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  • Author: Eric Stein
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: All is well In heaven and hell And …
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: These are challenging times for the European Union. Internally, important, even fundamental, decisions are on the agenda as the Union struggles with the Euro crisis and its underlying economic fissures. (Mercifully, the scapegoating of the USA as an escape from facing Europe's very own breathtaking governmental and private-sector financial and fiscal irresponsibility has all but disappeared – mercifully, since facing reality unflinchingly is a necessary condition for dealing with it effectively.) What is subprime in Europe is the decisional structure of the Union: the European Politburo – President of the Commission, newly-minted President of the Council, tired-old-more-senseless-than-ever rotating Member State Presidency, recycled High Representative answerable to two bosses and thus to none – has proven at best irrelevant to the real actors in you know where (Berlin, Paris, the formidable Merkel, the erratic Sarkozy), at worst distracting – was the able President of the Council's productive moves really helped by the forced tango with his opposite number at the Commission? About a year after the entry into force of the Treaty of Lisbon, it is clear that at least some of the principal objectives intended by the new decisional structure at the top are turning out to be as ineffective (some claim laughable) as critics anticipated.
  • Political Geography: Europe, Lisbon
  • Author: Dapo Akande, Sangeeta Shah
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.
  • Topic: Government, International Law
  • Political Geography: America
  • Author: Henning Grosse Ruse-Khan, Thomas Jaeger, Robert Kordic
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article discusses atypical acts of the European Union (EU) concerning intellectual property (IP) protection within the EU's internal legal order and its external relations. Internally, atypical acts are used in IP for flexible pre- and post-regulation purposes or for soft guidance and steering. Yet in IP and elsewhere, those flexibilities come at the cost of deficits in democratic legitimacy, legality, and legal certainty. Atypical acts are also common in the external trade relations of the EU. Like more formal conduct of trade relations by means of international agreements, they focus on the enforcement of IP rights. The less formal (and legal) character of these acts often allows them to be more policy-driven and so makes it easier to address key political concerns relevant for EU external trade relations in a more flexible and current manner. Some of these policies are subsequently turned into 'hard' law –for example in the course of the negotiations over the controversial Anti-Counterfeiting Trade Agreement (ACTA). Based on the comparative analysis of the role of atypical acts in the EU's internal legislation for IP vis-à-vis their role in external action, this article explores possibilities of limiting the drawbacks while preserving the benefits of a use of atypical acts in external policies.
  • Political Geography: Europe
  • Author: Sarah M.H. Nouwen, Wouter G. Werner
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: International criminal justice has become a weapon in political struggles in Uganda and Sudan. In this light, this article discusses the political meaning of the International Criminal Court's judicial interventions. It argues that the ICC, presented by its advocates as a legal bastion immune from politics, is inherently political by making a distinction between the friends and enemies of the international community which it purports to represent. Using original empirical data, the article demonstrates how in both Uganda and Sudan warring parties have used the ICC's intervention to brand opponents as hostis humani generis, or enemies of mankind, and to present themselves as friends of the ICC, and thus friends of the international community. The ICC Prosecutor has at times encouraged this friend–enemy dichotomy. These observations do not result in a denunciation of the Court as a 'political institution'. On the contrary: they underline that a sound normative evaluation of the Court's activities can be made only when its political dimensions are acknowledged and understood.
  • Political Geography: Uganda, Sudan
  • Author: Mehrdad Payandeh
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This article analyses H.L.A. Hart's concept of international law from the perspective of anaytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart's view that international law is 'law' but not a 'legal system'. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart's general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart's methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart's analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.
  • Topic: International Law
  • Author: Sujitha Subramanian
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: In Microsoft v. Commission, Microsoft was ordered by the European Court of First Instance (CFI) to license interface information to its competitors on reasonable terms and to supply a fully functioning version of Windows Personal Computer Operating System without Windows Media Player. Microsoft claimed that the remedies infringed the minimum standards of IP protection provided by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, the CFI refused to examine the TRIPS provisions, on the basis that international agreements do not prevail over primary Community law, and in any case, the TRIPS agreement permits members to restrain anti-competitive abuse of IP rights. This article examines the issues that arise from this position: first, is the Microsoft decision TRIPS compliant? Secondly, to what extent is the EU bound to its obligations under the TRIPS Agreement? The article highlights the lack of a clear-cut hierarchy of norms and illustrates how EU law is placed within a multi-layered governance structure involving national law and international law. The article finds that the EU does not engage in consistent interpretation or application of the TRIPS provisions.
  • Political Geography: Europe
  • Author: Helen Keller, Andreas Fischer, Daniela Kuhne
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: The purpose of this article is to give new impetus to the topical debate on reforming the ECHR in the wake of the Interlaken Conference, at which the ECHR states parties agreed on a roadmap for the future evolution of the Convention system. We highlight two issues which have so far been underexposed in the literature. First, reform measures relating to the new admissibility criterion, just satisfaction, and the pilot judgment procedure are only partially promising, because they are premised on the condition of their being applicable telle quelle in all the states parties. If Convention reforms are to be effective, they must take due account of differing realities relating to a country's human rights situation and the quality of its judiciary. Secondly, given the very high proportion of so-called manifestly ill-founded applications, the Court's practice of rejecting them without giving reasons leads it into a legitimacy problem. We suggest a new provision in the Rules of Court which makes the Court's practice concerning the handling of manifestly ill-founded applications more transparent.
  • Political Geography: Europe
  • Author: Wenhua Shan, Sheng Zhang
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: As a follow-up study on the external investment policy of the EU, this article attempts to analyse the relevant provisions in the Lisbon Treaty and assesses their legal implications on the international investment treaty practice of the Union and its Member States. It first briefly reviews the EU's foreign investment competence before the Treaty of Lisbon, followed by an assessment of the different views concerning the interpretation of the Lisbon Treaty provision including 'foreign direct investment' under the common commercial policy. The practical legal implications of the change are discussed in the third part, including intra- and extra-EU investment treaty practices. It is concluded that while the change is significant and will greatly enhance the treaty-making competence of the EU in external investment areas, it is only a half way success toward a full common investment policy (CIP). Potential paths to achieve the ultimate goal are also briefly explored.
  • Political Geography: Lisbon
  • Author: Thomas Kleinlein
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: The idea of a 'constitutionalization' of international law and international institutions owes much to a long tradition of idealistic international law scholarship. It gained momentum with the end of the Cold War, only to be frustrated some years later. US hegemonic tendencies after 9/11, the unauthorized invasion of Iraq in 2003, and the impasse of the Doha Development Round in the WTO are only some of the factors demonstrating that the dissolution of the Eastern Bloc had not signalled the end of history. These setbacks, however, did not render the academic discourse on 'constitutionalization' of global governance silent, and there is now a burgeoning literature on the subject. Recently, three books have stimulated the discussion: Ruling the World?, edited by Jeffery L. Dunoff and Joel P. Trachtman, and the two books under review.
  • Topic: Cold War, International Law
  • Political Geography: United States