mission. This special mission immunity is also applicable in cases concerning international crimes. However, we argue that the immunity ratione materiaewhich international law confers on those who perform official acts on behalf of the state will not be avail-able in cases where the act amounts to an international law crime. This is not because international crimes may not be official acts, or indeed because of any conflict with jus cogensnorms, but rather because of a different type of conflict of norms. There will be no immunity in these cases because international law rules and practice confer extra-territorial jurisdiction over such acts of state officials that are co-extensive with the immunity, or, alternatively, the rules conferring jurisdiction contemplate jurisdic-tion over official conduct.
  • Topic: International Law
  • Author: Reut Yael Paz
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This review essay seeks to understand the link between Hersch Lauterpacht's biography and his scholarship by using the dichotomy of the 'private'/'public' divide. It argues that this dichotomy is a repeated motif in Hersch's life and work, and hence also in this biography. In the concluding section, the review shifts to discuss how this dichotomy is reflected in Elihu Lauterpacht's writing.
  • Author: Stephan W. Schill
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Few international legal fields have seen an increase in literature over the past decade as steep as international investment law. This reflects the growing interest in practice and academia in what is probably not only the most dynamic area of international law but also one with significant impact on domestic law and policy-making. What is striking, apart from the sheer enormity of writing, however, is the changes the discourse on international investment law has undergone. Focus, topics, conceptual and methodological approaches, authorship, and audiences of the present literature differ significantly from that of the turn of the millennium. This reflects both an evolution in the law itself and changes in the professional, political, and institutional practices and communities involved. The literature on international investment law thus is a reflection of the sociological dimension of a discipline that until recently was the province of a small group of specialists and now is rapidly moving mainstream.
  • Topic: International Law, Sociology
  • Author: Ebrahim Afsah
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This is the second release by a research project undertaken by the Institute for International Law and Justice at New York University, following the previously reviewed (21 EJIL (2010): 251) From Mercenaries to Market. The Rise and Regulation of Private Military Companies (Simon Chesterman and Chia Lehnhardt (eds), Oxford University Press, 2007). In that commendable first volume, the editors sought to bring a variety of perspectives to bear on the increasingly topical issue of private security providers and their regulation by states. The contributions to that earlier collection were characterized by a distinctly pragmatic approach to the issue, seeking to re-assess the degree to which international law's categorical proscription of mercenarism remained tenable in a world where most states, rich and poor, view private service providers as an increasingly important part of their military posture.
  • Topic: Security, Military Strategy
  • Political Geography: New York
  • Author: Dr. Kalliopi Chainoglou
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Cooperating for Peace and Security presents a comprehensive collection of essays on multilateral security cooperation since 1989. Leading experts on wide-ranging topics within the ambit of international security and international cooperation analyse the complex relationship between multilateralism and United States security interests.
  • Topic: Security
  • Political Geography: United States
  • Author: Dr. Andreas Kulick
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The science of international law can no longer be content with the analogous application of private law categories. It must search the entire body of the 'general principles of law recognized by civilized nations' for proper analogies. With the growing importance of international legal relations between public authorities and private legal subjects, public law will be an increasingly fertile source of international law.
  • Topic: International Law
  • Author: Fernando Losada Fraga
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Free movement of capital and freedom of establishment are among the very few areas of the European Union's internal market law the limits of which still need clarification. The political relevance of both freedoms is remarkable, particularly in the current context of economic crisis. This was proven again last summer when the government of Portugal overruled Portugal Telecom shareholders' decision to sell to Telefónica part of their shares in Vivo. The conflict between Member States' desire to protect strategic public interests through the fostering of 'national champions' and the economic freedoms as conceived in the EU treaties has usually been solved by the Court of Justice of the European Union (ECJ) in favour of the latter.
  • Political Geography: Europe
  • Author: Eric Stein
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Even the poplars of Bohemia marching along the lonely road fade in the descending darkness after sunset in the foreshortening landscape leaves fluttering in the gentle evening breeze simple, stolid, without pretense hordes from the West hordes from the East come, stay – go? no freedom left in the darkening land or in the home only in the heart.
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I have no intention of listing all of Antonio Cassese's many distinctions and achievements as one of the great international lawyers of his generation. Readers of EJIL will be familiar with all of that, and Wikipedia (a decent entry) is just one click away. It is the person behind the public figure who is of interest. One has to be personal. I met Nino for the first time in 1978. I was a young(ish) Assistant at the European University Institute. He was a Professor 'down town' in Florence. Relations between the faculty at the University and the EUI on the top of the hill were frosty. At best an entente cordiale. Nino would have none of that. He embraced me and within months of my arrival invited me, first to his home, and then to contribute to a major project he was directing on Parliamentary Control of Foreign Policy. I was asked by him to write the Report on the European Communities. It was a telling moment. The late Christoph Sasse, distinguished professor of EC law from Hamburg, was indignant: 'a role for a Professor, not an Assistant'. Nino had no patience for that stuff either. He really did not know me all that well and was taking a risk. But it was typical of him: reaching out, welcoming, having faith, including the young, foreigners. It galvanized me. It was, too, a lesson for life.
  • Political Geography: Europe
  • Author: Jaye Ellis
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article explores the source 'general principles of international law' from the point of view of comparative law scholarship. The currently accepted definition of general principles and methodology for identifying such principles are critiqued. The criterion of the representativeness of the major families of legal systems, to which courts and tribunals tend to pay lip service rather than applying rigorously, is meant to anchor general principles in state consent, but is not a sound technique either for identifying principles of relevance to international law or for preventing judges from referring only to the legal systems they know best. Further - more, the emphasis on extracting the essence of rules results in leaving behind most of what is interesting and useful in what judges may have learned by studying municipal legal systems. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law.
  • Topic: Human Rights, International Law
  • Political Geography: Sri Lanka
  • Author: Thilo Rensmann
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As a tribute to Bruno Simma on the occasion of his 70th birthday this article follows the traces of two of his fellow alumni from Munich University who belonged to the first generation of 'droit-de-l'hommistes'. In the early 1940s they laid the foundations for the entrenchment of human rights in the international legal order. Ernst Rabel and Karl Loewenstein, who taught in Munich during the inter-war period, each played a significant role in breaking the mould of isolationism prevalent in German legal scholarship at the time. Hitler's rise to power, however, put an abrupt end to the internationalization of legal thought in Germany. Rabel and Loewenstein, like many other legal scholars of Jewish descent, were forced into exile. It so happened that in 1942 the two Munich alumni were invited by the American Law Institute to join a committee 'representing the major cultures of the world'. This committee was charged with the momentous task of drafting an international bill of rights for a new post-war global order. Their draft was later to become the single most important blueprint for the Universal Declaration of Human Rights. Against this backdrop the article attempts to identify the specific contribution made by Rabel and Loewenstein to the evolution of international human rights law.
  • Topic: Human Rights
  • Political Geography: Germany
  • Author: Anastasios Gourgourinis
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article takes issue with certain fundamental aspects of the fragmentation analysis by addressing the normative underpinnings of the proposition that international law is structured as a legal system. To this end, focus is had on the unitary character of the general/particular international law and primary/secondary rules terminology, as normative differentiations to the international legal system (the 'whole'), by virtue of the residual (default) applicability of the sets of norms they denote. Ergo, on the one hand, the doubts expressed by the ILC Study Group on Fragmentation concerning the allegedly obscure meaning and scope of the term 'general international law' are dispelled by demonstrating that the term indeed signifies the set of international legal norms binding erga omnes; on the other, the article elaborates on the crucial role of the distinction between primary and secondary norms for the proper operation of lex specialis, focal to the fragmentation analysis. Overall, the pertinence of the general/particular international law and primary/ secondary norms termini technici in international adjudication supports the view that the international legal system is indeed equipped with the proper normative tools to cope with the challenges set by fragmentation.
  • Topic: International Law
  • Author: Daphné Richemond-Barak
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the intersection between the private security and military industry and the emerging framework of global administrative law ('GAL'). I explore in this article one aspect of this intersection, namely the use of GAL to create a taxonomy of the industry's regulatory schemes. The industry is characterized by a fragmented and decentralized regulatory framework, which has yet to be presented in a complete and orderly fashion. This article fills the gap by applying GAL's methodology to the private security and military industry. Using the industry as a case study in GAL, I identify (1) international formal administration (the United Nations Working Group on Mercenaries); (2) distributed domestic administration (contract and domestic legislation); (3) hybrid modes of administration (multi-stakeholder initiatives); and (4) private modes of administration (industry associations and codes of conduct). By emphasizing – but not limiting itself to – hybrid and private modes of administration, this article describes what is an increasingly complex manifestation of global governance. Its purpose is to highlight GAL's potential in understanding and contending with the growth of the private security and military industry.
  • Topic: War, Law
  • Political Geography: Africa, United Nations
  • Author: Sonia Morano-Foadi, Stelios Andreadakis
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article, based on a broader project, focuses on the interaction between the two European Courts (the Court of Justice of the European Union – ECJ and the European Court of Human Rights – ECtHR) and uses the specific area of expulsion/deportation of third country nationals (non-EU nationals) from European territory as a case study. The work examines the ECJ's and ECtHR's divergent approaches in this area of law, and it then provides some preliminary reflections on the potential of the EU Charter of Fundamental Rights and the EU's accession to the European Convention of Human Rights (ECHR) to achieve a more harmonious and convergent human rights system in Europe. It finally argues that the post-Lisbon era has the potential to enhance the protection of fundamental rights within the continent.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Abigail C. Deshman
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A diverse set of national and international bodies is increasingly commenting upon other organizations' compliance with 'global administrative law' norms, creating a complex network of inter action and review. Although many forms of interaction can be identified and observed, horizontal review between international organizations appears to be relatively rare. This article examines one instance in which review did emerge: the Parliamentary Assembly of the Council of Europe's criticisms of the transparency and accountability of the World Health Organization (WHO) during the H1N1 pandemic. Two key questions arise from the case study. First, what structural or institutional features allowed inter institutional review to take place? And, secondly, why would two institutions have such divergent views of an international organization's accountability and transparency? The analysis suggests that a key factor in allowing horizontal review to occur is diversity in institutional composition – in terms either of membership, distribution of power between members, or interests represented by members. In this case study, the Parliamentary Assembly represented the interests of states' legislative branches, whereas the WHO representatives reflect the interests of states' executive branches. Variations in baseline assumptions regarding the WHO's function in regulating infectious disease response and to whom it should be accountable may partially explain the substantive divergence of opinion.
  • Political Geography: Europe
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution and all other manner of photojournalism.
  • Author: Roda Mushkat
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The academic literature on the systems that govern relations between states is rich but not without gaps. The subject of international legal regime formation is one that may benefit from further exploration. The protracted and unnerving process leading to the signing of a path-breaking agreement between China and the United Kingdom regarding the future of Hong Kong, a topic which has fascinated historians but has not galvanized socio-legal researchers into action on a meaningful scale, may offer considerable insights pertaining to the development of governance systems that regulate complex interaction between states.
  • Political Geography: China, United Kingdom
  • Author: Kevin Y. L. Tan
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Professor Roda Mushkat's article, arguing for the application of international regime theory to understanding the Sino-British Joint Declaration, is a curate's egg. As I read it, I often found myself nodding in agreement with her, especially her analysis and critiques of various international relations theories and methodologies. But she fails to make the case for regime theory analysis in general and for its application to the Sino-British Declaration in particular.
  • Political Geography: United Kingdom
  • Author: Roda Mushkat
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I appreciate Professor Tan's willingness to assume the role of a discussant and endeavour to initiate the process of a collective exploration of the issues addressed in my article. It must be stated at the outset that I find his arguments not compelling, am disappointed that he has not approached the task more carefully and wish that he had ventured deeper into methodological and theoretical territory. However, the two-way flow of ideas for which the EJIL provides a fertile platform yields intellectual benefits even when it is uneven and incomplete.
  • Author: Bas Schotel
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article is a reaction to Sarah Nouwen and Wouter Werner, 'Doing Justice to the Political. The International Criminal Court in Uganda and Sudan', 21 EJIL (2010) 941. It takes issue with attempts to understand international law and particularly the workings of the International Criminal Court in terms of Carl Schmitt's thesis on the political as distinguishing between friend and enemy. My contention is that parties to a violent/ political conflict may try to mobilize the law in their struggle, but that the structure of the law itself escapes the logic of the political: law cannot be 'political' in the Schmittian sense. The unexpected upshot of this is that Schmitt's notion of the political may operate as a normative criterion for testing whether legal officials are still respecting the constraints of their practice. If legal authorities are indeed in the business of defining the enemy of mankind, then they are not doing this through or with the help of the law. They may simply act against the law. To substantiate this point, the article thinks through the difference between conventional and absolute/real enemies and contrasts these notions with the characteristics of (international criminal) law.
  • Topic: Politics
  • Political Geography: Uganda, Sudan
  • Author: Sarah Nouwen, Wouter Werner
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Is it possible for the ICC to become an actor in political struggles over the definition and labelling of friends and enemies? In our article 'Doing Justice to the Political: The International Criminal Court in Uganda and Sudan' we gave an affirmative answer to this question, based on empirical findings from Uganda and Sudan and a concept of the political derived from Schmitt, Kirchheimer and Shklar. Taking Schmitt's concept of the 'enemy of mankind' as his starting point, Schotel disputes our conclusions. Although 'parties to a violent/political conflict may try to mobilize the law in their struggle', Schotel argues, 'the structure of the law itself escapes the political: law cannot be “political” in the Schmittian sense'. He continues: 'If legal authorities are indeed in the business of defining the enemy of mankind, then they are not doing this through or with the help of the law. They may simply act against the law.' Schotel's main points of disagreement with our article concern (i) the way in which 'enemies of mankind' are created; (ii) the structure of international criminal law; and (iii) the difference between the law and the people applying the law.
  • Political Geography: Uganda, Sudan
  • Author: Philip Allott
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A book can change a mind, but only if that mind is ready to be changed. The mind of a particular child formed, up to the age of reason, in a time of war, is liable to be ready to ask questions of a particular kind about the human condition – still more so, when, at the age of eight, that child sees, on the front-page of the newspaper, images of Belsen and Hiroshima, images that would never be forgotten. In the 1940s it was still possible to believe in childish innocence. Now even small children know too much about the worst that human beings can do.
  • Political Geography: Hiroshima
  • Author: Jan Klabbers
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The great British philosopher Michael Oakeshott once observed that ideally teaching should be a personalized affair and take place one on one, as 'practical knowledge can be acquired only by continuous contact with one who is perpetually practising it'. This way, someone of shown mastery in a subject could guide a pupil along, instruct on points of detail, correct him or her where he or she would threaten to make a mistake, and carefully track the pupil's progress and suggest bespoke improvements. The fgpupil would learn far more effectively than he or she ever would in a classroom setting and, in particular, be able to reach beyond purely technical knowledge. After all, as Oakeshott explained elsewhere, education 'is the transaction between the generations in which newcomers to the scene are initiated to the world which they are to inhabit. This is a world of understandings, imaginings, meanings, moral and religious beliefs, relationships [and] practices'.
  • Author: Isabel Feichtner
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Almost eight decades after its publication in 1933, Oxford University Press recently republished Hersch Lauterpacht's book, The Function of Law in the International Community, with a new preface by Martti Koskenniemi that situates the work within the German legal tradition. The Function of Law is a significant work for several reasons and its renewed accessibility therefore very much welcomed.
  • Political Geography: Germany
  • Author: Isabelle Ley
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Despite its important tradition in international law, international legal philosophy has, for the most part, been left aside by scholars during the past decades. While there has been a revival in legal philosophy in most fields starting with Hart and Rawls in the 1960s, international law has been conspicuously left out of this move. The founders of the discipline at the beginning of legal modernity (Grotius, Pufendorf, Vattel), as well as the pioneers of current ways of thinking about law and politics in the international sphere (Kelsen, Lauterpacht, Morgenthau), are, of course, all acknowledged – but not so much reread, rediscovered, or even overturned by contemporary research. Is it time to catch up?
  • Author: Anne-Laurence Graf-Brugère
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Notions such as 'peace', 'war', 'threat to the peace', 'maintenance of international peace and security', and 'collective security' are not only open-textured but also living concepts. Their content and definition evolve with time and experience. In fact, these concepts are based on a consensus which exists at a particular time between members of the international community. The 2004 Report of the Secretary-General's High-Level Panel on Threats, Challenges and Changes, A More Secured World: Our Shared Responsibility (thereinafter 'HLP Report') and the reports that followed (the then Secretary-General's In Larger Freedom Report and the 2005 World Summit Outcome Document) aim precisely at delineating such a consensus on the global idea of collective security, 'global' in the sense that it touches upon all the notions mentioned above, notably the one of threat to international security (not to be confused with the threat to international peace and security).
  • Author: Sigrid Mehring
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Contrary to its narrowly phrased title, Das Tötungsverbot im Krieg ('The Prohibition to Kill in War'), Gerd Hankel in his most recent publication presents his thoughts on contemporary armed conflicts, humanitarian interventions, and the future of the laws of armed conflict. One should not be fooled by the small and handy format of the book; in its six manageable chapters, Hankel provides a plethora of recent and older examples and explanations to support his call for the revision of international humanitarian law.