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Begin New Search Topic International Law Content Type Journal Article

151. Shining Cities on the Hill? The Global City, Climate Change, and International Law

Author:
Helmut Philipp Aust
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
Cities are beginning to assert themselves as internationally relevant actors. This is particularly noticeable in the climate change context. This development has so far not been accorded a great deal of attention by international lawyers. The review essay discusses four new books by political scientists which offer us a closer look at the political dimension of 'global cities', a term originally coined by sociologist Saskia Sassen. The four books under review as well as this essay pay particular attention to the C40 association – a movement of self-styled city leaders in climate change governance. This group of cities has developed numerous ties with international organizations and private corporations. The review essay analyses how cooperative endeavours such as C40 challenge our understanding of the relationship between the city and the state and assesses how international law as a discipline could come to terms with these developments. It is argued that international law should fulfil two functions in this regard: recognition and contestation. Whereas cities may not yet be recognized subjects of international law, they are moving closer to this illustrious circle. In any case, their law-making processes are beginning to have a significant impact on processes of global governance.
Topic:
Climate Change, International Law, and Governance

152. International Law and Global Justice: On Recent Inquiries into the Dark Side of Economic Globalization

Author:
Jochen von Bernstorff
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
Global economic justice as a topic of moral philosophy and international law is back on the intellectual agenda and figures prominently in feuilletons, blogs and academic publications. A wave of recent studies by both international lawyers and moral philosophers on the dark side of economic globalization and the role of international law in this context is as such a remarkable phenomenon. The essay engages with diverging scholarly perspectives on global justice and international law as represented in the four volumes under review. Three substantive questions structure the non-comprehensive sketch of the global justice debate: (i) Is the current international economic order unjust? (ii) Can existing international legal rules and institutions be transformed or developed into a more just economic order? (iii) What is the potential role of international lawyers in this context?
Topic:
Economics, Globalization, and International Law

153. Settler-State Political Theory, 'CANZUS' and the UN Declaration on the Rights of Indigenous Peoples

Author:
Kirsty Gover
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
When the UN General Assembly voted in 2007 to adopt the Declaration on the Rights of Indigenous Peoples (UNDRIP), only Australia, Canada, New Zealand and the USA cast negative votes. This article argues that the embedding of indigenous jurisdictions in the constitutional orders of these states via negotiated political agreements limits their capacity to accept certain provisions of the UNDRIP. Once the agreement-making process is set in motion, rights that do not derive from those bargains threaten to undermine them. This is especially true of self-governance and collective property rights, which are corporate rights vested to historically continuous indigenous groups. Since these rights cannot easily be reconciled with the equality and non-discrimination principles that underpin mainstream human rights law, settler governments must navigate two modes of liberalism: the first directed to the conduct of prospective governance in accordance with human rights and the rule of law and the second directed to the reparative goal of properly constituting a settler body politic and completing the constitution of the settler state by acquiring indigenous consent. Agreements help to navigate this tension, by insulating indigenous and human rights regimes from one another, albeit in ways not always supported by the UNDRIP.
Topic:
Human Rights, International Law, United Nations, and Governance
Political Geography:
Europe, Canada, United Nations, Australia, New Zealand, and United States of America

154. Land Rights in Nineteenth-Century Ottoman State Succession Treaties

Author:
Ilias Bantekas
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
Ottoman state practice in the field of state succession in the 19th century displayed strict adherence to the European notions of international law. This is evident from the ratification of cession treaties, attention to reciprocity, the use of mediation and reliance on the existing laws of war principles, including the legal effects of occupation, conquest and the rights and duties of belligerents. This article focuses on state succession treaties with Greece since they represented the paradigm for all future treaties, and it examines the Islamic origin of Ottoman land regulation. The Ottomans succeeded in attaching a further condition to their cession arrangements with the new Greek state, namely the latter’s obligation to respect the property rights of Muslim citizens. This arrangement brought into play the application of Ottoman land law, to which Greece was under no obligation to succeed. This body of law, particularly the set of property rights bestowed under it, became a focal point in the ensuing state succession negotiations. It was the actual basis of Muslim property rights – a precursor to contemporary property rights – and a sine qua non element of Ottoman practice in the law of state succession. In this light, Ottoman land law and institutions should correctly be considered to be general principles of law – with origins from the Quran and the early caliphates – as well as regional custom, at least in the territories liberated from Ottoman rule, which continued to apply and enforce it not only among Muslims but also in the property relations of the indigenous ethnic communities.
Topic:
International Law, Islam, Treaties and Agreements, History, and Land Law
Political Geography:
Europe, Greece, and Ottoman Empire

155. The Hybrid Legal-Scientific Dynamic of Transnational Scientific Institutions

Author:
Oren Perez
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
The objective of the present article is to develop a better understanding of the institutional dynamic of transnational regulatory scientific institutions (RSIs). RSIs play a significant role in the transnational regulatory process by mediating between the scientific community and policy-making bodies. I argue that RSIs have a hybrid structure involving both political-legal and epistemic authority. The hybrid structure of RSIs – their capacity to exert both normative and epistemic authority – constitutes an innovative response to the demand of modern society for scientific certainty and to the scarcity of normative power in the international domain. This hybrid nature has a triple structure involving three complementary pairs: law~science, law~non-law and science~pseudoscience. I examine the way in which RSIs cope with the challenge of maintaining their epistemic and legal authority against the tensions generated by their hybrid structure. The discussion of hybrid authority is related to the problem of scientific uncertainty. I examine this theoretical argument drawing on an in-depth analysis of three RSIs that reflect the institutional diversity of the RSI network: the Intergovernmental Panel on Climate Change, the International Commission on Non-Ionizing Radiation Protection and the European Committee of Homeopaths. I conclude with a discussion of some of the policy issues associated with the institutional design of RSIs. The policy discussion refers, first, to the risk posed by RSIs’ hybrid structure to their internal stability and, second, to some potential adverse social impacts that need to be considered alongside RSIs’ projected benefits.
Topic:
International Law, Science and Technology, Law, and Regulation
Political Geography:
Europe and Italy

156. Determining Customary International Law: The ICJ's Methodology between Induction, Deduction and Assertion

Author:
Stefan Talmon
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
Methodology is probably not the strong point of the International Court of Justice or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the Court’s jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law, but the legal literature also has had little to say on this subject. In view of the fact that determining the law has also always meant developing, and ultimately creating, the law it is surprising that the question of the Court’s methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law. It starts by defining the terms ‘induction’ and ‘deduction’ and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom and demonstrates that the main method employed by the Court is neither induction nor deduction but, rather, assertion.
Topic:
International Law, Law, Legal Theory, and Courts
Political Geography:
Europe and The Hague

157. State Formation, Liberal Reform and the Growth of International Organizations

Author:
Guy Fiti Sinclair
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article argues that the growth of international organizations over the past century has been imagined and carried out in order to make modern states on a broadly Western model. The proliferation of international organizations and the expansion of their legal powers, through both formal and informal means, raise profound questions regarding the relationship between international law’s reforming promise and its imperialist perils. The article proposes a new analytic framework for understanding these phenomena, focusing on the rationalities of international organizations’ powers and the technologies through which they are made operable. It argues that both the growth of international organizations and the cultural processes of state formation are impelled by a dynamic of liberal reform that is at once internal and external to law. That dynamic and the analytic framework proposed here are both illustrated and exemplified through a critical account of the emergence of international organizations in the 19th century.
Topic:
Imperialism, International Law, International Organization, History, and State Formation
Political Geography:
Europe and United Nations

158. Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity

Author:
Ilias Plakokefalos
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article addresses the preliminary steps that must be taken in order to study the problems stemming from overdetermination in the law of state responsibility. Overdetermination, broadly defined, is the existence of multiple causes (multiple wrongdoers, external natural causes, contribution to the injury by the victim and so on) contributing towards a harmful outcome. As relationships among states become more and more complex, there is a corresponding increase in the complexity of the potentially harmful outcomes of these relationships. The fact that the harm caused may originate in diverse sources (overdetermination) poses challenges to the law of state responsibility. These challenges pertain to most aspects of state responsibility, yet their dimension regarding causality has not been studied in depth. The confusion surrounding causal analysis conducted by international adjudicatory bodies leads to decisions that are not convincing in their determination of responsibility in causal terms. The argument of the article is twofold. First, it holds that the concept of causation in international law is unclear, especially in relation to overdetermination, and it must be clarified. Second, it holds that a clearer concept of causation can provide useful guidance to the decision-making process of international courts and tribunals: the clear and principled application of causal tests will, in turn, lead to clearer reasoning. A clearer judicial reasoning will improve the foreseeability of the judicial outcome, will provide better guidance for the parties before a court and will lead to a fairer judicial process.
Topic:
International Relations, International Law, Legal Theory, and Courts
Political Geography:
Europe and The Hague

159. Internet Freedom and Human Rights

Author:
Daniel Joyce
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article considers whether the Internet has become so significant, for the provision of, and access to, information and in the formation of political community and associated questions of participation, that it requires further human rights protection beyond freedom of expression. In short, should Internet freedom be configured as a human right? The article begins by considering the ubiquity of the Internet and its significance. A wider historical view is then taken to understand Internet freedom in terms of its lineage and development from earlier debates over freedom of expression and the right to communicate, through to the recognition of the significance of an information society and the need for Internet regulation on the international plane. The current debate over Internet freedom is then analysed with particular focus given to Hillary Clinton’s speech on Internet freedom and its subsequent articulation by Special Rapporteur Frank La Rue. The concluding part introduces the critical work of Evgeny Morozov and Jaron Lanier to an international law audience in order to deepen the debate over Internet freedom and to point to the concept’s limitations and dangers. It is too early to say whether a ‘right to Internet freedom’ has achieved universal recognition, but this article makes the case that it is worth taking seriously and that Internet freedom may need its own category of protection beyond freedom of expression.
Topic:
Human Rights, International Law, History, Regulation, Internet, and Freedom of Expression
Political Geography:
Europe, Global Focus, and United States of America

160. Double Remedies in Double Courts

Author:
Sungjoon Cho and Thomas H. Lee
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article uses an ongoing trade controversy litigated in US courts and the World Trade Organization dispute resolution system as a vehicle for exploring different models to deal with parallel adjudications in different legal systems between the same or related parties on the same issue. In lieu of more traditional models of subordination or first-to-decide sequencing, the article proposes an engagement model as a solution to the double-courts, single-issue problem.
Topic:
International Law, International Trade and Finance, World Trade Organization, and Courts
Political Geography:
China, Europe, and United States of America

161. Faith, Ritual and Rebellion in 21st Century (Positivist) International Law

Author:
Mónica García-Salmones Rovira
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
In this review of three works (Jörg Kammerhofer’s Uncertainty in International Law: A Kelsenian Perspective; Jean d’Aspremont’s Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules ; and International Legal Positivism in a Post-Modern World, a collection of essays edited by Kammerhofer and d'Aspremont), Mónica García-Salmones Rovira argues that: Theological statements about morality and law to the effect that they ought to be autonomous or that they ought to coincide defy reality, history and common sense and suffer from intellectual inconsistency. On the contrary, from our long legal history appear at least two clear facts about the relationship between morality and law. First, they both conflate in the same acting individual. Second, in the legal sphere, the individual always acts in communication with other individuals. Whether one aims at investigating the normative principles of the first fact, of what makes a good lawyer, or of the second, of what makes good law and the related issue of responsibility, we are always thinking in terms of practical action. Probably, it is in that practical province where international law has its greater emancipatory potential in a post-modern world.
Topic:
Human Rights, International Law, Religion, and Legal Theory
Political Geography:
Europe and Italy

162. Reut Yael Paz. A Gateway between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law.

Author:
Robert Howse
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This rich and erudite work provides a valuable scholarly apparatus for understanding the writing and teaching of four important figures in international law and international relations. Three of them, Hans Kelsen, Hans Morgenthau and Hersch Lauterpacht, are well known; the fourth, Erich Kaufmann, much less so. The general thesis of the book is that to understand fully the personal and intellectual trajectories of all of these figures, one needs to appreciate the specific German–Jewish experience, from emancipation through the Shoah, the particular situation of the Jews in the legal profession and the academy in Germany, and the responses of these thinkers to experiences of persecution, discrimination and exile due to their Jewish family backgrounds as well as to the establishment of the State of Israel.
Topic:
International Relations, International Law, Judaism, History, Intellectual History, and Zionism
Political Geography:
Europe, Germany, and Israel

163. Tana Johnson. Organizational Progeny. Why Governments are Losing Control over the Proliferating Structures of Global Governance

Author:
Matthias Goldmann
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
According to mainstream functionalist theories of international law and relations, international organizations are vehicles of states, tied to their masters by meticulous legal instructions. As Jan Klabbers recently pointed out in this journal,1 functionalism was based on the idea of establishing peace by channelling international relations into the purportedly technical, a-political realm of international organizations. Research of the last couple of decades has profoundly rebutted the assumption that international organizations are a-political. They have been discovered, among others, to serve as platforms for the formation of epistemic communities, as agorae for political deliberation and contestation or to use their bureaucratic potential and the flexibility of their mandates to establish a degree of independence from their principals. The book by Tana Johnson, professor of political science at Duke University, adds another important perspective that has not been explored so far. She turns our attention to the fact that institutional design might matter for the international organization’s independence from member states. As chief witness for her thesis, she summons the Intergovernmental Panel on Climate Change (IPCC). Originally a brainchild of the US government, it is today a fairly independent institution fallen from grace with its master. Johnson argues that it owes its independence to the influence of international bureaucracies – that is, staff of other international organizations, upon the process that led to its establishment. The thesis puts the spotlight on the fact that a majority of new international organizations that saw the light of the day during the last decades was fostered by pre-existing international organizations.
Topic:
International Relations, Climate Change, International Law, International Organization, and Governance
Political Geography:
United States and Europe

164. James C. Hathaway, Michelle Foster. The Law of Refugee Status

Author:
Rosemary Byrne
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
The claims made by migrants seeking protection under the 1951 Convention Relating to the Status of Refugees (Refugee Convention) have created a staggering body of state practice emerging from the interpretation by national courts of what is the earliest universal human rights treaty. The first edition of James Hathaway’s The Law of Refugee Status, alongside Guy Goodwin-Gill and Jane McAdam’s The Refugee in International Law, is one of the essential texts on every refugee lawyer’s bookshelf. Now in its second edition, co-authored by Hathaway and Michelle Foster, The Law of Refugee Status is likely to maintain its standing.
Topic:
International Law, Treaties and Agreements, United Nations, Refugees, and Courts
Political Geography:
Europe, United Nations, and Mediterranean

165. Arnaud de Nanteuil. Droit International de l'investissement

Author:
Eric De Brabandere
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
There clearly is no dearth in publications dealing with the burgeoning field of international investment law. And one might wonder whether another handbook is needed on the subject. Yet Arnaud de Nanteuil’s Droit International de l’investissement has certain features that make the book of particular interest. Notably, it constitutes the first francophone handbook exclusively dedicated to international investment law.
Topic:
International Law, International Trade and Finance, Treaties and Agreements, and Courts
Political Geography:
Europe and France

166. Stephen Allen. The Chagos Islanders and International Law

Author:
Peter H. Sand
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
The tale of the Chagos Archipelago (British Indian Ocean Territory, BIOT) raises a wide spectrum of transnational legal questions, all across the fields of human rights, environment and disarmament. Last-born of the Empire’s colonies, the BIOT was established – and systematically depopulated – for the sole purpose of accommodating a strategic US military base during the Cold War years in 1965–1966. The territory has since generated extensive litigation in the national courts of the United Kingdom (UK) and the USA as well as proceedings in the European Court of Human Rights and an arbitration under Annex VII of the Convention on the Law of the Sea (UNCLOS). Stephen Allen, senior lecturer at the University of London’s Queen Mary College, has long followed and commented on legal developments in the Chagos cases as an observer. The focus of his attention remains the plight of the native Chagossians, a small Kreol-speaking people of African and Malgasy origin, whose exile (mainly to Mauritius, the Seychelles and the UK) has lasted for more than 40 years.
Topic:
Environment, Human Rights, Imperialism, International Law, History, Courts, Disarmament, and Displacement
Political Geography:
Britain, United States, Europe, and Chagos Islands

167. Schizophrenie du droit international

Author:
Ekaterina Yahyaoui Krivenko
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
A poem by Ekaterina Yahyaoui Krivenko.
Topic:
Globalization, Human Rights, International Law, and Constitution
Political Geography:
Europe and Global Focus

168. Who Wants What? – Final Offer Arbitration in the World Trade Organization

Author:
Jaime Tijmes
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The World Trade Organization’s (WTO) Dispute Settlement Understanding (DSU) favours negotiated settlements for disputes. However, arbitrations according to Article 22.6 of the DSU have been carried out as compulsory conventional arbitrations, even though such arbitrations do not offer strong incentives for the parties to reach a settlement. For quite some time, scholars have studied other forms of arbitration that may encourage settlements more strongly, such as final offer arbitration. Yet this form of arbitration has received rather limited attention in the academic discussion about dispute settlement under the WTO. This article explores to what extent final offer arbitration might make sense for settling WTO disputes and concludes that it would be suitable for arbitrations pursuant to Article 22.6 of the DSU, specifically for setting the level of suspension of obligations and, under certain circumstances, for deciding on so-called cross-retaliation pursuant to Article 22.3 of the DSU. Before negotiations start, parties to a dispute should agree on final offer arbitration if arbitration should be deemed necessary. Such an agreement might be expressed in a pre-emptive joint proposal on procedural aspects. Amendment of the DSU would then be unnecessary.
Topic:
International Law, International Trade and Finance, Treaties and Agreements, and World Trade Organization
Political Geography:
Europe and Global Focus

169. Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR

Author:
Lorna McGregor
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The presumption that courts are the principal forum for dispute resolution continues to be eroded. Alternative forms of dispute resolution (ADR), including agreement-based ADR (such as mediation and conciliation) and adjudicative ADR (such as arbitration), continue to proliferate and are increasingly institutionalized, leading to their characterization as ‘appropriate’ or ‘proportionate’ dispute resolution. Interestingly, despite these developments, the position of international human rights law (IHRL) on two key questions regarding ADR and proportionate dispute resolution (PDR) is unclear. These questions are, first, the standards of justice expected of ADR/PDR (whether entered into voluntarily or mandatorily). Second, the permissible circumstances in which parties to a dispute can be required to use ADR/PDR instead of, or before, accessing courts. The attributes and challenges with ADR/PDR have been discussed extensively in socio-legal studies, feminist literature and the dedicated ADR/PDR literature. This article seeks to bring this vast theory on the diversification and institutionalization of dispute resolution into IHRL. Through the lens of the European Court of Human Rights, this article examines the types of tests that supranational bodies currently employ and advances a framework for assessing the choice, design and implementation of ADR/PDR in the future.
Topic:
Human Rights, International Law, Legal Theory, and Courts
Political Geography:
Europe, France, and European Union

170. International Investment Law and the European Union: Towards a New Generation of International Investment Agreements

Author:
Catharine Titi
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
For about half a century, the European investment treaty model has been associated with European Union (EU) member states’ bilateral investment treaty practice, often referred to as their ‘best practices’. Member state bilateral investment treaties, which are liberal instruments strongly protective of investor interests, have remained relatively unchanged over the years, in contrast with their North American counterparts, which have come to represent a new type of investment treaty, cognizant for the first time of the contracting parties’ right to regulate. With the entry into force of the Treaty of Lisbon and the exercise of the EU’s new competence over the conclusion of treaties covering foreign direct investment, Europe marks its distances with the old approach of the member states and appears eager to set its own ‘model’. While broadly in harmony with the new generation of North American investment treaties, the nascent EU policy aims to improve international investment law in innovative ways, targeting both substantive and procedural protections, and leading to a yet newer generation of international investment treaties. The present article explores this new EU standard, which is set to change the face of international investment law as we know it.
Topic:
International Law, Treaties and Agreements, Foreign Direct Investment, and European Union
Political Geography:
Europe and European Union

171. International Investment Law and the European Union: A Reply to Catharine Titi

Author:
Martins Paparinskis
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
Reasonable people might disagree whether the European Union (EU) is likely to make a significant and commendable contribution to international investment law. This article addresses two issues of relevance for this discussion. First, it considers the appropriateness of evaluating evelopments in international investment law in terms of balance between investor protection and the right to regulate. Second, the contribution of the recent EU practice is briefly examined, finding it less interesting and innovative than one might have expected.
Topic:
International Law, European Union, Regulation, and Finance
Political Geography:
Europe and European Union

172. The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action

Author:
Devon Whittle
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The United Nations Security Council (UNSC) is, in many ways, a unique institution. It exercises legislative, judicial and executive powers; operates with few legally binding checks and balances and has even been described as being ‘unbound by law’. The Council has broad powers to maintain international peace and security, most notably under Chapter VII of the UN Charter, and its decisions are binding on UN members. At the same time, some of the Council’s actions have been labelled as ultra vires and the lack of a binding, legal oversight mechanism to reign in Council action has been decried. Accepting that there is a difficulty in imposing legally binding checks and balances on the UNSC, this article argues that approaching the Council’s Chapter VII powers as a form of emergency powers may help to illuminate the role that non-legal restraints can play in curbing its power. In particular, this article uses Oren Gross’ ‘extra-legal measures model’ to conceptualize the Chapter VII regime and restraints upon it. It shows how the extra-legal measures model offers a descriptive account of UNSC action under Chapter VII and then builds on the gaps in the application of the model to the Council to highlight areas for the development of better restraints, in particular, in areas that may be missed by a traditional legal analysis.
Topic:
International Law, United Nations, International Security, and Peacekeeping
Political Geography:
Europe and United Nations

173. Applying the Extra-Legal Measures Model to Humanitarian Interventions: A Reply to Devon Whittle

Author:
Oren Gross
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
In ‘The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action’, Devon Whittle analogizes the United Nations Security Council’s Chapter VII powers to domestic emergency powers. He then seeks to apply the extra-legal measures (ELM) model of emergency powers, which I developed some 20 years ago, to exercise by the Council of its Chapter VII powers. This brief comment seeks to expand the discussion of ELM in international affairs beyond the collective security system by exploring the application of ELM in the setting of unilateral humanitarian intervention.
Topic:
International Law, Treaties and Agreements, United Nations, International Security, and Humanitarian Intervention
Political Geography:
Europe, Kosovo, United Nations, and Syria

174. Title to Territory in the Post-Colonial Era: Original Title and Terra Nullius in the ICJ Judgments on Cases Concerning Ligitan/Sipadan (2002) and Pedra Branca (2008)

Author:
Sookyeon Huh
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
This article approaches two International Court of Justice judgments on the cases concerning Ligitan/Sipadan (2002) and Pedra Branca (2008) from the perspective of the law of territory in the post-colonial context, showing that the Court managed to free the concepts of ‘original title’ from ‘terra nullius’. It is prefatorily explained that the concepts of ‘original title’ and ‘terra nullius’, which operate in combination, had both functioned as bases for the traditional law of territory and as unilateral justification for colonization by European powers. By contrast, analysis of the two recent judgments illustrates that the Court contrived to separate the two concepts from the context of colonialism by avoiding the determination of the islands as ‘terra nullius’ and expanding the concept of ‘original title’ while preserving the existing framework of law of territory. The problem is presented with a caveat, however; overemphasizing the significance of ‘original title’ in the post-colonial context might lead to disregard for the foundations of title to territory, that is effective control of territory and its legitimizing logic, on which the territorial order of today’s international society is based.
Topic:
International Law, Post Colonialism, Territorial Disputes, and Courts
Political Geography:
Europe, Indonesia, Malaysia, and Singapore

175. How Should States Own? Heinisch v. Germany and the Emergence of Human Rights-Sensitive State Ownership Function

Author:
Mikko Rajavuori
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
State ownership is thriving. Emerging economies are extending their growing economic power outward through sovereign wealth funds. State-owned multinationals have become top sources of foreign direct investment. Bailouts have recreated powerful state ownership structures in regions where private ownership has traditionally prevailed. The state is back – in shareholder capacity. Approaching the rise of state ownership from a human rights perspective, this article submits that a new conceptualization of state ownership function is emerging. State ownership provides a strong link connecting corporate actions with the international human rights system. Yet the conventional methods used to integrate state ownership in human rights treaty bodies’ discretion seem unable to grasp the changing economic role of governments in the global economy. The article suggests that the notion of the ‘public shareholder’, introduced by the European Court of Human Rights in Heinisch v. Germany (2011), provides a useful lens for interrogating how states should govern the human rights performance of corporations through ownership. When exposed to the recent practice of a range of United Nations treaty bodies, internationalizing state ownership activity becomes framed in human rights terms. In this vision, the whole ownership function becomes a site for turning companies in the state’s portfolio into responsible corporate citizens who take the impact of human rights seriously. Specifically, treaty bodies should advise states to seek human rights governance through private mechanisms in the capacity of the shareholder. In the process, human rights’ checks and balances should constitute a counterweight for market-based initiatives that regulate state activity in the capacity of the shareholder.
Topic:
Human Rights, International Law, Treaties and Agreements, Foreign Direct Investment, Economies, and Courts
Political Geography:
Europe, Norway, and Germany

176. The International Civil Servant in Theory and Practice: Law, Morality, and Expertise. Review of Carsten Stahn and Henning Melber (eds). Peace Diplomacy, Global Justice and International Agency: Rethinking Human Security and Ethics in the Spirit of Dag Hammarskjöld; Roger Lipsey. Hammarskjöld: A Life; Lise Namikas. Battleground Africa: Cold War in the Congo, 1960–1965; Anne Orford. International Authority and the Responsibility to Protect

Author:
Guy Fiti Sinclair
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
Reflecting upon the ambiguous relationship between international civil servants and international law in both theory and practice, this review essay examines several recent books that address the life and legacy of Dag Hammarskjöld, the second Secretary-General of the United Nations. Drawing upon recent theoretical work regarding international organizations, the essay argues that the authority of international civil servants should be understood as operating through three distinct yet interconnected modalities of discourse and practice: legal, moral and expert. Moreover, a comprehensive account of the authority exercised by international civil servants must take account of how they respond to any tensions that arise between their bases of authority as well as of their shifting relations with other ‘global governors’. The essay considers the depiction of Hammarskjöld by each of the books under review, highlighting the sometimes overlooked interconnections between the different sources of authority upon which he drew and suggesting some starting points for an alternative, integrated account of his thought and practice.
Topic:
Civil Society, Diplomacy, International Law, International Organization, and Humanitarian Intervention
Political Geography:
Africa and Europe

177. Gregory Shaffer (ed.). Transnational Legal Ordering and State Change , Terence C. Halliday, Gregory Shaffer (eds). Transnational Legal Orders

Author:
Lars Viellechner
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The two collections fill a major gap in law and globalization scholarship. In rich detail, they supply empirical material on the current transformation of law that has long been sought after. The studies in the first volume stand out in particular as they employ methods of empirical social research and focus on change in non-Western countries. From this material, other researchers will greatly benefit in the years to come. At the same time, the two volumes add a highly convincing conceptual approach to the field. Indeed, their guiding category of the transnational is very promising in contrast to many others proposed for similar purposes. As the editors properly assert, it best expresses that most patterns of order neither reach out globally nor circumvent the state. Indeed, the recursive interaction of different levels of order appears to be one of the dominating modes of law production today, which is well captured by the term. Nevertheless, some obscurity and doubt about the conceptions of transnational legal ordering and order remain.
Topic:
Globalization, International Law, Sociology, and Legal Theory
Political Geography:
Europe, Asia, and North America

178. Isabelle Ley. Opposition im Völkerrecht: Ein Beitrag zur Legitimation internationaler Rechtserzeugung [Opposition in International Law: A Contribution to the Legitimation of International Law-Making]

Author:
Jan Klabbers
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
Isabelle Ley, in her exemplary dissertation defended at Humboldt University, takes the emergence of regulatory international law as her starting point and aims to investigate how its democratic legitimacy could be enhanced. For her, democracy is not just a matter of particular institutions or practices but, rather, of open and possibly oppositional politics. Building on the work of Claude Lefort and, in particular, Hannah Arendt, she develops a framework for discussing democracy in international law conceptualized as the possibility for opposition. A democratic polity is one where every participant has the possibility of helping to take care of the common world, as Arendt might have put it, and presupposes open politics. This politics is, so to speak, politics for the sake of politics or politics in the Olympic spirit: what matters is not so much winning but taking part; what matters is not so much which policies will be adopted but the political process itself. Following Aristotle, taking part in public affairs is viewed as the most salient manifestation of human excellence: man being a political animal, he can do no better than take part in the political process – this is where individual happiness is achieved and, therewith, the ultimate justification of democracy.
Topic:
International Law, International Organization, Political Theory, and Democracy
Political Geography:
Europe and Germany

179. Michael Fakhri. Sugar and the Making of International Trade Law

Author:
Anna Chadwick
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
Michael Fakhri in his book Sugar and the Making of International Law takes inspiration from Antony Anghie, a scholar who famously disrupted prevalent conceptions of public international law. Using sugar as a ‘trace element’, Fakhri follows Anghie’s lead in retracing the historical origins of international trade law in order to challenge pervasive perceptions about this legal regime. What he is keen to demonstrate is that free trade, like state sovereignty, is not something that international institutions are merely officiating. Rather, the meaning of this concept has shifted over time as it has been applied by different institutions and actors within the international legal order to differential effect. It has been both conditioned by, and received the conditioning of, broader political, economic and social forces. Critically, it is as much the product of international institutions governing trade as it is their purpose.
Topic:
Agriculture, Imperialism, International Law, International Trade and Finance, History, World Trade Organization, and Economy
Political Geography:
Britain, Europe, and Global Focus

180. Mark Toufayan, Emmanuelle Tourme-Jouannet, Hélène Ruiz Fabri (eds). Droit international et nouvelles approches sur le tiers-monde: entre répétition et renouveau [International Law and New Approaches to the Third World: Between Repetition and Renewal]

Author:
Makane Moïse Mbengue
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The volume under review publishes the proceedings of a colloquium held at the University of Paris in July 2010. The aim of this colloquium was to fill a lacuna that characterizes the contemporary francophone international legal scholarship. Indeed, as noted by the editors in their foreword to the book, after a prolific period during the 1970s and 1980s, French and francophone scholars have gradually lost interest in Third World-related issues and ignored this topic in their research and teachings. This trend is regrettable and unfortunate because despite some progress and improvements, international relations are still marked by significant inequalities and disparities between rich and poor countries, while several regions of the world remain in a situation of extreme poverty. Therefore, there is an urgent need to renew and revive the reflection of French-speaking international lawyers on their discipline by inciting them to critically question the present existence and effects of the rules of international law relating to the Third World in the current globalized context. To achieve this goal, Mark Toufayan, Emmanuelle TourmeJouannet and Hélène Ruiz Fabri had the idea of bringing together, in Paris, francophone and anglophone scholars and prominent representatives of the critical Third World Approaches to International Law (TWAIL). TWAIL scholars were invited to expose their ideas and thoughts, and their French-speaking counterparts were asked to react and comment on these thoughts.
Topic:
Development, Human Rights, Imperialism, International Law, Post Colonialism, Third World, and History
Political Geography:
China, Europe, France, South Africa, and Chile

181. Evelyne Schmid. Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

Author:
Mara Tignino
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
Evelyne Schmid’s new book, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law, aims to provide a bridge between developing practice and existing knowledge. At the heart of her book lies the question of how, or to what extent, violations of ESCR are addressed in international criminal proceedings and transitional justice mechanisms. She criticizes the current marginalization of ESCR abuses in scholarship on international criminal law and bemoans the reality that ‘efforts to address the legacy of widespread human rights abuses display a bias towards civil and political rights’. While some have argued for an expansion of international criminal law to account more directly for violations of ESCR, Schmid claims such an expansion is unnecessary; in her view, such violations already fall within the scope of international crimes.
Topic:
Genocide, Human Rights, International Law, United Nations, War Crimes, Courts, and Transitional Justice
Political Geography:
Europe, North Korea, Cambodia, United Nations, and Myanmar

182. Lauri Mälksoo. Russian Approaches to International Law

Author:
Angelika Nussberger
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
Modern international law of the 21st century seems to be characterized by a farewell to the Westphalian understanding of state sovereignty, by the empowerment of the individual and by transnational solutions to common problems in a globalized world. This overview, however, is not true for Russian international law. The ‘powerful idea of Russia’s civilizational distinctness from the West’ is underlying the post-Soviet practice in international law (at 190). This is the main thesis of Lauri Mälksoo’s study on ‘Russian approaches to international law’. Russia was different, Russia is different and Russia is proud of being different.
Topic:
International Law, Sovereignty, United Nations, History, and Intellectual History
Political Geography:
Russia, Europe, and Crimea

183. Humanity Considerations Cannot Reduce Wars Hazards Alone: Revitalizing the Concept of Military Necessity

Author:
Yishai Beer
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
The exercise of brute force by militaries, though common, reflects professional incompetency. A well-trained military has an inherent interest in enhancing its operational effectiveness and constraining unnecessary brutality. The law of armed conflict, however, generally ignores the constraining effect of the necessity principle, originally intended to allow only the minimally necessary use of force on the battlefield. Consequently, the prevailing law places the burden of restricting the exercise of brute military force upon humanitarian considerations (and the specific norms derived from them). Humanity alone, however, cannot deliver the goods and substantially reduce war’s hazards. This article challenges the current dichotomy between the two pillars – mistakenly assumed to be polar opposites – of the law of armed conflict: necessity and humanity. It calls for the transformation of the military’s self-imposed professional constraining standards into a revised legal standard of necessity. Though the necessity principle justifies the mere use of lethal force, it should not only facilitate wielding the military sword but also function simultaneously as a shield, protecting combatants and non-combatants alike from excessive brutality. The suggested transformation would bind and restrain the prospective exercisers of excessive force, political and military alike, and restrict the potential damage that might be caused both intentionally (to combatants) and collaterally (to non-combatants). The combined effect of the current changes in war’s pattern and the law of armed conflict, in the military and social thinking of recent decades, and the new strategies available due to the development of new military technologies have all created a new war environment – one that may be ready to leverage the constraining potential of military professionalism into a binding legal standard and norms.
Topic:
Conflict Prevention, International Law, Treaties and Agreements, and War
Political Geography:
Russia, United States, and Europe

184. Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights Judgments

Author:
Helen Keller and Cedric Marti
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article proposes a shift of perspective concerning the implementation of European Court of Human Rights (ECtHR) judgments. Acknowledging that implementation of the Court’s judgments is primarily of a political and domestic nature, the authors argue that the process has become increasingly internationalized and judicialized by the ECtHR in recent years. Taking a broad, three-tiered perspective that distinguishes between the pre-judgment stage, the judgment itself and the post-judgment stage, the authors analyse the means by which the ECtHR has engaged in implementation of its judgments and explore the benefits of judicialization in this area to secure a key aspect in guaranteeing effective protection and the long-term future of the European Convention on Human Rights system, namely full and timely judgment compliance.
Topic:
Human Rights, International Law, Law, and Courts
Political Geography:
Europe and France

185. Bridging Comparative and International Law: Amicus Curiae Participation as a Vertical Legal Transplant

Author:
Anna Dolidze
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Legal transplants scholarship has thoroughly examined the transnational diffusion of legal institutions. Although Article 38 of the Statute of the International Court of Justice acknowledges that international law draws upon domestic legal systems, the exchange of legal institutions between states and international law has yet to receive similar treatment. This article highlights the process of vertical diffusion – that is, the borrowing of legal institutions between the nation-state and international law. Vertical diffusion takes place in two forms: downward and upward diffusion. Scholarship on the internalization and vernacularization of international law has highlighted the process of downward diffusion. This article offers a theory of internationalization of law and the emergence of internationalized legal transplants. It draws on a study of the internationalization of the amicus curiae participation procedure from the United Kingdom to the European Court of Human Rights. Three main conditions must be present for internationalization: the institution’s structural transformation that results in a law-making opportunity, norm entrepreneurs, and access to the decision-making body. The study of internationalized legal transplants is important to have a more fine-grained perspective on the making of international law. The evidence of the diffusion of legal institutions between domestic law and international law also creates a bridge between international law and comparative law scholarship.
Topic:
Human Rights, International Law, Legal Theory, and Courts
Political Geography:
United Kingdom, Europe, and France

186. Anti-Discrimination Exceptionalism: Racist Violence before the ECtHR and the Holocaust Prism

Author:
Ruth Rubio-Marín and Mathias Möschel
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Over the past years, the European Court of Human Rights has significantly developed and strengthened its Article 14 non-discrimination jurisprudence, including in a number of ground-breaking international law cases establishing increased state responsibility with regard to ethnic segregation in education and gender violence. However, in the type of cases that constitute a large part of its non-discrimination case load, namely physical violence against racial minorities, the Court has so far failed to adequately address Article 14 discrimination claims raised by the victims. We posit that this could be caused in part by what we call the ‘Holocaust Prism’. Put briefly, the experience of the Holocaust has shaped the manner in which continental European courts understand racism and race discrimination, at least (or especially) when it is combined with violence. Paradoxically, this entails that in the most heinous cases of race discrimination, the discrimination threshold is raised to the level of criminal conduct. Moreover, to the extent that it is, only the ethnic dimension of such discrimination is foregrounded even in cases that present obvious intersectional (for example, ethnicity plus gender) dimensions. We exemplify this phenomenon by discussing recent case law on forced sterilization of Roma women and argue that the Court should become aware of this issue, recognize intersectional discrimination and align its case law on racist violence with the discrimination doctrine emerging in its gender violence and educational race segregation cases, both for the sake of internal consistency and to better capture the structural nature of racial discrimination in Europe.
Topic:
International Law, Ethnicity, Gender Based Violence, Holocaust, Roma, and Discrimination
Political Geography:
Europe and Czech Republic

187. Letting Lotus Bloom

Author:
Ann Hertogen
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
In an increasingly interdependent world, state sovereignty is inherently limited in order to protect the equal sovereignty of other states. However, identifying the precise constraints on states is a different and far more difficult question. The traditional answer is found in the Lotus principle, which consecrates a freedom to act unless explicitly prohibited by international law. The principle has rightly come under attack because of its incompatibility with the needs of a modern international community. This is usually followed by calls to disregard the precedential value of the Permanent Court of International Justice’s Lotus judgment on which it is based. This article defends the Lotus judgment but argues that the principle is the wrong reading of the majority opinion and that it fails to create the right conditions for interstate co-existence and cooperation, the twin goals of international law identified by the majority. The article then examines the meaning of ‘co-existence’ for contemporary international law and weighs the principle of ‘locality’ as an additional criterion that ought to be considered when resolving conflicting claims of jurisdiction.
Topic:
International Law, Sovereignty, International Affairs, and Courts
Political Geography:
Europe, Turkey, and France

188. The International Legal Status of the Vatican/Holy See Complex

Author:
John R. Morss
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article offers a re-examination of the international legal status of what is here termed the Vatican/Holy See complex (VHS), focusing on claims to statehood. The problematic ‘effect’ of Vatican City, of the Holy See, of the papacy and of associated entities is interrogated at the level of international law, entering as little as possible into administrative or theological distinctions. The various grounds cited as supporting status amounting to statehood are argued to be inadequate. The continuing exchange of representatives with states by the VHS is missionary and hierarchical in character and is reflective neither of the reciprocity of peers nor of customary obligation going to law. Agreements entered into by the papacy with the Kingdom of Italy (the Lateran Pacts) in 1929, relating to the status of the geographical territory known as Vatican City, cannot be determinative of international status. Nor can membership of international agreements and organizations confer a status amounting to statehood. Events and practices since 1929 have not substantially altered international status as of 1870. The Roman Catholic Church is but one of many faith-based international movements, and since the eclipse of the papal state nearly one-and-a-half centuries ago, the status in international law of its temporal headquarters in Rome should not be privileged.
Topic:
International Law, Religion, Sovereignty, and History
Political Geography:
Europe, Italy, and Vatican city

189. Functionalism! Functionalism! Do I Look Like Functionalism?

Author:
Laurence Boisson de Chazournes
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
In his EJIL Foreword, Jan Klabbers argues that the contemporary application of functionalism, understood as organizations being assigned functions, in order both to realize the common good and to deepen inter-state cooperation, is something of a theoretical straitjacket. However, can functionalism really be described as a ‘one-size-fits-all’ concept? It is the contention of this Comment that there are, in fact, different manifestations of the concept, including neo-functionalism and formal or informal functionalism. New realities in this field also reflect an evolved conception of functionalism, such as the increasing diversity of actors affected by, and influencing, international organizations, as well as the fact that institutions have become authorities in their own right. As a consequence, we may also observe the emergence of principles, often referred to as global administrative law principles, aimed at dealing with these new realities. The article recognizes that a functional orientation in designing the mandates of international organizations has contributed to overlaps and inefficiency. However, it argues that efforts have been made in pursuance of greater efficiency.
Topic:
International Law, International Organization, and World Trade Organization
Political Geography:
Europe and Global Focus

190. Saving the Scarecrow

Author:
André Nollkaemper
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This brief Comment responds to Jan Klabbers’ recent article, ‘The Transformation of International Organizations Law’. It focuses on three points: the polemical style and disengagement with substance in the article; the question of whether we can do without some form of functionalism; and the further question of what it means to speak of ‘responsibility beyond functionalism’.
Topic:
International Law, International Organization, Law, and Critique
Political Geography:
Europe and Global Focus

191. The Original Sin (and Salvation) of Functionalism

Author:
Guy Fiti Sinclair
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This Comment interrogates the central and determining role accorded to functionalism in Jan Klabbers’ account of international organizations (IOs) law in his recent article, ‘The EJIL Foreword: The Transformation of International Organizations Law’. Specifically, it expresses doubts regarding Klabbers’ designation of functionalism as the dominant, paradigmatic theory of IOs law; questions whether the article’s account of functionalism’s historical origins is persuasive; and argues that the ‘rise and fall’ narrative set forth in the article presents an overly sanitized picture of IOs law, largely free from political struggle. The development of IOs law has been more contested than Klabbers’ narrative suggests; minimizing that contestation carries the danger of closing off possibilities for reimagining IOs law today.
Topic:
International Relations, International Law, International Organization, and Critique
Political Geography:
Europe and Global Focus

192. The Transformation of International Organizations Law: A Rejoinder

Author:
Jan Klabbers
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Jan Klabbers responds to critiques by Laurence Boisson de Chazournes, André Nollkaemper and Guy Fiti Sinclair of his EJIL Foreword.
Topic:
International Relations, International Law, International Organization, and Critique
Political Geography:
Europe and Global Focus

193. The Modern Practice of Intervention by Invitation in Africa and Its Implications for the Prohibition of the Use of Force

Author:
Erika de Wet
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article examines how two prominent criteria for permissible military intervention by invitation as developed in doctrine are currently implemented by states as well as how this impacts the prohibition of the use of force. Controversies concern, in particular, the determination of the authority entitled to extend the invitation, as recently illustrated by the Russian claim that its military intervention in the Crimea was based on the invitation of (former) President Yanukovych. Does the inviting authority need to enjoy democratic legitimacy and/or be in de facto control of a state’s territory? Furthermore, it remains highly contentious whether an invitation for forcible intervention may be extended during a civil war. By analysing modern state practice in Africa – where most of the contemporary invitations for military assistance occur – and comparing it with recent developments in other regions, the author concludes that effective control rather than democratic legitimacy is (still) the point of departure for determining the legitimate government of a state. Once recognized, incumbent governments enjoy a large discretion when inviting military assistance from foreign governments. They seem to retain the right to military assistance even in situations of civil war and while exercising limited control over the territory.
Topic:
International Law, Sovereignty, United Nations, and Military Intervention
Political Geography:
Africa, Russia, Europe, and Crimea

194. Interrogations of Consent: A Reply to Erika de Wet

Author:
Dino Kritsiotis
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article presents a critical engagement with the issue of force and intervention undertaken with the consent of the state in whose territory it ultimately occurs and offers a critical assessment of Erika de Wet’s article ‘The Modern Practice of Intervention by Invitation in Africa and Its Implication for the Prohibition of the Use of Force’. It considers the different interpretative approaches suggested for consent and the Charter of the United Nations’ prohibition of force as well as the principle or principles that have come to govern the issuing of valid consent in international law. The contribution turns to some of the methodological positions taken in exploring the continuing validity of the so-called ‘effective control principle’ in modern African practice, and, as it does so, it probes the utility of questions for the jus ad bellum of ‘other’ international law (such as developments within the jus in bello and the law on self-determination).
Topic:
International Law, Sovereignty, United Nations, and Military Intervention
Political Geography:
Africa and Europe

195. Domestic Violence as a Human Rights Issue: Rumor v. Italy

Author:
Ronagh J.A. McQuigg
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article focuses on the recent developments concerning domestic violence within the context of the Council of Europe. Since 2007, the European Court of Human Rights has issued a series of important judgments in cases involving domestic violence. The most recent of these is Rumor v. Italy, in which the Court issued its judgment on 27 May 2014. The article analyses this case in the context of the Court’s previous jurisprudence on domestic violence. In addition, on 1 August 2014, the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence entered into force, and the article will include a number of reflections on the potential held by this Convention. No violation of the European Convention on Human Rights was found in Rumor; however, the question of whether Italy would have been in breach of the provisions of the new Convention, to which it is a party, had this Convention been in force at the time of the relevant events, will be examined.
Topic:
Human Rights, International Law, Women, Gender Based Violence, and Courts
Political Geography:
Europe and Italy

196. EJIL Editors’ Choice of Books 2015

Author:
Sarah Nouwen, Christian Tams, Jan Klabbers, and Jean d'Aspremont
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
At the end of 2014, we invited the EJIL Board members to reflect on the books that had had a significant impact on them during the year. Their contributions, posted on EJIL: Talk!, were met with great interest and curiosity. As the end of another year approaches, we decided once more to invite our Board members to look back on their reading in 2015. In the following pieces Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont write about the books they read or re-read this year and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.
Topic:
Human Rights, International Law, History, and Courts
Political Geography:
Africa, Europe, and South Sudan

197. Surabhi Ranganathan. Strategically Created Treaty Conflicts and the Politics of International Law

Author:
Sabrina Safrin
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Treaty conflicts may be inevitable, but what do we make of conflict by design? In Strategically Created Treaty Conflicts and the Politics of International Law, Surabhi Ranganathan thoughtfully explores nations’ purposeful creation of conflicts between treaties to advance their political goals and to restrict the impact of treaties to which they object. Essentially, states fight legal fire with legal fire. If they object to a multilateral treaty regime, they create another regime that effectively conflicts with, or cabins, the treaty regime that they object to rather than simply walking away.
Topic:
International Law, Treaties and Agreements, Book Review, and Law of the Sea
Political Geography:
Europe and United States of America

198. M. Sornarajah. Resistance and Change in the International Law on Foreign Investment

Author:
Harm Schepel
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
In 1994, Muthucumaraswamy Sornarajah published the first edition of his treatise, The International Law on Foreign Investment. There, he sought to demonstrate that investment law as a separate branch of international law was ‘in the process of development’ and could and should be isolated for separate study. Organizing his material from the disparate sources of domestic law, contract-based arbitration and public international law along the overarching tension between the interests of developing countries and those of traditionally capital-exporting states, his stated aim was to ‘help in the identification of the nature of the disputes’, which would lead, in turn, to the ‘formulation of acceptable solutions’. The treatise was a well-timed pioneering effort that rightfully earned the author a lasting reputation as one of the founding fathers and towering figures of the academic discipline. There seems to be no one better placed, then, to ask, 20 years on, what happened or, rather, what went wrong. Investment law has developed with breathtaking speed into a (very) separate branch of international law – yes – but almost entirely on the waves of treaty-based investor–state arbitration, which has all but eclipsed contractual and domestic processes, at least in terms of academic interest. And this system has, in the eyes of Sornarajah and many others, rather spectacularly failed to lead to ‘acceptable solutions’, especially for developing countries.
Topic:
International Law, Treaties and Agreements, Foreign Direct Investment, Neoliberalism, and Book Review
Political Geography:
Europe and United States of America

199. An Excerpt from the Upcoming Book - Borderless Wars: Civil-Military Disorder and Legal Uncertainty

Author:
Antonia Chayes
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
Fletcher Security Review
Institution:
The Fletcher School, Tufts University
Abstract:
Drones. Global data networks. The rise, and eventual primacy, of non-international armed conflict. All things the framers of the Geneva Conventions could have never fully conceived when doing their noble work in 1949; all things that rule warfare in the world today. So, how do we legally employ these new tools in these new circumstances? In her latest book, Antonia Chayes, former Under Secretary of the Air Force, explores the current legal underpinnings of counterinsurgency, counterterrorism, and cyber warfare, rooting out the ambiguities present within each realm, and telling the narrative of how these ambiguities have come to shape international security today. The grounded and creative solutions that she offers in terms of role definition and transparency will provide crucial guidance as the United States continues to navigate the murky modern military-legal landscape. This excerpt is a chapter from Borderless Wars: Civil-Military Disorder and Legal Uncertainty forthcoming in 2016 from Cambridge University Press.
Topic:
International Law, Counterinsurgency, Law, Military Affairs, Counter-terrorism, Drones, Conflict, Borders, and Law of Armed Conflict
Political Geography:
Afghanistan, Iraq, Global Focus, and United States of America

200. Full Issue: Emerging Domains of Security

Author:
Meg Guliford, Thomas McCarthy, Alison Russell, Michael M. Tsai, Po-Chang Huang, Feng-tai Hwang, Ian Easton, Matthew Testerman, Nikolas Ott, Anthony Gilgis, Todd Diamond, Michael Wackenreuter, Sebastian Bruns, Andrew Mark Spencer, Wendy A. Wayman, and Charles Cleveland
Publication Date:
09-2015
Content Type:
Journal Article
Journal:
Fletcher Security Review
Institution:
The Fletcher School, Tufts University
Abstract:
The theme of this special edition is “Emerging Domains of Security.” Coupled with previously unpublished work developed under a prior “Winning Without War” theme, the articles therein honor Professor Martel’s diverse, yet forward-leaning, research interests. This edition maintains the journal’s four traditional sections of policy, history, interviews, and current affairs. Our authors include established academics and practitioners as well as two Fletcher students, Nikolas Ott and Michael Wackenreuter. Each of the articles analyzes critical issues in the study and practice of international security, and our authors make salient arguments about an array of security-related issues. The articles are borne out of countless hours of work by FSR’s dedicated editorial staff. I deeply appreciate the time and effort they devoted to the publication of this volume. They are full-time graduate students who masterfully balanced a host of responsibilities.
Topic:
Security, Defense Policy, Intelligence, International Cooperation, International Law, History, Military Affairs, Counter-terrorism, Cybersecurity, Navy, Conflict, Space, Interview, Army, Baath Party, and Norms
Political Geography:
China, Iraq, Europe, Middle East, Taiwan, Germany, Asia-Pacific, Global Focus, and United States of America