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  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I think it is difficult to contest that the most important state player in world affairs over the last one hundred years – and consistently so over this period – has been the United States of America. World War I – into which, to borrow from Christopher Clark's justly celebrated book, we 'sleepwalked' – marks a useful starting point. It is not only the fairly important role America played in bringing WWI to an end that signals the beginning of this era, but also the no less important role it played in shaping the aftermath. Wilson's 14 points were considered at the time 'idealistic' by some of the yet-to-be 'Old Powers'. But by dismantling the Ottoman Empire through the principle of self-determination (not at that time a universal legally binding norm) it was an early swallow to the demise, a mere generation later, of all other colonial empires and the truly decisive reshaping of the balance of power in the post-WWII world. The US played an equally cardinal role in ideating and realizing the United Nations Organization and the Universal Declaration of Human Rights – two lynchpins of our current world order.
  • Topic: Human Rights, War
  • Political Geography: United States, America, Gaza
  • Author: Mónica García-Salmones Rovira
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article examines the substance and form of 20th century positivist international law; in particular the way in which each determines the other. The text describes the turn to interests in international law, which evolved slowly in scope and depth. By examining Lassa Oppenheim's focus on 'common interests' that united states and Hans Kelsen's focus on the 'struggle of interests' that constituted politics, the article studies two phenomena produced by the foundational role taken by interests during the 20th century. First, this role contributed to putting an end to the moral discussion about the treatment of native populations. Secondly, it curbed debate about a common political project for a global order, thus creating conformity characterized by abuse of power – all in the name of the neutrality of positivist law. This article suggests that the work of these two leading theoreticians in the field has contributed to the shaping of the legal theory of mainstream positivist international law, and seeks to foreground discussions about the different theories on the role of law in politics. In this manner it aims to help reconceptualize law in such a way as to bring about a situation in which discussions of a common political project for the international arena are more central.
  • Topic: International Law, Politics
  • Political Geography: United States
  • 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: Congyan Cai
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Great Powers (GPs) have always been prominent in international relations. Their rise and fall often lead to structural transformations of international relations. In the past decade, the world has witnessed the rise of some New GPs (NGPs), which primarily consist of Brazil, Russia, India, China, and South Africa (BRICS). While the effect of the supremacy of the United States, an Old GP (OGPs), on international law has been examined extensively since 2000, international lawyers have hardly discussed how the rise of NGPs may shape and reshape international law. This article endeavours to examine the implications for such rise that stem from the rise of NGPs. In particular, as an 'insider' from an NGP, the author reviews the latest development in China's international legal policy and practice.
  • Topic: International Relations, International Law
  • Political Geography: Russia, United States, China, India, South Africa, Brazil
  • Author: Rein Müllerson
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Although the sub-title of the book indicates that the authors are not going to deal with all the legal issues arising in the context of a 'privatization' of warfare, the book, and not only the first chapter by Eugenio Cusumano on the policy prospects of regulating private military and security companies (PMSCs), throws its net wider than the title suggests. And rightly so. The privatization of warfare is a consequence and an element of the post-Cold War triumph of capitalism, and especially its neo-liberal advocates' tendency to privatize and deregulate all and everything. It is not by chance that PMSCs have mushroomed in the heartland of neoliberalism – the USA – faithfully followed by its Anglo-Saxon brethren on this side of the Atlantic. As the book specifies, in 2009 there were approximately 119,706 Department of Defense contractors in Iraq, compared with about 134,571 uniformed personnel. The authors accept the privatization of various functions of the state, including its 'monopoly of violence', to be almost inevitable. Nevertheless, they call for stronger and tighter regulation of the status and functions of PMSCs and control over their activities. They also show that though often new norms may be needed, in many cases existing laws, and their stricter and sometimes more creative application, may serve the purpose. The book concludes that 'many private military and security companies are operating in a “gray zone”, which is not defined at all, or at the very least not clearly defined, by international legal norms'.
  • Topic: Human Rights, War
  • Political Geography: United States, Iraq
  • Author: Günther Auth
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Global governance has been the buzzword for many internationalists for quite some time now, and the United Nations has been one of the primordial focal points in controversies about global order. This prominence of the UN has been especially remarkable in the context of deliberations about the legality and legitimacy of military force. For, despite the growing importance of the US as the world's most capable superpower, internationalists have not been muted by voices stressing the impossibility of successfully grappling with power-based interests and high-political considerations of predominant states through international law and organization. The emergence of a unipolar moment, a constellation supposedly characterized by a high concentration of military capabilities and widespread scepticism as regards the fruitfulness of multilateralism in the US has rather enticed many commentators to ponder all the more seriously the potential role of multilateral institutions, such as the UN – as a mediating structure vis-à-vis national interests, as a legitimacy-conferring agent the main function of which it is to rationalize the regime of the great powers, or as a potential counterweight to US-American unilateralism. The author of the book under review adds to this list as he endeavours to show that, after the end of the Cold War in 1990, the Secretariat of the UN repeatedly championed views that brought it into conflict with the US and other influential member states of the UN. Based on his own experience as a staff member in the Office of Legal Affairs since 1973, as the Director of the UN Secretariat's Office of Legal Counsel since 1988, and as an Assistant Secretary-General for Legal Affairs of the United Nations from 1998 to 2005, he delivered The Sir Hersch Lauterpacht Memorial Lectures at Cambridge University in 2008, in which he made a strong point for an independent role for the UN Secretariat as regards questions concerning the legality and legitimacy of military force.
  • Political Geography: United States, United Nations
  • Author: Elisa Morgera
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The interaction between bilateral and multilateral action is evolving in the context of 'global environmental law' – a concept that is emerging from the promotion of environmental protection as a global public good through a plurality of legal mechanisms relying on a plurality of legal orders. The notion of global public goods can thus help one better to understand recent bilateral initiatives aimed at supporting the implementation of multilateral environmental agreements and the decisions of their compliance mechanisms. Innovative linkages between the compliance system under the Convention on International Trade in Endangered Species and bilateral trade agreements recently concluded by the European Union and the US provide an example. Innovative opportunities for bilateral initiatives supporting the implementation of the 2010 Nagoya Protocol on Access and Benefit-sharing are likely to lead to even more complex inter-relationships between different legal orders. This new approach to bilateralism that aims to support the interests of the international community can be assessed in the context of earlier debates on unilateralism, with a view to emphasizing the role of international law in the identification and delivery of global public goods, and the role of global environmental law in understanding the interactions among a plurality of legal orders.
  • Political Geography: United States, Europe
  • Author: Petros C. Mavroidis, Juan A. Marchetti
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Uruguay Round services negotiations saw the light of day amidst pressures from lobbies in developed countries, unilateral retaliatory actions, and ideological struggle in the developing world. The final outcome, the GATS, certainly characterized by a complex structure and awkward drafting here and there, is not optimal but is an important first step towards the liberalization of trade in services. This article traces the GATS negotiating history, from its very beginning in the late 1970s, paying particular attention to the main forces that brought the services dossier to the multilateral trading system (governments, industries, and academics), and the interaction between developed and developing countries before and during the Uruguay Round. We will follow the actions, positions, and negotiating stances of four trading partners – Brazil, the European Union, India, and the United States – that were key in the development of the GATS. Finally, we will, indicatively at least, try to attribute a 'paternity' (or, rather, a 'maternity') to some key features and provisions of the agreement.
  • Topic: Government
  • Political Geography: United States, Europe, India, Brazil
  • Author: Dr. Kalliopi Chainoglou
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Cooperating for Peace and Security presents a comprehensive collection of essays on multilateral security cooperation since 1989. Leading experts on wide-ranging topics within the ambit of international security and international cooperation analyse the complex relationship between multilateralism and United States security interests.
  • Topic: Security
  • Political Geography: United States
  • Author: 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: 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: Thomas Kleinlein
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The idea of a 'constitutionalization' of international law and international institutions owes much to a long tradition of idealistic international law scholarship. It gained momentum with the end of the Cold War, only to be frustrated some years later. US hegemonic tendencies after 9/11, the unauthorized invasion of Iraq in 2003, and the impasse of the Doha Development Round in the WTO are only some of the factors demonstrating that the dissolution of the Eastern Bloc had not signalled the end of history. These setbacks, however, did not render the academic discourse on 'constitutionalization' of global governance silent, and there is now a burgeoning literature on the subject. Recently, three books have stimulated the discussion: Ruling the World?, edited by Jeffery L. Dunoff and Joel P. Trachtman, and the two books under review.
  • Topic: Cold War, International Law
  • Political Geography: United States
  • Author: Dino Kritsiotis
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article considers the prominence that threats of force have had in international political life since the end of the Cold War, and how we tend to overlook these threats in favour of the actual uses of force. Security Council Resolution 678 of November 1990 is one such example. Emblematic of the rule of law and its New World Order, it is often invoked for the 'authorisation' it gave to Member States of the United Nations 'co-operating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area' - but this provision was made contingent upon whether 'Iraq on or before 15 January 1991 fully implements [previous] resolutions'. We examine the range of circumstances in which threats of force have arisen and find that these go beyond the archetypal 'close encounter' between states - such as the Cuban Missile Crisis of 1962 and the 'threats of force' directed against Iraq prior to Operation Desert Fox (1998) and Operation Iraqi Freedom (2003). Making use of the jurisprudence of the International Court of Justice from its Nuclear Weapons advisory opinion (1996), we advance the idea of a prohibition of the application of force, and consider the logistics of its operation in state practice; first, in the recent relations between the United States and Iran and, then, through a modern reprise of the facts of the Corfu Channel Case of April 1949. We allude to the importance of the legislative background and purpose behind this prohibition, constantly reflecting upon the intricacies of state relations in which this provision of the United Nations Charter seeks to make its mark.
  • Topic: Security, Cold War, Government, United Nations
  • Political Geography: United States, Iraq, Kuwait
  • Author: Tullio Treves
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Attacks against ships off the coast of Somalia have brought piracy to the forefront of international attention, including that of the Security Council. SC Resolution 1816 of 2008 and others broaden the scope of the existing narrow international law rules on piracy, especially authorizing certain states to enter the Somali territorial waters in a manner consistent with action permitted on the high seas. SC resolutions are framed very cautiously and, in particular, note that they 'shall not be considered as establishing customary law'. They are adopted on the basis of the Somali Transitional Government's (TFG) authorization. Although such authorization seems unnecessary for resolutions adopted under Chapter VII, there are various reasons for this, among which to avoid discussions concerning the width of the Somali territorial sea. Seizing states are reluctant to exercise the powers on captured pirates granted by UNCLOS and SC resolutions. Their main concern is the human rights of the captured individuals. Agreements with Kenya by the USA, the UK, and the EC seek to ensure respect for the human rights of these individuals surrendered to Kenya for prosecution. Action against pirates in many cases involves the use of force. Practice shows that the navies involved limit such use to self-defence. Use of force against pirates off the coast of Somalia seems authorized as an exception to the exclusive rights of the flag state, with the limitation that it be reasonable and necessary and that the human rights of the persons involved are safeguarded.
  • Topic: Security, Development, Government, Human Rights
  • Political Geography: Kenya, United States, United Kingdom, Somalia
  • Author: Tom Ginsburg
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The application of the tools of international relations, particularly those associated with rational choice analysis, to problems of international law has generated many important insights in the last two decades. In a recent issue of this Journal, Eyal Benvenisti and George Downs, two scholars who individually and jointly have contributed much to this research programme, provide a fascinating interpretation of a recent trend in democracies toward judicial constraint of executives in foreign affairs matters. Placing this development in the broader context of inter-judicial cooperation and globalization, they argue that courts are increasingly coordinating across borders to constrain their national executives. This requires resolution of a transnational collective action problem among judges. The piece is creative, well-argued, and might even be correct. But, as I will argue, it might not be. The fact that courts cooperate and coordinate is observationally equivalent to other plausible theories of what courts are doing. These theories are simpler and also consistent with the basic story Benvenisti and Downs want to tell.
  • Topic: Globalization
  • Political Geography: United States
  • Author: Philip Alston, Jason Morgan-Foster, William Abresch
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since 2003, as part of its 'war on terror', the United States has taken the position that the UN Commission on Human Rights and its successor, the UN Human Rights Council, as well as the system of 'special procedures' reporting to both bodies, all lack the competence to examine abuses committed in the context of armed conflicts. The article examines the arguments put forward by the US in the specific context of the work of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The authors conclude that the consistent practice of the human rights organs for almost 25 years, often supported and until 2003 never opposed by the US, runs counter to the current US position. Acceptance of the US position would not only undermine efforts to hold the US accountable but would also have a major impact on the international system of accountability as a whole.
  • Topic: Human Rights, United Nations
  • Political Geography: United States
  • Author: Nigel D. White, Sorcha MacLeod
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Union has developed its security competence since 1992, thus putting pressure on its Member States to provide troops for the increasing number of EU peace operations being deployed to different areas of the globe. But with national militaries being rationalized and contracted the EU will inevitably follow the lead of the US, the UK, and the UN and start to use Private Military Contractors to undertake some of the functions of peace operations. This article explores the consequences of this trend from the perspective of the accountability and responsibility of both the corporation and the institution when the employees of PMCs commit violations of human rights law and, if applicable, international humanitarian law.
  • Topic: Human Rights, Humanitarian Aid
  • Political Geography: United States, United Kingdom, Europe
  • Author: Simon Chesterman
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. The recent confi rmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain ' inherently governmental ' . The article surveys outsourcing in electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to three challenges to accountability: the necessary secrecy that limits oversight; the different incentives that exist for private rather than public employees; and the uncertainty as to what functions should be regarded as ' inherently governmental ' and thus inappropriate for delegation to private actors.
  • Topic: Government
  • Political Geography: United States
  • Author: Aloysius P. Llamzon
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International institutions are plagued by too many expectations and too little power. One striking example is the International Court of Justice. Its malcontents criticize the Court as an ineffective player in achieving international peace and security, largely because of its perceived inability to control state behaviour. Scholars have long blamed this on the ICJ's 'flawed' jurisdictional architecture, which is based entirely on consent. Anything less than a clear indication of consent by the defendant state in a given case is thought to run serious non-compliance risks. This article takes issue with that assessment. By analysing the ICJ's final decisions since the landmark case of Nicaragua v. US, one finds that the manner in which the ICJ was seised of jurisdiction is actually a poor predictor of subsequent compliance. Rather, through complex mechanisms of authority signal and the political inertia induced by those decisions, almost all of the Court's decisions have achieved substantial, albeit imperfect, compliance. Thus, despite the likelihood that states will continue to reduce the scope of the ICJ's compulsory jurisdiction, the World Court will remain a vital, if limited, tool in resolving inter-state disputes and a force for world public order.
  • Topic: Security
  • Political Geography: United States
  • Author: Michel Bourbonnière, Ricky J. Lee
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Bush Administration of the United States recently released a revised National Space Policy. Although the revised National Space Policy can be interpreted as a step towards the weaponization of space, it does not necessarily weaponize space. It nonetheless brings to the forefront important legal issues concerning the basing of conventional weapons in space. The present international law matrix on the issue of space-based weapons is to be found in international space law, principally in the Outer Space Treaty, where certain prohibitions apply to nuclear weapons and to weapons of mass destruction. Space must also be used for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Space objects must be registered in accordance with the Registration Convention. The UN collective security system and the customary right of self-defence govern the use of force or jus ad bellum. The means and methods through which self-defence is exercised are in turn governed by international humanitarian law. Should space be weaponized the basing of these weapons and their use will be subject not only to international space law but also to the UN Charter and to international humanitarian law. The interface between these legal regimes consequently gains in importance, possibly forcing a reinterpretation of certain space treaties along with a correction in state practice.
  • Topic: Humanitarian Aid, Nuclear Weapons, United Nations
  • Political Geography: United States
  • Author: Noah Benjamin Novogrodsky
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article assesses the implications of the Canadian case of Bouzari v. Islamic Republic of Iran in which sovereign immunity barred recovery against a foreign state for acts of torture. Part 2 describes the case and the courts' rejection of arguments centred on the hierarchy of jus cogens norms, implied waiver and common law principles. Part 3 evaluates parallel developments in the United States and demonstrates the commonalities and differences associated with efforts to overcome immunity in the two countries. Part 4 examines potential amendments to Canada's State Immunity Act with a view to balancing considerations of comity with a just and workable means of holding states accountable for grave human rights abuses.
  • Topic: Human Rights
  • Political Geography: United States, Iran, Canada