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  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: From time to time, we are asked about the relationship between EJIL and the European Society of International Law (ESIL). That relationship is simple: the Journal and the Society are two separate, but mutually supportive and complementary entities. Indeed, past and present EJIL Editors can boast, with parental pride, of having been present at the conception, as well as the birth, of the Society! From its inception, membership in ESIL has included automatic online and print subscriptions to EJIL – including very soon a tablet version.The relationship has only strengthened in recent years, with ESIL Presidents and Presidents-elect serving ex officio on the EJIL Board. It is in the spirit of that growing bond that we wholeheartedly share in ESIL's 10-year celebrations, and have invited the following Guest Editorial from its leadership.
  • Topic: International Relations
  • Political Geography: Europe
  • Author: Jochen von Bernstorff
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The article aims to contribute from a history of science angle to the recent debate on the relation between legal scholarship, utopian ideals, and practice, which was spurred by the EJIL Symposium on Antonio Casseses Realizing Utopia and subsequent publications in this journal. It defends a conception of legal scholarship that keeps a reflexive distance vis--vis practice and current political trends in international relations. It focuses on traditional background assumptions of international legal scholarship, which constantly threaten this reflexive distance. Arguably these background assumptions are a 19th century legacy and today in a context of fragmentation and globalization stand in the way of developing the full potential of international legal scholarship as a medium of societal reflection. The classic role of the scholar as a law reformer in the current context turns out to be more problematic than it may have been in the past. Inspired by Kelsenian concerns and Nietzschean metaphorics, the article instead suggests that international legal scholarship functions as a cooling medium for the overheated discursive operations of the political, economic and legal subsystems of World Society./p
  • Author: Kristina Daugirdas
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The International Law Commissions Draft Articles on the Responsibility of International Organizations have met a sceptical response from many states, international organizations (IOs), and academics. This article explains why those Articles can nevertheless have significant practical effect. In the course of doing so, this article fills a crucial gap in the IO literature, and provides a theoretical account of why IOs comply with international law. The IO Responsibility Articles may spur IOs and their member states to prevent violations and to address violations promptly if they do occur. The key mechanism for realizing these effects is transnational discourse among both state and non-state actors in a range of national and international forums. IOs have reason to be especially sensitive to the effects of this discourse on their reputations. A reputation for complying with international law is an important facet of an IOs legitimacy. The perception that an IO is legitimate is, in turn, crucial to the organ izations ability to secure cooperation and support from its member states. This article argues that IOs and their member states will take action to prevent and address violations of international law in order to deflect threats to IOs reputations and to preserve their effectiveness./p
  • Author: Richard Bellamy
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>International Human Rights Courts (IHRCts), such as the European Court of Human Rights (ECtHR), have come under increasing criticism as being incompatible with domestic judicial and legislative mechanisms for upholding rights. These domestic instruments are said to possess greater democratic legitimacy than international instruments do or could do. Within the UK this critique has led some prominent judges and politicians to propose withdrawing from the European Convention on Human Rights (ECHR). Legal cosmopolitans respond by denying the validity of this democratic critique. By contrast this article argues that such criticisms are defensible from a political constitutionalist perspective but that International Human Rights Conventions (IHRCs) can nevertheless be understood in ways that meet them. To do so, IHRC must be conceived as legislated for and controlled by an international association of democratic states, which authorizes IHRCts and holds them accountable, limiting them to weak review. The resulting model of IHRC is that of a two level political constitution. The ECHR is shown to largely accord with this model, which is argued to be both more plausible and desirable than a legal cosmopolitan model that sidelines democracy and advocates strong review./p
  • Author: Oisin Suttle
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Notwithstanding International Economic Laws (IELs) inevitable distributional effects, IEL scholarship has had limited engagement with theoretical work on global distributive justice and fairness. In part this reflects the failure of global justice theorists to derive principles that can be readily applied to the concrete problems of IEL. This article bridges this gap, drawing on existing coercion-based accounts of global justice in political theory to propose a novel account of global distributive justice that both resolves problems within the existing theoretical literature and can be directly applied to both explain and critique concrete issues in IEL, including in particular WTO law. By complementing existing coercion-based accounts with a more nuanced typology of international coercion, it distinguishes two morally salient classes of economically relevant measures: External Trade Measures (ETMs), which pursue their goals specifically through the regulation of international economic activity; and Domestic Economic Measures (DEMs), which do not. The distinctive intentional relationship between ETMs and the outsiders they affect means such measures require more stringent justification, in terms of global equality or other goals those outsiders themselves share; whereas DEMs can be justified under the principle of self-determination. Non-Product Related Production Processes and Methods (NPRPPMs) provide a case study to show how this framework can illuminate recurring problems in IEL./p
  • Author: Lorand Bartels
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>In principle, there are two ways in which states and international organizations can violate the human rights of persons outside their territorial jurisdiction. The first is by extraterri t orial conduct; the second is by domestic conduct, in the form of policies with extraterritor ial effect. This article considers the second of these scenarios, taking as its case study the EUs obligations under EU law. To this end, it analyses Articles 3(5) and 21(3)(1) of the EU Treaty, EU fundamental rights, and the EUs international obligations, which are also binding under EU law. It concludes by looking at the enforcement of any such obligations by individuals, the EU institutions, and EU Member States./p
  • Author: Enzo Cannizzaro
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The scope of human rights is undergoing a paradigm shift, from a territory-based conception to a functional conception, which tends to protect human rights against the extraterritorial exercise of public authority. In the EU domestic system, this is upheld by Articles 3(5) and 21 TUE, which establish the promotion and protection of human rights as a foreign policy directive. However, the normative effect of these provisions is limited. Due to restraints deriving from the EU Treaties, these two provisions do not seem capable of providing a sufficient legal basis for EU action aimed at promoting and protecting human rights. To endow the Union with the means of action necessary to discharge the engaging function of global protector of human rights, a further development of the European constitutional framework seems to be indispensable.</p>
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>We deal in EJIL with the world we live in often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places the world we live in and photos of people who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution and all other manner of photojournalism/p
  • 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