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  • Author: Yuval Shany
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international dispute settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and nonstate parties, and the growing inclination of national courts to apply international law. Arguably, these developments point to the emergence of a new judiciary the operation of which is governed by a new ethos (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution). The article then moves on to discuss some of the 'blind spots' of the present judicial institutional landscape, which includes a consideration of the remaining difficulties associated with addressing politically-charged conflicts before international courts (especially those relating to war and terror), and problems relating to the enforcement of judicial orders and judgments. While national courts can, in theory, fill some of these remaining gaps, their actual ability to do so remains unclear. In addition, the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: co-ordination problems, and concerns relating to the effectiveness and legitimacy of international adjudication.
  • Topic: International Law
  • Political Geography: Middle East
  • Author: Martin A. Schain
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Scholars have argued that the dynamics of immigration control have changed. Unlike previous waves of immigration which were controlled by national law and administration, this wave would be more difficult to control. Because of the constraints imposed by international agreements, international institutions, and national judicial authorities, controls would be embedded in international institutions and law that were assumed to be inclined to be less restrictive than national institutions and law. Looking at these patterns over the past 20 years, it now appears that international constraints on immigration control have been highly exaggerated. Indeed, international relations have become an important context for understanding the enhanced ability of states to control immigration, and to develop more muscular policies for integration. For this reason, international constraints may be less important for understanding the development of immigration policy than neo-nationalism, enhanced through intergovernmental relations in the international system. Therefore, what began as a scholarly discussion of the limits on restrictionist policies because of international constraints has developed into a discussion of the use of international relations to strengthen the effectiveness of restrictionist policies.
  • Topic: Law
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Self-determination conflicts outside the colonial context have previously appeared virtually impossible to settle. Long-running and very destructive internal armed conflicts have been the result. Since the termination of the Cold War, however, there has been a veritable wave of self-determination settlements. While some of these trade the claim to secession for internal autonomy in order to safeguard the territorial unity of the state, a number of innovative solutions have been adopted, going beyond this traditional approach. This article reviews over 40 settlements and draft settlements in order to identify an emerging post-modern pattern of practice of settling self-determination disputes. The article also assesses the impact of this practice on the classical, restrictive understanding of the doctrine of self-determination.
  • Topic: Cold War
  • Author: Mónica García-Salmones
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The use of experts' power in global networks is often concealed by describing it in the register of scientific truths. This text seeks to illustrate the phenomenon by reference to the recent article by Cooney and Lang, 'Taking Uncertainty Seriously: Adaptive Governance and International Trade', which appeared in this journal. The account those authors give of WTO law goes beyond a purely legitimacy-based structure focused on effectiveness. Instead, the question is framed in terms of cognitive achievements by regulators in the member states. The present article uses Cooney and Lang's project and the same example of the WTO in order to evaluate global governance. In so doing it analyses the functionalist style of public law, together with neofunctionalism and the historical phenomena by which increasing areas in the public sphere are attributed to regulators, both national and international. With this article, the author hopes to contribute to the debate about the tensions caused by the legal activity of international organizations in a world of equal sovereigns with unequal access to power. In conclusion it is suggested that, so far as contemporary global governance is concerned, the distribution of jurisdiction through regulation is the sphere in which the usual political struggles between international actors take place.
  • Topic: World Trade Organization, Governance
  • Author: Pasquale De Sena, Maria Chiara Vitucci
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The recent case law of various international tribunals facing questions related to UN Security Council resolutions shows the clear tendency to grant primacy to the UN legal order. This trend, far from being well founded on formal arguments, appears to be a tribute to a legal order perceived as superior, and, at the same time, is revealing of the 'value oriented' approach followed by the courts. Such an approach can be categorized from a theoretical perspective in the light of Scelle's theory of relations between legal orders, whereby the courts implement in their respective legal orders values stemming from the UN legal order. Various critical remarks can be advanced in relation to this attitude. Basically, when different legal values are at stake, the need arises to strike a balance between them, as the ECJ has recently done in the appeal decision in the Yusuf and Kadi cases. Such a tendency, if consistently followed, could serve as a valuable instrument to find the correct equilibrium between the security interest and the need for respect of human rights.
  • Topic: Security, Human Rights, United Nations
  • Political Geography: Europe
  • Author: Karin Oellers-Frahm
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The jurisprudence of the International Court of Justice gains more and more importance, in particular because not only are so-called 'secondary' cases, that is cases of alleged secondary importance such as delimitation of land or maritime boundaries cases, brought before it, but also rather sensitive and highly political cases involving questions of use of force and self-defence. Furthermore, the Court is seised of cases involving states of all parts of the world, which also marks a positive development compared to its early times. Therefore, the jurisprudence of the ICJ plays a predominant role in all domains of international law and is of concern not only to those involved in international law, international relations, or international organizations, but also to national lawyers and politicians. The idea, therefore, of providing the international community with a publication that gives an overview of the jurisprudence of the ICJ (and thus allows easy access to its case law) is to be welcomed.
  • Topic: International Relations, International Law, International Organization
  • Author: Duncan Matthews
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This book aims to fill a gap between studies of international patent law and pharmaceuticals and the literature on human rights and access to medicines. It is an account of the relationship between pharmaceutical patents under the WTO Agreement on Trade Related Intellectual Property Rights (the TRIPs Agreement) and the utilization of flexibilities inherent in the TRIPs Agreement to ensure access to medicines in developing countries, examining how a human rights approach might inform use of such flexibilities. This narrow focus is both a strength and a weakness of the book.
  • Topic: Human Rights
  • Author: Stephan W. Schill
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Fair and equitable treatment (FET) has advanced from a rather neglected and only subordinately applied standard of treatment in international investment law to what is probably the investor's most powerful right. Today it plays a central role in virtually any investment treaty arbitration and has been applied by investment tribunals to a wide range of conduct of every branch of government. Notwithstanding, tribunals and commentators often deplore the vagueness and openness of FET and cast doubts on the predictability, coherence, and consistency of the jurisprudence on this standard of treatment and, above all, on its normative content. The guiding question informing any scholarly discussion and arbitral practice then is what FET, as a legal standard, requires of states when engaging with foreign investors.
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We have received review copies of the following books. Books which have been assigned to reviewers are marked with an asterisk. If you are interested in reviewing one of the unassigned books, or if you would like to suggest a different book for review, please contact Isabel Feichtner ( ifeichtn@mpil.de).
  • Author: Jacob Heilbrunn
  • Publication Date: 07-2009
  • Content Type: Journal Article
  • Journal: The National Interest
  • Institution: The Nixon Center
  • Abstract: THE REPUBLICAN Party is not in trouble. It is in peril. In 2006 it lost control of Congress. In 2008 it lost the presidency. And in 2010 it may lose again unless the party changes course, particularly in foreign policy, where it has, by and large, enjoyed a commanding lead over Democrats for decades.
  • Topic: Security, Foreign Policy
  • Political Geography: United States, America