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  • Author: Hannah Woolaver
  • Publication Date: 01-2019
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: If a state withdraws from a treaty in a manner that violates its own domestic law, will this withdrawal take effect in international law? The decisions to join and withdraw from treaties are both aspects of the state’s treaty-making capacity. Logically, international law must therefore consider the relationship between domestic and international rules on states’ treaty consent both in relation to treaty entry and exit. However, while international law provides a role for domestic legal requirements in the international validity of a state’s consent when joining a treaty, it is silent on this question in relation to treaty withdrawal. Further, there has been little scholarly or judicial consideration of this question. This contribution addresses this gap. Given recent controversies concerning treaty withdrawal – including the United Kingdom’s exit from the European Union, South Africa’s possible withdrawal from the International Criminal Court, and the threatened US denunciation of the Paris Agreement – and the principles underlying this body of law, it is proposed that the law of treaties should be interpreted so as to develop international legal recognition for domestic rules on treaty withdrawal equivalent to that when states join treaties, such that a manifest violation of domestic law may invalidate a state’s treaty withdrawal in international law.
  • Topic: International Law, Treaties and Agreements, European Union, Courts, State Actors
  • Political Geography: United Kingdom, Europe, South Africa, United States of America
  • Author: Paz Andrés Sáenz De Santa María
  • Publication Date: 07-2019
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article examines the European Union’s (EU) treaty practice from the perspective of the international law of treaties, focusing on its most significant examples. The starting point is the EU’s attitude towards the codification of treaty law involving states and international organizations. The article discusses certain terminological specificities and a few remarkable aspects, such as the frequent use of provisional application mechanisms as opposed to much less use of reservations, the contributions regarding treaty interpretation, the wide variety of clauses and the difficulties in determining the legal nature of certain texts. The study underlines that treaty law is a useful instrument for the Union and is further enriched with creative contributions; the outcome is a fruitful relationship.
  • Topic: International Law, Treaties and Agreements, European Union, Courts
  • Political Geography: Europe, European Union
  • Author: Alan Desmond
  • Publication Date: 01-2018
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article critically examines the evolving practice of the European Court of Human Rights (ECtHR) towards the definition and use of the concepts of family life and private life in cases involving migrants who seek to resist deportation by invoking Article 8 of the European Convention on Human Rights. The examination reveals an approach on the part of the Court that has the effect of shrinking the protection potential of Article 8 for migrant applicants, allowing state interest in expulsion to carry the day. This is symptomatic of Strasbourg’s deference to state sovereignty in the realm of migration. While the ECtHR has issued a number of landmark rulings roundly vindicating migrants’ rights, these are the exception to the rule of Strasbourg’s deference to state powers of immigration control. This approach has far-reaching implications for migrants in the member states of the Council of Europe. The article concludes by highlighting the tools at the Court’s disposal that could be employed to construct a more human rights-consistent approach in this strand of jurisprudence, which is an issue all the more relevant in light of the growing number of migrants seeking to establish a life in Europe.
  • Topic: Human Rights, International Law, Migration, Sovereignty, Courts
  • Political Geography: Europe, France
  • Author: Leora Bilsky, Rachel Klagsbrun
  • Publication Date: 04-2018
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Cultural genocide, despite contemporary thinking, is not a new problem in need of normative solution, rather it is as old as the concept of genocide itself. The lens of law and history allows us to see that the original conceptualization of the crime of genocide – as presented by Raphael Lemkin – gave cultural genocide centre stage. As Nazi crime was a methodical attempt to destroy a group and as what makes up a group’s identity is its culture, for Lemkin, the essence of genocide was cultural. Yet the final text of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) does not prohibit cultural genocide as such, and it is limited to its physical and biological aspects. What led to this exclusion? In this article, we examine the various junctures of law, politics and history in which the concept was shaped: the original conceptualization by Lemkin; litigation in national and international criminal courts and the drafting process of the Genocide Convention. In the last part, we return to the mostly forgotten struggle for cultural restitution (books, archives and works of art) fought by Jewish organizations after the Holocaust as a countermeasure to cultural genocide. Read together, these various struggles uncover a robust understanding of cultural genocide, which was once repressed by international law and now returns to haunt us by the demands of groups for recognition and protection.
  • Topic: Genocide, International Law, History, Culture, Courts, Holocaust
  • Political Geography: Europe, Germany
  • Author: Alexandra Adams
  • Publication Date: 07-2018
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: The article analyses the over 20 years’ jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda with respect to the crime of rape. It discusses how the attitude towards the prosecution of sexual crimes has changed since the Tribunals work began and what impact its jurisprudence has had on other attempts to define rape (elements of crime [EOC]). The article explores in depth the various definitions of rape given by the different chambers of both Tribunals. Consequently, it examines if the ultimate definition of the Kunarac chamber will prevail in international law. Not only are the weaknesses of the Kunarac definition that followed a pure consent approach revealed but the EOC of rape that opted for a combination of the coercion approach with one aspect of the lack-of-consent doctrine (incapacity) also face criticism. This leaves only one response – namely, that the elements of rape in international criminal law today can only be based upon a newly conducted comparison of national laws, thereby reflecting the general principles of the major legal systems of the world. The strongest accomplishment of both Tribunals concerning the crime of rape therefore lies not in the clarification of the elements of rape but, rather, in the revelation of a law-finding method, which is indispensable to the rudimentary field of international criminal law.
  • Topic: International Law, War Crimes, Gender Based Violence , Courts, Rape
  • Political Geography: Europe, Yugoslavia, Rwanda
  • Author: Veronika Fikfak
  • Publication Date: 10-2018
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.
  • Topic: Human Rights, International Law, Reform, Courts
  • Political Geography: Europe, France
  • Author: Merris Amos
  • Publication Date: 07-2017
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: National debates concerning the appropriate role of the European Court of Human Rights (ECtHR) in the United Kingdom (UK) recently intensified with the suggestion by the government that the UK might leave the European Convention on Human Rights system. It has been argued that a British Bill of Rights, to replace the current system of national human rights protection provided by the Human Rights Act 1998, would provide better protection than the ECtHR, making its role in the national system redundant. Claiming that the ECtHR is legitimate and has an impact that is usually illustrated by the transformative power of judgments more than 10 years’ old, have not provided a convincing answer to this claim. In this article, rather than legitimacy or impact, the value of the ECtHR to the objective of protecting human rights through law is assessed. Three different levels of value are identified from the relevant literature and then applied to the judgments of the Court concerning the UK from 2011 to 2015 to determine what has happened in practice. It is concluded that given that the UK government’s objective remains to protect human rights through law, although some types of value are now more relevant than others, overall the potential value of the Court to the UK in achieving this objective is still clearly evident.
  • Topic: Human Rights, International Law, Courts
  • Political Geography: United Kingdom, Europe
  • Author: Simon Chesterman
  • Publication Date: 10-2016
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international or ganizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.
  • Topic: International Law, International Organization, History, Courts, Colonialism
  • Political Geography: Japan, China, Europe, India, Asia
  • Author: Stefan Talmon
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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 , Courts
  • Political Geography: Europe, The Hague
  • Author: Ilias Plakokefalos
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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 , Courts
  • Political Geography: Europe, The Hague
  • Author: Sungjoon Cho, Thomas H. Lee
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Courts
  • Political Geography: China, Europe, United States of America
  • Author: Rosemary Byrne
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Courts
  • Political Geography: Europe, United Nations, Mediterranean
  • Author: Eric De Brabandere
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Courts
  • Political Geography: Europe, France
  • Author: Peter H. Sand
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Displacement
  • Political Geography: Britain, United States, Europe, Chagos Islands
  • Author: Lorna McGregor
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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 , Courts
  • Political Geography: Europe, France, European Union
  • Author: Sookyeon Huh
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Courts
  • Political Geography: Europe, Indonesia, Malaysia, Singapore
  • Author: Mikko Rajavuori
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Courts
  • Political Geography: Europe, Norway, Germany
  • Author: Mara Tignino
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Transitional Justice
  • Political Geography: Europe, North Korea, Cambodia, United Nations, Myanmar
  • Author: Helen Keller, Cedric Marti
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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, Courts
  • Political Geography: Europe, France
  • Author: Anna Dolidze
  • Publication Date: 10-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • 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 , Courts
  • Political Geography: United Kingdom, Europe, France