Search

You searched for: Content Type Journal Article Remove constraint Content Type: Journal Article Journal European Journal of International Law Remove constraint Journal: European Journal of International Law
Number of results to display per page

Search Results

  • Author: Anne Orford
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today's highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Sergio Puig
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Scholars have often assessed and criticized the group of international arbitration professionals, some characterizing this group as a dense 'white, male' group. Faced with limited access and data, however, this critique has not been informed by a robust empirical component. Relying on all the appointments made in proceedings under ICSID between 1972 and February 2014, interviews with arbitration professionals, and an original database created for this project, this article is the first to assess the social structure of investor–state arbitrators. Using network analytics, a long-standing but recently popularized methodology for understanding social groups, the article maps the group of professionals by relying on formal appointments to tribunals. The subsequent analysis of this form of operationalizing the social group reveals who are the 'grand old men' (and formidable women) or 'power-brokers' that dominate the arbitration profession. The article argues, based on the evidence presented, that, among other factors, in addition to good timing and imperfect information, the structure of the process of appointment, and a risk averse culture, key arbitrators may benefit from heuristic biases, or the limited cognitive scope of lawyers making such appointments.
  • Author: Tilmann Altwicker, Oliver Diggelman
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is a tendency in international legal discourse to tell the story of international law as a story of progress. 'Progress' is a concept which is tied to the process of secularization and Western 18th and 19th century philosophy. It still inspires the debate on international law – despite all setbacks in 'real history'. This article argues that progress narratives in the inter-national legal discourse are constructed by – more or less subtle – argumentative techniques. It highlights four such techniques – four 'bundles of arguments' – which play a key role: ascending periodization, proving increasing value-orientation of international law, detection of positive trends, and paradigm shift-talk. The article offers an explanation of why the pro-gress argument often succeeds in international legal discourse.
  • Topic: International Law, Weapons of Mass Destruction
  • Author: Gregoire Mallard
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In recent years, international lawyers have increasingly debated the normative consequences of the 'fragmentation' of international law. More rarely have they studied empirically how tensions between overlapping systems of rules emerge, how conflicts are harmonized, and with what effects. This article explains such dynamics in the case of the nuclear non-proliferation regime (NPR) complex. Based on original archival fieldwork conducted in the private papers of American and European diplomats in the early Cold War, it shows how Western states solved the tensions that existed between contradictory commitments contracted in the European Atomic Energy Community (Euratom) Treaty and the Nuclear Non-proliferation Treaty in 1968 (NPT). To lessen the tensions between regional and global orders, the Euratom control rules were used as a source of inspiration for the new rules used to monitor compliance with the NPT at the global level. In retrospect, this outcome was puzzling, as the Euratom Treaty was not originally concerned with non-proliferation issues. That the knowledge of the original intentions behind Euratom was lost to the policymakers who negotiated the NPT thus had grave consequences in the future. This case shows the importance of studying the concrete knowledge of international legal rules that gets transmitted across generations of policymakers in order to understand how regime complexity evolves.
  • Topic: Cold War
  • Political Geography: Germany
  • Author: Moria Paz
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual's cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national-political compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant culture and language of the majority. The minority can still maintain its distinct language, but only at its own cost. The slippage between the promise of rights and their actual interpretation carries some important political and economic benefits, but the resulting legal outcome does not provide the robust protection of diversity to which lip service is paid. Importantly, the assimilationist nature of the jurisprudence is not indifferent to human rights. However, instead of advancing maximal linguistic diversity as a pre-eminent norm, the regime that is applied by judicial bodies supports a different set of human rights: those protecting linguistic minorities from discrimination, and promoting equal access of the group to market and political institutions. The result is a tension between two human rights values: pluralism and equality.
  • Topic: Human Rights, Culture
  • Author: Arnulf Becker Lorca
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Conventionally, self-determination is understood to have evolved in a linear progression from a political principle during World War I into an international right after World War II. The history of the right to self-determination before 1945 is thus part of 'pre-history'. This article explores that 'pre-history' and finds the conventional linear narrative unconvincing. During the first three decades of the 20th century and in particular during the interwar period, non-Western lawyers, politicians, and activists articulated international law claims to support the demand for self-government. In this process, they appropriated and transformed the international law discourse. Removing the legal obstacles that prevented self-government beyond the West – that is, by eliminating the standard of civilization – interwar semi-peripherals made possible the emergence of a right to self-determination later, when the international political context changed after the second post-war reconstruction of international law.
  • Topic: International Law, War
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We deal in EJIL with the world we live in – often with its worst and most violent patholo-gies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our schol-arly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photo-graph: people shot up; the ravages of pollution and all other manner of photojournalism. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photo-graphs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring.
  • Topic: Financial Crisis
  • Political Geography: Dublin
  • Author: Laszlo Blutman
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Andrew Guzman declares that customary international law is in trouble. I disagree. It is those who seek to explain it who are in trouble. Theoretical efforts are plagued with descriptive insufficiencies (for example, the formation of various customary norms takes place within a heterogeneous, opaque process that resists any general and meaningful description in specific cases), systemic uncertainties (for example, locating the source of rules that govern the formation of customary norms), semantic problems (such as what exactly is general practice) and the divergence of conceptions articulated within international practice. These difficulties, which hamper a better understanding of international law itself, originate from the conceptual level. This article will therefore focus on certain symptomatic conceptual and methodological problems. Nine of them are outlined, and three will be analysed in greater detail, namely the relationship between opinio juris and acceptance, the characteristics of the concept 'general practice' and the failure of attempts to describe customary international law by dichotomies. As a conclusion, the author identifies seven requirements of, and assumptions about, a possible, workable theory of customary international law.
  • Topic: International Law
  • Author: Loveday Hodson
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article places the UN Women's Committee at its centre in order to consider the normative implications of having a space within the realm of international law that is headed by women decision-makers, whose remit is specifically gendered and whose task is to uphold the rights of women. It suggests that the Committee's importance has largely been overlooked, which is a considerable oversight. The Committee is uniquely positioned to contribute to the transformation of human rights norms, occupying, as it arguably does, positions simultaneously at the centre and at the periphery of international law. In particular, this article examines the jurisprudence that has emerged under the individual complaints procedure of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and questions how far the Committee has been able to develop women's rights in recent years into a body of law that departs from the normative and structural limitations of international human rights laws.
  • Topic: Human Rights
  • Political Geography: United Nations
  • Author: Wolfgang Hoffmann-Riem
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article analyses the activities of the European Commission for Democracy through Law. Addressed are the standards applied in the Commission's opinions, especially on constitutional provisions and other legal norms or drafts. The article looks at the impact that these (non-binding) opinions have on the states concerned as well as on the European Court of Human Rights. Though recommendations are sometimes disregarded, most states do react positively, at least in part. To some extent the Commission could enhance the effect of its opinions by joining forces with other relevant institutions in the field, especially the Council of Europe and the European Commission. Endorsing and implementing recommendations gives states an opportunity to share in the reputation that comes with being part of a community founded on Human Rights, the Rule of Law, and Democracy. An overall assessment is made of the Commission's approach to its work.
  • Topic: Human Rights
  • Political Geography: Europe