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You searched for: Content Type Journal Article Remove constraint Content Type: Journal Article Journal European Journal of International Law Remove constraint Journal: European Journal of International Law Topic International Law Remove constraint Topic: International Law
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  • Author: Peter H. Sand
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The tale of the Chagos Archipelago (British Indian Ocean Territory, BIOT) raises a wide spectrum of transnational legal questions, all across the fields of human rights, environment and disarmament. Last-born of the Empire’s colonies, the BIOT was established – and systematically depopulated – for the sole purpose of accommodating a strategic US military base during the Cold War years in 1965–1966. The territory has since generated extensive litigation in the national courts of the United Kingdom (UK) and the USA as well as proceedings in the European Court of Human Rights and an arbitration under Annex VII of the Convention on the Law of the Sea (UNCLOS). Stephen Allen, senior lecturer at the University of London’s Queen Mary College, has long followed and commented on legal developments in the Chagos cases as an observer. The focus of his attention remains the plight of the native Chagossians, a small Kreol-speaking people of African and Malgasy origin, whose exile (mainly to Mauritius, the Seychelles and the UK) has lasted for more than 40 years.
  • Topic: Environment, Human Rights, Imperialism, International Law, History, Courts, Disarmament, Displacement
  • Political Geography: Britain, United States, Europe, Chagos Islands
  • Author: Ekaterina Yahyaoui Krivenko
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A poem by Ekaterina Yahyaoui Krivenko.
  • Topic: Globalization, Human Rights, International Law, Constitution
  • Political Geography: Europe, Global Focus
  • Author: Jaime Tijmes
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The World Trade Organization’s (WTO) Dispute Settlement Understanding (DSU) favours negotiated settlements for disputes. However, arbitrations according to Article 22.6 of the DSU have been carried out as compulsory conventional arbitrations, even though such arbitrations do not offer strong incentives for the parties to reach a settlement. For quite some time, scholars have studied other forms of arbitration that may encourage settlements more strongly, such as final offer arbitration. Yet this form of arbitration has received rather limited attention in the academic discussion about dispute settlement under the WTO. This article explores to what extent final offer arbitration might make sense for settling WTO disputes and concludes that it would be suitable for arbitrations pursuant to Article 22.6 of the DSU, specifically for setting the level of suspension of obligations and, under certain circumstances, for deciding on so-called cross-retaliation pursuant to Article 22.3 of the DSU. Before negotiations start, parties to a dispute should agree on final offer arbitration if arbitration should be deemed necessary. Such an agreement might be expressed in a pre-emptive joint proposal on procedural aspects. Amendment of the DSU would then be unnecessary.
  • Topic: International Law, International Trade and Finance, Treaties and Agreements, World Trade Organization
  • Political Geography: Europe, Global Focus
  • Author: Lorna McGregor
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The presumption that courts are the principal forum for dispute resolution continues to be eroded. Alternative forms of dispute resolution (ADR), including agreement-based ADR (such as mediation and conciliation) and adjudicative ADR (such as arbitration), continue to proliferate and are increasingly institutionalized, leading to their characterization as ‘appropriate’ or ‘proportionate’ dispute resolution. Interestingly, despite these developments, the position of international human rights law (IHRL) on two key questions regarding ADR and proportionate dispute resolution (PDR) is unclear. These questions are, first, the standards of justice expected of ADR/PDR (whether entered into voluntarily or mandatorily). Second, the permissible circumstances in which parties to a dispute can be required to use ADR/PDR instead of, or before, accessing courts. The attributes and challenges with ADR/PDR have been discussed extensively in socio-legal studies, feminist literature and the dedicated ADR/PDR literature. This article seeks to bring this vast theory on the diversification and institutionalization of dispute resolution into IHRL. Through the lens of the European Court of Human Rights, this article examines the types of tests that supranational bodies currently employ and advances a framework for assessing the choice, design and implementation of ADR/PDR in the future.
  • Topic: Human Rights, International Law, Legal Theory , Courts
  • Political Geography: Europe, France, European Union
  • Author: Catharine Titi
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: For about half a century, the European investment treaty model has been associated with European Union (EU) member states’ bilateral investment treaty practice, often referred to as their ‘best practices’. Member state bilateral investment treaties, which are liberal instruments strongly protective of investor interests, have remained relatively unchanged over the years, in contrast with their North American counterparts, which have come to represent a new type of investment treaty, cognizant for the first time of the contracting parties’ right to regulate. With the entry into force of the Treaty of Lisbon and the exercise of the EU’s new competence over the conclusion of treaties covering foreign direct investment, Europe marks its distances with the old approach of the member states and appears eager to set its own ‘model’. While broadly in harmony with the new generation of North American investment treaties, the nascent EU policy aims to improve international investment law in innovative ways, targeting both substantive and procedural protections, and leading to a yet newer generation of international investment treaties. The present article explores this new EU standard, which is set to change the face of international investment law as we know it.
  • Topic: International Law, Treaties and Agreements, Foreign Direct Investment, European Union
  • Political Geography: Europe, European Union
  • Author: Martins Paparinskis
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Reasonable people might disagree whether the European Union (EU) is likely to make a significant and commendable contribution to international investment law. This article addresses two issues of relevance for this discussion. First, it considers the appropriateness of evaluating evelopments in international investment law in terms of balance between investor protection and the right to regulate. Second, the contribution of the recent EU practice is briefly examined, finding it less interesting and innovative than one might have expected.
  • Topic: International Law, European Union, Regulation, Finance
  • Political Geography: Europe, European Union
  • Author: Oren Gross
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In ‘The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action’, Devon Whittle analogizes the United Nations Security Council’s Chapter VII powers to domestic emergency powers. He then seeks to apply the extra-legal measures (ELM) model of emergency powers, which I developed some 20 years ago, to exercise by the Council of its Chapter VII powers. This brief comment seeks to expand the discussion of ELM in international affairs beyond the collective security system by exploring the application of ELM in the setting of unilateral humanitarian intervention.
  • Topic: International Law, Treaties and Agreements, United Nations, International Security, Humanitarian Intervention
  • Political Geography: Europe, Kosovo, United Nations, Syria
  • Author: Sookyeon Huh
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article approaches two International Court of Justice judgments on the cases concerning Ligitan/Sipadan (2002) and Pedra Branca (2008) from the perspective of the law of territory in the post-colonial context, showing that the Court managed to free the concepts of ‘original title’ from ‘terra nullius’. It is prefatorily explained that the concepts of ‘original title’ and ‘terra nullius’, which operate in combination, had both functioned as bases for the traditional law of territory and as unilateral justification for colonization by European powers. By contrast, analysis of the two recent judgments illustrates that the Court contrived to separate the two concepts from the context of colonialism by avoiding the determination of the islands as ‘terra nullius’ and expanding the concept of ‘original title’ while preserving the existing framework of law of territory. The problem is presented with a caveat, however; overemphasizing the significance of ‘original title’ in the post-colonial context might lead to disregard for the foundations of title to territory, that is effective control of territory and its legitimizing logic, on which the territorial order of today’s international society is based.
  • Topic: International Law, Post Colonialism, Territorial Disputes, Courts
  • Political Geography: Europe, Indonesia, Malaysia, Singapore
  • Author: Mikko Rajavuori
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: State ownership is thriving. Emerging economies are extending their growing economic power outward through sovereign wealth funds. State-owned multinationals have become top sources of foreign direct investment. Bailouts have recreated powerful state ownership structures in regions where private ownership has traditionally prevailed. The state is back – in shareholder capacity. Approaching the rise of state ownership from a human rights perspective, this article submits that a new conceptualization of state ownership function is emerging. State ownership provides a strong link connecting corporate actions with the international human rights system. Yet the conventional methods used to integrate state ownership in human rights treaty bodies’ discretion seem unable to grasp the changing economic role of governments in the global economy. The article suggests that the notion of the ‘public shareholder’, introduced by the European Court of Human Rights in Heinisch v. Germany (2011), provides a useful lens for interrogating how states should govern the human rights performance of corporations through ownership. When exposed to the recent practice of a range of United Nations treaty bodies, internationalizing state ownership activity becomes framed in human rights terms. In this vision, the whole ownership function becomes a site for turning companies in the state’s portfolio into responsible corporate citizens who take the impact of human rights seriously. Specifically, treaty bodies should advise states to seek human rights governance through private mechanisms in the capacity of the shareholder. In the process, human rights’ checks and balances should constitute a counterweight for market-based initiatives that regulate state activity in the capacity of the shareholder.
  • Topic: Human Rights, International Law, Treaties and Agreements, Foreign Direct Investment, Economies, Courts
  • Political Geography: Europe, Norway, Germany
  • Author: Guy Fiti Sinclair
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Reflecting upon the ambiguous relationship between international civil servants and international law in both theory and practice, this review essay examines several recent books that address the life and legacy of Dag Hammarskjöld, the second Secretary-General of the United Nations. Drawing upon recent theoretical work regarding international organizations, the essay argues that the authority of international civil servants should be understood as operating through three distinct yet interconnected modalities of discourse and practice: legal, moral and expert. Moreover, a comprehensive account of the authority exercised by international civil servants must take account of how they respond to any tensions that arise between their bases of authority as well as of their shifting relations with other ‘global governors’. The essay considers the depiction of Hammarskjöld by each of the books under review, highlighting the sometimes overlooked interconnections between the different sources of authority upon which he drew and suggesting some starting points for an alternative, integrated account of his thought and practice.
  • Topic: Civil Society, Diplomacy, International Law, International Organization, Humanitarian Intervention
  • Political Geography: Africa, Europe