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  • Author: Eyal Benvenisti, George W. Downs
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: National courts are gradually abandoning their traditional policy of deference to their executive branches in the fi eld of foreign policy and beginning more aggressively to engage in the interpretation and application of international law. This change has been precipitated by the recognition of courts in democratic states that continued passivity in the face of a rapidly expanding international regulatory apparatus raises constitutionally-related concerns about excessive executive power and risks further erosion in the effective scope of judicial review. To avoid this, national courts have begun to exploit the expanding scope and fragmented character of international regulation to create opportunities to act collectively by engaging in a loose form of inter-judicial co-ordination. Such collective action increases their ability to resist external pressures on their respective governments, and reduces the likelihood that any particular court or country that it represents will be singled out and punished as an outlier by either domestic or foreign actors. Should this strategy continue to be refi ned and developed, it holds out the promise of enabling national courts not only to safeguard their role domestically but to function as full partners with international courts in creating a more coherent international regulatory apparatus.
  • Topic: Foreign Policy, International Law
  • Author: Yuval Shany
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international dispute settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and nonstate parties, and the growing inclination of national courts to apply international law. Arguably, these developments point to the emergence of a new judiciary the operation of which is governed by a new ethos (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution). The article then moves on to discuss some of the 'blind spots' of the present judicial institutional landscape, which includes a consideration of the remaining difficulties associated with addressing politically-charged conflicts before international courts (especially those relating to war and terror), and problems relating to the enforcement of judicial orders and judgments. While national courts can, in theory, fill some of these remaining gaps, their actual ability to do so remains unclear. In addition, the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: co-ordination problems, and concerns relating to the effectiveness and legitimacy of international adjudication.
  • Topic: International Law
  • Political Geography: Middle East
  • Author: Karin Oellers-Frahm
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The jurisprudence of the International Court of Justice gains more and more importance, in particular because not only are so-called 'secondary' cases, that is cases of alleged secondary importance such as delimitation of land or maritime boundaries cases, brought before it, but also rather sensitive and highly political cases involving questions of use of force and self-defence. Furthermore, the Court is seised of cases involving states of all parts of the world, which also marks a positive development compared to its early times. Therefore, the jurisprudence of the ICJ plays a predominant role in all domains of international law and is of concern not only to those involved in international law, international relations, or international organizations, but also to national lawyers and politicians. The idea, therefore, of providing the international community with a publication that gives an overview of the jurisprudence of the ICJ (and thus allows easy access to its case law) is to be welcomed.
  • Topic: International Relations, International Law, International Organization
  • Author: Andreas Paulus
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
  • Topic: International Law
  • Author: Claus Kreß
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
  • Topic: International Law
  • Author: Sean D. Murphy
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The late Thomas Franck postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors, notably whether the norm or institutional process was validated through commonly accepted means, whether it was clearly understood by those upon whom it operated, whether it cohered with other norms and institutions, and whether it was well-grounded in secondary rules of international law concerning law formation. This article argues that the proposed draft amendment to the Rome Statute on the crime of aggression does not fare well under these criteria, casting into doubt the long-term prospects for the legitimacy of the definition of the crime and of the institutional structures charged with administering it. Choices made at the ICC Review Conference in 2010 to finalize an amendment to the Rome Statute may help alleviate or aggravate these concerns.
  • Topic: International Law
  • Author: Sergey Sayapin
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This short article honours Professor Raphael Lemkin (1900–1959), author of the term 'genocide' and initiator of the Convention for the Prevention and Punishment of the Crime of Genocide, on the occasion of the 50th anniversary of his death. The article provides a brief overview of his career in international law and highlights Professor Lemkin's key ideas which shaped the Genocide Convention.
  • Topic: International Law
  • Author: Ana Filipa Vrdoljak
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
  • Topic: International Law, United Nations
  • Political Geography: Europe
  • Author: Jörg Kammerhofer
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Dr Orakhelashvili, currently lecturer in law at the University of Birmingham Law School, is a prodigious writer as well as a very conscientious and thorough scholar. His latest book on interpretation in international law shows precision in scholarship and a comprehensive grasp of the subject. It comes at a time when the process of interpretation is little understood, yet often talked about by scholars, practitioners, and tribunals alike. Despite the large amount of literature already published on the topic – the bibliography printed in Orakhelashvili\'s book (at 585–591) is just the tip of the iceberg – and regardless of the countless dicta of various international tribunals, a new and fresh look at this central nexus between international legal practice and theory is highly welcome.
  • Topic: International Law
  • Author: Noemi Gal-Or
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The WTO Appellate Body represents an innovation in international law in that an international adjudication authority now operates as a final instance to hear appeals arising from international arbitral (panel) procedures. It is thereby strongly emulating domestic appellate courts without, however, possessing the characteristics that make appellate courts the institutions of justice that they are. Following this trend in a cutting-edge fashion are several other inter-governmental arrangements that had been either concluded (Central America Free Trade Agreement (CAFTA), the Olivos Protocol in the Southern Common Market (Mercosur)) or proposed (the US Congresses' 2002 Trade Promotion Authority Act, the ICSID Discussion Paper of 22 October 2004, the third draft Free Trade Area for the Americas). They embrace the concept of a permanent international instance for appeal from arbitral awards, particularly regarding investment agreements including also disputes arising between the state (public) and the individual legal person (private).
  • Topic: International Law, World Trade Organization
  • Political Geography: America