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  • Author: Michael Wood
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The aim of the Guide to Practice on Reservations to Treaties is to assist practitioners of international law, who are often faced with sensitive problems concerning, in particular, the validity and effects of reservations to treaties, and interpretative declarations. The chief interest in the Guide will be in the light it shines on the many difficult substantive and procedural issues concerning reservations and declarations left open by the Vienna Conventions. But the institutional aspects are also of considerable practical interest. The present contribution considers some of the institutional or cooperative bodies that may assist practitioners: depositaries; treaty monitoring bodies; the reservations dialogue; and 'mechanisms of assistance'. The first two are well-established. The third and fourth are innovative, and it remains to be seen whether they will be adopted by states and, if so, how useful they will be. In any event, the Special Rapporteur has shown considerable foresight in proposing what became the annex to the Guide to Practice on the reservations dialogue, as well as the Commission's resolution on 'mechanisms of assistance'.
  • Topic: International Law
  • Author: Daniel Muller
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Time is an important element in the process of reservations to treaties and, consequently, in the legal regime established by the Vienna Conventions for reservations and reactions thereto. The very definition of reservations, embodied in Article 2(1)(d) of the 1969 and 1986 Vienna Conventions, as well as in Article 2(1)(j) of the 1978 Vienna Convention, and incorporated in the definition adopted by the International Law Commission in its Guide to Practice, includes precise indications and limits concerning the moment in time for a reservation to be formulated. In practice, however, reservations have been made before and after this peculiar moment. The work of the International Law Commission has shown that these are still reservations, even if they are not contemplated by the Vienna regime. But they can nevertheless deploy their purported effects under some additional conditions. The same holds true with regard to objections to reservations which can be formulated prematurely or late. They are still objections even if their concrete legal effects may be affected. Whereas time is important for the legal consequences attached to reservations and reactions thereto, it plays a less important role in the overall process of reservations dialogue.
  • Topic: International Law
  • Political Geography: Vienna
  • Author: Ineta Ziemele, Lasma Liede
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article addresses the issue of reservations to human rights treaties in the light of the work done by the International Law Commission and its Special Rapporteur, Mr Alain Pellet. Section 1 gives a short historical background for the topic. Section 2 provides a concise overview of the variety of arguments that have been raised in the debate on the character of human rights treaties and the permissibility of reservations to those treaties, as well as their relationship with the reservations regime established under the Vienna Convention on the Law of Treaties. Section 3 gives a number of specific examples of reservations permitted under the human rights treaties and describes the approach taken by some human rights treaty bodies in that respect. It also depicts the manner in which some of these bodies have dealt with the intricate issue of the consequences of impermissible reservations. Section 4 analyses the guidelines adopted by the ILC and offers some reflection on their contribution to the development of international treaty law on this topic. Section 5 concludes by praising the comprehensive work of the ILC on the subject.
  • Topic: Human Rights, International Law
  • Political Geography: Vienna
  • Publication Date: 02-2014
  • 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: Andrew Williams
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The orthodox view of the ECHR and its Court as regime in the context of both the EU and UK has been that it has considerable value albeit with systemic flaws. The purpose of this article is to challenge this orthodoxy. Four inter-related submissions are made: that the ECHR has failed human rights conceptually (1); 'good' or lauded decisions of the ECtHR cannot remedy or sufficiently counter-balance this conceptual failure (2); 'bad' decisions further expose and exacerbate the failure (3); the procedural problems of the ECHR regime may contribute to the underlying failure of concept but their resolution cannot solve it (4). These submissions are to provoke a more intense assessment of value and how such value could be enhanced. It may be too late to see any influence on the accession process but this does not reduce the relevance of the critique for the future of human rights in both the EU and the UK. Ultimately an approach to the ECHR system needs to determine whether it continues to be lauded or its influence resisted (thus seeking reform or replacement - the alternative candidates being the EU Charter and/or a national Bill of Rights) and retained only as an iconic scheme of moral importance.
  • Topic: Human Rights
  • Political Geography: United States, Europe
  • Author: Stelios Andreadakis
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This reaction piece responds to the article by Andrew Williams entitled 'The European Convention on Human Rights, the EU and the UK: Confronting a Heresy'. In his article, Williams contends that we should not further support the 'orthodox' view that the Convention (ECHR) has been very successful in protecting and promoting human rights across Europe, offering four submissions to that end. It will be argued that Dr Williams' submissions regarding the ECHR's success and the European Court of Human Rights (ECtHR)'s role are not well supported and justified. The relationship between the ECHR and a future UK Bill of Rights will also be explored in the piece, as there is no sufficient link between the author's arguments about the ECHR regime and the UK legal system, making it rather artificial to refer to the UK as a possible model for human rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Rosa Rafaelli
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This short article aims to further the discussion over horizontal review between international organizations started by Deshman in her analysis of the role of the Parliamentary Assembly of the Council of Europe after the H1N1 pandemic. The article compares the historical evolution of the European Parliament to that of the Parliamentary Assembly and examines how the EP's involvement with issues such as human rights and international relations served to build its identity, to gain international recognition, and to obtain more formal powers. It suggests possible additional reasons explaining the PA's willingness to perform horizontal review over action carried out by the WHO, and potential paths for future developments.
  • Topic: International Relations, Human Rights
  • Political Geography: Europe
  • Author: Abigial C. Deshman
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Dr. Raffaelli's Reply to my article highlights some very useful areas for further exploration in the realm of global administrative law and inter-institutional interactions. Calling this a rejoinder may be a bit of a misnomer since I believe we are actually in broad agreement. In the spirit of debate, I will first draw out one apparent point of divergence – whether this is actually an instance of horizontal review – before canvassing our substantive areas of agreement.
  • Political Geography: Europe
  • Author: Gurdial Singh Nijar
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Traditional knowledge systems of indigenous and local communities have been of immense value over millennia. They have filled the breadbasket that has fed the world, provided medicines that have healed the world, and provided for the sustainable management of resources, including biodiversity. In short, these knowledge systems have fed, clothed, and healed the world. They may yet hold the key to dealing with the risks posed by climate change. Yet today they are in danger of being marginalized. This article identifies the threats, the inadequacy of the international legal architecture, and the faltering national attempts to reassert their role. It identifies the varying interests and elements and assesses their influence in the marginalization and resuscitation of traditional knowledge systems; and finally argues for the emancipation of these systems and their restoration to the plurality of knowledge systems to provide sustainable solutions to natural resource management.
  • Author: Christian Djeffal
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Commentaries on international law abound and proliferate. To reflect upon this trend in international legal scholarship, three commentaries on the Vienna Convention on the Law of Treaties are reviewed. They are compared with regard to the ways in which they deal with three pertinent issues in the law of treaties: the ascertainment of jus cogens norms, the notion of object and purpose and grounds of invalidity, termination, and suspension. As a scholarly genre, commentaries form part of the legal culture of legal systems. So the review discusses their function in the past, in the present, and in their possible future. Their roots lie in the schools working on Roman law in the Middle Ages. They gained importance for international legal scholarship when international law entered the process of codification. Today, commentaries fulfil several functions in international legal discourse, the most important of which is that they structure this discourse. Digitization will seriously impact on all fields of scholarly publishing. The review concludes by discussing the possible changes in this scholarly genre. Those are accessibility, layout, referencing, inclusion of other media, and the possibility of enhanced discourse within the commentary.
  • Political Geography: Vienna
  • Author: Tim Staal
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the words of editor Duncan Hollis, The Oxford Guide to Treaties 'is a big book' (at vii). Yet, it is relatively small and accessible considering its ambition to 'explore treaty questions from theoretical, doctrinal, and practical perspectives'.
  • Political Geography: Vienna
  • Author: Gráinne de Búrca
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The intersection of constitutional ideas and international law has been the subject of a significant wave of scholarship in recent years. This monograph, written not by a lawyer but by a political theorist at Columbia University, addresses these themes in an engaging and rigorous way. And although it is a deeply scholarly work, it is also very much a politically engaged book, grappling with many fundamental questions of international law and governance today while trying to argue for 'realistic-utopian' reform.
  • Topic: International Law
  • Author: Loveday Hodson
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Her normative prescriptions, in other words, by insisting on a framework of constitutional pluralism and rejecting other forms of legal pluralism, leave aside the many other powerful global institutions and bodies that generate rules and norms, other than the UN Security Council or other UN bodies on which the book concentrates. While it is clear that the UN is the predominant global security organization, and the one with military power at its service, there are also many other organizations and bodies which have morphed or are morphing, as Cohen puts it in the book, into global governance institutions. Yet the book's focus on the need for political communities which participate in an overarching 'political community of communities' seems to leave many of these other important sites of legal and political authority out of the picture, and to reject as inadequate some of the more modest but perhaps also more currently feasible legal reform proposals which have been made.
  • Topic: Human Rights, International Law
  • Author: Erika George
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two recent publications present a defence of the right to health as it is articulated in international law and also provide insights into the array of impediments to realizing the health right. Despite a perceived conceptual lack of coherence and a limited appreciation of its relevance among health care professionals identified in these two books, the right to health has nevertheless succeeded in capturing greater attention in global policy circles. Local health care system reform initiatives around the globe increasingly make reference to the right to health. Both books are particularly helpful additions to the literature in light of recent advances in the development of the health right. Yet, each offers a very different assessment of its present status and prognosis for its future development.
  • Topic: Human Rights, Health Care Policy
  • Author: Julia Schmidt
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Union has gone through a profound development as an international crisis management actor. It was only in 2003 that the common security and defence policy became operational. Since then, the EU has conducted more than 25 civilian and military crisis management missions in many parts of the world. These missions are carried out in the name of the EU whose international legal personality has been formally recognized by the Treaty of Lisbon (Article 47 TEU). At the same time, the EU depends on capable and willing Member States to launch and to carry out an operation under the auspices of its common security and defence policy. The development of the EU as a military actor is remarkable in the light of the EU's historical evolution. In the 1950s, it started as a peace project that was based on economic integration. To prevent the emergence of a new war on the European continent, Robert Schuman proposed linking the coal and steel industries of France and Germany together 'within the framework of an organization open to the participation of the other countries of Europe'. Attempts to create a European army within the European Defence Community failed in 1954. Today, Europe has moved away from being merely a civilian power. When confronted with its inability adequately to respond to the Balkan crisis in its neighbourhood in the 1990s, the Cologne European Council of 1999 marked the birth of the EU's common security and defence policy. A process was put in motion that equipped the EU with the legal capacity and the civilian and military means to engage in 'missions outside the Union for peace-keeping, conflict prevention and strengthening international security' (Article 42(1) TEU). Civilian and military means may be used by the EU to fulfil the socalled Petersberg tasks, that include 'joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation' (Article 43(1) TEU). In political statements such as the European Security Strategy the EU has expressed great ambitions as a global security actor and has spoken of its responsibility to contribute to international security.
  • Political Geography: Europe
  • Author: Gregory Shaffer
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Where there was only shadow and brownish red and reddish brown crumbling stone against the sky now a sheen descends the folding slopes.
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: On 26–28 June 2014, in Florence, the European University Institute and NYU–La Pietra will host the Inaugural Conference of the newly established International Society of Public Law (ICON.S).
  • Political Geography: Europe
  • Author: Daniel Bethlehem
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This lecture, inaugurating a lecture series in honour of Sir Elihu Lauterpacht, looks at the changing place of geography in the international system and the challenges that this poses to international law, from the central place of geography in the Westphalian legal order to its less certain place in the rapidly globalizing and diffuse international society of the present day. Examining these issues through the contrasting prisms of the principal political organs of the United Nations in New York, on the one hand, and the UN Specialized Agencies centred in Geneva, on the other, the lecture also explores these issues by reference to Thomas Friedman's thesis that The World Is Flat. The lecture concludes by identifying a number of areas of international law, and the international legal system, that will require creative thinking in the period to come to reflect the diminishing importance of geography.
  • Topic: International Law
  • Political Geography: New York
  • Author: David S. Koller
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article responds to Daniel Bethlehem's assertions that globalization is diminishing the importance of geography, and thereby challenging the Westphalian order on which international law is constructed. It contends that international law does not take geography as it is but actively creates and sustains a state-based geography. It argues that the challenges Bethlehem identifies are not new but are inherent in international law's efforts to impose a state-based order on a global world. The question is not whether international lawyers will respond to these challenges, but how they will respond. Will they follow Bethlehem in reinforcing a statist order, or will they place sovereignty of states in the service of the global human community?
  • Topic: Globalization, International Law
  • Political Geography: New York, Europe
  • Author: Carl Landauer
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Daniel Bethlehem makes a convincing case in 'The End of Geography' that the growing challenges of our contemporary world require a move from our state-centred international legal system. This reply places Bethlehem's voice among a growing list of those who either describe or prescribe a move from the traditional Westphalian state system. It argues, however, that the challenges have always been transboundary and that the Westphalian state system has never been as strong or as long-lived as envisaged by its critics.
  • Topic: International Law
  • Political Geography: New York, Europe