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  • Author: Sébastien Jodoin
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Scholars and policymakers have only recently begun to develop a rigorous understanding of the relationship between trade and human rights. The authors of the present book seek to provide readers with greater insight into this relationship, with the ultimate aim of helping policymakers to better govern globalization.
  • Topic: Globalization
  • Author: Fiona E. Marshall
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This volume documents the proceedings of a conference held in 2003 on 'The WTO after the Failure of Cancún', organized by the European Community Studies Association (ECSA), Austria. Participants included both scholars, expert in WTO law and practice, and practitioners from private practices and departments within the WTO. While its contents reflect the state of play immediately following Cancún, due to the continued lack of consensus in the Doha Round negotiations the contributions can be considered pertinent today to the extent that they reflect the state of negotiations in 2004. Irrespective of this, however, and while not expecting the volume to take account of the July 2008 meeting, it is unfortunate that the contributions were not published sooner in a volume, or that an additional chapter was not provided highlighting relevant developments since 2004. Equally, given that the majority of, if not all, the contributors are experts on the particular topic on which they wrote, it is perhaps surprising that they themselves were not interested in providing an up-to-date account.
  • Topic: World Trade Organization
  • Political Geography: Europe, Austria
  • Author: Erich Vranes
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A series of books and an even greater number of articles have examined, over the last 10 – 15 years, the interplay between WTO law and non-economic concerns, in particular those pertaining to environmental protection. Many of these works have focused inter alia on one particularly difficult issue: the question whether a WTO Member may restrict imports of goods which stem from production and processing methods which do not leave physically detectable traces on the products (so-called non-product-related process and production methods or NPR PPMs). A well-known example is the famous case of shrimp caught with devices which endanger sea turtles: such a method will not normally be physically detectable in the final product (shrimp) when it is imported into another country. Another example is products stemming from conditions of production which are perceived, by importing countries, as inhumane or otherwise problematic. Such measures are highly controversial from a legal perspective, given that some exporting countries tend to take the view that production conditions which do not affect the quality of the exported product are 'of no concern' to importing countries, so that WTO Members may not prohibit their importation. In academic writings, a series of divergent views have been taken on this issue; thus, it has repeatedly been held for example that such measures need to be justified under the GATT; moreover, it has been contended that justification may even be impossible in respect of such measures.
  • Topic: World Trade Organization, Law
  • Author: Juan Santos Vara
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This interesting edited book is the outcome of a research project carried out by Bologna University, the Université Libre de Bruxelles, and the University of Nice Sophia Antipolis, and financed by the Jean Monnet Action of the European Commission. The main themes which guided this research are democracy, coherence, and transparency in the European Union. Since these issues pertain to the great challenges currently affecting the constitutional structure of the EU, one welcomes this choice of the coordinators of this research project. The book includes articles which analyse the strengths and weaknesses of the constitutional system of the EU with respect to these themes. While the original objective was to examine whether the Constitutional Treaty had satisfactorily responded to the demands for democracy, coherence, and transparency, the abandonment of the constitutional path redirected the research to analysing whether the EU would respect these principles with the entry into force of the Treaty of Lisbon.
  • Political Geography: Europe, Lisbon
  • Author: Dimitry Kochenov
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: When you are on the subway in New York, it is difficult not to notice numerous Spanish language information posters about equality and non-discrimination, such as 'Housing discrimination on the basis of sex, race, ethnic origin… is unlawful'. They not only state the law: a telephone number in the corner informs you of where to call to make sure that if you are the victim of discrimination, help is available. Have you seen such posters in a Romani language in the Prague metro? Or in Arabic on the trains around Rotterdam?
  • Topic: Law
  • Political Geography: New York, Europe
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We have received review copies of the following books. Books which have been assigned to reviewers are marked with an asterisk. If you are interested in reviewing one of the unassigned books, or if you would like to suggest a different book for review, please contact Isabel Feichtner.
407. Editorial
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I am both the most and least qualified person to mark the 20th anniversary of the European Journal of International Law. In its organizational aspects, social scientists would probably comment – à titre juste – that EJIL demonstrates a low degree of institutionalization. It has, from its inception, been a family affair and to a surprising degree has remained so till this day. Make no mistake! Our editorial Board today is quite different from the original Founding Editors, but a certain familial, enterprising, at times iconoclastic, even mischievous spirit remains. In writing about EJIL I am, thus, in the mode of a proud parent. Caveat Lector!
408. Preface
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It was, of course, a matter of huge importance which piece we would choose as the lead article for the fi rst issue of EJIL. After all, the content of that issue would constitute an important Identity Card of the new journal and the lead article would be the Jewel in the Crown. The safe bet would have been to turn to one of the poobahs of the profession, maybe a judge on the World Court or, perhaps, a distinguished professor with a string of honorary doctorates. I recall vividly the deliberation and the excitement in our choice. A relatively unknown young scholar with a challenging book recently published (to the study of which Bruno Simma and I had committed the entirety of our joint seminar). I have invited Martti Koskeniemmi to revisit his lead article 20 years after its original publication.
  • Author: Benedict Kingsbury
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: What constitutes 'law' in the efflorescent field of 'global administrative law'? This article argues for a 'social fact' conception of law, emphasizing sources and recognition criteria, but it extends this Hartian positivism to incorporate requirements of 'publicness' in law. 'Publicness' is immanent in public law in national democratic jurisprudence, and increasingly in global governance, where it applies to public entities rather than to identifiable global publics. Principles relevant to publicness include the entity's adherence to legality, rationality, proportionality, rule of law, and some human rights. This article traces the growing use of publicness criteria in practices of judicial-type review of the acts of global governance entities, in requirements of reason-giving, and in practices concerning publicity and transparency. Adherence to requirements of publicness becomes greater, the less the entity is able to rely on firmly established sources of law and legal recognition. 'Private ordering' comes within this concept of law only through engagement with public institutions. While there is no single unifying rule of recognition covering all of GAL, there is a workable concept of law in GAL.
  • Topic: Governance, Law
  • Author: Eyal Benvenisti, George W. Downs
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: National courts are gradually abandoning their traditional policy of deference to their executive branches in the fi eld of foreign policy and beginning more aggressively to engage in the interpretation and application of international law. This change has been precipitated by the recognition of courts in democratic states that continued passivity in the face of a rapidly expanding international regulatory apparatus raises constitutionally-related concerns about excessive executive power and risks further erosion in the effective scope of judicial review. To avoid this, national courts have begun to exploit the expanding scope and fragmented character of international regulation to create opportunities to act collectively by engaging in a loose form of inter-judicial co-ordination. Such collective action increases their ability to resist external pressures on their respective governments, and reduces the likelihood that any particular court or country that it represents will be singled out and punished as an outlier by either domestic or foreign actors. Should this strategy continue to be refi ned and developed, it holds out the promise of enabling national courts not only to safeguard their role domestically but to function as full partners with international courts in creating a more coherent international regulatory apparatus.
  • Topic: Foreign Policy, International Law
  • Author: Yuval Shany
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international dispute settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and nonstate parties, and the growing inclination of national courts to apply international law. Arguably, these developments point to the emergence of a new judiciary the operation of which is governed by a new ethos (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution). The article then moves on to discuss some of the 'blind spots' of the present judicial institutional landscape, which includes a consideration of the remaining difficulties associated with addressing politically-charged conflicts before international courts (especially those relating to war and terror), and problems relating to the enforcement of judicial orders and judgments. While national courts can, in theory, fill some of these remaining gaps, their actual ability to do so remains unclear. In addition, the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: co-ordination problems, and concerns relating to the effectiveness and legitimacy of international adjudication.
  • Topic: International Law
  • Political Geography: Middle East
  • Author: Martin A. Schain
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Scholars have argued that the dynamics of immigration control have changed. Unlike previous waves of immigration which were controlled by national law and administration, this wave would be more difficult to control. Because of the constraints imposed by international agreements, international institutions, and national judicial authorities, controls would be embedded in international institutions and law that were assumed to be inclined to be less restrictive than national institutions and law. Looking at these patterns over the past 20 years, it now appears that international constraints on immigration control have been highly exaggerated. Indeed, international relations have become an important context for understanding the enhanced ability of states to control immigration, and to develop more muscular policies for integration. For this reason, international constraints may be less important for understanding the development of immigration policy than neo-nationalism, enhanced through intergovernmental relations in the international system. Therefore, what began as a scholarly discussion of the limits on restrictionist policies because of international constraints has developed into a discussion of the use of international relations to strengthen the effectiveness of restrictionist policies.
  • Topic: Law
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Self-determination conflicts outside the colonial context have previously appeared virtually impossible to settle. Long-running and very destructive internal armed conflicts have been the result. Since the termination of the Cold War, however, there has been a veritable wave of self-determination settlements. While some of these trade the claim to secession for internal autonomy in order to safeguard the territorial unity of the state, a number of innovative solutions have been adopted, going beyond this traditional approach. This article reviews over 40 settlements and draft settlements in order to identify an emerging post-modern pattern of practice of settling self-determination disputes. The article also assesses the impact of this practice on the classical, restrictive understanding of the doctrine of self-determination.
  • Topic: Cold War
  • Author: Mónica García-Salmones
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The use of experts' power in global networks is often concealed by describing it in the register of scientific truths. This text seeks to illustrate the phenomenon by reference to the recent article by Cooney and Lang, 'Taking Uncertainty Seriously: Adaptive Governance and International Trade', which appeared in this journal. The account those authors give of WTO law goes beyond a purely legitimacy-based structure focused on effectiveness. Instead, the question is framed in terms of cognitive achievements by regulators in the member states. The present article uses Cooney and Lang's project and the same example of the WTO in order to evaluate global governance. In so doing it analyses the functionalist style of public law, together with neofunctionalism and the historical phenomena by which increasing areas in the public sphere are attributed to regulators, both national and international. With this article, the author hopes to contribute to the debate about the tensions caused by the legal activity of international organizations in a world of equal sovereigns with unequal access to power. In conclusion it is suggested that, so far as contemporary global governance is concerned, the distribution of jurisdiction through regulation is the sphere in which the usual political struggles between international actors take place.
  • Topic: World Trade Organization, Governance
  • Author: Pasquale De Sena, Maria Chiara Vitucci
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The recent case law of various international tribunals facing questions related to UN Security Council resolutions shows the clear tendency to grant primacy to the UN legal order. This trend, far from being well founded on formal arguments, appears to be a tribute to a legal order perceived as superior, and, at the same time, is revealing of the 'value oriented' approach followed by the courts. Such an approach can be categorized from a theoretical perspective in the light of Scelle's theory of relations between legal orders, whereby the courts implement in their respective legal orders values stemming from the UN legal order. Various critical remarks can be advanced in relation to this attitude. Basically, when different legal values are at stake, the need arises to strike a balance between them, as the ECJ has recently done in the appeal decision in the Yusuf and Kadi cases. Such a tendency, if consistently followed, could serve as a valuable instrument to find the correct equilibrium between the security interest and the need for respect of human rights.
  • Topic: Security, Human Rights, United Nations
  • Political Geography: Europe
  • Author: Karin Oellers-Frahm
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The jurisprudence of the International Court of Justice gains more and more importance, in particular because not only are so-called 'secondary' cases, that is cases of alleged secondary importance such as delimitation of land or maritime boundaries cases, brought before it, but also rather sensitive and highly political cases involving questions of use of force and self-defence. Furthermore, the Court is seised of cases involving states of all parts of the world, which also marks a positive development compared to its early times. Therefore, the jurisprudence of the ICJ plays a predominant role in all domains of international law and is of concern not only to those involved in international law, international relations, or international organizations, but also to national lawyers and politicians. The idea, therefore, of providing the international community with a publication that gives an overview of the jurisprudence of the ICJ (and thus allows easy access to its case law) is to be welcomed.
  • Topic: International Relations, International Law, International Organization
  • Author: Duncan Matthews
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This book aims to fill a gap between studies of international patent law and pharmaceuticals and the literature on human rights and access to medicines. It is an account of the relationship between pharmaceutical patents under the WTO Agreement on Trade Related Intellectual Property Rights (the TRIPs Agreement) and the utilization of flexibilities inherent in the TRIPs Agreement to ensure access to medicines in developing countries, examining how a human rights approach might inform use of such flexibilities. This narrow focus is both a strength and a weakness of the book.
  • Topic: Human Rights
  • Author: Stephan W. Schill
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Fair and equitable treatment (FET) has advanced from a rather neglected and only subordinately applied standard of treatment in international investment law to what is probably the investor's most powerful right. Today it plays a central role in virtually any investment treaty arbitration and has been applied by investment tribunals to a wide range of conduct of every branch of government. Notwithstanding, tribunals and commentators often deplore the vagueness and openness of FET and cast doubts on the predictability, coherence, and consistency of the jurisprudence on this standard of treatment and, above all, on its normative content. The guiding question informing any scholarly discussion and arbitral practice then is what FET, as a legal standard, requires of states when engaging with foreign investors.
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We have received review copies of the following books. Books which have been assigned to reviewers are marked with an asterisk. If you are interested in reviewing one of the unassigned books, or if you would like to suggest a different book for review, please contact Isabel Feichtner ( ifeichtn@mpil.de).
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Readers of EJIL will be aware of the two book review websites which have been associated for some time with this Journal and of which I am, too, Editor-in-Chief: www.globallawbooks.org and www.Europeanlawbooks.org. You will find links to them on the very Homepage of www.ejil.org and www.ejiltalk.org. On 25 June 2010 I will stand trial before a Paris Criminal Tribunal for refusing to remove a book review written by a distinguished academic to which, however, the author of the book in question took exception. The matter is of serious concern to EJIL, but more generally to academic book reviewing in general. At this point, it would be best to allow the written record to speak for itself.
421. Preface
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the closing issue of our 20th Anniversary year we publish a selection of reactions to the three Anniversary Symposia published earlier this year. Some of the reactions were commissioned and others were selected from the many responses to our invitation on our website and blog EJIL Talk! We dedicate our Special Anniversary Section in this fourth issue to the virtues of academic debate. We regret that we are unable to publish more of the reaction papers we received. We extend our thanks to all who responded.
  • Author: Rebecca LaForgia
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Koskenniemi's anniversary article is wide-ranging, drawing on both historical changes in international law and his own thinking over a 20-year period. If there is one dominant theme, however, in this article it is his hostility towards the managerialist. Koskenniemi considers managerialists to be a pervasive force with a preference for 'informal regimes'. He applies to them the methodology he used to great effect 20 years ago (and has done since), revealing that managerialism, by using and monopolizing terms such as governance, legitimacy, and regulation, conceals its own preferences. The culture created is one 'of apolitical expert rule', while at the same time suppressing 'the role of will and randomness, passion and ideology in the way the world is governed, and their own implication in it'.
  • Author: Alexander Somek
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Global Administrative Law (GAL) project is based on the recognition that the most important recent developments in international law have enhanced its administrative dimension. What can be observed today, from the preparation of side agreements to the GATT all the way down to the regulation of foodstuffs in the European Union, is an increase in transnational regulatory cooperation and in joint efforts at implementation. The new world of international law is the world of loosely coupled, but often highly interactive and effective, mutual engagements between and among national and international bureaucracies. GAL concerns itself with identifying, where possible, their legal form and with establishing control. Owing to its broad sweep, global administrative law appears to offer a re-description of particularly important parts of international law. It actually draws a picture of international law which has come under the dominating sway of administrative rationality.
  • Author: Nikolaos Lavranos
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Benvenisti and Downs' article addresses a very complex topic which raises a host of difficult problems for which no clear and easy answers are readily available. Accordingly, and in view of the limited space that has been allocated for this response, I had to be selective and restrict myself by adding some other colours and different perspectives to the picture that has been painted by the authors. My response will start by discussing first the analytical framework before moving towards a critique in substance.
  • Political Geography: Europe
  • Author: Jacob Katz Cogan
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The proliferation of international law and institutions over the past two decades has produced both excitement and anxiety. Cooperation and coordination – formal and informal – have allowed states and other international actors to get at global and regional problems and facilitate international exchange much more than in the past. The heightened activities of international organizations and national governments have pertained both to traditional areas, as well as those, such as environmental law, which had hitherto been almost exclusively within the domain of domestic politics and law. Such developments have worried those who believe that decisions taken at the international level are insufficiently reflective of and constrained by democratic politics and basic principles of due process, and unfairly give preferences to powerful states over less powerful ones.
  • Political Geography: Europe
  • Author: Tom Ginsburg
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The application of the tools of international relations, particularly those associated with rational choice analysis, to problems of international law has generated many important insights in the last two decades. In a recent issue of this Journal, Eyal Benvenisti and George Downs, two scholars who individually and jointly have contributed much to this research programme, provide a fascinating interpretation of a recent trend in democracies toward judicial constraint of executives in foreign affairs matters. Placing this development in the broader context of inter-judicial cooperation and globalization, they argue that courts are increasingly coordinating across borders to constrain their national executives. This requires resolution of a transnational collective action problem among judges. The piece is creative, well-argued, and might even be correct. But, as I will argue, it might not be. The fact that courts cooperate and coordinate is observationally equivalent to other plausible theories of what courts are doing. These theories are simpler and also consistent with the basic story Benvenisti and Downs want to tell.
  • Topic: Globalization
  • Political Geography: United States
  • Author: Eyal Benvenisti, George W. Downs
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We thank the three commentators for their thoughtful and most helpful comments on our essay. We regret that we cannot do justice to all of them in this brief rejoinder. We would like to note at the outset that we agree with the collective assessment that we have only begun to understand the character and dynamics of inter-judicial cooperation, the nature of the motivations that underlie it, and its potential effects. In a forthcoming paper we examine the nature of the potential externalities of national court coordination with respect to fostering greater democratic accountability at both the domestic and the international level and we argue that, at least relative to the current status quo, these effects are likely to be positive at both levels. However, much remains to be done.
  • Political Geography: Europe
  • Author: Amrita Kapur
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Professor Ken Anderson's essay is 'an unabashed survey, in a short space' (at 332), which 'surfs rather than dives' (at 358), in order to allow the reader to appreciate 'just how breathtakingly broad the horizon of our rising system of international criminal law turns out to be' (at 358). The concomitant risk of this approach is to mischaracterize the analysed phenomena by neglecting issues which fundamentally affect them. Highlighting counter-arguments and considering contradictory evidence, however briefly, would have been one way to canvas, albeit not capture, the complexity of the issues and avoid excluding critical aspects of international legal developments.
  • Author: Federico Sperotto
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article comments on Professor Tams's 'The Use of Force against Terrorists'. Tams's study deals with the application of the jus ad bellum to the problem of terrorism and, in particular, the issue of extraterritorial or cross-border use of force against terrorists. Thus, it refers to inter-state relations. The author examined the developments which have occurred in the last 20 years and concluded that there is today an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. If the international community is capable of maintaining a strong stance against terrorism, he wrote, then there is no reason to expect that the jus ad bellum should be immune from (further) change.
  • Author: Kimberley N. Trapp
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In his recent article 'The Use of Force Against Terrorists', Professor Tams provides a thoughtful overview of developments in the jus ad bellum over the past 20 years. His analysis focuses on the right to use force in self-defence, particularly as regards the permissibility of extra-territorial military responses to terrorist attacks by non-state actors. The thrust of Professor Tams' argument is that the relevant state practice suggests an evolution in the law of self-defence – moving away from a restrictive analysis of Article 51 to a broader interpretation which more easily accommodates anti-terrorist force. In this comment, I will focus on Professor Tams' approach to questions of 'attribution' and the inter-state reading of Article 51, in particular his 'more moderate (but still important) re-reading' of the standard of attribution applicable in the terrorism context.
  • Author: Christian J. Tams
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I am grateful to Dr Trapp and Mr Sperotto for their comments on my article 'The Use of Force Against Terrorists' and to the Journal's editors for permitting me to add a rejoinder. While addressed to very particular and very different aspects of the article, I believe the two comments help put the argument made in it into perspective.
  • Author: Richard H. Steinberg
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In 'The Hidden World of WTO Governance', Andrew Lang and Joanne Scott rightly identify WTO committees as an understudied site of WTO governance. Their analysis deploys frameworks based largely on the sociology of global tech¬nocracy, lenses which bring into focus WTO behaviour not usually given much consideration, yet their description and analysis are incomplete, for they miss the central role of states as principals directing the activities of their representatives on the committees, as well as the power politics within and around WTO committees. Only by also considering the state, state interests, the relative power of states engaged in committee deliberation, and WTO committee participants as government representatives can we more fully understand and assess WTO committees as sites of governance.
  • Author: Andrew Lang, Joanne Scott
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Professor Steinberg responds to our article by re-asserting a familiar analytical paradigm – a comfortable Newtonian world dominated by large stable pieces known as states which operate on the basis of fixed interests categorically defined in advance. But that traditional paradigm no longer provides a satisfactory account of the operation of today's trade regime, particularly in the context of regulatory supervision. Its tenacious hold over contemporary scholarship needs to be dislodged. Our article attempts to do precisely that, by inviting more sustained analysis of the actual and potential operation of alternative modes of governance within two WTO committees.
  • Author: Jürgen Kurtz
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Francesco Francioni's article opens with a critical and timely reminder for those who study and practise in international investment law. He reminds us that '[d]enial of justice lies at the heart of the development of international law on the treatment of aliens and of foreign investment'. Francioni's article is thematically structured across this concern of denial of justice and its reflection in different areas of international law. In particular, he examines its history, later crystallization as a doctrinal category of redress for foreign investors, and whether the system of investment treaty protection itself requires reform to offer remedies for individuals adversely impacted on by foreign investment in a host state. I plan to respond briefly to each of these important points, but will also address a broader issue necessarily implicated in Francioni's analysis. This is the charged question of how conflict between the systems of investment law and human rights protections might arise and be managed.
  • Author: Robert Howse, Efraim Chalamish
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The challenge of coherence and consistency in jurisprudence has become a major concern for scholarship in international investment law. The assumption is that such consistency is necessary to increase predictability, reduce transaction costs, and maintain or enhance credibility and legitimacy. Several of the key norms in investment treaties are articulated as quite general standards of treatment, such as Fair and Equitable Treatment and National Treatment. This gives considerable scope to arbitral tribunals to define the contours of investor protection. But these tribunals operate in a decentralized system, without stare decisis or appellate review by a permanent judicial instance. When we turn to the law of the World Trade Organization (WTO) we see by contrast a jurisprudence that has evolved through appellate review premised on de facto (if not jure) vertical stare decisis. It is thus understandable that, where the norms seem similar, investor-state arbitral tribunals might turn to the WTO case law as a common acquis or common ground for the interpretation of investment treaties. Moreover, due to the important historical and conceptual links between investment treaties and trade jurisprudence, special attention should be given to the judicial dialogue created by the dependence of investor-state arbitral tribunals on WTO jurisprudence. Kurtz, who has contributed significantly to the understanding of this dialogue in investor-state tribunals' decisions, argues here that instead of using WTO case law as an anchor that promotes coherence and consistency in investment law jurisprudence,the arbitral tribunals, through their multiple misunderstandings of the WTO acquis, have actually produced greater incoherence and inconsistency in the case of the National Treatment standard.
  • Author: Jürgen Kurtz
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As a starting point, I am in full agreement with them that fair and equitable treatment offers useful contextual guidance to an adjudicator faced with delineating the scope of national treatment in investment law. The fair and equitable standard has been interpreted (often in light of its adoption of customary precepts) as a limit on a very particular type of discrimination. If this is correct, then we must logically turn our mind to what other forms of discrimination are to be countered by national treatment (otherwise we face a problem of redundancy). As it happens, this point buttresses my criticism of the Methanex award. Howse and Chalamish identify the failure of the Occidental Tribunal to seriously consider the 'division of labour' between the fair and equitable standard and national treatment. But this flaw appears also in the Methanex award. In fact, given the conflicting claims made of the fair and equitable standard in that case, one might suggest the error is even more egregious in Methanex.
  • Author: Roger S. Clark
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In February 2009, the International Criminal Court's Special Working Group on the Crime of Aggression concluded its efforts to draft the 'provision' called for in Article 5(2) of the Rome Statute 'defining the crime [of aggression] and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime'. It produced two draft Articles: Article 8bis, the 'definition', and Article 15bis, the 'conditions'. There was substantial agreement on the definition (and on 'Elements' of the crime produced in June 2009); there was much disagreement concerning the conditions. The author examines the most significant drafting issues. For the definition, these include: applying General Assembly Resolution 3314 to individual responsibility; articulating the 'leadership' nature of this crime; the threshold requirement that the violation of the United Nations Charter be 'manifest'; and consistency with provisions in the Statute, especially those in the 'general part'. In respect of conditions, the difficult issue surrounds the role of the Security Council and the many variations on that theme in draft Article 15bis. The contribution concludes with a fundamental procedural question: can the amendment be applied erga omnes or does it apply only to those states specifically accepting it?
  • Topic: Security, United Nations
  • Author: Andreas Paulus
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
  • Topic: International Law
  • Author: Claus Kreß
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the course of recent years, the Special Working Group on the Crime of Aggression has prepared the ground for a final political decision to be made in Kampala in 2010. This symposium will hopefully constitute a useful contribution to the comprehensive debate that is necessary in order to enable the political leaders to make their choice in an informed manner. This article argues that there are no compelling policy reasons against allowing the International Criminal Court to exercise its jurisdiction over the crime of aggression, which already forms part of customary international law. In particular, there is no compelling reason for not reflecting the co-existence of the jus contra bellum and the jus in bello on the secondary level of international criminal law and international criminal justice. While the definition contained in the Draft amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression is imperfect in some respects, it constitutes a reasonable and workable compromise which, on a somewhat closer inspection, proves to be much more determinate than it may seem at first glance. In light of this achievement and the unlikelihood of the emergence of a magic formula for a perfect definition, this article takes the view that the window of opportunity which will be open in Kampala should be used because otherwise it may be closed for a very long time. The 2010 Review Conference should therefore mark the historic occasion on which state leaders eventually form the collective will to allow for the prosecution of the most serious violations of the jus contra bellum and hereby to complete the new system of permanent international criminal justice.
  • Topic: International Law
  • Author: Sean D. Murphy
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The late Thomas Franck postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors, notably whether the norm or institutional process was validated through commonly accepted means, whether it was clearly understood by those upon whom it operated, whether it cohered with other norms and institutions, and whether it was well-grounded in secondary rules of international law concerning law formation. This article argues that the proposed draft amendment to the Rome Statute on the crime of aggression does not fare well under these criteria, casting into doubt the long-term prospects for the legitimacy of the definition of the crime and of the institutional structures charged with administering it. Choices made at the ICC Review Conference in 2010 to finalize an amendment to the Rome Statute may help alleviate or aggravate these concerns.
  • Topic: International Law
  • Author: Sergey Sayapin
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This short article honours Professor Raphael Lemkin (1900–1959), author of the term 'genocide' and initiator of the Convention for the Prevention and Punishment of the Crime of Genocide, on the occasion of the 50th anniversary of his death. The article provides a brief overview of his career in international law and highlights Professor Lemkin's key ideas which shaped the Genocide Convention.
  • Topic: International Law
  • Author: Ana Filipa Vrdoljak
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
  • Topic: International Law, United Nations
  • Political Geography: Europe
  • Author: Amabelle C. Asuncion
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The International Court of Justice's decision on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) has exposed the unforeseen irony in the international consensus on the singular distinction of genocide as the crime of crimes. Defying expectations, this classification coupled with the conception of a 'civil genocide' has magically transformed into a legal shield which protects states from responsibility even as individual convictions are being handed down. Yet, the history of the Genocide Convention easily recalls the objective of preventing the commission of genocide by states and individuals alike. This article thus ponders on the virtue of seeking recourse under the Genocide Convention – whether against the state or the individual. In traversing this inquiry, it embarks on a comparative analysis of selected case law from the International Criminal Tribunal of Yugoslavia, the International Criminal Tribunal of Rwanda, and the International Court of Justice. As it uncovers a counterintuitive clash of jurisprudential outcome and a widening gap between the ideal and the real, the article identifies the legal bolts which need to be adjusted so that the genocide stops can be pulled in the right direction.
  • Topic: History
  • Political Geography: Yugoslavia, Rwanda
  • Author: Sarah Miller
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: European participation in controversial aspects of the 'war on terror' has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states' extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual's ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state's physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention's regional identity and its universalist aspirations.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Joel P. Trachtman
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: At a time when the Obama administration, the rest of the G20, and other governments, are emphasizing multilateral action to address global problems, such as global warming, terrorism, financial regulation, monetary policy, failed states, and public health, much is at stake in theoretical and empirical arguments about the possibility for effective collective action among groups of states. In The Perils of Global Legalism, Eric Posner argues that these efforts are largely futile. Can it be true that international law offers little or no assistance in response to global collective action problems? Posner grimly asserts that 'if a world government is not possible, then solving global collective action problems is also not possible' (at 8). If he is right, and given that the kind of world government he has in mind is indeed implausible, then the efforts of policy-makers and diplomats should immediately be diverted from efforts to craft international legal responses to global collective action problems, and reallocated to more productive pursuits. The implication of Posner's book: call home the diplomats and be content with the inefficiency implicit in unilateral action to address global collective action problems.
  • Author: Peter Hilpold
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The title of this book must raise both interest and suspicion: on the one hand, no legal subject is so intimately related to expectations and hope for the improvement of the lot of humankind as is the case with international law. On the other hand, it is also generally known that these hopes have been disappointed in an uncountable number of cases. Most of us have a personal view of what progress means, and we are fairly convinced that this opinion more or less matches that of many other consociates. However, we are hesitant explicitly to formulate a general definition of this concept and, even in politics, this concept nowadays is used rather rarely. In international law, since the advent of deconstructivism at the latest, it has become nearly impossible to argue in such categories. To speak about progress presupposes the existence of commonly shared values; it evokes a sense of a unidirectional development of culture and human society. Progress has become one of the most abused words of the 20th century. In the East it has been used to justify repression in exchange for the promise of a mythical future to come about when true communism is achieved. The concept of 'progress' in the West was more closely associated with the hope of unprecedented technological and economic advancement. As is known, in both fields disillusionment has set in. Not only has the desirability of economic growth become overshadowed by the recognition that the associated environmental problems far exceed all previous calculations, but growth itself has become a mirage for many industrialized countries. To speak of progress before 1989 smacked of deceit, afterwards it sounded utterly naïve.
  • Author: Christian Pippan
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In 1992, shortly after the dissolution of the Warsaw Pact and the Soviet Union marked the formal end point of the Cold War, Thomas Franck, who sadly passed away this year, famously proclaimed the emergence of a global 'right to democratic governance'. Against the backdrop of the dramatic political changes in Central and Eastern Europe, the progressive consolidation of democratic government in Latin America, burgeoning democratic reforms in various parts of Africa, and a rapidly increasing pro-democratic activism by the United Nations and other international organizations, he asserted that 'both textually and in practice, the international system is moving toward a clearly designated democratic entitlement, with national governance validated by international standards and systematic monitoring of compliance'.1 As is well known, Franck's thesis – which is largely grounded in the peoples' right to (internal) self-determination and a new reading of participatory norms contained in international human rights treaties – had a significant resonance in international legal scholarship and ushered in what came to be known as the 'democratic entitlement school'. Though the debate over the sweeping claim that, in the post-Cold War era, democracy is becoming – or has already become – a universal norm probably saw its heyday in the 1990s, it has, to this day, lost neither attraction nor relevance. Indeed, the claim's provocative nature (in light of international law's traditional indifference towards domestic constitutional orders), its assumptions about the kind of democracy advanced by the international system, as well as its potentially far-reaching consequences for states deemed to be in violation of the emerging norm continue to inspire scholars of international law and fuel an ongoing controversial discussion.
  • Political Geography: Europe, Latin America
  • Author: Jörg Kammerhofer
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Dr Orakhelashvili, currently lecturer in law at the University of Birmingham Law School, is a prodigious writer as well as a very conscientious and thorough scholar. His latest book on interpretation in international law shows precision in scholarship and a comprehensive grasp of the subject. It comes at a time when the process of interpretation is little understood, yet often talked about by scholars, practitioners, and tribunals alike. Despite the large amount of literature already published on the topic – the bibliography printed in Orakhelashvili\'s book (at 585–591) is just the tip of the iceberg – and regardless of the countless dicta of various international tribunals, a new and fresh look at this central nexus between international legal practice and theory is highly welcome.
  • Topic: International Law
  • Author: Lance Bartholomeusz
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Rarely is an international law reference text, let alone an article-by-article commentary on a convention, both authoritative and entertaining. Eileen Denza's third edition of Diplomatic Law is, however, an exception. Earlier editions of this text, first published in 1976 and then revised in 1998, quickly became the practitioner's standard reference. Drawing on her long and practical experience, Denza has thoroughly updated and revised the text; the third edition consolidates the reputation of Diplomatic Law, Commentary on the Vienna Convention on Diplomatic Relations, as the authoritative text in its field. Since diplomacy and espionage are often (uncomfortable) bedfellows, some of the state practice reads like episodes from a spy novel.
  • Author: Zoe Pearson
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is little doubt that non-governmental organizations (NGOs) are an enduring phenomenon in international law. While the formal involvement of NGOs with the United Nations (UN) system has longevity, tracing back to provisions in Article 71 of the UN Charter, discourses of globalization have given added impetus to their presence in international law under the broad church of 'global civil society'. The Chair of the recent Panel of Eminent Persons on United Nations– Civil Society Relations set up to examine the relationship of NGOs with the UN system characterized the rise of civil society as one of the 'landmark events of our times'. 2 This visibility has meant that NGOs have increasingly become a source of debate amongst international legal scholars. Some commentators welcome the participation of NGOs in inter - national legal and political processes, while others express unease about the involvement of NGOs within the international system and question the legitimacy of this presence. The involvement of NGOs in international law therefore remains contested, and key issues about the extent and nature of their participation, their legal status and legitimacy as actors in international law are unresolved. The four volumes under review take us some steps further along in understanding the present and potential participation of NGOs in international law in a number of ways. First, these volumes provide a comprehensive picture of how the presence of NGOs in the international legal and political systems has evolved into the many varying arrangements that NGOs have with international organizations. Second, the volumes seek to engage with some of the more intractable issues; in particular, these volumes explore the challenging questions about the legitimacy of NGOs as actors in international law. Finally, these volumes highlight that this inquiry is a fundamentally inter-disciplinary exercise; going beyond legal analysis, it is important to consider the basis on which the legal status of NGOs rests.
  • Political Geography: United Nations
  • Author: Filippo Fontanelli
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The vertical relationship between national and international courts is the core subject of this book, in which Shany develops and integratesthe findings of his previous 2003 work, by enlarging the analysis thereof to the 'vertical' relations between domestic and international courts. In this work he puts forward some suggestions on how to restrain the chaotic trend of fragmentation of the global legal order, making use of some procedural principles which are traditionally rooted in the field of private international law (lis alibi pendens, ne bis in idem, estoppel, res judicata, electa una via).
  • Author: Jaume Ferrer Lloret
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article reviews the book edited by Professor Carlos Jiménez Piernas entitled The Legal Practice in International Law and European Community Law – A Spanish Perspective. As the editor points out in his prologue, this publication is an updated and revised English edition of a volume published in 2003 in Spanish. The new publication retains the Spanish edition's general structure of five substantive parts, plus indexes, which deal with legal practice before International Tribunals in International Organizations and in the European Union, national legal practice in international law, as well as with some legal tools for international lawyers, in particular to determine evidence of state practice and concerning sources of knowledge of international law on the internet. The title of the book is suggestive and confusing at the same time. It is suggestive in that it apparently deals with a topic which is seldom addressed in the literature on international law, i.e., 'legal practice'. Indeed, the book covers innovative topics which, in the near future, may become very relevant both for states and international organizations, as well as individuals and private companies.
  • Political Geography: Europe
  • Author: Ramin S. Moschtaghi
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The book is one of two volumes1 published by the 'Human Rights in International Law and Iran' project of the British Institute of International and Comparative Law. This project primarily aims at fostering the dialogue on human rights between international and Iranian legal scholars, practitioners, and intellectuals. Although this is a worthwhile aim and the book is the first comprehensive introduction to the Iranian legal system written in English by a jurist, the book unfortunately falls short of expectations. The author is an Iranian lawyer and has been a research fellow at the British Institute of International and Comparative Law. It is widely uncritical, partly faulty, and sometimes the English version is hard to comprehend without reference to the Farsi text or prior knowledge. For instance the term Imām-e djome is translated by the English word Friday. Thus, a reader of the English version might get the impression that Imām-e djome is the Persian equivalent of Friday, the famous companion of Robinson Crusoe, whereas, in fact, the term refers to Muslim preachers of the Friday sermon. Due to mistakes and shortcomings like this, the book gives the impression rather of a working paper than £50 worth of final work.
  • Topic: Human Rights
  • Political Geography: Iran
  • Author: Maja Smrkolj
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This volume aims to contribute to an understanding of the relationship and conflict between the obligations of EU Member States arising under international treaties and their obligations under EU law. In the preface the author, Jan Klabbers, admits that at the outset he did not have a thesis but rather 'an intuition: the intuition that the EC Court usually makes things too simple for itself by ignoring the international law aspects'. When reading these lines, some of the more recent instances confirming such uneasiness, including the 2008 Kadi, Interanko and FIAM cases, immediately come to mind.
  • Political Geography: Europe
  • Author: Helmut Philipp Aust
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It is a perennial question what role law has to play in the conduct of foreign policy. Urfan Khaliq asks this question for the European Union (EU). The starting point of his analysis is the commitment of the EU to a certain set of 'ethical values', namely the promotion of human rights, the rule of law, and democracy. While these values are central to the identity of the EU (Article 6 of the Treaty Establishing the EU), it is open to debate whether they play an equally important role in the conduct of its foreign policy. Other studies have been devoted to this issue or have analysed the discrepancy between the way the constitutional principles of the EU apply internally and externally. The monograph under review is not so much interested in a doctrinal assessment of these issues. Rather, Khaliq raises the point to what extent the foreign policy of the EU is conducted in a coherent manner, whether it can fulfil its objectives, and, most importantly, what role international law in general and the internal law of the EU in particular has to play in this regard.
  • Political Geography: Europe
  • Author: Dimitry Kochenov
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is indeed an extremely long way from Soviet Republics to EU Member States. Although fitting into one and a half decades, the complexity of this transformation is truly stunning and concerns all spheres of life of the Baltic States.
  • Political Geography: Europe, Soviet Union
  • Author: Ilias Bantekas
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: If anyone were best suited to writing a book on the European criminal record (ECR) it would certainly be the current editors. The EC Commission commissioned them to study and analyse the potential of creating an ECR, and it is on the basis of their reports that the matter has generally progressed within the legislative committees of the Union. Moreover, their studies have been used as benchmarks in relevant Commission discussions. It is therefore no accident that they have compiled the essays which are incorporated in this book in such a manner that reflects a very significant practical as well as theoretical expertise by means of an insider's viewpoint.
  • Political Geography: Europe
  • Author: James Upcher
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The establishment of International Relations (IR) as a discrete field of inquiry led to a rupture with legal and historical discourses. What followed was an almost unchallenged focus on explanatory and predictive analysis, and ethical questions were laid aside. The Oxford Handbook of International Relations is driven by the editors' conviction that the segregation of the empirical from the normative is untenable: both aspects permeate IR theories. The volume is more than a survey of the dominant approaches to the study of IR; it seeks to bring the tensions between empirical and normative dimensions to light and thereby to advance debate on the direction of the discipline.
459. Editorial
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: No abstract is available.
  • Author: Ofer Eldar
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is evidence that countries trade votes among each other in international institutions on a wide range of issues, including the use of force, trade issues, and elections of judges. Vote-trading has been criticized as being a form of corruption, undue influence, and coercion. Contrary to common wisdom, however, I argue in this article that the case for introducing policy measures against vote-trading cannot be made out on the basis of available evidence. This article sets out an analytical framework for analysing vote-trading in international institutions, focusing on three major contexts in which vote-trading may generate benefits and costs: (1) agency costs (collective good), (2) coercive tendering, and (3) agency costs (constituents). The applicability of each context depends primarily on the type of decision in question – i.e. preference-decision or judgement-decision – and the interests that countries are expected to maximize when voting. The analytical framework is applied to evidence of vote-trading in four institutions, the Security Council, the General Assembly, the World Trade Organization, and the International Whaling Commission. The application of the analysis reveals that while vote-trading can create significant costs, there is only equivocal evidence to this effect, and in several cases vote-trading generates important benefits.
  • Topic: World Trade Organization
  • Author: Noemi Gal-Or
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The WTO Appellate Body represents an innovation in international law in that an international adjudication authority now operates as a final instance to hear appeals arising from international arbitral (panel) procedures. It is thereby strongly emulating domestic appellate courts without, however, possessing the characteristics that make appellate courts the institutions of justice that they are. Following this trend in a cutting-edge fashion are several other inter-governmental arrangements that had been either concluded (Central America Free Trade Agreement (CAFTA), the Olivos Protocol in the Southern Common Market (Mercosur)) or proposed (the US Congresses' 2002 Trade Promotion Authority Act, the ICSID Discussion Paper of 22 October 2004, the third draft Free Trade Area for the Americas). They embrace the concept of a permanent international instance for appeal from arbitral awards, particularly regarding investment agreements including also disputes arising between the state (public) and the individual legal person (private).
  • Topic: International Law, World Trade Organization
  • Political Geography: America
  • Author: Aurel Sari
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The conduct of EU military and civilian crisis management operations in third states within the context of the European Security and Defence Policy has presented the EU with new administrative and operational challenges in recent years, including the need to define the international legal position of such operations and their personnel during their presence abroad. In some cases, the EU has entered into agreements with host states to determine the legal status of EU crisis management operations, while in other cases the application of already existing arrangements has been extended to them. The status agreements negotiated directly by the EU confer more extensive privileges and immunities on EU operations and their personnel than current international practice in this area would warrant. Despite opposition to this policy within the EU, it has remained in place under the two model status agreements adopted by the Council of the European Union in 2005 to serve as a basis for negotiations with prospective host states in all future EU operations. Even though no norm of international law compels the EU to request only such privileges and immunities as are absolutely necessary for the purposes of an operation, its practice of negotiating extensive privileges and immunities does not sit well with the growing emphasis on the accountability of peace support operations. This article offers an overview of the evolution of the EU's practice of concluding status agreements in the context of the European Security and Defence Policy and examines the key provisions of the two model status agreements.
  • Topic: Security
  • Political Geography: Europe
  • Author: Gerald L. Neuman
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Inter-American Court of Human Rights has elaborated a significant body of human rights jurisprudence through interpretation of regional human rights conventions and the adaptation of European and global precedents and global soft law. The Inter-American Court has also aspired to influence outside its region by offering innovative interpretations of human rights and by identifying norms as jus cogens. The Court's methodology in recent years has appeared to give insufficient consideration to the consent of the regional community of states as a factor in the evolutive interpretation of a human rights treaty. The article illustrates and criticizes that trend, and contends that greater attention to indicia of regional consent could improve the acceptance and effectiveness of the inter-American human rights system.
  • Topic: Human Rights
  • Political Geography: America, Europe
  • Author: Laurence R. Helfer
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Court of Human Rights (ECtHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECtHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECtHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of 'embeddedness' in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECtHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECtHR's deference to national decision-makers is appropriate.
  • Topic: Government, Human Rights
  • Political Geography: Europe
  • Author: Alexander Orakhelashvili
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The principal question in terms of assessing the interaction between human rights applicable both in peacetime and war and humanitarian law applicable only to armed conflicts is whether the protection accorded to individuals under the latter is lower than that under the former. The clarification of this question requires the accurate assessment of the available evidence, and not the preconceived approach that tends to conceive one of these two fields as lex specialis that excludes or curtails the protection under the other field. This contribution examines the various aspects of this problem, such as the general interaction between human rights law and humanitarian law, and the relevance of particular human rights in the context of armed conflicts. The evidence dealt with in the course of this analysis exposes the fallacy of the argument that the humanitarian law protection may be lower than that under human rights law.
  • Topic: Human Rights, Humanitarian Aid
  • Author: Philip Alston, Jason Morgan-Foster, William Abresch
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since 2003, as part of its 'war on terror', the United States has taken the position that the UN Commission on Human Rights and its successor, the UN Human Rights Council, as well as the system of 'special procedures' reporting to both bodies, all lack the competence to examine abuses committed in the context of armed conflicts. The article examines the arguments put forward by the US in the specific context of the work of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The authors conclude that the consistent practice of the human rights organs for almost 25 years, often supported and until 2003 never opposed by the US, runs counter to the current US position. Acceptance of the US position would not only undermine efforts to hold the US accountable but would also have a major impact on the international system of accountability as a whole.
  • Topic: Human Rights, United Nations
  • Political Geography: United States
  • Author: Lauri Mälksoo
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This review essay examines the main breaks and continuities in the history of international legal theory in Russia. In particular, it draws on works by leading Russian international law scholars: Peter Pavlovich Shafirov (1670-1739), Fyodor Fyodorovich Martens (1845-1909), Baron Mikhail Taube (1869-1956), Vladimir Emmanuilovich Hrabar (1865-1956), Fyodor Ivanovich Kozhevnikov (1893-1998) and Grigori Ivanovich Tunkin (1906-1993). The reception of these theoreticians' works in today's Russia is also examined. The history of the discipline in Russia opens itself up as a civilizational dialogue with (Western) Europe. The main questions have been: Is international law universal or fragmented; what is the progressive force in international law? The Russian theory of international law has moved from proving that 'we too are civilized/European' in the early 18th century to an aspiration towards Western European civilization in the 18th and 19th centuries to the break with the West and an affirmation of Russia's own distinctiveness and primacy in the 20th century. Those who hurriedly celebrated Russia's reunion with Europe (and Western liberal theory of international law) following the end of the Cold War should not lose sight of the longer historical perspective and especially the experiment of the 'civilizing'/Europeanizing/liberalizing project in 19th century Russian and Baltic German international law scholarship.
  • Topic: Cold War, International Law
  • Political Geography: Russia, Europe
  • Author: Armin Von Bogdandy
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Cultural diversity is an important political and legal topos in the European Union. At the same time, the concern for cultural diversity gives reason for grave reservations towards the Union. This article intends to assist, on the basis of international law, in distinguishing appearance and reality. The Union will be analysed first as a situation of the application of the international law of cultural diversity, secondly as the regional executive of this international law, and thirdly as its global promoter. It shows that international law and Union law reinforce each other. The former conveys to the Union instruments to pursue European unification which at the same time serve its own implementation. Furthermore, it does not set limits to European unity since it protects only cultural pluralism but not state-supporting distinctiveness. A prerequisite for this consonance is that the Union's constitutional law allows for political unity without cultural unity and that international law remains mute about important questions on European unification. The international law perspective thus does not fully exhaust the problem: conformity with international law alone cannot dissipate concern for the future of cultural diversity in the Union.
  • Topic: International Law, Culture
  • Political Geography: Europe
  • Author: Moshe Hirsch
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International economic law (IEL) is influenced by diverse theoretical approaches. This article emphasizes that international economic activity is a social phenomenon and international trade should also be conceived as a specific type of social interaction. The scarcity of sociological analysis in contemporary IEL literature does not diminish the influence of social factors that are active in the under-explored layer of the international economic arena. Sociological analysis may recast well-known dilemmas in a different manner and generate insights regarding better legal mechanisms for coping with modern challenges faced by IEL. These properties of sociological analysis are illustrated in this article, which addresses one of the most challenging dilemmas in current IEL literature: the relationship between the World Trade Organization (WTO) and regional trade agreements (RTAs). The underlying argument of this article is that the economic dimension of RTAs is overlaid with a sociological dimension. Consequently, the global/regional debate is analysed with new conceptual tools: sociological theories, mainly the structural-functional perspective, the symbolic-interactionist approach, and the social conflict perspective. The core sociological theories lead to different conceptions of IEL and different interpretations of existing WTO legal provisions regarding RTAs. This article argues that while each of the above sociological approaches underscores certain significant aspects of the global/regional debate, the symbolic-interactionist perspective should generally serve as a point of departure for law- and policy-making in this sphere. This approach suggests that the relevant WTO legal rules should be interpreted in a liberal manner.
  • Topic: Economics, International Law, World Trade Organization
  • Author: Ole Kristian Fauchald
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This empirical analysis of the use of interpretive arguments by ad hoc tribunals of the International Centre for the Settlement of Investment Disputes covers almost 100 cases decided during the past 10 years. The cases are analysed with a view to determining which arguments the tribunals use and how the arguments are used in light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The analysis provides a basis for addressing the extent to which ICSID tribunals contribute to creating a predictable legal framework in which the interests of investors, states, and third parties are taken properly into account; the extent to which ICSID tribunals contribute to a coherent development of international investment law; and whether ICSID tribunals contribute to a 'fragmentation' of international law. Despite ICSID tribunals being ad hoc tribunals that solve legal disputes on the basis of heterogeneous legal sources, the article indicates that there is a tendency among ICSID tribunals to contribute to a homogeneous development of the methodology of international law. Nevertheless, the article concludes that ICSID tribunals could do significantly more to align their approaches to interpretive arguments with those of other international tribunals.
  • Topic: Development, Law
  • Political Geography: Vienna
  • Author: Panagiotis Delimatsis
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A necessity test is a tool that reflects the balance between each country's prerogative to regulate in its own jurisdiction and the multilateral interest in progressive liberalization of services trade. Experience gained in goods trade indicates that the principle of necessity can be a useful proxy allowing the judiciary of the World Trade Organization (WTO) to draw the dividing line between legitimate regulation and protectionist abuse. This article explores the possibility of creating a necessity test that would be applicable to all services sectors. Such a horizontal test may yet emerge from the current negotiations within the Working Party on Domestic Regulation (WPDR), which aim to fulfil the legal mandate contained in Article VI(4) of the General Agreement on Trade in Services (GATS or the 'Agreement'). At the core of this mandate, as clarified by various negotiating documents, lies the requirement that Members ensure that domestic regulatory measures relating to licensing, qualifications, and technical standards do not constitute unnecessary barriers to trade in services.
  • Topic: World Trade Organization
  • Author: Charlotte Streck, Jolene Lin
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Kyoto Protocol's Clean Development Mechanism (CDM) is the first global market mechanism in international environmental law. It has been much lauded for its success. However, doubts whether the CDM governance structure is robust enough to meet the challenges of regulating an international market mechanism in the long term are emerging. The Executive Board (EB)'s decision-making practice is often not predictable and many of its decisions have come as a surprise to project participants and technical project experts. Members of the EB often have multiple responsibilities which result in a complicated situation of conflicting interests. Finally, private sector participants in the CDM who have been aversely affected by EB decisions have no right of recourse and essentially little if any due process rights. This article argues that incorporating mechanisms to promote procedural fairness and creating an appeals process for aggrieved CDM participants will promote transparency and accountability in the CDM decision-making processes. This is essential for the sound operation of the CDM regulatory regime which will have a direct positive effect on the international carbon market. After conducting a comparative analysis of other regimes in which international bodies take decisions that directly affect individuals, most notably the system of targeted sanctions of the UN Security Council and the Anti-Doping Regime, as well as examining the World Bank Inspection Panel and the European Ombudsman as models of international review mechanisms, the authors set out proposals for reform of the CDM, including professionalizing the EB and the panels, securing better and more consistent funding, the elimination of political interference, and the introduction of administrative law-like processes.
  • Topic: Security, Governance, Reform
  • Political Geography: Europe
473. Editorial
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Book reviews, seemingly so simple, are, as any book review editor will know, so challenging. They are, now more than ever, indispensable. Word processing, digital research and, more generally, the industrialization and commercialization of academia, have made the manufacturing of books faster and easier. There are many more law books published today than ever before. Book reviews are not only a way of keeping up with what is published, but also of getting a sense of the content and value of books one simply has to read, of books one should, but never would, read, of books that one neither should nor could read (but which one's library ought to purchase) and, finally, a rare species of a book review, those titles with which one should not bother at all, e.g., so many of those conference 'edited' books (which normally means a motley bag of uneven quality with no academic editing at all and often not even copy editing). The same features of contemporary academia and publishing are responsible for the plethora of 'learned' journals, the articles in many of which are rarely read by anyone but the author and, perhaps a hapless editor and referee. And then there are the Working Paper series (which these days are, thank God for small mercies, never actually on paper, Occasional Research series, and the Blogsphere which renders, say, yesterday's World Court decision already old news tomorrow.
  • Author: Magdalena Ličková
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: For Member States of the European Union, participation in this supranational organization has increased the number of difficulties in the international arena. Occasionally, the expanding legislative activity of the European institutions reaches out beyond the borders of the European legal system and incidentally affects the EU Member States' autonomous relations with third parties. Consequently the EU and its members, often with success, seek third parties' consent to exceptional treatment. Because of their number and significance, such derogations have inspired this article to inquire into their expansion and legal status under international law. Even though the EU-related exceptions have not created an international customary rule, the article observes that European integration shapes international rules in diverse fields and adjusts them to its needs. Since European integration is designed to administer and regulate an increasing number of issues, the autonomous international obligations of the EU Member States may become an obstacle. Because the European Union is likely to continue using special treatment in the future, it is important to assess how far the supranational exception can go in order to accommodate all interests at stake.
  • Political Geography: Europe
  • Author: Andrea Bianchi
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is an almost intrinsic relationship between jus cogens and human rights. Peremptory human rights norms, as projections of the individual and collective conscience, materialize as powerful collective beliefs. As such, they inherently possess an extraordinary force of social attraction that has an almost magical character. This article investigates the legal effects of peremptory human rights norms at both the systemic and contextual levels. If these norms have been successful in providing the societal body with a set of identity values, they have dramatically failed to operate as an ordering factor of social practices. To wonder why this is so and to see what can be done (and by whom) to enhance their impact on the contextual level is the main goal of this article.
  • Topic: Human Rights
  • Author: Kjetil Mujezinovic Larsen
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article addresses the issue of whether conduct in international peace operations is attributable to the troop contributing states or to the United Nations, taking the European Court of Human Rights' admissibility decision in the Behrami and Saramati cases as a point of reference. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attributable to the United Nations. The article examines the content of the 'ultimate authority and control' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view difficult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's decision, when seen in connection with previous case law, in practice renders the European Convention on Human Rights irrelevant in international peace operations.
  • Topic: Human Rights, International Organization, United Nations
  • Political Geography: Europe
  • Author: Marcello Di Filippo
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Notwithstanding the emphasis placed on the need for concerted international action to confront the problem of terrorism, positive international law is far from treating the issue of defining the criminal notion of terrorism coherently; the discussion of such a notion is being made hostage [sic!] to the abuse of the term 'terrorism' in the course of the debate and to the confusion between an empirical description of a phenomenon and its treatment under criminal law. Proposing a core-definition approach, this article elaborates a notion based upon the basic rights of civilians and on the unacceptability of their violation by terrorist methods carried out by private organized groups. The definition proposed here, which does not recognize in the perpetrator's motivations any material relevance because of the overwhelming importance of the value infringed, is able to minimize the relevance of some abused arguments (such as state terrorism or the treatment of 'freedom fighters'), could quickly gain customary status and would prove useful in interpretation and in drafting exercises, both at international and national level. As for the inclusion of terrorism in the category of international crimes, it is submitted that two interpretive options are open: to consider the category of crimes against humanity as already able to embrace core terrorism; or to place the strong rationale underlying the stigmatization of terrorist crimes in the perspective of the gradual emerging of a discrete international crime of terrorism. National case law seems to point to the latter option, but the question does not appear settled: for this reason, the discussion regarding the prospect of an amendment to the ICC Statute expressly to include terrorist crimes continues to be of interest. An express inclusion could be useful to avoid doubts or discrepancies at national level and to solve some outstanding issues of the international community's criminal policy.
  • Topic: International Cooperation, Terrorism, Law
  • Author: Caroline Henckels
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The proliferation of free trade agreements which share dispute settlement jurisdiction with the WTO has added to claims of disintegration within international trade law. Recent WTO jurisprudence is indicative of the limits of WTO members' ability to invoke provisions of an FTA as a 'jurisdictional defence' where the dispute implicates trade measures under both WTO and FTA rules. Such uncertainty in the law has the potential not only to create issues of incoherent jurisprudence, but also to threaten the stability and predictability of the multilateral trading system. These issues are likely to continue to arise as FTAs continue to grow in abundance while the Doha round is stalled. Based on analysis of a selection of state-state disputes before other fora such as the International Court of Justice, this article argues that in the interest of the effective administration of justice, the WTO's judicial organ should use its inherent power of comity to decline to exercise jurisdiction so that the dispute can be resolved by an FTA tribunal where a dispute is inextricably connected with a dispute under an FTA and that exercising jurisdiction would not be reasonable in the circumstances.
  • Topic: World Trade Organization
  • Author: Arnold N. Pronto
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In their timely and thought-provoking book, Alan Boyle and Christine Chinkin explore contemporary methods of making international law. With the expansion of international law, and its increased specialization, it is no longer the case that it is 'made' by a finite number of entities (states) through a handful of intergovernmental processes. Instead, international law is made in a large number of for a, including a variety of multilateral processes, tribunals and the organs of international organizations. In addition, although states remain the primary makers of international law, they are joined by other participants such as international organizations and judges, as well as entities which are influential in the making of international law, including non-governmental organizations and even individuals. The authors' approach is to seek to draw generalized inferences from an analysis of the processes, both within and beyond the United Nations, which led to the adoption (or not) of several significant international instruments and other documents. Although their treatment of the subject-matter is not without its difficulties, it nonetheless provides a useful overview, which should be of interest to the academic and practitioner alike. The book is also significant for the fact that, in reviewing the range of modern international law instruments, the authors inadvertently provide an insight into the modern sources of international law, particularly as regards the significance of the interplay between different types of law-making instruments. The present writer offers his perspective on the treatment of the question of participation in international law-making, the impact of NGOs in the making of international law, consensus-based decision-making, the role of innovation in securing consensus, and the concept of 'soft law'.
  • Author: Christopher McCrudden
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Universal Declaration on Human Rights was pivotal in popularizing the use of 'dignity' or 'human dignity' in human rights discourse. This article argues that the use of 'dignity', beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common understanding of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context-specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to significant judicial manipulation, increasing rather than decreasing judicial discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of substantive interpretations of human rights guarantees which appear to be intentionally, not just coincidentally, highly contingent on local circumstances. Despite that, however, I argue that the concept of 'human dignity' plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication.
  • Author: Ryan Goodman, Derek Jinks
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In earlier work, we argue that acculturation is a distinct social process by which international law influences states and that human rights law might harness this mechanism in designing effective global regimes. In this article, we consider an important objection to our work. The concern is whether acculturation institutionalizes non-compliance. The growing body of empirical evidence for global-level acculturation, in part, documents persistent forms of decoupling - suggesting that formal commitments to global culture often fail to change concrete practices of local actors. In the human rights context, this is particularly troubling, given the prevalence of seemingly disingenuous acceptance of human rights instruments by states with poor human rights records. Many critics suggest, and understandably so, that acculturation should not guide the design of international human rights regimes since any such regime would promote only shallow reforms - further entrenching the gap between formal commitments and actual practices. The problem with human rights law, on this view, is that it is under-enforced - not that it is insufficiently acculturative. In reply, we argue that acculturation generally does not impede progress toward deeper reform and, indeed, will often facilitate it.
  • Author: Stephen Gardbaum
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Universal Declaration was, of course, the first of the three global international human rights instruments which have collectively come to be known as the International Bill of Rights. Very often, however, this latter term appears within quotation marks or is prefaced by the qualifying phrase, 'so-called', signalling that there are serious, although mostly unexplored, questions about the validity of the implied comparison with domestic bills of rights. In this article, I treat the anniversary as an occasion to take stock by exploring these questions and making the comparison express. I do so by considering the two parts of the term separately. First, regarding 'bill of rights', what are the similarities and differences between the UDHR, ICCPR, and ICESCR on the one hand and domestic bills of rights on the other? In particular, to what extent or in what sense, if any, has international human rights law become constitutionalized and, thereby, similar and closer to most domestic bills of rights? Secondly, regarding 'international', do the major international human rights instruments simply duplicate domestic bills of rights or provide a generally inferior substitute for them where unavailable - as a certain strand of human rights scepticism suggests? Or do they perform any distinctive functions over and above domestic bills of rights that make a novel and unique contribution to the development of constitutionalism?
  • Author: Ernst-Ulrich Petersmann
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to J. Rawls, 'in a constitutional regime with judicial review, public reason is the reason of its supreme court'; it is of constitutional importance for the 'overlapping, constitutional consensus' necessary for a stable and just society among free, equal, and rational citizens who tend to be deeply divided by conflicting moral, religious, and philosophical doctrines. The European Court of Justice (ECJ), the European Court of Human Rights (ECtHR), and the European Free Trade Area (EFTA) Court successfully transformed the intergovernmental European Community (EC) treaties and the European Convention on Human Rights (ECHR) into constitutional orders founded on respect for human rights. Their 'judicial constitutionalization' of intergovernmental treaty regimes was accepted by citizens, national courts, parliaments, and governments because the judicial 'European public reason' protected more effectively individual rights and European 'public goods' (like the EC's common market). The 'Solange method' of cooperation among European courts 'as long as' constitutional rights are adequately protected reflects an 'overlapping constitutional consensus' on the need for 'constitutional justice' in European law. The power-oriented rationality of governments interested in limiting their judicial accountability is increasingly challenged also in worldwide dispute settlement practices. Judicial interpretation of intergovernmental rules as protecting also individual rights may be justifiable notably in citizen-driven areas of international economic law protecting mutually beneficial cooperation among citizens and individual rights (e.g. of access to courts). Multilevel economic, environmental, and human rights governance can become more reasonable and more effective if national and international courts cooperate in protecting the rule of international law for the benefit of citizens (as 'democratic principals' of governments) with due regard for human rights and their constitutional concretization in national and international legal systems.
  • Topic: Government
  • Political Geography: Europe
  • Author: Thomas Schultz
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.
  • Topic: International Law
  • Author: Ivana Radacic
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Court of Human Rights has recently proclaimed gender equality as one of the key underlying principles of the Convention. However, the Court's jurisprudence has been largely impotent in challenging gender discrimination in the member states. This article explores the reasons why this is so by analysing Article 14 sex discrimination jurisprudence and the application of the principle of gender equality in the 'Islamic headscarf' cases. The author argues that reasons lie in the Court's formalistic conceptualization of discrimination, and simplistic and paternalistic understanding of gender equality, which is insensitive to intersectionality of discrimination. The author proposes an understanding of gender equality as challenging (multiple and intersectional) forms of disadvantage. Under this approach, the question in equality jurisprudence would not be whether there was unjustified differential treatment, but rather whether the law or practice at issue perpetuated or produced subordination of women (as defined by other identity characteristics) and unequal gender (and other) relations.
  • Political Geography: Europe
486. Editorial
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Just like the Supreme Court's decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ's decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals, Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There, the gallows; chez nous, liberty. Happy Ending.
  • Topic: Human Rights
  • Political Geography: America
487. Preface
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this issue we bring to conclusion our effort, spread over the year, to mark the 60th Anniversary of the Universal Declaration of Human Rights. We already announced that we will not be attempting a synthetic retrospective of the 'life and times' of the Declaration. Instead, in this Finale we invited Jochen von Bernstorff to reflect not on the Declaration as such but on its reception in the literature – A Discourse on Discourse. 'The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law' is the illuminating result of this reflection.
  • Author: Jochen von Bernstorff
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article explores the genesis of the Universal Declaration of Human Rights and the turn to rights in international law. To this end, it focuses on how international lawyers have received the Declaration in their contemporary doctrinal and political contexts. The fact that the political and moral importance of the Declaration from the very beginning outweighed its concrete legal significance invited intriguing scholarly reflections on the symbolic dimension of the document. Despite early sceptical voices about its legal and moral value, international lawyers welcomed and reaffirmed its significance during the 1960s and 1970s. While attention turned to human rights treaty law in the 1980s, the Declaration embodied the hope for a new era of human rights protection after the end of the Cold War. Throughout the 1990s a new scholarly defence of the universal character of the Declaration could be observed, later being accompanied by new insecurity and soul-searching in the face of institutional limitations. In general, the Declaration became synonymous with the turn to individual rights in international law, and whenever there was a sense of crisis because of institutional blockades or challenged foundations, the Declaration received new and increased attention. It symbolized unity in an increasingly fragmented and contentious institutional and political environment for international human rights protection. The story of its scholarly reception is therefore also a story of the failed and perhaps unattainable attempt fully to institutionalize international human rights in a cosmopolitan legal order.
  • Topic: Cold War, Environment, Human Rights, International Law
  • Author: Mary Ann Glendon
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The topic of human rights was prominent in Pope Benedict 's address to the United Nations General Assembly in the year of the Universal Declaration's 60th anniversary. As with many of Pope Benedict's speeches, his 18 April address to the United Nations is one in which some rather complex ideas are expressed in a very condensed fashion. It is a speech that needs, as they say, to be 'unpacked'.
  • Topic: Human Rights, United Nations
  • Author: Paolo G. Carozza
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Human dignity and human rights are not lived as abstract concepts. They have tangible meaning and weight in the context and crucible of concrete human experience – history, freedom, reason, and community. This gap between universal and particular is the heart of the problem with which Christopher McCrudden's 'Human Dignity and Judicial Interpretation of Human Rights' wrestles, as well as the fulcrum of the earlier article of mine to which, in part, his work responds.
  • Topic: Human Rights
  • Author: Robert Howse
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Together with developments in international criminal justice and humanitarian law, the human rights revolution in international law has had a profound structural effect on the international legal order as a whole; we are today only beginning to discern and to digest this effect, to say nothing of the broader consequences for global politics. New actors have been empowered in the international legal system (not only individuals but various kinds of non-state collectivities as well); conceptions of responsibility have been altered; classic notions, such as territorial sovereignty and recognition of statehood, have sometimes subtly and sometimes radically been reshaped or adapted; and the balance of institutional actors charged with interpreting and applying inter-national law has shifted towards courts and tribunals (a major theme of Petersmann) and away from diplomats and their ministers.
  • Topic: Human Rights, Sovereignty, International Affairs
  • Author: Ernst-Ulrich Petersmann
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: All academics learn from discussion and criticism of their published views. Hence, I congratulated the EJIL editors, Alston in 2002 and Weiler in 2008, when they invited a response to my articles in EJIL. Following the insulting EJIL comments by Alston in 2002, this is the second time in my 37 years of academic teaching that a 'commentator' has imputed to me intoxicating views which I never expressed. Six years after the confabulations by Alston and Howse, Howse remains committed to misrepresenting rather than discussing my legal arguments. Clarifying, in fewer than 2,500 words, the reasons for this 'Alice in Wonderland non-discussion ' would have been more enlightening if my Australian and Canadian commentators had respected correct academic citation before publicly putting forth their aggressive legal phantasms. Here I want to suggest ways in which such an exchange may be more constructive.
  • Topic: Human Rights
  • Political Geography: Canada, Australia
  • Author: Francesco Francioni
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A recent survey of young Europeans' opinions of national institutions has revealed, quite surprisingly, that armed forces enjoy the highest level of trust and prestige in a number of major European countries, well above parliaments, the judiciary, the church, political parties and business enterprises. The profound motivations underlying this assessment remain unknown – one can only conjecture that they are related to the increasing sense of insecurity among young generations and perhaps with the politics of fear – fear of terrorism, of immigrants, environmental disasters, of financial doom, and of the unknown – that have become widespread at the beginning of the 21st century. What is clear, however, is that in the perception of young generations, the armed forces still embody the core function of the state as guarantor of the security of citizens within the national territory.
  • Author: Nigel D. White, Sorcha MacLeod
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Union has developed its security competence since 1992, thus putting pressure on its Member States to provide troops for the increasing number of EU peace operations being deployed to different areas of the globe. But with national militaries being rationalized and contracted the EU will inevitably follow the lead of the US, the UK, and the UN and start to use Private Military Contractors to undertake some of the functions of peace operations. This article explores the consequences of this trend from the perspective of the accountability and responsibility of both the corporation and the institution when the employees of PMCs commit violations of human rights law and, if applicable, international humanitarian law.
  • Topic: Human Rights, Humanitarian Aid
  • Political Geography: United States, United Kingdom, Europe
  • Author: Carsten Hoppe
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission's Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to pre-vent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of ' persons forming part of its armed forces ' in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory
  • Topic: Human Rights, Humanitarian Aid
  • Author: Chia Lehnardt
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article examines the present status of private military personnel under international criminal law. Perpetrators of international crimes are frequently integrated into a hierarchically structured collective, such as an army or police force. The system of order and obedience essential to the functioning of these entities, the existence of which underlies a number of principles of international criminal law, cannot be simply presumed to exist within a private military company (PMC) or between a PMC and the hiring state. As a consequence, the private nature of the company may become an issue, particularly when one considers the capacity of their personnel to commit war crimes or to incur superior or command responsibility. The article also considers problems of implementation and jurisdiction and touches briefly on the question of corporate criminal responsibility of the PMC itself. It will be argued that, in theory, international criminal law can be an efficient part of the legal regime governing the use and conduct of private military companies, although many of the legal issues discussed remain to be tested.
  • Topic: War
  • Author: Cedric Ryngaert
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: One of the main tools for ' socializing ' private military contractors (PMCs) is litigation. The threat of litigation may encourage contractors to set up their own corporate social responsibility and accountability mechanisms with a view to preventing them being hauled before courts. The article identifi es the jurisdictional opportunities and pitfalls of criminal (public law) and civil/tort (private law) litigation against PMCs in domestic courts. The focus lies on litigation for human rights abuses, with special emphasis on US proceedings, the US being the home and hiring state of the majority of PMCs active in overseas confl ict zones. It is argued that, because the chances of success of tort litigation are, in fact, rather limited in the US, given the many procedural obstacles, the criminal law avenue may prove to be more promising, if at least prosecutors show more leadership in bringing cases. Also at a deeper accountability level, criminal litigation may be preferable on the ground that criminal punishment sends a stronger accountability and deterrence signal than a mere money judgment.
  • Topic: Human Rights
  • Author: Simon Chesterman
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. The recent confi rmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain ' inherently governmental ' . The article surveys outsourcing in electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to three challenges to accountability: the necessary secrecy that limits oversight; the different incentives that exist for private rather than public employees; and the uncertainty as to what functions should be regarded as ' inherently governmental ' and thus inappropriate for delegation to private actors.
  • Topic: Government
  • Political Geography: United States
  • Author: Jean d'Aspremont
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The concept of soft law which rests on the idea that the binary nature of law is ill suited to accommodate the growing complexity of contemporary international relations has been endorsed by a large number of scholars. It has however remained under the attack of those who are commonly portrayed as positivists. Although it does not seek to rehabilitate positivism as a whole, this article will try to offer a refreshed and modernized account of the positivist objection to soft law. It will accordingly distinguish several types of softness. Such a dichotomy will help to unravel the underlying agenda of some of the staunchest supporters of the concept of soft law. The article will ultimately expound on the proneness of international legal scholars to stretch the limit of their object of study by constantly seizing materials outside the realm of international law in order to alleviate the strain inherent in the contemporary proliferation of international legal thinking.
  • Topic: International Law
  • Author: Wolfgang S. Heinz
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This volume, originally a doctoral thesis by Jeroen Gutter of Utrecht University, offers a comprehensive overview of 26 years of thematic mechanisms of the UN Commission on Human Rights. The first mechanism was the working group on enforced or involuntary disappearances in 1980, created in response to human rights violations under the military dictatorships in Argentina (1976–1983) and in Chile (1973–1980) (at 82). The volume helps to close a research lacuna as only very few authors have to date dealt in detail with the UN thematic mechanisms (e.g. Pastor Ridruejo, de Frouville, Lempinen, Rudolf and Nifosi)
  • Topic: Human Rights
  • Political Geography: Argentina, Chile