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  • Author: Stefan B. Kirmse
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: My reading of The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters, has undoubtedly been framed by my own field of research. This field is not international law, but the historical anthropology of Russia and Eurasia and includes changing legal practice in a context of increasing global connectedness. My review is therefore not intended to relate the Oxford Handbook to the wider historiography of international law, which I leave to other contributions in this symposium; it is meant to offer an external perspective on the question of Eurocentric analysis. The editors of the Handbook have identified Eurocentrism as one of the key challenges to overcome in the study of international law.
  • Topic: International Law
  • Political Geography: Russia, Persia
  • Author: Nahed Samour
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Overcoming Eurocentrism is one of the self-proclaimed aims of the editors of The Oxford Handbook of the History of International Law. In the following, I shall offer a critique of the Handbook from a largely Islamic international law perspective as (but) one example of a supranational non-European legal system. The depth of the volume covering a variety of times, spaces, and themes provides us with a much awaited tool against the 'gaps' and the 'forgetfulness' of how today's doctrines and practices of international law came about, not shying away from the voices that question the narrative of international law serving peace and justice. The Handbook is therefore laudable for a number of things.
  • Topic: International Law, Islam
  • Political Geography: Europe
  • Author: Will Hanley
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Oxford Handbook is a welcome and necessary intervention in the history of international law. In the introduction, the editors signal their reformist programme: out with the progressive, triumphalist narrative; in with the dark side of international law and its side tracks outside the European experience. In addition to this programme, the project displays two further signs of its serious intent to change the field. First, the authors embarked on a truly collective project, including a week of face-to-face consultation, in a rare effort to define a reasonably unified agenda. Scholarly redirection is a social as well as an intellectual undertaking, and the community built around this volume marks its purposefulness. Secondly, the book's scope is massive: more than five dozen chapters, more than three dozen authors, and more than 1,000 pages of text provide the bulk necessary to accomplish the paradigm shift that the editors intend. The extensive range of the book, especially in its 'Regions' section, does what is necessary to transform globalizing intent into actuality. It is a foundational volume, and any scholarly edifice building upon it will have a broader footprint than was previously possible.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Anne-Charlotte Martineau
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Last Spring, the Rechtskulturen programme, an initiative of the Wissenschaftskolleg zu Berlin at the Transregionale Studien Forum, invited me to participate in a symposium on the Oxford Handbook of the History of International Law – a robust book of 1250 pages. I was asked to 'critically assess' the Handbook's 'global history' approach, that is, to assess whether it was a successful step in 'overcoming Eurocentrism' in the history of international law. The symposium turned out to be a wonderful event, a gathering of historians, anthropologists, political scientists, and lawyers, where I became very conscious of my own professional language but where I also experienced a willingnesss to transcend disciplinary boundaries and biases. The following remarks should be interpreted as a continuation of that discussion. Before looking at some of the contributions in the Handbook that did depart from 'well-worn paths' (to use the editors' expression) (3), I would like to say few words about the 'global history' approach (1) and the unfortunate resilience of Eurocentric voices in the Handbook (2).
  • Topic: International Law
  • Political Geography: Europe
  • Author: Anne Peters, Bardo Fassbender
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As we remarked in the Introduction to our Handbook, it is exciting but also risky to leave a well-worn path (at 2). It means meeting unforeseen obstacles. We were quite aware of the fact that if we wanted to shed light on historical developments in international law which so far had remained in darkness or obscurity, we had to be prepared to encounter the unexpected and not so readily understood – that is, accounts and narratives which call into question conventional wisdom and which, at least initially, pose additional problems rather than providing easy answers. We knew that new research on issues which had rarely been examined before would not be perfect or 'complete'. In other words, we expected, and in fact expressly invited, criticism of a work which tried to break new ground.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Susannah Wilcox
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is growing evidence that climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns are exacerbating existing vulnerabilities like poverty, isolation, and resource scarcity, and may eventually leave small island states uninhabitable, causing the displacement of entire populations. Among those particularly at risk are low-lying coral atoll states like Kiribati, Tuvalu, and the Republic of the Marshall Islands in the Pacific Ocean, and the Republic of the Maldives in the Indian Ocean.
  • Topic: Poverty
  • Political Geography: Europe, Kiribati, Marshall Islands, Tuvalu, Maldives
  • Author: Timo Kolvurova
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Those who follow the newspapers and media in general are led to believe that the stakes are getting higher in the Arctic. Climate change is melting the sea ice and opening up new economic opportunities: oil, gas, moving fish stocks, and shorter navigational routes are among the benefits to be had by those who are bold enough to make a move. According to the media, China and other emerging economies are claiming their own piece of the Arctic. In the scramble among states for the riches of the Arctic, we sense a scenario that may even drive states to the point of military conflict. Yet, this scramble does not take place in a legal vacuum – there are plenty of legal rules that govern the behaviour of states and other actors in the region. Indeed, this is one of the salient points that Michael Byers makes in his book.
  • Topic: Environment, International Law, Oil
  • Political Geography: China
  • Author: James G. Devaney
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Quality Control in Fact-Finding is, above all else, a very welcome addition to the literature on international fact-finding. Whilst there has been a marked increase in the number of fact-finding inquiries established in the last couple of decades, this has not been matched by a similar increase in the number of scholarly studies of such inquiries. In light of both the number and high-profile nature of such inquiries, the absence of scholarship focusing squarely on the contemporary role of inquiries up to the present day seems like an oversight.
109. Bhopal
  • Author: Keith Ekiss
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Narayan told me about the city in India where he once studied, a literary centre known for festivals and lively debates, crowds gathering to hear the poetry readings which, he bragged, went on forever. But when he spoke the name, my face must have shifted. Yes, he said, you've heard about the gas leak. In December, clouds covered the city and its lakes. Warnings sounded and he walked uphill to find a place above the clouds, passing many who didn't know better than to take deep breaths, because the toxins left them short of breath, drawing in the yellow poison. I didn't ask who he lost among the dead. He kept apologizing, embarrassed, repeating a story I'd heard before. All he wanted to tell me, he said, was that wherever you went today it seemed like no one read anymore.
  • Political Geography: Bhopal
  • Author: JHHW
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In an earlier Editorial I speculated on the potential transformative effect that the 2014 elections to the European Parliament might have on the democratic fortunes of Europe. I spoke of promise and risk. So now the results are out. How should we evaluate them?
  • Author: Anne Orford
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today's highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Sergio Puig
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Scholars have often assessed and criticized the group of international arbitration professionals, some characterizing this group as a dense 'white, male' group. Faced with limited access and data, however, this critique has not been informed by a robust empirical component. Relying on all the appointments made in proceedings under ICSID between 1972 and February 2014, interviews with arbitration professionals, and an original database created for this project, this article is the first to assess the social structure of investor–state arbitrators. Using network analytics, a long-standing but recently popularized methodology for understanding social groups, the article maps the group of professionals by relying on formal appointments to tribunals. The subsequent analysis of this form of operationalizing the social group reveals who are the 'grand old men' (and formidable women) or 'power-brokers' that dominate the arbitration profession. The article argues, based on the evidence presented, that, among other factors, in addition to good timing and imperfect information, the structure of the process of appointment, and a risk averse culture, key arbitrators may benefit from heuristic biases, or the limited cognitive scope of lawyers making such appointments.
  • Author: Tilmann Altwicker, Oliver Diggelman
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is a tendency in international legal discourse to tell the story of international law as a story of progress. 'Progress' is a concept which is tied to the process of secularization and Western 18th and 19th century philosophy. It still inspires the debate on international law – despite all setbacks in 'real history'. This article argues that progress narratives in the inter-national legal discourse are constructed by – more or less subtle – argumentative techniques. It highlights four such techniques – four 'bundles of arguments' – which play a key role: ascending periodization, proving increasing value-orientation of international law, detection of positive trends, and paradigm shift-talk. The article offers an explanation of why the pro-gress argument often succeeds in international legal discourse.
  • Topic: International Law, Weapons of Mass Destruction
  • Author: Gregoire Mallard
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In recent years, international lawyers have increasingly debated the normative consequences of the 'fragmentation' of international law. More rarely have they studied empirically how tensions between overlapping systems of rules emerge, how conflicts are harmonized, and with what effects. This article explains such dynamics in the case of the nuclear non-proliferation regime (NPR) complex. Based on original archival fieldwork conducted in the private papers of American and European diplomats in the early Cold War, it shows how Western states solved the tensions that existed between contradictory commitments contracted in the European Atomic Energy Community (Euratom) Treaty and the Nuclear Non-proliferation Treaty in 1968 (NPT). To lessen the tensions between regional and global orders, the Euratom control rules were used as a source of inspiration for the new rules used to monitor compliance with the NPT at the global level. In retrospect, this outcome was puzzling, as the Euratom Treaty was not originally concerned with non-proliferation issues. That the knowledge of the original intentions behind Euratom was lost to the policymakers who negotiated the NPT thus had grave consequences in the future. This case shows the importance of studying the concrete knowledge of international legal rules that gets transmitted across generations of policymakers in order to understand how regime complexity evolves.
  • Topic: Cold War
  • Political Geography: Germany
  • Author: Moria Paz
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual's cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national-political compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant culture and language of the majority. The minority can still maintain its distinct language, but only at its own cost. The slippage between the promise of rights and their actual interpretation carries some important political and economic benefits, but the resulting legal outcome does not provide the robust protection of diversity to which lip service is paid. Importantly, the assimilationist nature of the jurisprudence is not indifferent to human rights. However, instead of advancing maximal linguistic diversity as a pre-eminent norm, the regime that is applied by judicial bodies supports a different set of human rights: those protecting linguistic minorities from discrimination, and promoting equal access of the group to market and political institutions. The result is a tension between two human rights values: pluralism and equality.
  • Topic: Human Rights, Culture
  • Author: Arnulf Becker Lorca
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Conventionally, self-determination is understood to have evolved in a linear progression from a political principle during World War I into an international right after World War II. The history of the right to self-determination before 1945 is thus part of 'pre-history'. This article explores that 'pre-history' and finds the conventional linear narrative unconvincing. During the first three decades of the 20th century and in particular during the interwar period, non-Western lawyers, politicians, and activists articulated international law claims to support the demand for self-government. In this process, they appropriated and transformed the international law discourse. Removing the legal obstacles that prevented self-government beyond the West – that is, by eliminating the standard of civilization – interwar semi-peripherals made possible the emergence of a right to self-determination later, when the international political context changed after the second post-war reconstruction of international law.
  • Topic: International Law, War
  • Publication Date: 05-2014
  • 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 patholo-gies, 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 schol-arly 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 photo-graph: people shot up; the ravages of pollution and all other manner of photojournalism. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photo-graphs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring.
  • Topic: Financial Crisis
  • Political Geography: Dublin
  • Author: Laszlo Blutman
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Andrew Guzman declares that customary international law is in trouble. I disagree. It is those who seek to explain it who are in trouble. Theoretical efforts are plagued with descriptive insufficiencies (for example, the formation of various customary norms takes place within a heterogeneous, opaque process that resists any general and meaningful description in specific cases), systemic uncertainties (for example, locating the source of rules that govern the formation of customary norms), semantic problems (such as what exactly is general practice) and the divergence of conceptions articulated within international practice. These difficulties, which hamper a better understanding of international law itself, originate from the conceptual level. This article will therefore focus on certain symptomatic conceptual and methodological problems. Nine of them are outlined, and three will be analysed in greater detail, namely the relationship between opinio juris and acceptance, the characteristics of the concept 'general practice' and the failure of attempts to describe customary international law by dichotomies. As a conclusion, the author identifies seven requirements of, and assumptions about, a possible, workable theory of customary international law.
  • Topic: International Law
  • Author: Loveday Hodson
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article places the UN Women's Committee at its centre in order to consider the normative implications of having a space within the realm of international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women. It suggests that the Committee's importance has largely been overlooked, which is a considerable oversight. The Committee is uniquely positioned to contribute to the transformation of human rights norms, occupying, as it arguably does, positions simultaneously at the centre and at the periphery of international law. In particular, this article examines the jurisprudence that has emerged under the individual complaints procedure of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and questions how far the Committee has been able to develop women's rights in recent years into a body of law that departs from the normative and structural limitations of international human rights laws.
  • Topic: Human Rights
  • Political Geography: United Nations
  • Author: Wolfgang Hoffmann-Riem
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article analyses the activities of the European Commission for Democracy through Law. Addressed are the standards applied in the Commission's opinions, especially on constitutional provisions and other legal norms or drafts. The article looks at the impact that these (non-binding) opinions have on the states concerned as well as on the European Court of Human Rights. Though recommendations are sometimes disregarded, most states do react positively, at least in part. To some extent the Commission could enhance the effect of its opinions by joining forces with other relevant institutions in the field, especially the Council of Europe and the European Commission. Endorsing and implementing recommendations gives states an opportunity to share in the reputation that comes with being part of a community founded on Human Rights, the Rule of Law, and Democracy. An overall assessment is made of the Commission's approach to its work.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Jochen von Bernstorff
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Mark Mazower provides us with a very readable and highly stimulating intellectual history of Western internationalism starting with the Vienna Congress in 1815 and ending in 2012 with the ongoing Syrian civil war. The historical analysis focuses not only on the philosophical and political currents at the heart of 19th and 20th century internationalism but also on how Anglo-Saxon politicians and high ranking civil servants viewed and shaped international institutions during these two centuries; all of this is full of interesting biographical findings, illustrative contemporary quotations, and insightful historical judgement.
  • Topic: Civil War
  • Political Geography: Europe
  • Author: David Roth-Isigkeit
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: That positivism is not the promised land of legal methods has become a truism among critical international lawyers. All too often the proclaimed objectivity, neutrality and science has turned out to be intertwined with ideology and domination. In line with the historical-economic turn of the Helsinki school, Monica García-Salmones Rovira's book The Project of Positivism in International Law finds the historical roots of positivism deeply embedded in the development of a global neo-liberal economy. The economic foundations of the method are unearthed with two intellectual biographies of its founding fathers, Lassa Oppenheim and Hans Kelsen, whose life projects have so far escaped critical scrutiny. The book weaves into these two biographical studies the story of international law as a pragmatist and scientific project that freed the discipline from the tradition of natural law to become a servant of global economic interests.
  • Topic: International Law, War
  • Author: Lorenzo Gradoni
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: An enigmatic epigram welcomes the reader of Carlo Focarelli's book: '[w]hat is a mountain for? For the moon to set behind' (at lv). Poetic images not infrequently hint at hidden meanings; in this case, however, the enigma stems from the fact that the phrase, although appearing between quotation marks, is not credited to anyone (which is strange for a heavily footnoted book whose name index includes more than 1,000 entries). Since a Google search takes the reader straight back to the book under review and nowhere else, the temptation to assume that the anonymous poet was the author himself has been strong (and maybe imputable to the advent of EJIL's 'Last Page'). I resisted this impulse for fear of appearing too unlearned ('other readers will surely have recognized the author', I said to myself) to be considered fit to review the immensely erudite book that Focarelli's International Law as Social Contract indisputably is. Turning a blind eye to the epigraph would have been an easy way out; I chose to ask the author. He was kind enough to reveal to me that the phrase is an abridged version of a dialogue between the famous Swiss psychologist (and polymath) Jean Piaget, asking questions about the Salève, a mountain also known as the Balcon de Genève, and a seven – year – old boy named Rou: 'The Salève was made "by men. – Why? – It couldn't make itself all alone. – What is it for? – For the moon. – Why? – For it to set behind."' Enquiring about the meaning of the epigraph turned out to be a serendipitous choice.
  • Author: Giedre Jokubauskaite
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Philipp Dann has long been committed to the legal issues of international development cooperation, and now his monograph on this subject, originally written in German, has been published in English. The comprehensive monograph entitled The Law of Development Cooperation skilfully builds upon the knowledge that already exists on this topic and systematizes an enormous amount of relevant literature. The reader is presented with a stimulating text that is dense in terms of its arguments and yet easy to engage with.
  • Topic: International Law
  • Author: Seline Trevisanut
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Many are the threats that challenge the security of the oceans today. Piracy, which was thought to be relegated to history and adventure books (and films), has re-appeared and threatens human lives but also, cynically more importantly for states, the safe transport of goods. The seas provide the main route for trade in goods worldwide. Their security is an imperative for a globalized economy. In the 2008 Report on Oceans and the Law of the Sea, the UN Secretary General identified seven specific threats to maritime security: (1) piracy and armed robbery; (2) terrorist acts against shipping, offshore installations, and other maritime interests; (3) illicit trafficking in arms and weapons of mass destruction (WMD); (4) illicit trafficking in narcotic drugs and psychotropic substances; (5) smuggling and trafficking of persons at sea; (6) illegal, unreported, and unregulated (IUU) fishing; and (7) international and unlawful damage to the marine environment.
  • Topic: Human Rights
  • Author: Catriona H. Cairns
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The stated aim of the book under review, edited by three prominent Scandinavian academics, is to explore whether a 'principle of humanity' exists as an independent, binding norm in international humanitarian law (IHL) or whether its legal impact is limited to the norm-creation process. It consists of 11 articles (with an introduction and a conclusion), divided into two principal sections: 'theoretical perspectives' and 'Nordic experiences'.
  • Author: Alexandre Skander Galand
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: State Sovereignty and International Criminal Law, edited by Morten Bergsmo and Ling Yan, brings together two recent issues of international law: the rise of international criminal law as a building block in the nascent constitution of the international legal order and the increasingly active participation of China in international law. Even though China is a permanent member of the United Nations Security Council (UNSC), it has until recently been de facto absent from the debates over norms of international law. Likewise, international criminal justice is a field of law that stagnated for more than 40 years. The last two decades have witnessed a revival of both phoenixes.
  • Topic: International Law
  • Political Geography: China
  • Author: Milan Kuhli
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The book The Hidden Histories of War Crimes Trials – edited by Kevin Jon Heller and Gerry Simpson – is a compilation of 21 contributions to a conference convened in Melbourne at the end of 2010. The project aims at a scholarly recovery of accounts of war crimes trials that were ‘either neglected or under-rehearsed’ (at 1) in the discipline of international criminal law. Accordingly, the contributions tell ‘stories about familiar but under-explored and misunderstood landmarks in the conventional history of international criminal law’ as well as about trials that have been less analysed in this field (at 1). Gregory S. Gordon’s illustrative chapter on the trial of Peter von Hagenbach (chapter 2) is a story of the first kind, whereas Benjamin E. Brockman-Hawe’s comprehensive account of the Franco-Siamese tribunal for the Colonial Era (chapter 3) exemplifies the latter type.
  • Topic: International Law, War
  • Political Geography: Europe
  • Author: Kim Lockwood
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This here is nowhere. A circle of whiteness squared to still the furthest confines of the room. Passengers pass by with nothing to declare, papers and permissions all approved. As ceaseless movement breaks in waves of sound on sound, a static too thickly sewn to undo grounds us in a place of stark sensation where mattresses are spread thinly on the ground and belonging can't be found in our slow translations.
  • Author: JHHW
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: After many 'ostrich years' the European head is out of the sand: there really is a problem with the legitimacy – or rather, the perception of legitimacy – of the European construct. It is not a mere 'bee in the bonnet' of some irritating academics disconnected from reality. Eurobarometer indications are at their lowest and the results of a highly respected Pew Center survey, too, show a remarkable fall in support for Europe among its citizens. Political differences on how to tackle the Euro crisis are, worryingly, both reflective and constitutive of what one may call a solidarity deficit.
  • Political Geography: 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: Claus D. Zimmermann
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Few legal concepts have been subject to as little critical scrutiny over the past few decades as that of monetary sovereignty. This stands in contrast to the renewed interest in different aspects of broader concepts of sovereignty. Filling this important gap in the literature, this article examines whether the concept of monetary sovereignty is subject to evolution under the impact of globalization and financial integration. This article fully takes into account the dual nature of monetary sovereignty as a concept with not only positive but also important normative components. It is argued herein that the concept of monetary sovereignty is more than a mere framework for debates on rights and duties of states, but that it is still relevant as a legal concept for evaluating the contemporary exercise of sovereign powers in the realm of money and for improving our understanding of the driving forces behind the evolution of the law in this crucial field. After a review of the conceptual foundations of monetary sovereignty, this article assesses its conceptual evolution under the impact of contemporary constraints on its exercise, and examines the main implications of the proposed new understanding of monetary sovereignty, with its normative components providing normative guidance and serving as a legitimacy benchmark.
  • Topic: Globalization
  • Author: Ryan Goodman
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: During wartime a critical legal question involves the scope of authority to choose whether to kill or capture enemy combatants. One view maintains that a combatant is lawfully subject to lethal force wherever the person is found – unless and until the individual offers to surrender. In contrast, this article concludes that important restraints on the use of deadly force were a part of the agreement reached by states and codified in the 1977 First Additional Protocol to the Geneva Conventions. When nations of the world focused their attention on balancing principles of humanity and military necessity, and making higher law, they agreed on two important sets of rules. Under Article 35, states agreed to prohibit the manifestly unnecessary killing of enemy combatants. And, under Article 41, they agreed that combatants who are completely defenceless, at the mercy of enemy forces, shall be considered hors de combat. – including alternative specifications of standards and burdens of proof. Nevertheless, the general constraint – and its key components – should be understood to have a solid foundation in the structure, rules, and practices of modern warfare.
  • Political Geography: Geneva
  • Author: Michael N. Schmitt
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines two issues raised by Professor Goodman's article published in this volume of EJIL: (1) a purported obligation under international humanitarian law (IHL) to minimize harm to enemy fighters; and (2) a purported IHL duty to capture rather than kill when doing so is feasible in the circumstances. It notes that situations in which it is possible to wound rather than kill enemy fighters are rare on the battlefield. However, even when such circumstances do present themselves, there is no obligation under the extant IHL to do so. Similarly, there is no duty to capture rather than kill under the existing law. Nevertheless, the article offers an analysis that would extend hors de combat status to enemy fighters who have been effectively captured, thereby shielding them from attack. Accordingly, the approach would often arrive at the same conclusion as that proposed by Professor Goodman, albeit through a different legal lens. The article concludes by noting that although there is no 'capture-kill' rule in IHL, for operational and policy reasons, capture is usually preferred.
  • Author: Ryan Goodman
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I wrote the article, 'The Power to Kill or Capture Enemy Combatants', to correct an oversight in recent law of armed conflict (LOAC) scholarship and practice. In the article, two of the leading LOAC experts with whom I disagree are Colonel Hays Parks and Professor Michael Schmitt. In his Reply to my article, Professor Schmitt thoughtfully engages with my analysis. His representation of my argument is fair, and he interrogates the merit of my position squarely. In addition, he shows a willingness to modify his earlier positions in light of my research, another feature of his writing that demonstrates an extraordinary quality of mind and intellectual character. I am honoured to engage with his ideas in this Rejoinder.
  • Author: John Dugard, John Reynolds
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Apartheid is a loaded term; saturated with history and emotion. It conjures up images and memories of discrimination, oppression, and brutality; indulgence, privilege, and pretension; racism, resistance, and, ultimately, emancipation. All of which come to us through the history of apartheid in South Africa. Although prohibited and criminalized by international law in response to the situation in southern Africa, the concept of apartheid was never given enormous attention by international lawyers. Following an awakening of interest in the international legal prohibition of apartheid as a potentially appropriate lens through which to view the situation of the Palestinians, this article examines the merits of such a claim in the context of Israeli law and practice in the occupied Palestinian territory.
  • Topic: International Law
  • Political Geography: Israel, South Africa, Palestine
  • Author: Yaffa Zilbershats
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I accept the authors' premise in their article entitled 'Apartheid, International Law, and the Occupied Palestinian Territory' that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The obligation of a state and its officials to refrain from practising any policy of apartheid is considered a jus cogens norm under international law. Whoever practises apartheid bears international criminal responsibility and may be put on trial for committing that crime, either in any state in the world based on universal jurisdiction or before the International Criminal Court. However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. In this article I expand on two of these errors - the failure to differentiate between the norms governing occupied and sovereign territory, and the authors' complete failure to address Israel's policies in the context of an armed conflict characterized by the Palestinians' use of terror. As I show, once the authors' errors are exposed and considered, it is clear that Israel's actions cannot be considered a basis for the crime of apartheid.
  • Topic: International Law
  • Political Geography: Israel, South Africa, Palestine
  • Publication Date: 11-2013
  • 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 patholo-gies, 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 schol-arly 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 photo-graph: people shot up; the ravages of pollution and all other manner of photojournalism. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photo-graphs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring.
  • Author: Ademola Abass
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The January 2013 Summit of Assembly of the African Union Heads of State, to which its July 2012 predecessor had deferred the matter concerning the conferment on the African Court of international criminal jurisdiction, did not adopt the enabling Protocol. Instead, it requested that the AU Commission 'conduct a more thorough reflection … on the issue of popular uprising … on the appropriate mechanism capable of deciding the legitimacy of such an uprising … and [to] submit a report on the financial and structural implication of [expanding] the jurisdiction of the African Court … to try international crimes'. Whether the AU will ever adopt the draft protocol is uncertain and of less relevance, at the moment, to a discussion of some previously unappreciated rationales behind conferring on an African regional court international criminal jurisdiction and of certain constraints that will prevent the Court from effectively prosecuting international crimes in Africa, even if the protocol ever enters into force.
  • Political Geography: Africa
  • Author: Benoît Mayer
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The 2009 Copenhagen Conference of the Parties to the UNFCCC epitomizes the stalling of international negotiations on climate change mitigation and adaptation. In the grim days of climate change governance, the literature tends to neglect ethical arguments on the responsibility of polluting states. Rather, it turns to a desperate quest for 'whatever works'. This article addresses the development of a discipline round an emerging regime. It reviews in particular the principled approaches of climate governance, doctrinal analyses on mitigation, the shift from 'enforcement' to 'facilitation' and to 'liability', the fragmented governance of adaptation in the human rights, development and migration regimes, and innovative scholarship on the transnational regime complex concerning climate change.
  • Topic: Climate Change, Human Rights, International Law
  • Author: Oren Perez
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Caroline Foster's book constitutes an important addition to the literature on international tribunals and the inter-linkage between science and law in the international domain. The book includes a detailed analysis of the place of scientific evidence in international disputes, the role of adjudicators and experts, and the way in which these issues are influenced by the precautionary principle. The book addresses a wide range of disputes and venues, ranging from the World Trade Organization (WTO) to the International Court of Justice and the International Tribunal for the Law of the Sea. The detailed analysis of the different methods through which varied international tribunals deal with scientific evidence (e.g., party-appointed independent experts, cross examination, site visits, court-appointed experts) advances our understanding of the function and dynamics of international tribunals. To give one example, Foster describes the system that was devised by WTO panels for taking expert evidence even though the WTO dispute settlement understanding (DSU) is silent about this issue. One innovative mechanism that was created by the panels is the 'joint meeting'. Joint meetings with experts are generally held between the two substantive meetings between the Panel and the parties, take place over a 1 to 2 day period, and are attended by the panel members, its experts, and the parties and their experts. While these meetings do not constitute a full-blown adversarial process they offer the parties and the panel the opportunity to put the opposing scientific views to deliberative scrutiny.
  • Author: Armelle Gouritin
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This book (in French except for the short English contribution by Laura Westra) collects the papers that were presented at the Annual Conference of the French Society for Environmental Law in December 2010. The contributions aim at answering a set of three questions: what is the content of environmental justice as a concept? Is environmental justice endorsed by positive law? What are the perspectives of environmental justice?
  • 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: Sujith Xavier
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (GLP) by Paul Schiff Berman is a legal pluralist's contribution to the study of local and global regulation. In a tour de force, Berman articulates clear and concise arguments in support of adopting a pluralist lens (coined as a cosmopolitan pluralist perspective). He magnificently traverses the multiple and complex bodies of literature that seek to understand the various inchoate regulatory regimes, actors, norms, and processes, to simply state that we must harness the benefits of the overlapping legal authorities. The overlapping legal authorities for Berman produce legal hybridity, which is a product of globalization(s).
  • Author: Monika Zalnieriute
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: While international law and political science disciplines were quite distant from one another for most of the past century, they have come closer to 'rediscovering' each other numerous times during the last two decades. The growing intersection between the two has been scrutinized, analysed, and promoted by many international law and international relations pioneers. The present collection brings together the leading scholars writing at the crossroads between the two disciplines to consider and reflect on the current state of interdisciplinary international law and international relations scholarship. The result is a book of high calibre that is not only essential, but also very delightful and enriching reading for scholars and students of international law and international relations.
  • Topic: International Law
  • Author: Laura Coyne
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Meet on a bubble ofContested brightnessBlowing, blown, poppedOr cool-lipped speechImpounding the futureIn unity's tight spike andLuster, one transparentAs the other. They stretchTheir hands and twitch theDesert sky.
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Quos Deus vult perdere prius dementat! The manner in which Europe is addressing its grave crisis seems to be validating this piece of wisdom attributed to Euripides, Seneca and others.
  • Political Geography: Europe
  • Author: Armin Von Bogdandy, Ingo Venzke, Armin Bogdandy
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Court judgments are epitomes of sovereign rule in many grand theoretical sketches. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not say in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? How can it be justified in accordance with basic premises of democratic theory? Our contribution develops an understanding of international adjudication as an exercise of public authority. It places emphasis on the asymmetry between international adjudication and parliamentary politics, unfolds legitimacy problems in the practice of international courts, and sketches how to interpret and develop international law in response. Procedural adjustments and politicization could react to power vested in decisions, elections might respond to the exercise of public authority, and systemic interpretation as well as a dialogue between courts may perhaps ease problems of fragmentation. We ultimately suggest that domestic constitutional organs will retain a critical role in relieving the international level from shouldering the whole legitimatory burden, contesting and accommodating authority in a normative pluriverse. We finally contend that the idea of transnational and possibly cosmopolitan citizenship should further guide the democratic justification of international courts' public authority.
  • Author: Marlies Glasius
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International criminal courts have in recent years been criticized for being 'undemocratic' in their dealings with populations affected by the crimes they are concerned with. They are beginning to formulate responses to these criticisms. This article will first outline the nature of these critiques and the courts' responses. Then it will take inspiration from classical and recent theories in legal sociology and legal anthropology to assess whether there is a theoretical basis for the demand for democracy. It concludes that there is no viable argument that would support requiring a direct democratic basis for international criminal courts, but there are clear points of departure for insisting that they should pursue wider social aims, for identifying these aims, and for identifying principles that can guide the conduct of relationships with affected populations.
  • Author: Nicolás Carrillo-Santarelli, Carlos Espósito
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: National judges are increasingly exposed to deciding on issues regulated by the international legal system, given its expansion and specialization. However, this is just one of the many ways in which national judges interact with international law: they have the potential not only to receive and take into account international law, but also to shape and contribute to its modification, acting alone or in conjunction with other judicial authorities, and considering or ignoring the interests of several actors. The attitude of judges towards international norms, in the reception and modification dimensions, depends on a variety of factors worth exploring in detail. Such exploration allows us to ascertain how and when judges are more prone to protecting legal goods enshrined by international norms. The fact that national judges are empowered by a domestic legal system to act, while generating tensions and paradoxes when norms created in different levels of governance clash, does not detract from the possibility for them to defend interests and values, i.e., legal goods, belonging to other legal systems, even those generated in a global space of interaction where interests and values shared by different legal systems are shaped, including the protection of human dignity.
  • Author: David Koller
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the dominant narrative of international law, historical events in space and time are made to fall along an invisible line of progress, from Westphalia in 1648 through the Bretton Woods and San Francisco conferences of 1944 and 1945 to the present day and continuing on through the future to a more just world. Against this, a counter-narrative has emerged which denies the possibility of such linear development and consigns international law to forever tracing an unending circular path between points of idealism and realpolitik. This article examines how international lawyers have created and continue to create these metaphysical geographies of international law. Drawing on the work of the French multi-disciplinary thinkers Gilles Deleuze and Félix Guattari, this article shows that both approaches, and indeed the very concept of international law, can at most only replicate and impose pre-conceived theories and that the imposition of such theories is contrary to the natural patterns of human consciousness. It urges us to see international law rather as but one manifestation of the ongoing struggle between efforts to impose unity on and to control human consciousness and the mind's efforts to break free of such restricting structures.
  • Political Geography: Geneva, New York, Tokyo, San Francisco, Papua, Westphalia
  • Author: Marko Milanovic
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article analyses the European Court of Human Rights' recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.
  • Political Geography: United Kingdom, Europe
  • Author: Matthew Parish
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The growth of a range of different areas of international law gives rise to the possibility of conflict between them. International courts and tribunals created by one branch of international law may be called upon to adjudicate in other areas of the discipline. The risk of conflict presents a particularly acute problem to the EU legal order, because the Court of Justice of the European Union sees itself as the final, and exclusive, authority on questions of interpretation of EU law. On two occasions the Court has issued opinions prohibiting EU Member States from signing agreements creating international courts, because those courts' roles would necessitate construing EU law and their composition would mean they could not guarantee the 'homogeneity' necessary to EU law. The more recent of these opinions, concerning the European and Community Patents Court, sets an unusual legal test for the consistency of international tribunals with the EU legal order that, taken to its logical conclusion, would preclude several well-established international courts and tribunals to which EU Member States are parties. Ultimately this standard may fetter development of EU law, and the ECJ would do well to adopt a more flexible approach.
  • Political Geography: Europe
  • Author: Agnieszka Szpak
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The aim of this article is to analyse the jurisprudence of the ad hoc International Criminal Tribunals with regard to the understanding of the notion of the groups protected against genocide. According to the Convention on the Prevention and Punishment of the Crime of Genocide, only national, ethnic, racial, and religious groups are protected. Among the conclusions is the one according to which the Tribunals developed this notion in a creative way and contributed to its dynamic application, especially by way of introducing the concepts of stable and permanent groups being protected as well as the concepts of positive/negative and objective/subjective notions of the targeted group.
  • Publication Date: 02-2012
  • 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: Jose Alejandro Carballo Leyda
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since the publication of the widely quoted book by Eyal Benvenisti on The International Law of Occupation, there seems to be a generally accepted premise that Article 64 of the IV Geneva Convention is applicable to all types of laws (including commercial laws) and that, therefore, its legal regime replaced Article 43 of the 1907 Hague Regulations. With all due respect, this article argues that such approach is wrongfully grounded. Furthermore, almost no author seems to give any relevance to the formal obligation imposed by the IV Geneva Convention to publish (in the language of the inhabitants) the commercial law norms enacted by the occupying power.
  • Political Geography: Geneva, Papua
  • Author: Eyal Benvenisti
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The essay 'The Laws of Occupation and Commercial Law Reform in Occupied Territories: Clarifying a Widespread Misunderstanding' accuses my 1993 book of fostering the 'misleading' contention that Article 64 of the Fourth Geneva Convention of 1949 recognizes the authority of occupants to modify all types of laws (and not only penal laws), beyond the limited scope of legislative authority recognized under Article 43 of the 1907 Hague Regulations. The criticism is unconvincing for several reasons. I limit my response to the claim that my interpretation of Geneva 64 is a misunderstanding, spelling out in more detail the discussion in the book. Addressing this claim offers an opportunity to gain insight not only into the specific meaning of Geneva 64 but also into the more general question of how to read and assess travaux préparatoires of complex multilateral treaties.
  • Political Geography: Geneva
  • Author: Jose Alejandro Carballo Leyda
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I thank Professor Benvenisti for his response to my article and hope that this discussion will be helpful and fruitful. Nevertheless, I concur with Pictet that Article 43 of the 1907 Hague Regulations 'imposes obligations of a general nature on the Occupying Power', while Article 64 of the IV Geneva Convention contains a specific exception for penal legislation. Therefore, Article 43 HR still remains the applicable norm regarding commercial law reform in occupied territories.
  • Political Geography: Geneva
  • Author: Linos-Alexander Sicilianos, Thomas Skouteris
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This symposium on interwar international law jurist Nicolas Politis is part of EJIL's long-standing project to reappraise the European tradition of international law. This brief Editorial Note has two aims. First, it casts an inward – if furtive – glance at the enterprise of intellectual history in international law at large. Secondly, it explains the choice of Nicolas Politis as the focus of this symposium as well as the part played by the five essays featured therein.
  • Political Geography: Europe
  • Author: Marilena Papadaki
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article sketches an intellectual portrait of Nicolas Politis (1872–1942), a liberal Greek jurist and a naturalized Frenchman of the interwar period. The main lines of his thought's evolution and his socio-political engagement over the course of his life are considered typical of a new type of intellectual, the 'government intellectual', who appeared on the international scene at the beginning of the 20th century. The profile of the 'government intellectual', proposed to study his career, is closely tied to the scholar's discourse concerning politics. It allows one to observe the emergence of a space of intellectual production and of institutional positions, relatively autonomous vis-à-vis specifically national considerations, but always in the service of their interests, which were in liberal thought conceived as consistent with the interests of international society. The richness of his career allows one to consider the intellectual engagement of jurists in new terms, by closely associating the strategies of individual actors with the various contexts that they had themselves contributed to creating.
  • Author: Robert Kolb
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article attempts to shed some light on the French Sociological Law School, its doctrinal presuppositions, social surroundings, and different personal expressions, focusing then on the contribution to that doctrine of one of its major exponents, Nicholas Politis.
  • Author: Umut Özsu
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Prolific as a scholar, active in the League of Nations, and agent for Greece before the Permanent Court, Nicolas Politis is remembered today as a key figure both in the development of international legal doctrine and in the organization of international political relations. This short article examines three of Politis' texts – the first an early foray into scholarship dealing with issues arising from the 1897 Greek–Turkish War, the second a set of mid-career lectures at the Hague Academy of International Law, and the third the posthumously published La morale internationale, a work of considerable ambition that never quite managed to find its audience. The article's chief aim is to demonstrate that Politis' trajectory was marked by recurring appeals to extra-legal ideas and arguments – a broadly anti-formalistic tendency which made its influence felt with increasing visibility over time, but which was present even in his earliest and most conventional work.
  • Political Geography: Greece
  • Author: Nicholas Tsagourias
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article focuses on Nicholas Politis' efforts to outlaw war and define aggression, and places them within the progress narrative of the interwar international law discourse. This narrative is defined by its rejection of sovereignty; its belief in codification; and the recognition of the individual as a subject of international law. Politis' projects envisage international law as a means towards an ecumenical world order built around individuals.
  • Author: Maria Gavouneli
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Nicolas Politis argued in 1935 that the law of neutrality was obsolete, a product of the international anarchy of the times, doomed to be replaced by a new centralized international community. His vision of the League of Nations ended in the fire of World War II but his prediction proved to be mostly true. In the collective security system created by the UN Charter and its prohibition of the use of force, the traditional rules of neutrality do not find scope of application. Yet, transposed into fundamental principles of humanitarian law, they continue to rule over peace-keeping and humanitarian operations. In addition, they complement the existing rules for military action mandated by the UN Security Council, especially during operations at sea. He was essentially right: the institution had to change and it has changed.
  • Author: Helmut Philipp Aust
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Ten years after the terrorist attacks of 11 September 2001, the priorities of world politics now appear to shift to different topics and themes. Accordingly, it is time for international lawyers to identify whether the international fight against terrorism has an enduring legacy. The monograph by Kimberley Trapp will be of particular help for this endeavour with respect to the allocation of state responsibility for international terrorism.
  • 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: Dieter Fleck
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which was extended indefinitely in 1995, provides a comprehensive legal structure of rights and obligations designed to protect mankind from nuclear aggression and accidental extinction. Yet its implementation takes place in a political environment of uncertainties and controversies. The still existing universality gap, an apparent implementation gap (Iran), and the absence of effective measures towards general and complete nuclear disarmament – which are to be seen against the background of the global challenge that non-state actors are getting access to weapons of mass destruction – call for urgent and effective measures to increase implementation of the NPT and ensure compliance with its rules. Any of these measures at first requires an interpretation of the Treaty.
  • Political Geography: Iran, Beijing
  • Author: Ramesh Thakur
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Rwanda's three-month 1994 genocide that killed 800,000 people was not prevented due to a failure of political will, not lack of military capacity. Then in Kosovo in 1999, NATO did take forceful action in the name of humanitarian intervention, but without UN authorization. Both incidents triggered legal and political controversies, as a consequence of which Secretary- General (SG) Kofi Annan pushed for a new doctrine which would allow the international community to take timely and effective action against humanitarian atrocities.
  • Author: Katja Göcke
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The recognition of aboriginal title – i.e., land rights not derived from the Crown/government but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial – is probably the greatest achievement of indigenous peoples in their decade-long struggle to de - fend their land and culture. Since indigenous peoples define themselves as a people through their genealogical connection to certain areas, the realization of the right to own, use, and live on their ancestral territories has always been at the centre of their struggle for the recognition and enforcement of their rights. Ownership of and control over their ancestral land and its resources are not only considered a significant contribution to solving the terrible social and economic problems indigenous peoples are facing. A considerable degree of self-management and control over land and natural resources is also regarded as essential to the indigenous peoples' survival as peoples and the preservation of their distinct culture. Yet until the 1970s the rights of indigenous peoples to their ancestral lands were almost completely ignored by states and international law. The loss of indigenous peoples' control of and ownership over these lands during colonization was regarded as a historical and irreversible fact by national governments. When from the 1970s onwards courts in several common law jurisdictions began to hold that the indigenous peoples' customary tenure had indeed survived the acquisition of sovereignty by the Crown and continued to exist as a burden on the Crown's radical title to the land, the national governments were – after years of inactivity and neglect – finally forced to act and to enter into negotiations with indigenous peoples to settle the indigenous peoples' land claims. In the 1990s, United Nations human rights monitoring bodies and regional human rights courts picked up the aboriginal title idea, thereby placing indigenous peoples' issues and concerns on the international agenda and providing indigenous peoples with additional leverage against their respective governments. The recognition of inherent indigenous land rights not only enabled indigenous peoples to retain and regain ownership and control over land and resources, but it also became the platform for the recognition of other indigenous rights, in particular, the right to self-determination and the right to autonomy. Hence, through the recognition of the aboriginal title doctrine, indigenous peoples were not only brought to the attention of their respective governments, but they also became recognized as actors – and no longer as mere subjects – on the national as well as on the international level.
  • Political Geography: United Nations
  • Author: Andreas Müller
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Whether and where to locate the individual in the universe of international law has become a standard question for the discipline. While in the 19th and still in the early 20th centuries international legal doctrine could not see in the human person anything other than a mere object of international law, at the beginning of the 21st century, the individual presents itself as habitué of international law with major treatises dedicating a substantial number of pages, if not whole chapters to the topic. The last hundred years have thus witnessed a remarkable development which has shifted the individual's place in international law from the utmost periphery of the discipline to perhaps not its centre, but at least to its inner circles.
  • Author: Julien Topal
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Jose Alvarez and Karl Sauvant have compiled an interesting and diverse set of 12 essays from authors representing scholarly, NGO, and legal practitioners' perspectives on the international investment regime. The essays are based on papers presented at the second Columbia International Investment Conference of 2007. They are complemented by an insightful introduction from the editors, a sketch of the 'context' (Jeffrey Sachs), and a report on the debates ensuing at the conference (Andrea Bjorklund).
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: No abstract is available.
  • Author: Giuseppe Martinico
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The aim of this article is to answer the question, 'are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights'? This article does not intend to examine the broader issue of the rapprochement between the legal systems of the EU and the European Convention on Human Rights (ECHR) but it concentrates on how national judges treat the norms of the ECHR compared with their treatment of EU law. I have structured this article in three parts. The first part offers a first look at the 'constitutional variety' existing in terms of constitutional provisions devoted to the impact of the ECHR and EU laws on the national systems. In the second part I will move to analyse the relevant case law of the domestic judges on three factors of potential convergence: consistent interpretation, disapplication of national law conflicting with European provisions, and emergence of a counter-limits doctrine. Finally, in the third part I will offer some concluding remarks on the convergence issue.
  • Political Geography: Europe
  • Author: Virginie Barral
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The wide dissemination of sustainable development in international law has generated considerable academic interest. However, because of the evasive and flexible content of what has been termed by the ICJ a concept in the Gabcˇíkovo-Nagymaros case, and more recently an objective in the Pulp Mills case, academic commentary has often struggled to ascertain sustainable development's legal nature, which has proved a notion defying legal classification. One attractive thesis has been Lowe's analysis of sustainable development as an interstitial or modifying norm which exerts its normative influence as an interpretative tool in the hands of judges. Its interpretative function is certainly very significant. Judicial bodies have used it to legitimize recourse to evolutive treaty interpretation, as a rule of conflict resolution, and even to redefine conventional obligations. However, beyond this convenient hermeneutical function, by laying down an objective to strive for in hundreds of treaties, sustainable development primarily purports to regulate state conduct. As an objective, it lays down not an absolute but a relative obligation to achieve sustainable development. Such obligations are known as obligations of means or of best efforts. Legal subjects are thus ultimately under an obligation to promote sustainable development.
  • Author: Leora Bilsky
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International adjudication of the Holocaust has played a defining role in the development of international criminal law. Its legacy has recently been challenged by the Holocaust restitution actions brought before American courts in the 1990s. Settled for unprecedented amounts, the litigation has been sharply criticized by legal scholars and historians, who raise doubts as to the justice achieved for victims, and criticize the representation of the Holocaust in the actions. This article assesses the contribution of civil proceedings to conceptions of justice in international law. First, contrary to the critics, it argues that the civil class action provides an appropriate legal tool to deal with the liability of bureaucratic institutions for participation in gross human rights violations. Secondly, this article argues that the restitution actions altered the relationship between law and the history of the Holocaust as shaped under the paradigm of criminal law. Precisely because it was structured as a civil action and was settled, the litigation made a substantial contribution to historical research on the relationship between the state, corporations, and civil society in the carrying out of mass crimes. Thus, in opposition to the prevailing view that criminal law is the privileged form of law for dealing with atrocity, this article uncovers the valuable contribution of this new model of litigation to international law.
  • Political Geography: America
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: EJIL and its sister publication, I-CON are peer-reviewed journals. This is a counter-cultural posture in an age which celebrates, for some very good reasons (and some less admirable), the freedom that self-publication on the internet provides. Our own very successful Blog, EJILTalk!, is an example of a highly interesting and useful form of self-publication and I-CONnect will be launched soon. There are surely others like ours. SSRN is a more ambiguous example, but even there, there are some diamonds in the rough, if you have the patience to do some heavy-duty prospecting and sifting. Be that as it may, SSRN is not just part of contemporary academic culture; it is a defining part, both reflective and constitutive.
  • Political Geography: Europe
  • Author: Armin von Bogdandy
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article argues that Articles 9–12 of the EU Treaty provide a promising way to conceptualize and develop the democratic legitimation of international organizations. To be sure, the current European Union is not a democratic showcase. However, an innovative concept of democracy, neither utopian nor apologetic, has found its way into its founding treaty. It can point the way in conceiving and developing the democratic credentials not just of the EU, but of public authority beyond the state in general. Since comparison is a main avenue to insight, this article will present those Articles and show what lessons can be learnt for international organizations.
  • Political Geography: Europe
  • Author: Jürgen Habermas
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The crisis of the European Union showcases the asymmetry between transnational capacities for political action and social as well as economic forces unleashed at the transnational level. But recovering the regulatory power of politics by way of increased supranational organization frequently arouses fears about the fate of national democracy and about the democratic sovereign, threatened to be dispossessed by executive powers operating independently at the global level. Against such political defeatism this contribution uses the example of the European Union to refute the underlying claim that a transnationalization of popular sovereignty cannot be achieved without lowering the level of democratic legitimation. It focuses on three components of every democratic polity – the association of free and equal legal persons, a bureaucratic organization for collective action, and civic solidarity as a medium of political integration – to argue that the new configuration they take at the European level does not in principle diminish the democratic legitimacy of the new transnational polity. The contribution continues to argue, however, that the sharing of sovereignty between the peoples and citizens of Europe needs to be better reflected in a symmetrical relationship between Council and Parliament while political leadership and the media must contribute to a greater sense of civil solidarity.
  • Political Geography: Europe
  • Publication Date: 05-2012
  • 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: Lorand Bartels
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The aviation industry has been included in the EU's emissions trading scheme (ETS) since 1 January 2012. Airlines now have to acquire and 'surrender' allowances for the carbon emissions produced by their flights. The scheme is comprehensive: it applies to EU and non- EU airlines (subject to a potential exemption), to passenger and cargo flights, and to flights between EU airports and between EU and non-EU airports. An airline that fails to surrender allowances is fined 100 per allowance and must make up the shortfall the following year. The EU's scheme has already given rise to legal action in connection with the EU's international civil aviation obligations. But, due to its impacts on trade in goods and services, the scheme also has implications for the EU's obligations under WTO law: specifically, under the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). Some of these issues are specific to this scheme, but in other respects they are connected with the current debate on the WTO legality of border carbon adjustments (BCAs). As this article shows, it is challenging to design a carbon scheme that is both administratively feasible and justifiable under WTO law.
  • Author: Joanne Scott, Lavanya Rajamani
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The EU is engaged in an ambitious, controversial, and high-stakes experiment to extend the reach of its climate change law. It is seeking to use its market power to stimulate climate action, and to substitute for climate inaction, elsewhere. This is most apparent in relation to the EU's decision to include aviation in its emissions trading scheme. While we are sympathetic to the EU's objectives, and do not take issue with its unilateral means, we argue that the EU is not giving adequate weight to the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC). While the status, meaning, and implications of this principle are contested and unclear, it requires that developed countries should take the lead in addressing the causes and effects of climate change. We argue that the concept of CBDRRC retains relevance in the context of unilateral climate action, and that the EU's Aviation Directive should be interpreted, applied, and where necessary adjusted in the light of it. We put forward two concrete proposals to achieve this end.
  • Author: Alberto Alvarez-Jimenez
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Boundaries are a key element of the exercise of states' power and sovereignty. One of the cornerstones of boundaries is consent, as the ICJ has made clear. One should then expect from states that they be extremely careful when concluding agreements in such a critical realm. The undisputed character of consent as the pillar of boundaries by no means implies that the existence of a boundary or the attribution of sovereignty over territory is always clear when states have negotiated on these issues. The purpose of this article is to illustrate the different modalities of disputes over boundary agreements, in the ICJ's jurisprudence over the first decade of the new millennium; to present the Court's pronouncements on this particular issue; and to offer a general overview of this jurisprudence. Basically, this case law reveals that there are two general kinds of dispute. First, there were controversies relating to the existence of a boundary agreement. The second type of dispute involved controversies relating not to the existence of a boundary agreement but to its validity. As a conclusion, it can be said that the Court's jurisprudence displays two trends. First, the Court was strict in finding the existence of a boundary agreement between the parties relating to a particular territory. Secondly, once the Court decided that a boundary agreement existed, it was reluctant to declare its unlawfulness.
  • Author: Jakob Cornides
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In recent years, the EU has adopted a series of new directives to promote 'equality' and to fight 'discrimination'. Further measures are planned. But given that they are based on highly abstract concepts leaving wide margins of interpretation, the true meaning and impact of these new laws is difficult to understand in advance. In this article, I analyse three recent cases that give a foretaste of where European legislators, in their quest for more 'equality', may be heading.
  • Political Geography: Europe
  • Author: Jorge E Viñuales
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The contribution of the late French Professor Michel Virally to international law is vast and touches on most areas of this discipline. Yet, Virally devoted particular attention to two main areas of inquiry, namely the philosophy of law and international organization. I have analysed Virally's contribution to the former elsewhere. This article focuses on his contribution to international organization widely understood as the study of international organizations and that of world organization. Virally considered international organization as a new political phenomenon, which would shape the dynamics of the two main driving forces of the second half of the 20th century, i.e., the East–West and the North–South divides. He developed a sophisticated theory of international organizations, with a strong functional focus. He used this theory to shed light on questions such as the management of international conflicts, the decolonization process, or the increasing influence of newly independent and developing states. His views on how these forces would shape the evolution of international law were far - sighted and allowed him to identify, with remarkable accuracy, the areas of international law where development considerations would require deep transformation, namely trade, investment, and the environment. In this regard, Michel Virally is also our contemporary and his contribution remains fully relevant for the analysis of international organization at large.
  • Author: Gregory Shaffer
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This essay critiques Nico Krisch's Beyond Constitutionalism: The Pluralist Structure of Postnational Law. The book's primary foil is the turn to rethinking the international legal order in constitutionalist terms. Its contrasting normative vision is a post-national, pluralist one in which there is no legal centre or hierarchy. This vision, although less ambitious than the constitutional programme, is nonetheless quite radical, and shares more with most constitutionalist visions than it acknowledges. Krisch's critique of his constitutionalist foil could be more radical than it is, and the essay provides arguments for such a critique. Nonetheless, the essay finds that Krisch's post-national vision is also too radical for the world outside Europe in being grounded in a European experience, as reflected in his case studies. The essay contends that a framework addressing transnational legal ordering in which states continue to play a central role is superior, given the ongoing centrality of the nation state in governance. The essay also finds that Krisch's normative framework fails to address variation in its evaluation of institutional alternatives in which some hierarchy at times is preferable. Krisch's vision is pluralist all the way through, while there are strong pragmatist arguments to be more context-specific in prescriptions.
  • Author: Gerd Hankel
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In Ruti Teitel's view there is absolutely no doubt that we live in a world in which legal relationships are undergoing ever more significant change, a fact of which she informs the reader right at the beginning of her book. States alone are no longer the main actors; instead persons and peoples are assuming greater prominence. Their interests and needs for protection increasingly dictate the content of international law which is becoming humanity's law as a result.
  • Author: Michael Byers
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International law has long been seen as a 'primitive legal order' lacking key components such as a generally applicable enforcement mechanism.1 There is some truth to this view, as evidenced by the long absence of another component that is common to developed legal systems, namely responsibility for actors who deliberately aid, assist, or are otherwise complicit in illegal acts.
  • Author: Marina Mancini
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In order to make 'headway' in one of the most intractable debates in our field – the nature and workings of customary international law – authors seem to employ one of three tactics. One is to repeat and rehash the same narrow, doctrinal debates that scholars have been having for the last forty-odd years. Another and far more courageous approach is for the author to seek to completely re-imagine (and remake) customary international law. A third, finally, is to reflect on the nature of customary law more widely and to include insights from jurisprudence/legal theory, legal history, and moral/political philosophy.
  • Author: Jörg Kammerhofer
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In order to make 'headway' in one of the most intractable debates in our field – the nature and workings of customary international law – authors seem to employ one of three tactics. One is to repeat and rehash the same narrow, doctrinal debates that scholars have been having for the last forty-odd years. Another and far more courageous approach is for the author to seek to completely re-imagine (and remake) customary international law. A third, finally, is to reflect on the nature of customary law more widely and to include insights from jurisprudence/legal theory, legal history, and moral/political philosophy.
  • Author: Filippo Fontanelli
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Many scholars have struggled to try to figure out ways to preserve a unitary perspective on international law in light of, and more frequently going beyond, the conservative guidelines formulated by Martti Koskenniemi and his ILC Working Group, collected in the 2006 Report on Fragmentation.
  • Author: Kiron K. Skinne
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Footlessly the ghost of her ghost thumps through the emptiness quaking in the quilted nothingness of maternal night before there was or there was not nihilating nothing in dusk of moonlight neither human nor angelic the animal divine treacherously trembling in tumult of time between river and rock the radiance secretes seed of immortal sap the cloudless destiny elapsed before dawn unfurled as the future in gleaming presence of everlasting past drifting like darts of dust with no reason to trust the passing of this night.
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The only reason I was happy to learn this exciting news was that no one will be able to dismiss w hat I am about to write as prompted by 'sour grapes'.
  • Author: Alan Boyle
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The relationship between human rights and environmental protection in international law is far from simple or straightforward. A ne w attempt to codify and develop international law on this subject was initiated by the UNHRC in 2011. What can it say that is new or that develops the existing corpus of human rights law? Three obvious possibilities are explored in this article. First, procedural rights are the most important environmental addition to human rights law since the 1992 Rio Declaration on Environment and Development. Any attempt to codify the law on human rights and the environment would necessarily have to take this development into account. Secondly, a declaration or protocol could be an appropriate mechanism for articulating in some form the still controversial notion of a right to a decent environment. Thirdly, the difficult issue of extra-territorial application of existing human rights treaties to transboundary pollution and global climate change remains unresolved. The article concludes that the response of human rights law – if it is to have one – needs to be in global terms, treating the global environment and climate as the common concern of humanity.
  • Author: Fabrizio Cafaggi, David D. Caron
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A public good (an example is a lighthouse) can be produced by private parties. However, they rarely are. Rather, such goods are generally thought of in economics as a type of commodity that government often provides and maintains because government can overcome the otherwise strong incentive to free ride on the efforts of others. This symposium issue is concerned with the global analogies to municipal public goods. As in the domestic context, global public goods are viewed as essential goods. But globally there is not a government. Instead, we observe a plurality of legal orders arrayed both horizontally and vertically, both publicly and privately. It is this mix of significance and complexity that is the subject of this symposium.
  • Author: Daniel Bodansky
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Although the terminology of global public goods may be new to international law scholarship, many of the principal features and implications of global public goods are familiar: global public goods are externalities writ large; they create incentives to free ride; and in many cases, they require international governance to provide. Nevertheless, the global public goods literature has been valuable in highlighting that global public goods come in different types, with different 'production technologies'. Some depend on the aggregate effort of the entire group, while others depend on a 'single best effort' or on the 'weakest link'. These different types of global public goods raise different governance issues and hence different challenges for international law.
  • Author: Gregory Shaffer
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The world faces multiple challenges in producing global public goods, such as climate change mitigation, financial stability, security from nuclear terror, knowledge production, and the eradication of infectious diseases. International law scholarship, in the meantime, takes a turn towards celebrating pluralism without sufficiently accounting for institutional variation to address different contexts. Those writing on global public goods challenges, at the same time, tend to come from disciplines other than law. So what is international law's role in the production of global public goods? Where are greater international legal constraints and international institutions needed, and where should international law retain slack? Three analytic frameworks (global constitutionalism, global administrative law, and legal pluralism) have been advanced to address international law's place in global governance, but these frameworks have not explicitly addressed the challenges of producing global public goods. This article breaks down different types of global public goods, and explores how these different frames apply to them. Grounded in pragmatism, the article shows why there is no single best approach. Rather, legal policy should be tailored to the type of global public good at stake in light of comparative, real world, institutional trade-offs.
  • Author: Fabrizio Cafaggi
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article focuses on the role of private regulators in the production, access regulation, and protection of global public goods (GPGs). It addresses transnational private regulation (TPR) as a public good in itself and as an instrument to produce and protect GPGs. It makes three major claims: (1) private actors have incentives to produce and protect GPGs, thereby challenging the conventional partition between markets, producing private goods, and states producing public goods; (2) the production and protection of GPGs has to combine procedural and substantive features, making private governance a determinant of the club or public nature of the global good; and (3) ownership, both individual and collective, and contracting can be used to produce and protect GPGs. The article analyses in particular the proliferation of regulatory agreements between private actors or between private and public to regulate production, protection, and access, and shows that their limited legal enforceability is often functional to alternative compliance mechanisms devised through innovative private governance. It concludes by suggesting that the increasing role of private actors in the production of GPGs requires governance reforms of public–private cooperation at transnational level.
  • Author: Francesco Francioni
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The idea of cultural heritage as an 'international public good' can be traced back to the Preamble to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, according to which 'damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world'. But how can this idea of cultural heritage as a global public good be reconciled with the infinite variety of cultural expressions and with the role of art as a medium essentially devoted to giving form to the plurality and diversity of tastes, beliefs, and inclinations of the different societies in which it is produced? In this article I will examine the issue of pluralism and legal interaction within three perspectives: (1) the plurality of different meanings of cultural property and cultural heritage; (2) the plurality and interaction between different legal regimes of protection – international and domestic, private and public, peacetime and wartime; and (3) the plurality and interaction between different mechanisms of enforcement at the international and domestic levels.
  • Author: Petros C. Mavroidis
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The WTO can be viewed as a public good in that it provides a forum for negotiations which also produces the necessary legal framework to act as a support for agreed liberalization. To avoid any misunderstandings, in this article the discussion focuses on the WTO as a forum and a set of agreements, not on free trade. Since the legal agreements coming under its aegis are for good reasons incomplete, the WTO provides an additional public good by 'completing' the original contract through case law. The importance of this feature increases over time as tariffs are driven towards irrelevance. In turn, the WTO has no particular attitude towards public goods provided by its Members.
  • 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