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  • Author: Ana Paula Barbosa
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The book Exploring Social Rights, a collection of contributions to the subject from proven experts from all over the world, advances the view that social rights constitute 'a distinct category within the human rights system' (at 1). In general, this book aims at strengthening the protection of social rights as a legal category. It calls for a strong and active role of the state in assuring social rights. On this point it differs from most contemporary discussions which deny the importance of social rights and fear the expansion of judicial power.
  • Topic: Human Rights
  • Author: Chiara Ragni
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This book offers a thorough and detailed analysis of the doctrinal debate on the controversial question whether state organs are entitled to invoke any kind of immunity, before either international or national tribunals, when accused of committing or ordering the commission of international crimes, such as war crimes, crimes against humanity, and genocide. The problem is not merely a theoretical one, given that, since the end of the Second World War and in particular since the Pinochet Affair 1 (decided in 1999 by the British House of Lords), national judges from all over the world have been required to determine whether all state organs can benefit from immunity from jurisdiction and, if so, whether this can cover all the possible violations of international law, including the most serious ones. Initially, and as long as the courts could properly cope with the question of the immunity of former military officers, no problem seemed to emerge with regard to the possibility of judging the latter for crimes committed during a war; however, the choice seemed to be more controversial when the accused were high-ranking representatives of the state and the acts in question were performed in times of peace. The leading case in this regard was the above-mentioned Pinochet case, since it made clear the differing attitudes of judges according to the accused's rank in the state hierarchy and, as the author notes, according to whether or not the person in question was still in office. The debate which ensued with regard to those issues and to the controversial practice which had developed on the subject makes the book reviewed here particularly interesting. First, it has the merit of taking into account the different points of view expressed by scholars dealing with the topic and comparing them with the practice – described in a historical perspective – of international and especially of national courts and tribunals. Secondly, even though the literature on the subject of immunities is quite broad, this work stands out thanks to the author's original approach to the subject and to the accuracy of the analysis conducted.
  • Topic: Crime, International Law
  • Author: Caoimhín MacMaoláin
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Food law and policy has recently shot to the top of many agendas. Much political, economic, and legal decision-making around the globe is concerned with its reform. Food safety matters have received attention in the European Union since the outbreak in the 1990s of 'mad cow disease', or BSE, culminating in the creation of many new rules and regulations. The formation of the European Food Safety Authority is one of the consequences of this trend. The World Health Organization has been actively coordinating the international response to actual and potential incidents of avian influenza and the related threat of the development of a deadly human strain of the disease. Regulating the production and marketing of genetically modified organisms has been the subject of fierce debate in many countries. In addition to all of this, trade in food is now central to several of the World Trade Organization (WTO) agreements, in particular the Agreement on Agriculture, the Agreement on Technical Barriers to Trade (TBT), the Agreement on Sanitary and Phytosanitary Measures (SPS), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). These increased attention levels have intensified further as food prices continue to soar, raising serious concerns about global food security.
  • Topic: Food
  • 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
  • Publication Date: 11-2008
  • 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. If you are interested in reviewing one of them, or if you would like to suggest a different book for review, please contact Isabel Feichtner.
  • Author: Ole Spiermann
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The 20th century saw the transformation of international law into a legal discipline concerned with the practical application of law. It was fuelled by a manifold variety of treaties, procedures and institutions. Still, international lawyers persisted in conceiving and judging their discipline against a background coloured by national legal traditions. International lawyers did not overcome the optimist and evolutionary tradition based on the assumption that international law is but an ever closer approximation of national legal systems; nor did lawyers escape the flip side of this tradition, i.e., doubt and insecurity about international law and its basis. Rather than facilitating international law as a practical discipline, a superficial understanding of internationalism reinforced fetishisms of the discipline's theoretical past, not least the axiom that states only are proper subjects of international law. To a degree, international law has expanded at the price of becoming less separate from national law and national legal traditions.
  • Topic: International Law
  • Author: Aloysius P. Llamzon
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International institutions are plagued by too many expectations and too little power. One striking example is the International Court of Justice. Its malcontents criticize the Court as an ineffective player in achieving international peace and security, largely because of its perceived inability to control state behaviour. Scholars have long blamed this on the ICJ's 'flawed' jurisdictional architecture, which is based entirely on consent. Anything less than a clear indication of consent by the defendant state in a given case is thought to run serious non-compliance risks. This article takes issue with that assessment. By analysing the ICJ's final decisions since the landmark case of Nicaragua v. US, one finds that the manner in which the ICJ was seised of jurisdiction is actually a poor predictor of subsequent compliance. Rather, through complex mechanisms of authority signal and the political inertia induced by those decisions, almost all of the Court's decisions have achieved substantial, albeit imperfect, compliance. Thus, despite the likelihood that states will continue to reduce the scope of the ICJ's compulsory jurisdiction, the World Court will remain a vital, if limited, tool in resolving inter-state disputes and a force for world public order.
  • Topic: Security
  • Political Geography: United States
  • Author: Ulf Linderfalk
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article forms a contribution to the ongoing scholarly debate on the possible effect of jus cogens norms. For the purpose of the article, it is assumed that peremptory norms certainly exist in positive international law. According to the argument, even if we limit the effects of jus cogens norms to those described in the 1969 Vienna Convention, the jus cogens concept takes us farther than most commentators seem to realize. This is due partly to the power potential invested in the jus cogens concept, partly to the intricate structure typical of legal norms. In fact, as argued in this article, if we take the existence of peremptory international law to its logical consequence, it will carry too far: most actors on the international arena will consider the effects unacceptable. Using as an example the jus cogens norm most often referred to in the literature - the principle of non-use of force - it is a purpose of the present article to establish this proposition as valid. A second purpose is to attract attention to what appears to be the really crucial question for further discussion: How should the effects of jus cogens be limited? Whoever opened the Pandora's Box that once contained the jus cogens concept obviously did not fully realize the consequences that this would have for international law in general. How can this situation be remedied?
  • Author: Michel Bourbonnière, Ricky J. Lee
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Bush Administration of the United States recently released a revised National Space Policy. Although the revised National Space Policy can be interpreted as a step towards the weaponization of space, it does not necessarily weaponize space. It nonetheless brings to the forefront important legal issues concerning the basing of conventional weapons in space. The present international law matrix on the issue of space-based weapons is to be found in international space law, principally in the Outer Space Treaty, where certain prohibitions apply to nuclear weapons and to weapons of mass destruction. Space must also be used for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Space objects must be registered in accordance with the Registration Convention. The UN collective security system and the customary right of self-defence govern the use of force or jus ad bellum. The means and methods through which self-defence is exercised are in turn governed by international humanitarian law. Should space be weaponized the basing of these weapons and their use will be subject not only to international space law but also to the UN Charter and to international humanitarian law. The interface between these legal regimes consequently gains in importance, possibly forcing a reinterpretation of certain space treaties along with a correction in state practice.
  • Topic: Humanitarian Aid, Nuclear Weapons, United Nations
  • Political Geography: United States
  • Author: Lorna McGregor
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In recent judgments, the claim has been made that immunity, as a procedural rule, does not affect substantive norms but merely diverts the claim to an alternative forum. As such, the claim is made that immunity does not equate to impunity. Yet, within a context in which the courts of the state in which the torture allegedly took place are very often unavailable and diplomatic protection does not amount to an alternative means of settlement, the provision of immunity in foreign courts contributes to, justifies, and may even constitute the resulting impunity. At the same time, the framework within which immunity is addressed tends to lend itself to such a result. Courts routinely cite sovereign equality, par in parem non habet jurisdictionem, dignity, and comity as legitimate bases on which to grant immunity without considering the evolution of these doctrines. As a result, the contemporary application of immunity is premised on 1648 understandings of doctrines such as sovereignty, thus positioning the state above the law, a result which renders the prohibition of torture impotent.
  • Topic: Sovereignty
  • Author: Christopher Keith Hall
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The universal criminal jurisdiction provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('the Convention') which require each state party to extradite or submit any case involving a foreigner in territory subject to its jurisdiction suspected of torture committed abroad against another foreigner to its competent authorities for the purpose of prosecution. What is not generally known is that Article 14 of the Convention, which contains no geographic restriction, requires each state party to ensure in its legal system that any victim of an act of torture, regardless of where it occurred, obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. Despite two recent decisions, one by a Canadian court and the other by the House of Lords, which erroneously asserted the contrary, an authoritative interpretation by the Committee against Torture, the ordinary meaning of the wording of Article 14, the structure of the Convention, and the drafting history all confirm that Article 14 applies to torture committed abroad regardless of the nationality of the perpetrator or the victim.
  • Author: Noah Benjamin Novogrodsky
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article assesses the implications of the Canadian case of Bouzari v. Islamic Republic of Iran in which sovereign immunity barred recovery against a foreign state for acts of torture. Part 2 describes the case and the courts' rejection of arguments centred on the hierarchy of jus cogens norms, implied waiver and common law principles. Part 3 evaluates parallel developments in the United States and demonstrates the commonalities and differences associated with efforts to overcome immunity in the two countries. Part 4 examines potential amendments to Canada's State Immunity Act with a view to balancing considerations of comity with a just and workable means of holding states accountable for grave human rights abuses.
  • Topic: Human Rights
  • Political Geography: United States, Iran, Canada
  • 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
  • Author: Jörg Kammerhofer, André de Hoogh
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Despite the technical prowess of both the editors and the contributors to this unique and comprehensive commentary on the Statute of the ICJ, a book of this nature cannot be all things to all people. The practitioner will miss a closer reading of the Court's jurisprudence and a more exhaustive bibliography; the theoretician will lament the lack of theoretical foundations for many of the dogmatic arguments put forward. But this volume is as good as they come, both in terms of the medium and format chosen. The commentary fulfils most of the demands made of it by practitioners and scholars alike.