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39141. Is There a Case – Legally and Politically – for Direct Effect of WTO Obligations?

Author:
Hélène Ruiz Fabri
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
WTO law does not require its direct effect in domestic legal orders. Whilst the stances taken in these are diverse, showing that direct effect is not denied on the whole to WTO law, all the major trading members of the WTO deny it. The fact that, in a case where a WTO member does not comply and is targeted by trade sanctions, the economic actors who in practice bear the burden of these sanctions are deprived of any recourse, may be considered unfair enough to question again the denial of direct effect. The analysis focuses notably on the EU where the debate has expanded more than anywhere else and concludes that direct effect should, even in the name of fairness or justice, be handled with caution.
Topic:
International Law
Political Geography:
Europe

39142. Waiting for the Existential Revolution in Europe (Abstract only)

Author:
Jan Komarek
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
This essay argues, contrary to the widespread beliefs that prevailed after 1989, that the experience of post-communist countries and their peoples, both before and after 1989, can bring something new to our understanding of Europe's present predicament: sometimes as an inspiration, sometimes as a cautionary tale. The lessons offered by post-communist Europe concern some deeply held convictions about the very nature of the EU and its constitutional structure. Only if this experience is absorbed in Europe as its own will post-communist countries truly return to Europe – and Europe become united. The cautionary tales of post-communist Europe concern the worrying consequences of the suppression of social conflicts 'in the name of Europe'. Such conflicts often get translated into identitary politics, which in the context of European integration often turn against the Union. The second lesson concerns the ill fate of Havel's existential revolution. The attempts of some European constitutionalists to reform individualistic emphasis of the integration project are problematic for the same reason: they turn attention away from politics, where real solutions need to be found. This relates to the third suggestion made here: that the experience of living in a collective dream of socialism can be used as an inspiration rather than as something that needs to be erased from the collective memory of Europe.
Political Geography:
Europe

39143. Is Global Constitutionalism Meaningful or Desirable?

Author:
Michel Rosenfeld
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Upon conceiving constitutionalism on the scale of the nation-state as transparent and unproblematic, one may think global constitutionalism to be a mere utopia. On closer analysis, however, legitimation of nation-state constitutionalism turns out to be much more complex and contested than initially apparent, as becomes evident based on the contrast between liberal and illiberal constitutionalism. Upon the realization that nation-state liberal constitutionalism can only be legitimated counterfactually, the social contract metaphor emerges as a privileged heuristic tool in the quest for a proper balance between identity and difference. Four different theories offer plausible social contract justifications of nation-state liberal constitutionalism: a deontological theory, such as those of Rawls and Habermas, which privileges identity above difference; a critical theory that leads to relativism; a thick national identity based one that makes legitimacy purely contingent; and a dialectical one that portrays the social contract as permanently in the making without any definitive resolution. Endorsing this last theory, I argue that differences between national and transnational constitutionalism are of degree rather than of kind. Accordingly, it may be best to cast certain transnational regimes as constitutional rather than as administrative or international ones.
Topic:
International Law
Political Geography:
France and Netherlands

39144. Roaming Charges: Moments of Dignity: Prepping for the Prewedding Photograph, Peking

Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
We deal in EJIL with the world we live in – often with its worst and most violent patholo-gies, 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 schol-arly 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 photo-graph: people shot up; the ravages of pollution and all other manner of photojournalism. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photo-graphs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring.
Political Geography:
Europe

39145. Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter

Author:
Alina Mungiu-Pippidi and Dia Anagnostou
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Over the past couple of years, international law and international relations scholarship has shifted its focus from the question of whether human rights treaties bring any state-level improvements at all to investigations in the domestic context of the factors and dynamics influencing state compliance. In this direction, and focusing on the European Court of Human Rights, this study inquires into the factors that account for variable patterns of state compliance with its judgments. Why do national authorities in some states adopt a more prompt and responsive attitude in implementing these judgments, in contrast to other states that procrastinate or respond reluctantly? On the basis of a large-N study of the Strasbourg Court's judgments and a comparison across nine states, this article argues that variation in state implementation performance is closely linked to the overall legal infrastructure capacity and government effectiveness of a state. When such capacity and effectiveness are high and diffused, the adverse judgments of the Strasbourg Court are unlikely to be obstructed or ignored, even when the government, political elites, or other actors are reluctant and not in favour of substantive remedies.
Topic:
International Relations and International Law
Political Geography:
Europe

39146. Domestic Implementation of European Court of Human Rights Judgments: Legal Infrastructure and Government Effectiveness Matter: A Reply to Dia Anagnostou and Alina Mungiu-Pippidi

Author:
Erik Voeten
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
This article responds to the valuable contribution by Dia Anagnostou and Alina Mungiu- Pippidi in which they analyse how nine countries implemented European Court of Human Rights judgments that found violations of Articles 8–11 of the European Convention on Human Rights. Their conclusion that capacity plays an important role in the implementation of ECtHR judgments is certainly correct. In this short response, I highlight various aspects of the authors' analysis where they make problematic choices with regard to data and statistical methods. First, I describe and use a more comprehensive dataset that allows us to reach more generalizable conclusions. Secondly, I show how survival analysis is a more appropriate framework than logit or linear regression for analysing these data. Thirdly, I argue that the difficulty of the implementation task needs to be accounted for in any analysis of cross-country variation in implementation. My re-analysis shows that low capacity countries attract judgments that are more difficult to implement. The analysis also uncovers a subtle relationship between time, institutional capacity, and checks and balances. High capacity helps willing politicians to implement judgments quickly. Yet, among judgments that have been pending longer, countries with higher capacity are no quicker to implement than lower capacity countries. By contrast, checks and balances initially slow down implementation but help to eventually ensure begrudging implementation.
Topic:
Human Rights
Political Geography:
Europe

39147. UN Immunity or Impunity? A Human Rights Based Challenge

Author:
Rosa Freedman
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
National courts have long understood the UN to have absolute immunity from their jurisdiction, based upon provisions in the UN Charter and the Convention on Privileges and Immunities of the UN. While state immunity has evolved over recent decades, allowing restrictive immunity that distinguishes between acts jure imperii and those jure gestionis, questions have arisen as to whether that doctrine applies to international organizations and, specifically, the UN. The counterbalance to the UN's absolute immunity is the requirement that it provide alternative mechanisms for resolving disputes. This raises concerns about accountability and internal review. Case law from various courts demonstrates an increasing willingness to attempt to challenge absolute immunity on the basis that the bar to jurisdiction violates claimants' rights to access a court and to a remedy. In all of those cases, individuals' ability to access alternative mechanisms for dispute resolution has been used to show that their rights have been realized. Recent events concerning the 2010 cholera outbreak in Haiti may lead to a challenge to the UN's absolute immunity. The UN has deemed those claims to be 'not receivable', which denies the claimants their rights to access a court and to a remedy. In October 2013, lawyers for the Haiti cholera victims filed a class action in the Southern District of New York, seeking to challenge the UN's immunity by bringing the Organization before a national court. This article explores whether the events in Haiti may provide the first successful, human rights-based challenge to the UN's absolute immunity.
Topic:
Human Rights
Political Geography:
New York

39148. An International Lawyer in Democracy and Dictatorship – Re-Introducing Herbert Kraus

Author:
Heiko Meiertöns
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Herbert Kraus (1884–1965) is among the forgotten international lawyers of the 20th century. Kraus took part in a number of developments of great importance for the shaping of modern international law: he participated in the drafting process of the Versailles Peace Treaty and the Treaty on the European Coal and Steel Community and acted as defence counsel at Nuremberg. The founding director of the Institute for International Law at the University of Göttingen was forced to retire between 1937 and 1945 due to his criticism of National Socialism. The post-war perception of his work was coined by his forced retirement. However, his work between 1933 and 1937 sheds light on the dilemma of choosing between opposition and adjustment that Kraus was faced with during that period. This article re-introduces Kraus – a complex German character of international law – and the main features of his work.
Topic:
International Law
Political Geography:
New York

39149. Towards a Global History of International Law? Editor's Note

Author:
Alexandra Kemmerer
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
As usual, international law comes in late. It was already in the golden years of new world orders and geopolitical shifts after the end of the Cold War that historiography began its global turn. Of course, there had been pioneers and path-breakers before, but it was only in the 1990s that an ambiance of globalization and trans-nationalization triggered new approaches on a larger scale. An actual experience of political, economic and cultural interconnectedness put historiographical emphasis on transfers, networks, connections and cooperation, on transformation and translation.Historical analysis was called to overcome not only the boundaries of the nation-state, but also the limitations of material and epistemic Eurocentrism in its various forms. During the past decade, there has been a growing interest in global histories in many parts of the world.
Topic:
International Law
Political Geography:
Africa and Europe

39150. The Spectre of Sources

Author:
Rose Parfitt
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
The editors of this impressive and timely volume, Anne Peters and Bardo Fassbender, begin their Introduction (at 2) with the following statement of purpose: [W]e, the editors and authors, [have] tried to depart from ... the 'well-worn paths' of how the history of international law has been written so far — that is, as a history of rules developed in the European state system since the 16th century which then spread to other continents and eventually the entire globe.
Topic:
International Law
Political Geography:
Europe

39151. Sleepy Side Alleys, Dead Ends, and the Perpetuation of Eurocentrism

Author:
Stefan B. Kirmse
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
My reading of The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters, has undoubtedly been framed by my own field of research. This field is not international law, but the historical anthropology of Russia and Eurasia and includes changing legal practice in a context of increasing global connectedness. My review is therefore not intended to relate the Oxford Handbook to the wider historiography of international law, which I leave to other contributions in this symposium; it is meant to offer an external perspective on the question of Eurocentric analysis. The editors of the Handbook have identified Eurocentrism as one of the key challenges to overcome in the study of international law.
Topic:
International Law
Political Geography:
Russia and Persia

39152. Is there a Role for Islamic International Law in the History of International Law?

Author:
Nahed Samour
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Overcoming Eurocentrism is one of the self-proclaimed aims of the editors of The Oxford Handbook of the History of International Law. In the following, I shall offer a critique of the Handbook from a largely Islamic international law perspective as (but) one example of a supranational non-European legal system. The depth of the volume covering a variety of times, spaces, and themes provides us with a much awaited tool against the 'gaps' and the 'forgetfulness' of how today's doctrines and practices of international law came about, not shying away from the voices that question the narrative of international law serving peace and justice. The Handbook is therefore laudable for a number of things.
Topic:
International Law and Islam
Political Geography:
Europe

39153. Statelessness: An Invisible Theme in the History of International Law

Author:
Will Hanley
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
The Oxford Handbook is a welcome and necessary intervention in the history of international law. In the introduction, the editors signal their reformist programme: out with the progressive, triumphalist narrative; in with the dark side of international law and its side tracks outside the European experience. In addition to this programme, the project displays two further signs of its serious intent to change the field. First, the authors embarked on a truly collective project, including a week of face-to-face consultation, in a rare effort to define a reasonably unified agenda. Scholarly redirection is a social as well as an intellectual undertaking, and the community built around this volume marks its purposefulness. Secondly, the book's scope is massive: more than five dozen chapters, more than three dozen authors, and more than 1,000 pages of text provide the bulk necessary to accomplish the paradigm shift that the editors intend. The extensive range of the book, especially in its 'Regions' section, does what is necessary to transform globalizing intent into actuality. It is a foundational volume, and any scholarly edifice building upon it will have a broader footprint than was previously possible.
Topic:
International Law
Political Geography:
Europe

39154. Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law

Author:
Anne-Charlotte Martineau
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Last Spring, the Rechtskulturen programme, an initiative of the Wissenschaftskolleg zu Berlin at the Transregionale Studien Forum, invited me to participate in a symposium on the Oxford Handbook of the History of International Law – a robust book of 1250 pages. I was asked to 'critically assess' the Handbook's 'global history' approach, that is, to assess whether it was a successful step in 'overcoming Eurocentrism' in the history of international law. The symposium turned out to be a wonderful event, a gathering of historians, anthropologists, political scientists, and lawyers, where I became very conscious of my own professional language but where I also experienced a willingnesss to transcend disciplinary boundaries and biases. The following remarks should be interpreted as a continuation of that discussion. Before looking at some of the contributions in the Handbook that did depart from 'well-worn paths' (to use the editors' expression) (3), I would like to say few words about the 'global history' approach (1) and the unfortunate resilience of Eurocentric voices in the Handbook (2).
Topic:
International Law
Political Geography:
Europe

39155. Prospects and Limits of a Global History of International Law: A Brief Rejoinder

Author:
Anne Peters and Bardo Fassbender
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
As we remarked in the Introduction to our Handbook, it is exciting but also risky to leave a well-worn path (at 2). It means meeting unforeseen obstacles. We were quite aware of the fact that if we wanted to shed light on historical developments in international law which so far had remained in darkness or obscurity, we had to be prepared to encounter the unexpected and not so readily understood – that is, accounts and narratives which call into question conventional wisdom and which, at least initially, pose additional problems rather than providing easy answers. We knew that new research on issues which had rarely been examined before would not be perfect or 'complete'. In other words, we expected, and in fact expressly invited, criticism of a work which tried to break new ground.
Topic:
International Law
Political Geography:
Europe

39156. Michael B. Gerrard and Gregory E. Wannier (eds). Threatened Island Nations. Legal Implications of Rising Seas and a Changing Climate

Author:
Susannah Wilcox
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
There is growing evidence that climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns are exacerbating existing vulnerabilities like poverty, isolation, and resource scarcity, and may eventually leave small island states uninhabitable, causing the displacement of entire populations. Among those particularly at risk are low-lying coral atoll states like Kiribati, Tuvalu, and the Republic of the Marshall Islands in the Pacific Ocean, and the Republic of the Maldives in the Indian Ocean.
Topic:
Poverty
Political Geography:
Europe, Kiribati, Marshall Islands, Tuvalu, and Maldives

39157. Michael Byers. International Law and the Arctic

Author:
Timo Kolvurova
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Those who follow the newspapers and media in general are led to believe that the stakes are getting higher in the Arctic. Climate change is melting the sea ice and opening up new economic opportunities: oil, gas, moving fish stocks, and shorter navigational routes are among the benefits to be had by those who are bold enough to make a move. According to the media, China and other emerging economies are claiming their own piece of the Arctic. In the scramble among states for the riches of the Arctic, we sense a scenario that may even drive states to the point of military conflict. Yet, this scramble does not take place in a legal vacuum – there are plenty of legal rules that govern the behaviour of states and other actors in the region. Indeed, this is one of the salient points that Michael Byers makes in his book.
Topic:
Environment, International Law, and Oil
Political Geography:
China

39158. Morten Bergsmo (ed.). Quality Control in Fact-Finding

Author:
James G. Devaney
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Quality Control in Fact-Finding is, above all else, a very welcome addition to the literature on international fact-finding. Whilst there has been a marked increase in the number of fact-finding inquiries established in the last couple of decades, this has not been matched by a similar increase in the number of scholarly studies of such inquiries. In light of both the number and high-profile nature of such inquiries, the absence of scholarship focusing squarely on the contemporary role of inquiries up to the present day seems like an oversight.

39159. Bhopal

Author:
Keith Ekiss
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Narayan told me about the city in India where he once studied, a literary centre known for festivals and lively debates, crowds gathering to hear the poetry readings which, he bragged, went on forever. But when he spoke the name, my face must have shifted. Yes, he said, you've heard about the gas leak. In December, clouds covered the city and its lakes. Warnings sounded and he walked uphill to find a place above the clouds, passing many who didn't know better than to take deep breaths, because the toxins left them short of breath, drawing in the yellow poison. I didn't ask who he lost among the dead. He kept apologizing, embarrassed, repeating a story I'd heard before. All he wanted to tell me, he said, was that wherever you went today it seemed like no one read anymore.
Political Geography:
Bhopal

39160. Finding Bin Laden: Lessons for a New American Way of Intelligence

Author:
Erik J. Dahl
Publication Date:
07-2014
Content Type:
Journal Article
Journal:
Political Science Quarterly
Institution:
Academy of Political Science
Abstract:
ERIK J. DAHL describes the nearly decade-long search for Osama bin Laden and what it reveals about the capabilities and the limitations of the American intelligence community. He argues that this case suggests that we may be seeing the first signs of a “new American way of intelligence” with a reduced reliance on the expensive, high-technology systems of the Cold War and a greater emphasis on broad-based intelligence fusion and analysis.
Topic:
Cold War
Political Geography:
America