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  • Author: Jenny Stoutenburg
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The discourse on environmentally induced migration has now been going on for more than a quarter of a century. Still, to this day there exists no empirical or conceptual clarity regarding the existence and number of environmentally displaced persons, as well as the terminology and legal protection mechanisms that should be applied to them. In recent years, the focus of scholarly and institutional attention has shifted from environmentally induced migration in general to migration induced by climate change, adding further complexity to an already difficult topic. Climate change-induced migration now needs to be distinguished not only from the social, economic, and political factors compelling human movement, but also from the 'background noise' of general environmental change that might cause people to seek a livelihood elsewhere.
  • Author: Ebrahim Afsah
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There are many ways of looking at the international system, but two dichotomies stand out: there are those who believe international behaviour is primarily motivated by systemic forces and those who believe that the internal composition of the individual units dramatically affects how they act internationally, and especially that democratic polities are more peaceful and law-abiding than others. Like many essentially untestable hypotheses, the debate between these two positions has resisted a clear resolution. One of the reasons the debate has been so vicious and largely unproductive lies in its implicit reliance on the other, even less testable dichotomy in international affairs, viz. the disputed nature of man as primarily good or primarily evil, which is closely linked to the legal debate about the sources of obedience to law.
  • Author: Mary Footer
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As the 10th anniversary of the launch of the WTO multilateral trade negotiations at Doha approaches, this collection of essays serves as a painful reminder that the so-called 'Doha Devel¬opment Round' is far from concluded. It also recalls how the WTO's dispute settlement system has continued to have an important 'norm-generating function'. Nowhere is this more so than in disputes involving developing countries. In some instances developing country Members initiate formal dispute settlement proceedings at the WTO precisely to promote wider reforms of their governance and administrative structures. In others the participation of Member governments in formal dispute settlement procedures at the WTO has been supported by industry and the business sector. A few developing country governments have drawn on dialogue with local civil society organizations in bringing or defending complaints with important social implications for their citizens.
  • Author: Sungjoon Cho
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This notable book is part of an ambitious project entitled 'Max Planck Commentaries on World Trade Law'. As is widely known, the concept of commentaries originates in the civil law tradition and may be traced back to what the editors of this volume dub the 'Roman legal science' (at ix), crystallized in the Corpus Juris Civilis which Justinian I commissioned one and a half millennia ago.
  • Author: Andre Stemmet
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In an interview with BBC television on 19 March 2011, British Prime Minister David Cameron described the use of force against Libya in terms of United Nations Security Council resolution 1973 (2011) as 'necessary, legal and right'. This statement once again illustrated the fact that, especially with respect to the use of force in the execution of foreign policy, justification in terms of applicable international law principles weighs heavily on the minds of statesmen. It is therefore not surprising that it is increasingly being recognized in contemporary academic discourse that international law and international politics and security are intertwined subjects and that international law provides a useful paradigm for the analysis of international relations. The momentous events of 11 September 2001, which marked the advent of asymmetric warfare, challenged the ability of especially Western democracies to deal with hitherto unknown security challenges within the established framework of international law. These developments provided fertile soil for developing a discourse on the relationship between international law and international relations and diplomacy, conducted by both academics and practitioners.
  • Political Geography: United Kingdom
  • Author: Alessandro Chechi
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This volume collects the essays presented at the workshop entitled 'National Judges and Supranational Laws: On the Effective Application of EU Law and the ECHR', hosted by the Sant'Anna School of Advanced Studies (Pisa) on 15 and 16 January 2010. The workshop gathered 21 scholars from across Europe to discuss two fundamental questions: whether domestic judiciaries handle European Union (EU) law and the European Convention of Human Rights (ECHR) in a similar manner; and whether national courts facilitate a convergence in the implementation of EU law and the ECHR in domestic legal orders.
  • Political Geography: Europe
  • Author: Alexandra Kemmerer
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In his first seminal Hague lectures, published in 1994, Bruno Simma defined the 'community interest', which in the meantime has become an indispensable component of the discipline's conceptual toolbox, as 'a consensus according to which respect for certain fundamental values is not to be left to the free disposition of States individually or inter se but is recognized and sanctioned by international law as a matter of concern to all States'. Bruno Simma, a prolific writer and, since 2003, a judge at the International Court of Justice, reconstructed in his apparently most influential publication the 'various ways in which community interest is currently marching through the time-honoured institutions of the law'.
  • Author: Jonathan Shaw
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Just after the Roman poet said it was sweet and pretty to die for the fatherland he added that even if you ran and hid death would still shoot you in the knees
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The first wave, in the 1950s and '60s, was all about Community Rights and that new legal order. In the 1970s and '80s it was, ex nihilo, Individual Human Rights. And in the 1990s and this last decade it has been Citizenship Rights, destined, according to the European Court of Justice in case after case, to become the 'fundamental' status of European Citizens. (Have you ever wondered, as I have, about the epistemic status of this most recent mantra of the ECJ? Is it a legal realist prediction? A political desideratum? A statement of judicial intent? A revolutionary manifesto – seeing that it flatly contradicts the express provisions of the Treaty which clearly assigns to European Citizenship a mere supplementary or complementary supportive role in the Citizenship arena?) Be that as it may, there can be little argument that The Individual and his or her Rights are the most common, oft cited, self-celebratory clichés in the vocabulary of European legal discourse. In celebrating the Union's 50th birthday Angela Merkel, speaking for most of us, veritably gushed about Europe's success in positioning The Individual in the centre of its construct. And so it has. Likewise, if we look for a currency which is impervious to all market vicissitudes, to derivatives, to toxic bundling, it is the currency of Rights – in all three denominations, European, Human and/or Citizenship. It is the ever ready dividend which the Union's Board of Directors is generous in showering on an ever apathetic citizenry (as evidenced by the demoralizing decline in voter turn out for Euro-Parliament elections) and which is evoked whenever a pep-talk is called for.
  • Political Geography: Europe
  • Author: Christopher Macleod
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this article I discuss the nature of crimes against humanity. The various definitions that have been used, or alluded to, in the legal literature are outlined, and it is suggested that they fall neatly into two camps by interpreting 'humanity' differently. It is proposed that any theory which adequately captures the nature of this crime must distinguish it qualitatively from other 'lower' crimes, and that only members of one camp can do this. I go on to argue for one particular way of treating the crime – regarding it as a crime which hurts all humanity – and recommend adopting a view under which we would regard all humanity as one entity.
  • Author: Marco Dani
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In FIAMM and Fedon the European Court of Justice has ruled that Community firms hit by US trade sanctions authorized by the WTO Dispute Settlement Body are not entitled to compensation from EC political institutions. The article discusses the cases in the background of current debates on the attitude of the Court of Justice towards international law and, more broadly, on European legal pluralism. From this standpoint, it provides a critical assessment of the legal issues involved in this litigation – internal status of WTO obligations, scope for manoeuvre of EC political institutions in international trade relations, liability for unlawful and lawful conduct – and offers a comparative analysis of its possible solutions, suggesting that a finding of liability for lawful conduct would have been a preferable outcome in both theoretical and substantive terms.
  • Topic: International Law
  • Political Geography: United States, Europe
  • Author: Monica Hakimi
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework is grounded in international law and intended to guide decisions in concrete cases. So after presenting and justifying the framework, the article applies it to two current debates in human rights law: when must a state protect against third-party harms committed outside its territory? And what must states do to protect women from private acts of violence? The article ends by suggesting how the same framework may inform analogous obligations outside human rights law.
  • Author: Santiago Villalpando
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article uses the emergence of the protection of community interests in international law as a theoretical framework to explain a number of legal notions and regimes, such as jus cogens, obligations erga omnes, international responsibility towards the international community as a whole, and individual criminal responsibility. With reference to various international conventions, the work of the International Law Commission, and the case law of different international tribunals, it describes how changes in social intercourse at the global level have entailed structural transformations of the international legal order, as well as tensions caused by the concurrent legal protection of community and individual interests. The article further explains how the proposed theoretical framework may be used to address several concrete issues which have arisen in the contemporary legal debate, such as the question of exceptions to the immunity of state officials from foreign criminal jurisdiction, countermeasures by states other than the injured state in international responsibility, the legal regime of jus cogens, etc.
  • Topic: International Law
  • Author: Dereje Zeleke Mekonnen
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The restive Nile basin which has long been identified as a flashpoint prone to conflict embarked on a new path of cooperation with the launching of the Nile Basin Initiative (NBI). Anchored in a Shared Vision 'to achieve sustainable socio-economic development through the equitable utilization of, and benefits from, the common Nile Basin water resources', the NBI has provided a convenient forum for the negotiation of a Cooperative Framework Agreement (CFA) to set up a permanent, inclusive legal and institutional framework. Negotiation of the CFA has, however, faced a serious impasse as a result of the introduction of the concept of 'water security'. The introduction of this non-legal, indeterminate, and potentially disruptive concept is, indeed, a regrettable detour to a virtual blind-alley. The justifications for this fateful decision are totally unfounded and specious. The decision rather makes sense as an unwarranted move pushing into further obscurity the already intractable Nile waters question, at best, and a logical cul-de-sac in the decade-long negotiations which have arguably fallen prey to the hegemonic compliance-producing mechanism of 'securitization' sneaked in under the veil of 'water security', at worst. Resolution of the Nile waters question should thus first be extricated from the morass of 'water security' and then be sought nowhere but within the framework of international water law.
  • Topic: Development
  • Political Geography: Europe
  • Author: Lingjie Kong
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Very similar to trade barriers, data protection has been an obstacle to free global data flow. The European legal system on cross-border data flow set up by Directive 95/46/EC prohibits transfer of personal data to third countries which do not have an adequate data protection level. With enormous international implications, such a regionally oriented system is heavily dependent on effective monitoring of cross-border data transfer. Due to a lack of proper supervision on data transfer, it encounters many challenges, which forces the European Commission to adopt the contractual model and the corporate law model. Meanwhile, compared with issues like free trade and environmental protection, not much international consensus has been reached on cross-border data protection. As a result, bilateral, regional, and multilateral collaborations between national sovereignties are to be strengthened, to facilitate transborder data flow and to safeguard individuals' right to data protection.
  • Political Geography: Europe
  • Author: Gurdial Singh Nijar
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Seventh Meeting of the Conference of the Parties (2004) of the Convention on Biological Diversity established a mandate for the negotiation of an international regime on Access to Genetic Resources and Benefit Sharing arising from their utilization. Negotiations have been proceeding and have entered the final phase. Seven working group meetings have been held to date and there is expectation that an instrument will emerge by the final deadline – the Tenth Meeting of the Conference of the Parties in Nagoya, Japan in October 2010. A key component singled out for inclusion in the international regime relates to the recognition and protection of the rights of indigenous and local communities (ILCs) over their traditional knowledge (TK) associated with genetic resources. The Ninth Meeting of the Conference of the Parties (2008) established a Group of Technical and Legal Experts to assist the Working Group to deal with this issue. The Group met in India in June 2009 and has submitted a report. This article reflects on the key outcomes of this Expert Group report. In particular, it identifies the key issues that need to be considered and resolved for TK associated to genetic resources to form an integral and viable component of the proposed international regime.
  • Political Geography: Japan
  • Author: Marion Panizzon
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: At the outset of the 21st century and most recently since the UN High Level Dialogue on Migration and Development of 2006, the conviction has emerged that 'migration, if managed carefully, can help to raise the living standards in poor countries' (at 7). In his new book The International Law of Economic Migration, Joel Trachtman analyses political economic constraints to counter forceful, but ill-founded, evidence against opening borders to migrant workers. The book achieves a quantum leap for labour migration research, as it starts its analysis where most books end theirs.
  • Political Geography: United Nations
  • Author: Dr. Daniel Heilmann
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The law concerning the means of warfare (i.e. weapons or weapons systems in armed conflict) is arguably one of the most important areas of ius in bello. In the last 50 years, the issue of controlling the production and prohibiting the use of certain weapons has taken on an increasing urgency since technological and industrial progress has made possible the development of new types of weapons which are far more devastating than any means of warfare which existed in former times. However, there are not as many publications dedicated to this important topic as one might think. William Boothby's monograph, Weapons and the Law of Armed Conflict takes on the difficult task of giving an overview of all relevant aspects in not much more than 400 pages. The study primarily focuses on the humanitarian law aspects of the use of weapons, but to some extent also touches on aspects concerning disarmament. The dividing line between humanitarian and disarmament rules is increasingly blurred anyway, as is evidenced for example by Article 36 of Additional Protocol I to the Geneva Conventions (AP I), which advocates a preventive approach by requiring contracting parties to determine whether the study, development, or acquisition of a new weapon would be contrary to the provisions of Additional Protocol I.
  • Author: Dr. Daniel Heilmann
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The doctrine of command responsibility is one of the most important concepts which has been developed in international criminal law since the advent of that legal discipline post-World War II. Most of the very problematic issues which had originally been raised have, in the meantime, been resolved by the work of the ad hoc Tribunals and a clear structure of the elements of this mode of criminal liability has evolved. However, some aspects of the doctrine still remain highly disputed. Mettraux, in his book The Law of Command Responsibility, endeavours to give an account of the state of the doctrine in light of the jurisprudence of the International Military Tribunals (Nuremberg and Tokyo), the ad hoc Tribunals (ICTR and ICTY), and the Hybrid Courts (in particular the Special Court for Sierra Leone).
  • Author: Chandra Lekha Sriram
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Reparations are increasingly being offered, or at least recommended, in transitional justice processes, and the literature examining them has grown concomitantly. At the same time, practitioners of both peacebuilding and transitional justice have begun to recognize that the needs of women and girls have been dealt with inadequately. This volume, edited by Ruth Rubio-Marìn, a foremost expert on gender and reparations, promises to fill a critical gap, with three categories of contributions considering, as the title indicates, 'the gender of repara¬tions'. The first set of chapters examines the ways in which violations during violent conflict are gendered, targeting or incidentally affecting women and girls, but also in some cases specifically designed to emasculate men and boys. The second set of chapters considers the ways in which reparations programmes have to date failed to address the range of harms suffered, largely by females, from such violations. Finally, several of the contributions seek to offer specific recommendations for reparations programmes, including microfinance and symbolic recognition, which could better respond to those harms.
  • Author: Wolfgang S. Heinz
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: While international human rights treaties define obligations of states and subjective rights of people living under their jurisdiction, and beyond (extraterritorial obligations of human rights treaties), it has become increasingly evident that civil society activities are crucial to helping establish a strong effective human rights system in any given country. NGOs collect critical information, advise victims how to complain, complain themselves publicly about weaknesses of state agencies, and even support legal cases before national, regional, and international expert committees and courts. In a national context, this can lead to political tension with the government in power and state agencies, because human rights issues are sometimes perceived as political or politicized by those in power. In addition questions of accountability, financing, and the internal democracy of NGOs may be critically raised – sometimes to distract from the human rights criticisms initially raised by the NGOs concerned.
  • Author: Dr. Nikolaos Lavranos
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The first edition of this book, written by Peter Hilpold, professor at the University of Innsbruck, instantly became an important reference book on the relationship between the EU and the WTO, particularly on the German language market. With this third edition, Hilpold has updated the book without changing its main structure, a decision to be welcomed given that this structure, with each chapter opening with a historical perspective, is fundamental for understanding this complex topic. The book is divided into nine major chapters, which deal with the most important aspects of WTO law and its interaction with Community law. In addition, the book contains several indexes, including a useful index of persons.
  • Political Geography: Europe
  • Author: Fernando Losada Fraga
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Despite the fact that it is part of the economic freedoms on which the European integration project is said to be built, free movement of capital has never attracted the attention it deserves – at least as far as the English literature is concerned. This was understandable until the late 1980s, since this freedom was not politically fostered until then. However, two decades later just a couple of monographs are devoted exclusively to the matter, and not too many others deal with it within a broader context. The monograph under review from now on will be an indispensable reference on the matter: first, because of the depth of Hindelang's effort: it is his purpose to analyse foreign direct investment and fully to explain its scope and breadth. Therefore, he studies in detail the legal regime of the free movement of capital and its recent evolution; in fact, he scrutinizes the European Court of Justice's (ECJ) case law, which constitutes a major contribution to the debate in a field immersed in a series of continuous developments. In addition, the main importance of this book is the fact that it brings to the English literature on free movement of capital the intense and sharp German debate on economic law, and on the legal regime of capital movements in particular; and it does so acutely distinguishing the stances – and their nuances – of each relevant author towards each particular aspect of the legal regime.
  • Political Geography: Europe
  • Author: Jake Marmer
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: No abstract is available.
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There are few legal issues which still manage to evoke civic passion in the wider population. Increasingly, and sometimes for the wrong reasons, the place of religion in our public spaces has become one of them. In the age of the internet and Google we can safely assume that all readers of this Journal will have either read the Lautsi decision of the European Court of Human Rights or have read about it, thus obviating the need for the usual preliminaries. As is known, a Chamber of the Court held that the displaying in Italian public schools of the crucifix was a violation of the European Convention on Human Rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Paola Gaeta
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This symposium comprises the contributions presented by five distinguished international lawyers at the European University Institute in Florence in October 2008 on a very special occasion. Antonio Cassese ('Nino' to his friends and colleagues) had recently celebrated his 70th birthday and, as is customary in many European countries, a group of his former students and friends chose this occasion to celebrate his academic and professional career with the publication of a selection of his most important writings on the three branches of public international law he has most influenced – international humanitarian law, international human rights law, and international criminal law. The outcome was a book, The Human Dimension of International Law, published in summer 2008 by Oxford University Press, the intention of which is to shed light on Nino's intellectual approach to these three areas of public international law. The publication of this volume also provided an excellent occasion to convene a small number of friends and colleagues as a token of appreciation and admiration for his many achievements as an international lawyer. As Nino shies away from any personal limelight (indeed, I am certain he will be troubled by these few lines about him), it was decided that this meeting at the …
  • Topic: International Law
  • Political Geography: Europe
  • Author: Giorgio Gaja
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, any state to which an erga omnes obligation is owed may claim reparation in the interest of an individual who is the victim of an infringement and the beneficiary of the obligation. The ILC Articles on Diplomatic Protection should have specified that also the state of nationality may seek reparation only in the interest of the injured individual when his or her rights have been infringed.
  • Topic: International Law
  • Author: Christian Tomuschat
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It is recognized today that human rights law is not generally displaced in times of armed conflict by international humanitarian law (IHL). Yet in large part this new insight remains to be particularized as to its actual consequences. In particular, IHL is still predominantly under the influence of the concept of military necessity.
  • Topic: Human Rights
  • Author: Andrew Clapham
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This contribution reminds us that as individuals we play a role in the formation and understanding of international law. After recalling the key steps in the acknowledgement of international rights and obligations for individuals the article goes on to ask if the time has come to acknowledge that individuals can have obligations under international law that go beyond international crimes. In other words might there be international civil law obligations for the individual?
  • Topic: International Law
  • Author: Luigi Condorelli
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The author presents various critical comments on several developments of international law in fields which have been particularly studied and practised by Antonio Cassese. Some final reflections focus on the question whether international lawyers can realistically cherish feelings of optimism as to the development of international law in a humane direction, or whether instead the study of the past and the present ought not rather to impel one towards disillusioned pessimism.
  • Topic: Development, International Law
  • Author: Francesco Francioni
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing 'individualistic' perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation.
  • Topic: Environment, Human Rights
  • Author: B.S. Chimni
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article offers an introduction to a class approach to international law. It challenges the 'death of class' thesis and argues for the continued relevance of the category of 'class'. Among other things, the contention is that the category of 'class' subsumes without erasing the gender and race divides. Noting the emergence of a global social formation the article claims that a transnational capitalist class is shaping international laws and institutions in the era of globalization. It calls for the linking of the class critique of contemporary laws and institutions with the idea and practices of resistance, and considers in this setting the meaning of internationalism and class struggle today for an emerging transnational oppressed class. The article concludes by schematically outlining the advantages of a class approach to international law.
  • Topic: Globalization, International Law
  • Author: Mario Mendez
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It has been clear since a seminal ECJ ruling in the 1970s that the European Community is attached to a model of automatic treaty incorporation whereby the full panoply of Community law enforcement tools are available for the enforcement of Community Agreements. In the decades since, a rich body of case law has emerged concerning this growing body of treaty law to which the Community has become party. Much of this jurisprudence is testament to a maximalist approach to treaty enforcement which shares parallels with the approach to internal Community law. Most recently, however, the Intertanko ruling indicates that the ECJ is not averse to employing judicial avoidance techniques to preclude review where it is Community action that is challenged. The current trajectory of treaty enforcement is thus indicative of a twin-track approach whereby the ECJ is reluctant to transpose the maximalist approach to treaty enforcement which characterizes its contribution where action at the Member State level is challenged. Such a trajectory, built in accordance with the defensive submissions of the Community's political institutions, raises significant questions about the EU's much-vaunted commitment to international law.
  • Political Geography: Europe
  • Author: Katherine Del Mar
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article argues that the notion of 'belonging to a Party' to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of 'belonging' demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state's behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to 'belong' under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as 'international'. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.
  • Topic: International Law
  • Political Geography: Yugoslavia
  • Author: Carlo Focarelli
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Common Article 1 of the 1949 Geneva Conventions is today generally seen as a 'quasi-constitutional' international law rule, premised on the doctrine of obligations erga omnes and imposing on all contracting states an obligation to take a variety of measures in order to induce not only state organs and private individuals but also other contracting states to comply with the Conventions. The phrases 'ensure respect' and 'in all circumstances' contained therein, in particular, have been understood to imply a 'state-compliance' meaning, drawing basically upon the ICRC Commentaries to the 1949 Geneva Conventions and to the 1977 Additional Protocols. However, expressions similar to 'ensure respect' in human rights treaties, in other provisions of the Geneva Conventions themselves, and in military manuals have been given an exclusive 'individual-compliance' meaning. Lists of measures available to contracting states against other contracting states deemed to be in breach of the Conventions have been suggested without investigation of whether such measures were per se lawful or unlawful and whether their adoption was legally required, or authorized, or merely recommended under common Article 1. Measures the adoption of which is expressly required or authorized by ad hoc provisions of the Geneva Conventions have been redundantly linked to Article 1. The phrase 'in all circumstances' too has a variety of meanings already found in ad hoc provisions other than Article 1. Ultimately, the purported 'quasi-constitutional' character of common Article 1 has proved a subject of speculation. Common Article 1 is a reminder of obligations, negative and positive, to 'respect' the Geneva Conventions (according to the general pacta sunt servanda rule) which has progressively been given the meaning of a mere recommendation to adopt lawful measures to induce transgressors to comply with the Conventions.
  • Political Geography: Geneva
  • Author: Roozbeh (Rudy) B. Baker
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article will survey the new non-traditional scholarship which has emerged in international law to challenge the two long-established sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer are. The new question, the new debate, will be over what the implications of this shift in the traditional building blocks of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national (domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years the jurisprudence of these international tribunals has, aside from finding its way into customary international law, also begun to seep into the domestic (mainly criminal) law of several countries.
  • Topic: International Law
  • Author: Milagros Álvarez-Verdugo
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article focuses on the possibilities of implementing a valid multilateral system for uranium enrichment and nuclear fuel-recycling activities. The contribution to the literature is twofold. First, I identify the economic, political, and legal tensions which should be overcome in order to establish such a multilateral system: enterprises' interests in keeping their economic advantages; mistrust among states as well as mistrust in the current non-proliferation verification system; the necessity of redefining the content of the states' right to use nuclear energy for peaceful purposes. And, last but not least, the willingness to cooperate of the states currently developing those activities of enrichment and recycling. Based on that analysis, the second contribution is the definition of those formulae for cooperation which would be the most appropriate for tackling the problems detected, as they could pave the way to the transition towards a multilateral system of worldwide reach.
  • Topic: Economics
  • Author: Lindsey Cameron, Rebecca Everly
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article reviews five major recent works on the phenomenon of the administration of territory by international actors. Covering both legal and policy elements of the works, it delves into how the scholars treat the purported legitimacy deficit often associated with this activity. It then addresses the authors' approaches to the key international law questions, including the legal status of internationally administered territories, the legal basis for administration, the legal framework governing administrators' acts, and, finally, the accountability of the international actors involved.
  • Topic: International Law
  • Author: Wolfgang S. Heinz
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two renowned scholars of international human rights protection from the University of Berne offer this excellent volume which is based on and expands the second edition of their book Universeller Menschenrechtsschutz (2008). Professor Walter Kälin was representative of the UN Secretary General on the Human Rights of Internally Displaced Persons, and from 2003 to 2008 a member of the UN Human Rights Committee. Jörg Künzli is Associate Professor of Law at the University of Berne.
  • Topic: Human Rights
  • Political Geography: United Nations
  • Author: Mia Swart
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Sometimes, one can judge a book by its cover. The strikingly beautiful cover of this book on justice and reconciliation in South Africa is more than a mere decoration. As the editors of this exciting collection on transitional justice explain, the artwork on the cover was created by modern San artist Andry Kashivi and depicts the struggle for acceptance and belonging, 'for citizenship and reconciliation' in the new South Africa. The San communities of the !Xun and Khwe live on the margins of South Africa and on the brink of poverty. In the introduction to the book, the editors take trouble to explain the symbolic link between the marginalization of the San people and the quest for legal and political transformation in South Africa. The book's emphasis on the art of transformation extends beyond the description of the artwork. In quite a literal sense the book addresses (among other themes) the transformative function of art in the chapter by Carrol Clarkson entitled 'Drawing the Line: Justice and the Art of Reconciliation'. Clarkson analyses post-apartheid South African art, and in doing so she illustrates and explains the re-drawing of lines, specifically the 'lines that reconfigure the margins of exposure of one to the other' (at 288). The inclusion of this chapter adds freshness and originality to a collection of chapters on transitional justice, a field which cannot always be said to be characterized by great originality (or intellectual vigour).
  • Political Geography: South Africa
  • Author: Paul David Mora
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Over a distinguished career, Lady Hazel Fox CMG QC has come to be recognized as one of the leading publicists in the law of state immunity. In the introductory chapter to the second edition of her monograph, Lady Fox recognizes that the law in this area is simply not static. Since the initial publication of the monograph in 2002, two significant developments have taken place and the revised second edition provides an excellent up-to-date and authoritative account of both.
  • Author: Ebrahim Afsah
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Currently prevailing notions of the state have been considerably shaped by Max Weber's definition which distinguished the state from other socio-political communities through its monopoly on the use of legitimate violence to enforce its administrative decisions. In order to make this normative claim effective, the state needs to have the necessary coercive instruments (military, police, penitentiaries, etc.) at its disposal. At least in the industrialized nations there has therefore been a linear increase in the strength and reach of the state. This seemingly perennial increase in the ability of the state to engineer social outcomes, if necessary through the use of coercive means, was fuelled by a steady increase in economic production and a corresponding enlargement of the relative share of public spending. The lasting recessions in the aftermath of 1973, however, dramatically altered this overall picture. The end of full employment, seemingly unlimited economic growth, and attendant tax revenue exposed fundamental structural limits of statehood. This set in motion an ongoing academic and public discourse on the appropriate functional scope of a weakening state in an increasingly globalizing world which appeared far less amenable to deliberate political control, given pressures towards greater efficiency, competitiveness, and rationalization.
  • Topic: Economics
  • Author: Ebrahim Afsah
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Almost in the middle of the Indian Ocean lies the Chagos Archipelago, a place which visually comes fairly close to the image most people have of paradise. Unfortunately for its inhabitants, the islands are also very conveniently located, a fact which led the United States and United Kingdom to expel these people from their apparent paradise into abject destitution in order to turn the place into one of the world's most important military bases. Vine's book is the best account of this sordid tale so far.
  • Political Geography: United States, United Kingdom
  • Author: Aaron Fellmeth
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This book presents an engaging and thorough study of a seemingly intractable international trade dispute, primarily between the United States and Europe, over the dissemination of genetically engineered foods. The United States and several other countries have increasingly approved transgenic (also known as 'genetically modified' or 'GM') foods for public consumption, while the European Community (EC) has strongly resisted the introduction of this new technology. From 1998 to 2004, the EC imposed a moratorium on approvals for the marketing of transgenic foods in the EC. It continues to approve new marketing requests desultorily and to pursue an effective moratorium on the cultivation of transgenic species today, despite losing a challenge before the WTO Dispute Settlement Body brought by the United States.
  • Political Geography: United States, Europe
  • Author: Nellie Munin
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since its establishment in 1957, the European Union or, to be more precise, the European Economic Community was motivated by the vision of a single market, where the peoples of Europe would be able to conduct economic transactions without suffering from barriers to trade. EU law, EU legislation, and its interpretation by the European Court of Justice (ECJ) are aimed at promoting the single market vision, based on the four freedoms, one of which is the free movement of persons. These legally-established freedoms aim at removing obstacles to trade. Obstacles to the free movement of persons may include direct or indirect discrimination of employees at work. Discrimination may be based on grounds of religion, race, or sex. This book concentrates on the last.
  • Topic: Economics
  • Political Geography: Europe
  • Author: Dimitry Kochenov
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Michael Gazzaniga's brilliant study of neuropsychology of split-brain patients was based on the analysis of the condition of a tiny sample of subjects. Some aphasia studies produce convincing results working with two or three subjects: more are simply difficult to find. It is generally accepted, however, that in order to reach sound conclusions a representative sample of subjects is usually needed. Samantha Currie's book, claiming to be 'of a socio-legal nature' (at 4) uses a sample of 44 Poles working in the UK (at 211) to back 'socio-legal research' on the condition of half a billion European citizens, should one judge the book by what is on the cover. Constant references to the 'empirical data generated for the research which forms the basis of this book' (at 38), i.e. references to the 44 interviews conducted, sound like misplaced irony when used to agree with the findings based on infinitely more substantial samples, like UK Government statistics including 715,000 registrations (at 69).
  • Political Geography: United Kingdom, Europe
  • Author: Stefan Martini
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Arranging the newly arrived items, the book-seller is confronted with the conundrum of where to place the books under review here. At first glance, both dwell on similar subjects: rule of law here, rule of law there. Indeed, they deal with related questions: how can the rule of law be conceptualized and how is it put into meaningful practice within the conglomerate of European institutions? Furthermore, what is the specific role of this 'elusive' (Wennerström, at 41) concept? Both contribute to the emerging field of research on the rule of law. They enrich the debate on cross-fertilization of legal regimes as well as on how to balance commonality and difference in European cooperation. Moreover, both books promise the reader an insider's insight, Francis G. Jacobs being a former Advocate General at the ECJ, and Erik O. Wennerström having worked at the European Commission.
  • Political Geography: Europe
  • Author: Laura Coyne
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: No abstract is available.
  • Author: J.H.H. Weiler
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: For at least 20 years I have been conducting guerrilla warfare against legal publishers on the matter of copyright. Whenever I get a copyright form I either 'forget' to send it back to the publisher (in more than half the cases no one seems to notice or care) or, if they do insist, I always cross out the critical language concerning my intellectual property (they usually ask you to make them a gift of your copyright) and replace it with a handwritten grant of a non-exclusive licence. I was challenged only once. I informed the publisher of the journal in question (Blackwell) that if they were unhappy they should feel free to drop my piece. That did not happen. The first footnote proudly displayed.
  • Author: J.H.H. Weiler
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Several interconnected factors call for a re-examination of treaty interpretation. I will mention only three of many. First is the much noted – and contested – notion of fragmentation of international law. Here the focus is on the emergence of different regimes, self-contained or otherwise, which manage different jurisdictions and confront different materials. One important question which follows is, do they or should they all share a similar hermeneutic?
  • Topic: International Law