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  • Author: Ana Filipa Vrdoljak
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
  • Topic: International Law, United Nations
  • Political Geography: Europe
  • Author: Sarah Miller
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: European participation in controversial aspects of the 'war on terror' has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states' extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual's ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state's physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention's regional identity and its universalist aspirations.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Christian Pippan
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In 1992, shortly after the dissolution of the Warsaw Pact and the Soviet Union marked the formal end point of the Cold War, Thomas Franck, who sadly passed away this year, famously proclaimed the emergence of a global 'right to democratic governance'. Against the backdrop of the dramatic political changes in Central and Eastern Europe, the progressive consolidation of democratic government in Latin America, burgeoning democratic reforms in various parts of Africa, and a rapidly increasing pro-democratic activism by the United Nations and other international organizations, he asserted that 'both textually and in practice, the international system is moving toward a clearly designated democratic entitlement, with national governance validated by international standards and systematic monitoring of compliance'.1 As is well known, Franck's thesis – which is largely grounded in the peoples' right to (internal) self-determination and a new reading of participatory norms contained in international human rights treaties – had a significant resonance in international legal scholarship and ushered in what came to be known as the 'democratic entitlement school'. Though the debate over the sweeping claim that, in the post-Cold War era, democracy is becoming – or has already become – a universal norm probably saw its heyday in the 1990s, it has, to this day, lost neither attraction nor relevance. Indeed, the claim's provocative nature (in light of international law's traditional indifference towards domestic constitutional orders), its assumptions about the kind of democracy advanced by the international system, as well as its potentially far-reaching consequences for states deemed to be in violation of the emerging norm continue to inspire scholars of international law and fuel an ongoing controversial discussion.
  • Political Geography: Europe, Latin America
  • Author: Jaume Ferrer Lloret
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article reviews the book edited by Professor Carlos Jiménez Piernas entitled The Legal Practice in International Law and European Community Law – A Spanish Perspective. As the editor points out in his prologue, this publication is an updated and revised English edition of a volume published in 2003 in Spanish. The new publication retains the Spanish edition's general structure of five substantive parts, plus indexes, which deal with legal practice before International Tribunals in International Organizations and in the European Union, national legal practice in international law, as well as with some legal tools for international lawyers, in particular to determine evidence of state practice and concerning sources of knowledge of international law on the internet. The title of the book is suggestive and confusing at the same time. It is suggestive in that it apparently deals with a topic which is seldom addressed in the literature on international law, i.e., 'legal practice'. Indeed, the book covers innovative topics which, in the near future, may become very relevant both for states and international organizations, as well as individuals and private companies.
  • Political Geography: Europe
  • Author: Maja Smrkolj
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This volume aims to contribute to an understanding of the relationship and conflict between the obligations of EU Member States arising under international treaties and their obligations under EU law. In the preface the author, Jan Klabbers, admits that at the outset he did not have a thesis but rather 'an intuition: the intuition that the EC Court usually makes things too simple for itself by ignoring the international law aspects'. When reading these lines, some of the more recent instances confirming such uneasiness, including the 2008 Kadi, Interanko and FIAM cases, immediately come to mind.
  • Political Geography: Europe
  • Author: Helmut Philipp Aust
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It is a perennial question what role law has to play in the conduct of foreign policy. Urfan Khaliq asks this question for the European Union (EU). The starting point of his analysis is the commitment of the EU to a certain set of 'ethical values', namely the promotion of human rights, the rule of law, and democracy. While these values are central to the identity of the EU (Article 6 of the Treaty Establishing the EU), it is open to debate whether they play an equally important role in the conduct of its foreign policy. Other studies have been devoted to this issue or have analysed the discrepancy between the way the constitutional principles of the EU apply internally and externally. The monograph under review is not so much interested in a doctrinal assessment of these issues. Rather, Khaliq raises the point to what extent the foreign policy of the EU is conducted in a coherent manner, whether it can fulfil its objectives, and, most importantly, what role international law in general and the internal law of the EU in particular has to play in this regard.
  • Political Geography: Europe
  • Author: Dimitry Kochenov
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is indeed an extremely long way from Soviet Republics to EU Member States. Although fitting into one and a half decades, the complexity of this transformation is truly stunning and concerns all spheres of life of the Baltic States.
  • Political Geography: Europe, Soviet Union
  • Author: Ilias Bantekas
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: If anyone were best suited to writing a book on the European criminal record (ECR) it would certainly be the current editors. The EC Commission commissioned them to study and analyse the potential of creating an ECR, and it is on the basis of their reports that the matter has generally progressed within the legislative committees of the Union. Moreover, their studies have been used as benchmarks in relevant Commission discussions. It is therefore no accident that they have compiled the essays which are incorporated in this book in such a manner that reflects a very significant practical as well as theoretical expertise by means of an insider's viewpoint.
  • Political Geography: Europe
  • Author: Aurel Sari
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The conduct of EU military and civilian crisis management operations in third states within the context of the European Security and Defence Policy has presented the EU with new administrative and operational challenges in recent years, including the need to define the international legal position of such operations and their personnel during their presence abroad. In some cases, the EU has entered into agreements with host states to determine the legal status of EU crisis management operations, while in other cases the application of already existing arrangements has been extended to them. The status agreements negotiated directly by the EU confer more extensive privileges and immunities on EU operations and their personnel than current international practice in this area would warrant. Despite opposition to this policy within the EU, it has remained in place under the two model status agreements adopted by the Council of the European Union in 2005 to serve as a basis for negotiations with prospective host states in all future EU operations. Even though no norm of international law compels the EU to request only such privileges and immunities as are absolutely necessary for the purposes of an operation, its practice of negotiating extensive privileges and immunities does not sit well with the growing emphasis on the accountability of peace support operations. This article offers an overview of the evolution of the EU's practice of concluding status agreements in the context of the European Security and Defence Policy and examines the key provisions of the two model status agreements.
  • Topic: Security
  • Political Geography: Europe
  • Author: Gerald L. Neuman
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Inter-American Court of Human Rights has elaborated a significant body of human rights jurisprudence through interpretation of regional human rights conventions and the adaptation of European and global precedents and global soft law. The Inter-American Court has also aspired to influence outside its region by offering innovative interpretations of human rights and by identifying norms as jus cogens. The Court's methodology in recent years has appeared to give insufficient consideration to the consent of the regional community of states as a factor in the evolutive interpretation of a human rights treaty. The article illustrates and criticizes that trend, and contends that greater attention to indicia of regional consent could improve the acceptance and effectiveness of the inter-American human rights system.
  • Topic: Human Rights
  • Political Geography: America, Europe
  • Author: Laurence R. Helfer
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Court of Human Rights (ECtHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECtHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECtHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of 'embeddedness' in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECtHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECtHR's deference to national decision-makers is appropriate.
  • Topic: Government, Human Rights
  • Political Geography: Europe
  • Author: Lauri Mälksoo
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This review essay examines the main breaks and continuities in the history of international legal theory in Russia. In particular, it draws on works by leading Russian international law scholars: Peter Pavlovich Shafirov (1670-1739), Fyodor Fyodorovich Martens (1845-1909), Baron Mikhail Taube (1869-1956), Vladimir Emmanuilovich Hrabar (1865-1956), Fyodor Ivanovich Kozhevnikov (1893-1998) and Grigori Ivanovich Tunkin (1906-1993). The reception of these theoreticians' works in today's Russia is also examined. The history of the discipline in Russia opens itself up as a civilizational dialogue with (Western) Europe. The main questions have been: Is international law universal or fragmented; what is the progressive force in international law? The Russian theory of international law has moved from proving that 'we too are civilized/European' in the early 18th century to an aspiration towards Western European civilization in the 18th and 19th centuries to the break with the West and an affirmation of Russia's own distinctiveness and primacy in the 20th century. Those who hurriedly celebrated Russia's reunion with Europe (and Western liberal theory of international law) following the end of the Cold War should not lose sight of the longer historical perspective and especially the experiment of the 'civilizing'/Europeanizing/liberalizing project in 19th century Russian and Baltic German international law scholarship.
  • Topic: Cold War, International Law
  • Political Geography: Russia, Europe
  • Author: Armin Von Bogdandy
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Cultural diversity is an important political and legal topos in the European Union. At the same time, the concern for cultural diversity gives reason for grave reservations towards the Union. This article intends to assist, on the basis of international law, in distinguishing appearance and reality. The Union will be analysed first as a situation of the application of the international law of cultural diversity, secondly as the regional executive of this international law, and thirdly as its global promoter. It shows that international law and Union law reinforce each other. The former conveys to the Union instruments to pursue European unification which at the same time serve its own implementation. Furthermore, it does not set limits to European unity since it protects only cultural pluralism but not state-supporting distinctiveness. A prerequisite for this consonance is that the Union's constitutional law allows for political unity without cultural unity and that international law remains mute about important questions on European unification. The international law perspective thus does not fully exhaust the problem: conformity with international law alone cannot dissipate concern for the future of cultural diversity in the Union.
  • Topic: International Law, Culture
  • Political Geography: Europe
  • Author: Charlotte Streck, Jolene Lin
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Kyoto Protocol's Clean Development Mechanism (CDM) is the first global market mechanism in international environmental law. It has been much lauded for its success. However, doubts whether the CDM governance structure is robust enough to meet the challenges of regulating an international market mechanism in the long term are emerging. The Executive Board (EB)'s decision-making practice is often not predictable and many of its decisions have come as a surprise to project participants and technical project experts. Members of the EB often have multiple responsibilities which result in a complicated situation of conflicting interests. Finally, private sector participants in the CDM who have been aversely affected by EB decisions have no right of recourse and essentially little if any due process rights. This article argues that incorporating mechanisms to promote procedural fairness and creating an appeals process for aggrieved CDM participants will promote transparency and accountability in the CDM decision-making processes. This is essential for the sound operation of the CDM regulatory regime which will have a direct positive effect on the international carbon market. After conducting a comparative analysis of other regimes in which international bodies take decisions that directly affect individuals, most notably the system of targeted sanctions of the UN Security Council and the Anti-Doping Regime, as well as examining the World Bank Inspection Panel and the European Ombudsman as models of international review mechanisms, the authors set out proposals for reform of the CDM, including professionalizing the EB and the panels, securing better and more consistent funding, the elimination of political interference, and the introduction of administrative law-like processes.
  • Topic: Security, Governance, Reform
  • Political Geography: Europe
  • Author: Magdalena Ličková
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: For Member States of the European Union, participation in this supranational organization has increased the number of difficulties in the international arena. Occasionally, the expanding legislative activity of the European institutions reaches out beyond the borders of the European legal system and incidentally affects the EU Member States' autonomous relations with third parties. Consequently the EU and its members, often with success, seek third parties' consent to exceptional treatment. Because of their number and significance, such derogations have inspired this article to inquire into their expansion and legal status under international law. Even though the EU-related exceptions have not created an international customary rule, the article observes that European integration shapes international rules in diverse fields and adjusts them to its needs. Since European integration is designed to administer and regulate an increasing number of issues, the autonomous international obligations of the EU Member States may become an obstacle. Because the European Union is likely to continue using special treatment in the future, it is important to assess how far the supranational exception can go in order to accommodate all interests at stake.
  • Political Geography: Europe
  • Author: Kjetil Mujezinovic Larsen
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article addresses the issue of whether conduct in international peace operations is attributable to the troop contributing states or to the United Nations, taking the European Court of Human Rights' admissibility decision in the Behrami and Saramati cases as a point of reference. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attributable to the United Nations. The article examines the content of the 'ultimate authority and control' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view difficult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's decision, when seen in connection with previous case law, in practice renders the European Convention on Human Rights irrelevant in international peace operations.
  • Topic: Human Rights, International Organization, United Nations
  • Political Geography: Europe
  • Author: Ernst-Ulrich Petersmann
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to J. Rawls, 'in a constitutional regime with judicial review, public reason is the reason of its supreme court'; it is of constitutional importance for the 'overlapping, constitutional consensus' necessary for a stable and just society among free, equal, and rational citizens who tend to be deeply divided by conflicting moral, religious, and philosophical doctrines. The European Court of Justice (ECJ), the European Court of Human Rights (ECtHR), and the European Free Trade Area (EFTA) Court successfully transformed the intergovernmental European Community (EC) treaties and the European Convention on Human Rights (ECHR) into constitutional orders founded on respect for human rights. Their 'judicial constitutionalization' of intergovernmental treaty regimes was accepted by citizens, national courts, parliaments, and governments because the judicial 'European public reason' protected more effectively individual rights and European 'public goods' (like the EC's common market). The 'Solange method' of cooperation among European courts 'as long as' constitutional rights are adequately protected reflects an 'overlapping constitutional consensus' on the need for 'constitutional justice' in European law. The power-oriented rationality of governments interested in limiting their judicial accountability is increasingly challenged also in worldwide dispute settlement practices. Judicial interpretation of intergovernmental rules as protecting also individual rights may be justifiable notably in citizen-driven areas of international economic law protecting mutually beneficial cooperation among citizens and individual rights (e.g. of access to courts). Multilevel economic, environmental, and human rights governance can become more reasonable and more effective if national and international courts cooperate in protecting the rule of international law for the benefit of citizens (as 'democratic principals' of governments) with due regard for human rights and their constitutional concretization in national and international legal systems.
  • Topic: Government
  • Political Geography: Europe
  • Author: Ivana Radacic
  • Publication Date: 09-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Court of Human Rights has recently proclaimed gender equality as one of the key underlying principles of the Convention. However, the Court's jurisprudence has been largely impotent in challenging gender discrimination in the member states. This article explores the reasons why this is so by analysing Article 14 sex discrimination jurisprudence and the application of the principle of gender equality in the 'Islamic headscarf' cases. The author argues that reasons lie in the Court's formalistic conceptualization of discrimination, and simplistic and paternalistic understanding of gender equality, which is insensitive to intersectionality of discrimination. The author proposes an understanding of gender equality as challenging (multiple and intersectional) forms of disadvantage. Under this approach, the question in equality jurisprudence would not be whether there was unjustified differential treatment, but rather whether the law or practice at issue perpetuated or produced subordination of women (as defined by other identity characteristics) and unequal gender (and other) relations.
  • Political Geography: Europe
  • Author: Nigel D. White, Sorcha MacLeod
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Union has developed its security competence since 1992, thus putting pressure on its Member States to provide troops for the increasing number of EU peace operations being deployed to different areas of the globe. But with national militaries being rationalized and contracted the EU will inevitably follow the lead of the US, the UK, and the UN and start to use Private Military Contractors to undertake some of the functions of peace operations. This article explores the consequences of this trend from the perspective of the accountability and responsibility of both the corporation and the institution when the employees of PMCs commit violations of human rights law and, if applicable, international humanitarian law.
  • Topic: Human Rights, Humanitarian Aid
  • Political Geography: United States, United Kingdom, Europe
  • Author: Stephan Neidhardt
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The debate about the future of the European Constitution since the clash of the French and Dutch referenda in 2005 has partly eclipsed the interest in the administrative dimension of European integration. Considering the given situation of an enduring blockade in the European institutional reform process, the editors of the present handbook propose rather to focus on another essential aspect of the European integration project: the development of mechanisms belonging to a European administrative law, where the ' work still is in progress'.
  • Political Geography: Europe
  • Author: Alexander Orakhelashvili
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The proper way of addressing the impact of normative hierarchy on state immunity is to adopt the normative-evidentiary approach cleansed of preconceptions motivated by certain risk factors that possess only theoretical significance. The European Court stated in Al-Adsani on the hierarchy of norms issue without properly examining most of its crucial aspects. The Joint Dissenting Opinion of six judges has exposed the weaknesses in the Court's reasoning. Still, some national courts, especially the House of Lords in Jones v. Saudi Arabia, have taken the Al-Adsani ruling as axiomatic, and accepted its outcome without enquiring into whether the line of reasoning the European Court had pursued was consistent or supported with evidence. The outcome is an unfortunate thread of judicial decisions, which do not properly examine the impact of the hierarchy of norms on State immunity, and consistently uphold the impunity of the perpetrators of torture as well as the denial to victims of the only available remedy.
  • Political Geography: Europe, Saudi Arabia