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  • Author: Helmut Philipp Aust
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Today mostly forgotten, Andr Mandelstam (18691949) was a pioneer of the human rights movement in the interwar period. Originally a diplomat in the service of the Russian Empire, he went into exile after the Bolshevik revolution and became an important member of the internationalist scene in Paris. An active contributor to the various professional associations and institutions of the time, Mandelstam came to draft the first ever international human rights declaration which was adopted by the Institut de droit international at its New York session in 1929. His work on human rights protection was influenced by his experiences as a diplomat in Constantinople where, in the years preceding World War I, he had witnessed the growing tensions over the treatment of the Armenian population of the Ottoman Empire. This article traces Mandelstams impact on the development of international human rights law and uncovers the driving forces for his work: the end of the Russian and Ottoman empires as well as his career change from diplomat to academic activist. The contribution invites us to reconsider traditional narratives of the origins of international human rights protection as well as to rethink the imperial(ist) influences upon this development./p
  • Author: Reut Yael Paz
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>This article seeks to create a historical contextualization of the first female law professor in America, Helen Silving-Ryu (19061993). Relying on Pierre Bourdieus work on the social and historical determinants of cultural production, this article situates Silving in her days at the University of Vienna as one of the first six female students to be admitted and as the only female scholar to be mentored by Hans Kelsen (18811973). Much of this article deals with Kelsens importance to Silvings intellectual development, particularly because they worked together again in Harvard after both escaped National Socialism. Despite Silvings later academic contributions and successes, her history has received little attention from the legal discipline by and large. Apart from recovering Silvings voice, through what she calls Acts of Providence, this article also shows why, and more importantly how, Silving and thus also a part of Kelsens history has been forgotten./p
  • Author: Thomas Schultz, Cédric Dupont
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Investorstate arbitration, also called investment arbitration, is often accused of harming developing states facing economic hardship for the benefit of a wealthy few from the Global North. Its proponents respond that it is the only available means to resolve disputes impartially, and that its increased use clarifies international law. In this article, the authors investigate the empirical manifestations of the uses and functions of investment arbitration, with an original dataset that compiles over 500 arbitration claims from 1972 to 2010. The study reveals that until the mid-to-late 1990s, investment arbitration was mainly used in two ways. On the one hand, it was a neo-colonial instrument to strengthen the economic interests of developed states. On the other, it was a means to impose the rule of law in non-democratic states with a weak law and order tradition. But since the mid-to-late 1990s, the main function of investment arbitration has been to provide guideposts and determine rights for investors and host states, and thus to increase the predictability of the international investment regime. In doing so, however, it seems to favour the haves over the have-nots, making the international investment regime harder on poorer than on richer countries./p
  • Author: Elizabeth Stubbins Bates
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>In recent decades, there has been an increase in the volume and sophistication of works on compliance theory in international law in general,1 and in human rights in particular.2 This body of work is interdisciplinary, influenced by political science and international relations in substance and method.3 The typology of compliance theories, once formed of several separate strands,4 coalesced into two duelling perspectives. These were broadly characterized by rational choice approaches, focused on hegemony, sanctions, incentives, and material self-interest, with Andrew T. Guzmans addition of reputational concerns;5 and constructivist approaches, which argue that repeated interactions, argumentation, and exposure to norms characterize and construct state practice.6 Each of the three works reviewed in this essay critically engages with constructivist research and incorporates some analysis of material incentives, suggesting that constructivism is eclectic and rigorous, willing to debate its own assumptions. Taken together, their contributions are evidence of modern constructivisms sophistication and methodological breadth./p
  • Author: Hanne Sophie Greve
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Lazy (as Used by Men) ... Ive often realized, not without a sense of disquiet, that talking isnt easy, that my words often propagate all kinds of misunderstandings once theyve flown out of my mouth. Ive also discovered that even a powerful propaganda machine lacks absolute controlling power over understanding and, similarly, sinks repeatedly into the mire of ambiguity ... hed been an employee of the Country Film Company but had been relieved of his duties due to his exceeding the birth quota. It wasnt that hed failed to comprehend the consequences of exceeding the birth quota: ... After Id spoken with him, after Id turned it over endlessly and uncomprehendingly in my mind, there was only one conclusion I could draw: he operated on another vocabulary system, one in which a great many words transgressed ordinary peoples imaginings. For example, violating law and order wasnt necessarily a bad or an ugly thing to do quite the contrary, violating law and order was a proof of strength, a privilege of the strong, a crucial source of happiness and glory./p
  • Author: Jan Klabbers
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>When Fritz Kratochwil published his classic Rules, Norms and Decisions in 1989, it was reviewed by an obviously bewildered David Bederman in the American Journal of International Law. Clearly, it seemed, here was something international lawyers should take note of, but equally clearly, Bederman, no intellectual slouch by any standard, had a hard time figuring out what made the book relevant, or even just interesting, for international lawyers. It seems Bederman was expecting something along the lines of a description of the role of law in global politics, but no such story unfolded. Instead, Rules, Norms and Decisions posited not a description, but a way of looking at the role of norms in international politics, and did so unlike much of what had gone on before: this was neither a variation on realism, nor riding the wave of institutional liberalism, nor anything like the New Haven approach or sociological jurisprudence or Henkin- style behaviouralism. As it turned out, Rules, Norms and Decisions became the closest thing to a manifesto of constructivism in the study of world politics, and therewith became pigeonholed as one of the three grand theories of international relations.</p>
  • Author: Oliver Diggelmann
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Isabel V. Hulls book aims to demonstrate that post-1919 writings have contributed to obscuring rather than clarifying international laws role in how World War I was fought. She develops an original and highly differentiated view on the topic. On the basis of thorough historiographical research, she analyses the belligerents legal views put forward during the war and examines their effect on the conduct of war. The title takes up a quotation that later became a clich about international laws role in World War I. Immediately after the German attack on Belgium, the German Chancellor Theobald von Bethmann Hollweg called the treaty guaranteeing Belgiums neutrality a scrap of paper. This might suggest that World War I was a time of non-existence for international law, a black hole. Hulls book demonstrates how complex the legal situation predominantly was and that the course of the war was closely interlinked with legal questions and arguments./p
  • Author: Peter Hilpold
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>There is surely no dearth of studies on genocide, but Mark Levene, a reader in history at the University of Southampton and an expert in genocide research, has demonstrated that it is still possible to add a thorough study to the enormous library already existing on this subject. True, some of Levenes basic assumptions may be contested in academia but this does not detract from the value of his enormous research projects outcome. Already on the first page of his monumental study he clearly states its basic assumption: according to Levene, genocide is not an aberrant phenomenon in modern history but integral to a mainstream historical trajectory of development towards a single, global, political economy composed of nation states (vol. I, at 1). He sees the cases of genocide as a consequence of a more general Great Power conflict and the breakdown of the great multinational states, the Ottoman Empire, the Habsburg Empire, and the Russian Empire of the Romanovs./p
  • Author: Niels Petersen
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The concept of precedent has not received much attention in international law scholarship to date. International courts and tribunals are usually not formally bound by previous decisions. Nevertheless, there is no denying that precedents play a significant role in the practice of international courts. Courts cite and rely on previous decisions in order to lend their arguments more force. Two recently published studies aim to shed more light on this tension in the use of precedents: while Marc Jacob analyses precedents in the case law of the European Court of Justice, Valriane Knig examines the precedential effect of decisions in international arbitration. Both books not only analyse the same concept in different contexts, they also have a common methodological point of departure. They rely to a certain extent on an empirical analysis. They construct a database of decisions and draw several quantitative and qualitative inferences from this database. They thus contribute to a laudable trend in international law scholarship towards a greater focus on empirical analyses, even though the extent and the informational value of the quantitative analysis are limited in both cases./p
  • Author: Jonathan Shaw
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Not hi ROSH ima – Everything before and after the central rush of spit mere prelude and pathetic aftermath