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  • Author: David Koller
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the dominant narrative of international law, historical events in space and time are made to fall along an invisible line of progress, from Westphalia in 1648 through the Bretton Woods and San Francisco conferences of 1944 and 1945 to the present day and continuing on through the future to a more just world. Against this, a counter-narrative has emerged which denies the possibility of such linear development and consigns international law to forever tracing an unending circular path between points of idealism and realpolitik. This article examines how international lawyers have created and continue to create these metaphysical geographies of international law. Drawing on the work of the French multi-disciplinary thinkers Gilles Deleuze and Félix Guattari, this article shows that both approaches, and indeed the very concept of international law, can at most only replicate and impose pre-conceived theories and that the imposition of such theories is contrary to the natural patterns of human consciousness. It urges us to see international law rather as but one manifestation of the ongoing struggle between efforts to impose unity on and to control human consciousness and the mind's efforts to break free of such restricting structures.
  • Political Geography: Geneva, New York, Tokyo, San Francisco, Papua, Westphalia
  • Author: Marko Milanovic
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article analyses the European Court of Human Rights' recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.
  • Political Geography: United Kingdom, Europe
  • Author: Matthew Parish
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The growth of a range of different areas of international law gives rise to the possibility of conflict between them. International courts and tribunals created by one branch of international law may be called upon to adjudicate in other areas of the discipline. The risk of conflict presents a particularly acute problem to the EU legal order, because the Court of Justice of the European Union sees itself as the final, and exclusive, authority on questions of interpretation of EU law. On two occasions the Court has issued opinions prohibiting EU Member States from signing agreements creating international courts, because those courts' roles would necessitate construing EU law and their composition would mean they could not guarantee the 'homogeneity' necessary to EU law. The more recent of these opinions, concerning the European and Community Patents Court, sets an unusual legal test for the consistency of international tribunals with the EU legal order that, taken to its logical conclusion, would preclude several well-established international courts and tribunals to which EU Member States are parties. Ultimately this standard may fetter development of EU law, and the ECJ would do well to adopt a more flexible approach.
  • Political Geography: Europe
  • Author: Agnieszka Szpak
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The aim of this article is to analyse the jurisprudence of the ad hoc International Criminal Tribunals with regard to the understanding of the notion of the groups protected against genocide. According to the Convention on the Prevention and Punishment of the Crime of Genocide, only national, ethnic, racial, and religious groups are protected. Among the conclusions is the one according to which the Tribunals developed this notion in a creative way and contributed to its dynamic application, especially by way of introducing the concepts of stable and permanent groups being protected as well as the concepts of positive/negative and objective/subjective notions of the targeted group.
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 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.
  • Author: Jose Alejandro Carballo Leyda
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since the publication of the widely quoted book by Eyal Benvenisti on The International Law of Occupation, there seems to be a generally accepted premise that Article 64 of the IV Geneva Convention is applicable to all types of laws (including commercial laws) and that, therefore, its legal regime replaced Article 43 of the 1907 Hague Regulations. With all due respect, this article argues that such approach is wrongfully grounded. Furthermore, almost no author seems to give any relevance to the formal obligation imposed by the IV Geneva Convention to publish (in the language of the inhabitants) the commercial law norms enacted by the occupying power.
  • Political Geography: Geneva, Papua
  • Author: Eyal Benvenisti
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The essay 'The Laws of Occupation and Commercial Law Reform in Occupied Territories: Clarifying a Widespread Misunderstanding' accuses my 1993 book of fostering the 'misleading' contention that Article 64 of the Fourth Geneva Convention of 1949 recognizes the authority of occupants to modify all types of laws (and not only penal laws), beyond the limited scope of legislative authority recognized under Article 43 of the 1907 Hague Regulations. The criticism is unconvincing for several reasons. I limit my response to the claim that my interpretation of Geneva 64 is a misunderstanding, spelling out in more detail the discussion in the book. Addressing this claim offers an opportunity to gain insight not only into the specific meaning of Geneva 64 but also into the more general question of how to read and assess travaux préparatoires of complex multilateral treaties.
  • Political Geography: Geneva
  • Author: Jose Alejandro Carballo Leyda
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I thank Professor Benvenisti for his response to my article and hope that this discussion will be helpful and fruitful. Nevertheless, I concur with Pictet that Article 43 of the 1907 Hague Regulations 'imposes obligations of a general nature on the Occupying Power', while Article 64 of the IV Geneva Convention contains a specific exception for penal legislation. Therefore, Article 43 HR still remains the applicable norm regarding commercial law reform in occupied territories.
  • Political Geography: Geneva
  • Author: Linos-Alexander Sicilianos, Thomas Skouteris
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This symposium on interwar international law jurist Nicolas Politis is part of EJIL's long-standing project to reappraise the European tradition of international law. This brief Editorial Note has two aims. First, it casts an inward – if furtive – glance at the enterprise of intellectual history in international law at large. Secondly, it explains the choice of Nicolas Politis as the focus of this symposium as well as the part played by the five essays featured therein.
  • Political Geography: Europe
  • Author: Marilena Papadaki
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article sketches an intellectual portrait of Nicolas Politis (1872–1942), a liberal Greek jurist and a naturalized Frenchman of the interwar period. The main lines of his thought's evolution and his socio-political engagement over the course of his life are considered typical of a new type of intellectual, the 'government intellectual', who appeared on the international scene at the beginning of the 20th century. The profile of the 'government intellectual', proposed to study his career, is closely tied to the scholar's discourse concerning politics. It allows one to observe the emergence of a space of intellectual production and of institutional positions, relatively autonomous vis-à-vis specifically national considerations, but always in the service of their interests, which were in liberal thought conceived as consistent with the interests of international society. The richness of his career allows one to consider the intellectual engagement of jurists in new terms, by closely associating the strategies of individual actors with the various contexts that they had themselves contributed to creating.
  • Author: Robert Kolb
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article attempts to shed some light on the French Sociological Law School, its doctrinal presuppositions, social surroundings, and different personal expressions, focusing then on the contribution to that doctrine of one of its major exponents, Nicholas Politis.
  • Author: Umut Özsu
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Prolific as a scholar, active in the League of Nations, and agent for Greece before the Permanent Court, Nicolas Politis is remembered today as a key figure both in the development of international legal doctrine and in the organization of international political relations. This short article examines three of Politis' texts – the first an early foray into scholarship dealing with issues arising from the 1897 Greek–Turkish War, the second a set of mid-career lectures at the Hague Academy of International Law, and the third the posthumously published La morale internationale, a work of considerable ambition that never quite managed to find its audience. The article's chief aim is to demonstrate that Politis' trajectory was marked by recurring appeals to extra-legal ideas and arguments – a broadly anti-formalistic tendency which made its influence felt with increasing visibility over time, but which was present even in his earliest and most conventional work.
  • Political Geography: Greece
  • Author: Nicholas Tsagourias
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article focuses on Nicholas Politis' efforts to outlaw war and define aggression, and places them within the progress narrative of the interwar international law discourse. This narrative is defined by its rejection of sovereignty; its belief in codification; and the recognition of the individual as a subject of international law. Politis' projects envisage international law as a means towards an ecumenical world order built around individuals.
  • Author: Maria Gavouneli
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Nicolas Politis argued in 1935 that the law of neutrality was obsolete, a product of the international anarchy of the times, doomed to be replaced by a new centralized international community. His vision of the League of Nations ended in the fire of World War II but his prediction proved to be mostly true. In the collective security system created by the UN Charter and its prohibition of the use of force, the traditional rules of neutrality do not find scope of application. Yet, transposed into fundamental principles of humanitarian law, they continue to rule over peace-keeping and humanitarian operations. In addition, they complement the existing rules for military action mandated by the UN Security Council, especially during operations at sea. He was essentially right: the institution had to change and it has changed.
  • Author: Helmut Philipp Aust
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Ten years after the terrorist attacks of 11 September 2001, the priorities of world politics now appear to shift to different topics and themes. Accordingly, it is time for international lawyers to identify whether the international fight against terrorism has an enduring legacy. The monograph by Kimberley Trapp will be of particular help for this endeavour with respect to the allocation of state responsibility for international terrorism.
  • Author: Günther Auth
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Global governance has been the buzzword for many internationalists for quite some time now, and the United Nations has been one of the primordial focal points in controversies about global order. This prominence of the UN has been especially remarkable in the context of deliberations about the legality and legitimacy of military force. For, despite the growing importance of the US as the world's most capable superpower, internationalists have not been muted by voices stressing the impossibility of successfully grappling with power-based interests and high-political considerations of predominant states through international law and organization. The emergence of a unipolar moment, a constellation supposedly characterized by a high concentration of military capabilities and widespread scepticism as regards the fruitfulness of multilateralism in the US has rather enticed many commentators to ponder all the more seriously the potential role of multilateral institutions, such as the UN – as a mediating structure vis-à-vis national interests, as a legitimacy-conferring agent the main function of which it is to rationalize the regime of the great powers, or as a potential counterweight to US-American unilateralism. The author of the book under review adds to this list as he endeavours to show that, after the end of the Cold War in 1990, the Secretariat of the UN repeatedly championed views that brought it into conflict with the US and other influential member states of the UN. Based on his own experience as a staff member in the Office of Legal Affairs since 1973, as the Director of the UN Secretariat's Office of Legal Counsel since 1988, and as an Assistant Secretary-General for Legal Affairs of the United Nations from 1998 to 2005, he delivered The Sir Hersch Lauterpacht Memorial Lectures at Cambridge University in 2008, in which he made a strong point for an independent role for the UN Secretariat as regards questions concerning the legality and legitimacy of military force.
  • Political Geography: United States, United Nations
  • Author: Dieter Fleck
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which was extended indefinitely in 1995, provides a comprehensive legal structure of rights and obligations designed to protect mankind from nuclear aggression and accidental extinction. Yet its implementation takes place in a political environment of uncertainties and controversies. The still existing universality gap, an apparent implementation gap (Iran), and the absence of effective measures towards general and complete nuclear disarmament – which are to be seen against the background of the global challenge that non-state actors are getting access to weapons of mass destruction – call for urgent and effective measures to increase implementation of the NPT and ensure compliance with its rules. Any of these measures at first requires an interpretation of the Treaty.
  • Political Geography: Iran, Beijing
  • Author: Ramesh Thakur
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Rwanda's three-month 1994 genocide that killed 800,000 people was not prevented due to a failure of political will, not lack of military capacity. Then in Kosovo in 1999, NATO did take forceful action in the name of humanitarian intervention, but without UN authorization. Both incidents triggered legal and political controversies, as a consequence of which Secretary- General (SG) Kofi Annan pushed for a new doctrine which would allow the international community to take timely and effective action against humanitarian atrocities.
  • Author: Katja Göcke
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The recognition of aboriginal title – i.e., land rights not derived from the Crown/government but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial – is probably the greatest achievement of indigenous peoples in their decade-long struggle to de - fend their land and culture. Since indigenous peoples define themselves as a people through their genealogical connection to certain areas, the realization of the right to own, use, and live on their ancestral territories has always been at the centre of their struggle for the recognition and enforcement of their rights. Ownership of and control over their ancestral land and its resources are not only considered a significant contribution to solving the terrible social and economic problems indigenous peoples are facing. A considerable degree of self-management and control over land and natural resources is also regarded as essential to the indigenous peoples' survival as peoples and the preservation of their distinct culture. Yet until the 1970s the rights of indigenous peoples to their ancestral lands were almost completely ignored by states and international law. The loss of indigenous peoples' control of and ownership over these lands during colonization was regarded as a historical and irreversible fact by national governments. When from the 1970s onwards courts in several common law jurisdictions began to hold that the indigenous peoples' customary tenure had indeed survived the acquisition of sovereignty by the Crown and continued to exist as a burden on the Crown's radical title to the land, the national governments were – after years of inactivity and neglect – finally forced to act and to enter into negotiations with indigenous peoples to settle the indigenous peoples' land claims. In the 1990s, United Nations human rights monitoring bodies and regional human rights courts picked up the aboriginal title idea, thereby placing indigenous peoples' issues and concerns on the international agenda and providing indigenous peoples with additional leverage against their respective governments. The recognition of inherent indigenous land rights not only enabled indigenous peoples to retain and regain ownership and control over land and resources, but it also became the platform for the recognition of other indigenous rights, in particular, the right to self-determination and the right to autonomy. Hence, through the recognition of the aboriginal title doctrine, indigenous peoples were not only brought to the attention of their respective governments, but they also became recognized as actors – and no longer as mere subjects – on the national as well as on the international level.
  • Political Geography: United Nations
  • Author: Andreas Müller
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Whether and where to locate the individual in the universe of international law has become a standard question for the discipline. While in the 19th and still in the early 20th centuries international legal doctrine could not see in the human person anything other than a mere object of international law, at the beginning of the 21st century, the individual presents itself as habitué of international law with major treatises dedicating a substantial number of pages, if not whole chapters to the topic. The last hundred years have thus witnessed a remarkable development which has shifted the individual's place in international law from the utmost periphery of the discipline to perhaps not its centre, but at least to its inner circles.
  • Author: Julien Topal
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Jose Alvarez and Karl Sauvant have compiled an interesting and diverse set of 12 essays from authors representing scholarly, NGO, and legal practitioners' perspectives on the international investment regime. The essays are based on papers presented at the second Columbia International Investment Conference of 2007. They are complemented by an insightful introduction from the editors, a sketch of the 'context' (Jeffrey Sachs), and a report on the debates ensuing at the conference (Andrea Bjorklund).
  • Publication Date: 02-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: No abstract is available.
  • Author: Giuseppe Martinico
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The aim of this article is to answer the question, 'are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights'? This article does not intend to examine the broader issue of the rapprochement between the legal systems of the EU and the European Convention on Human Rights (ECHR) but it concentrates on how national judges treat the norms of the ECHR compared with their treatment of EU law. I have structured this article in three parts. The first part offers a first look at the 'constitutional variety' existing in terms of constitutional provisions devoted to the impact of the ECHR and EU laws on the national systems. In the second part I will move to analyse the relevant case law of the domestic judges on three factors of potential convergence: consistent interpretation, disapplication of national law conflicting with European provisions, and emergence of a counter-limits doctrine. Finally, in the third part I will offer some concluding remarks on the convergence issue.
  • Political Geography: Europe
  • Author: Virginie Barral
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The wide dissemination of sustainable development in international law has generated considerable academic interest. However, because of the evasive and flexible content of what has been termed by the ICJ a concept in the Gabcˇíkovo-Nagymaros case, and more recently an objective in the Pulp Mills case, academic commentary has often struggled to ascertain sustainable development's legal nature, which has proved a notion defying legal classification. One attractive thesis has been Lowe's analysis of sustainable development as an interstitial or modifying norm which exerts its normative influence as an interpretative tool in the hands of judges. Its interpretative function is certainly very significant. Judicial bodies have used it to legitimize recourse to evolutive treaty interpretation, as a rule of conflict resolution, and even to redefine conventional obligations. However, beyond this convenient hermeneutical function, by laying down an objective to strive for in hundreds of treaties, sustainable development primarily purports to regulate state conduct. As an objective, it lays down not an absolute but a relative obligation to achieve sustainable development. Such obligations are known as obligations of means or of best efforts. Legal subjects are thus ultimately under an obligation to promote sustainable development.
  • Author: Leora Bilsky
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International adjudication of the Holocaust has played a defining role in the development of international criminal law. Its legacy has recently been challenged by the Holocaust restitution actions brought before American courts in the 1990s. Settled for unprecedented amounts, the litigation has been sharply criticized by legal scholars and historians, who raise doubts as to the justice achieved for victims, and criticize the representation of the Holocaust in the actions. This article assesses the contribution of civil proceedings to conceptions of justice in international law. First, contrary to the critics, it argues that the civil class action provides an appropriate legal tool to deal with the liability of bureaucratic institutions for participation in gross human rights violations. Secondly, this article argues that the restitution actions altered the relationship between law and the history of the Holocaust as shaped under the paradigm of criminal law. Precisely because it was structured as a civil action and was settled, the litigation made a substantial contribution to historical research on the relationship between the state, corporations, and civil society in the carrying out of mass crimes. Thus, in opposition to the prevailing view that criminal law is the privileged form of law for dealing with atrocity, this article uncovers the valuable contribution of this new model of litigation to international law.
  • Political Geography: America
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: EJIL and its sister publication, I-CON are peer-reviewed journals. This is a counter-cultural posture in an age which celebrates, for some very good reasons (and some less admirable), the freedom that self-publication on the internet provides. Our own very successful Blog, EJILTalk!, is an example of a highly interesting and useful form of self-publication and I-CONnect will be launched soon. There are surely others like ours. SSRN is a more ambiguous example, but even there, there are some diamonds in the rough, if you have the patience to do some heavy-duty prospecting and sifting. Be that as it may, SSRN is not just part of contemporary academic culture; it is a defining part, both reflective and constitutive.
  • Political Geography: Europe
  • Author: Armin von Bogdandy
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article argues that Articles 9–12 of the EU Treaty provide a promising way to conceptualize and develop the democratic legitimation of international organizations. To be sure, the current European Union is not a democratic showcase. However, an innovative concept of democracy, neither utopian nor apologetic, has found its way into its founding treaty. It can point the way in conceiving and developing the democratic credentials not just of the EU, but of public authority beyond the state in general. Since comparison is a main avenue to insight, this article will present those Articles and show what lessons can be learnt for international organizations.
  • Political Geography: Europe
  • Author: Jürgen Habermas
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The crisis of the European Union showcases the asymmetry between transnational capacities for political action and social as well as economic forces unleashed at the transnational level. But recovering the regulatory power of politics by way of increased supranational organization frequently arouses fears about the fate of national democracy and about the democratic sovereign, threatened to be dispossessed by executive powers operating independently at the global level. Against such political defeatism this contribution uses the example of the European Union to refute the underlying claim that a transnationalization of popular sovereignty cannot be achieved without lowering the level of democratic legitimation. It focuses on three components of every democratic polity – the association of free and equal legal persons, a bureaucratic organization for collective action, and civic solidarity as a medium of political integration – to argue that the new configuration they take at the European level does not in principle diminish the democratic legitimacy of the new transnational polity. The contribution continues to argue, however, that the sharing of sovereignty between the peoples and citizens of Europe needs to be better reflected in a symmetrical relationship between Council and Parliament while political leadership and the media must contribute to a greater sense of civil solidarity.
  • Political Geography: Europe
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 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.
  • Author: Lorand Bartels
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The aviation industry has been included in the EU's emissions trading scheme (ETS) since 1 January 2012. Airlines now have to acquire and 'surrender' allowances for the carbon emissions produced by their flights. The scheme is comprehensive: it applies to EU and non- EU airlines (subject to a potential exemption), to passenger and cargo flights, and to flights between EU airports and between EU and non-EU airports. An airline that fails to surrender allowances is fined 100 per allowance and must make up the shortfall the following year. The EU's scheme has already given rise to legal action in connection with the EU's international civil aviation obligations. But, due to its impacts on trade in goods and services, the scheme also has implications for the EU's obligations under WTO law: specifically, under the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). Some of these issues are specific to this scheme, but in other respects they are connected with the current debate on the WTO legality of border carbon adjustments (BCAs). As this article shows, it is challenging to design a carbon scheme that is both administratively feasible and justifiable under WTO law.
  • Author: Joanne Scott, Lavanya Rajamani
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The EU is engaged in an ambitious, controversial, and high-stakes experiment to extend the reach of its climate change law. It is seeking to use its market power to stimulate climate action, and to substitute for climate inaction, elsewhere. This is most apparent in relation to the EU's decision to include aviation in its emissions trading scheme. While we are sympathetic to the EU's objectives, and do not take issue with its unilateral means, we argue that the EU is not giving adequate weight to the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC). While the status, meaning, and implications of this principle are contested and unclear, it requires that developed countries should take the lead in addressing the causes and effects of climate change. We argue that the concept of CBDRRC retains relevance in the context of unilateral climate action, and that the EU's Aviation Directive should be interpreted, applied, and where necessary adjusted in the light of it. We put forward two concrete proposals to achieve this end.
  • Author: Alberto Alvarez-Jimenez
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Boundaries are a key element of the exercise of states' power and sovereignty. One of the cornerstones of boundaries is consent, as the ICJ has made clear. One should then expect from states that they be extremely careful when concluding agreements in such a critical realm. The undisputed character of consent as the pillar of boundaries by no means implies that the existence of a boundary or the attribution of sovereignty over territory is always clear when states have negotiated on these issues. The purpose of this article is to illustrate the different modalities of disputes over boundary agreements, in the ICJ's jurisprudence over the first decade of the new millennium; to present the Court's pronouncements on this particular issue; and to offer a general overview of this jurisprudence. Basically, this case law reveals that there are two general kinds of dispute. First, there were controversies relating to the existence of a boundary agreement. The second type of dispute involved controversies relating not to the existence of a boundary agreement but to its validity. As a conclusion, it can be said that the Court's jurisprudence displays two trends. First, the Court was strict in finding the existence of a boundary agreement between the parties relating to a particular territory. Secondly, once the Court decided that a boundary agreement existed, it was reluctant to declare its unlawfulness.
  • Author: Jakob Cornides
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In recent years, the EU has adopted a series of new directives to promote 'equality' and to fight 'discrimination'. Further measures are planned. But given that they are based on highly abstract concepts leaving wide margins of interpretation, the true meaning and impact of these new laws is difficult to understand in advance. In this article, I analyse three recent cases that give a foretaste of where European legislators, in their quest for more 'equality', may be heading.
  • Political Geography: Europe
  • Author: Jorge E Viñuales
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The contribution of the late French Professor Michel Virally to international law is vast and touches on most areas of this discipline. Yet, Virally devoted particular attention to two main areas of inquiry, namely the philosophy of law and international organization. I have analysed Virally's contribution to the former elsewhere. This article focuses on his contribution to international organization widely understood as the study of international organizations and that of world organization. Virally considered international organization as a new political phenomenon, which would shape the dynamics of the two main driving forces of the second half of the 20th century, i.e., the East–West and the North–South divides. He developed a sophisticated theory of international organizations, with a strong functional focus. He used this theory to shed light on questions such as the management of international conflicts, the decolonization process, or the increasing influence of newly independent and developing states. His views on how these forces would shape the evolution of international law were far - sighted and allowed him to identify, with remarkable accuracy, the areas of international law where development considerations would require deep transformation, namely trade, investment, and the environment. In this regard, Michel Virally is also our contemporary and his contribution remains fully relevant for the analysis of international organization at large.
  • Author: Gregory Shaffer
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This essay critiques Nico Krisch's Beyond Constitutionalism: The Pluralist Structure of Postnational Law. The book's primary foil is the turn to rethinking the international legal order in constitutionalist terms. Its contrasting normative vision is a post-national, pluralist one in which there is no legal centre or hierarchy. This vision, although less ambitious than the constitutional programme, is nonetheless quite radical, and shares more with most constitutionalist visions than it acknowledges. Krisch's critique of his constitutionalist foil could be more radical than it is, and the essay provides arguments for such a critique. Nonetheless, the essay finds that Krisch's post-national vision is also too radical for the world outside Europe in being grounded in a European experience, as reflected in his case studies. The essay contends that a framework addressing transnational legal ordering in which states continue to play a central role is superior, given the ongoing centrality of the nation state in governance. The essay also finds that Krisch's normative framework fails to address variation in its evaluation of institutional alternatives in which some hierarchy at times is preferable. Krisch's vision is pluralist all the way through, while there are strong pragmatist arguments to be more context-specific in prescriptions.
  • Author: Gerd Hankel
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In Ruti Teitel's view there is absolutely no doubt that we live in a world in which legal relationships are undergoing ever more significant change, a fact of which she informs the reader right at the beginning of her book. States alone are no longer the main actors; instead persons and peoples are assuming greater prominence. Their interests and needs for protection increasingly dictate the content of international law which is becoming humanity's law as a result.
  • Author: Michael Byers
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International law has long been seen as a 'primitive legal order' lacking key components such as a generally applicable enforcement mechanism.1 There is some truth to this view, as evidenced by the long absence of another component that is common to developed legal systems, namely responsibility for actors who deliberately aid, assist, or are otherwise complicit in illegal acts.
  • Author: Marina Mancini
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In order to make 'headway' in one of the most intractable debates in our field – the nature and workings of customary international law – authors seem to employ one of three tactics. One is to repeat and rehash the same narrow, doctrinal debates that scholars have been having for the last forty-odd years. Another and far more courageous approach is for the author to seek to completely re-imagine (and remake) customary international law. A third, finally, is to reflect on the nature of customary law more widely and to include insights from jurisprudence/legal theory, legal history, and moral/political philosophy.
  • Author: Jörg Kammerhofer
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In order to make 'headway' in one of the most intractable debates in our field – the nature and workings of customary international law – authors seem to employ one of three tactics. One is to repeat and rehash the same narrow, doctrinal debates that scholars have been having for the last forty-odd years. Another and far more courageous approach is for the author to seek to completely re-imagine (and remake) customary international law. A third, finally, is to reflect on the nature of customary law more widely and to include insights from jurisprudence/legal theory, legal history, and moral/political philosophy.
  • Author: Filippo Fontanelli
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Many scholars have struggled to try to figure out ways to preserve a unitary perspective on international law in light of, and more frequently going beyond, the conservative guidelines formulated by Martti Koskenniemi and his ILC Working Group, collected in the 2006 Report on Fragmentation.
  • Author: Kiron K. Skinne
  • Publication Date: 05-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Footlessly the ghost of her ghost thumps through the emptiness quaking in the quilted nothingness of maternal night before there was or there was not nihilating nothing in dusk of moonlight neither human nor angelic the animal divine treacherously trembling in tumult of time between river and rock the radiance secretes seed of immortal sap the cloudless destiny elapsed before dawn unfurled as the future in gleaming presence of everlasting past drifting like darts of dust with no reason to trust the passing of this night.
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The only reason I was happy to learn this exciting news was that no one will be able to dismiss w hat I am about to write as prompted by 'sour grapes'.
  • Author: Alan Boyle
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The relationship between human rights and environmental protection in international law is far from simple or straightforward. A ne w attempt to codify and develop international law on this subject was initiated by the UNHRC in 2011. What can it say that is new or that develops the existing corpus of human rights law? Three obvious possibilities are explored in this article. First, procedural rights are the most important environmental addition to human rights law since the 1992 Rio Declaration on Environment and Development. Any attempt to codify the law on human rights and the environment would necessarily have to take this development into account. Secondly, a declaration or protocol could be an appropriate mechanism for articulating in some form the still controversial notion of a right to a decent environment. Thirdly, the difficult issue of extra-territorial application of existing human rights treaties to transboundary pollution and global climate change remains unresolved. The article concludes that the response of human rights law – if it is to have one – needs to be in global terms, treating the global environment and climate as the common concern of humanity.
  • Author: Fabrizio Cafaggi, David D. Caron
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A public good (an example is a lighthouse) can be produced by private parties. However, they rarely are. Rather, such goods are generally thought of in economics as a type of commodity that government often provides and maintains because government can overcome the otherwise strong incentive to free ride on the efforts of others. This symposium issue is concerned with the global analogies to municipal public goods. As in the domestic context, global public goods are viewed as essential goods. But globally there is not a government. Instead, we observe a plurality of legal orders arrayed both horizontally and vertically, both publicly and privately. It is this mix of significance and complexity that is the subject of this symposium.
  • Author: Daniel Bodansky
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Although the terminology of global public goods may be new to international law scholarship, many of the principal features and implications of global public goods are familiar: global public goods are externalities writ large; they create incentives to free ride; and in many cases, they require international governance to provide. Nevertheless, the global public goods literature has been valuable in highlighting that global public goods come in different types, with different 'production technologies'. Some depend on the aggregate effort of the entire group, while others depend on a 'single best effort' or on the 'weakest link'. These different types of global public goods raise different governance issues and hence different challenges for international law.
  • Author: Gregory Shaffer
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The world faces multiple challenges in producing global public goods, such as climate change mitigation, financial stability, security from nuclear terror, knowledge production, and the eradication of infectious diseases. International law scholarship, in the meantime, takes a turn towards celebrating pluralism without sufficiently accounting for institutional variation to address different contexts. Those writing on global public goods challenges, at the same time, tend to come from disciplines other than law. So what is international law's role in the production of global public goods? Where are greater international legal constraints and international institutions needed, and where should international law retain slack? Three analytic frameworks (global constitutionalism, global administrative law, and legal pluralism) have been advanced to address international law's place in global governance, but these frameworks have not explicitly addressed the challenges of producing global public goods. This article breaks down different types of global public goods, and explores how these different frames apply to them. Grounded in pragmatism, the article shows why there is no single best approach. Rather, legal policy should be tailored to the type of global public good at stake in light of comparative, real world, institutional trade-offs.
  • Author: Fabrizio Cafaggi
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article focuses on the role of private regulators in the production, access regulation, and protection of global public goods (GPGs). It addresses transnational private regulation (TPR) as a public good in itself and as an instrument to produce and protect GPGs. It makes three major claims: (1) private actors have incentives to produce and protect GPGs, thereby challenging the conventional partition between markets, producing private goods, and states producing public goods; (2) the production and protection of GPGs has to combine procedural and substantive features, making private governance a determinant of the club or public nature of the global good; and (3) ownership, both individual and collective, and contracting can be used to produce and protect GPGs. The article analyses in particular the proliferation of regulatory agreements between private actors or between private and public to regulate production, protection, and access, and shows that their limited legal enforceability is often functional to alternative compliance mechanisms devised through innovative private governance. It concludes by suggesting that the increasing role of private actors in the production of GPGs requires governance reforms of public–private cooperation at transnational level.
  • Author: Francesco Francioni
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The idea of cultural heritage as an 'international public good' can be traced back to the Preamble to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, according to which 'damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world'. But how can this idea of cultural heritage as a global public good be reconciled with the infinite variety of cultural expressions and with the role of art as a medium essentially devoted to giving form to the plurality and diversity of tastes, beliefs, and inclinations of the different societies in which it is produced? In this article I will examine the issue of pluralism and legal interaction within three perspectives: (1) the plurality of different meanings of cultural property and cultural heritage; (2) the plurality and interaction between different legal regimes of protection – international and domestic, private and public, peacetime and wartime; and (3) the plurality and interaction between different mechanisms of enforcement at the international and domestic levels.
  • Author: Petros C. Mavroidis
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The WTO can be viewed as a public good in that it provides a forum for negotiations which also produces the necessary legal framework to act as a support for agreed liberalization. To avoid any misunderstandings, in this article the discussion focuses on the WTO as a forum and a set of agreements, not on free trade. Since the legal agreements coming under its aegis are for good reasons incomplete, the WTO provides an additional public good by 'completing' the original contract through case law. The importance of this feature increases over time as tariffs are driven towards irrelevance. In turn, the WTO has no particular attitude towards public goods provided by its Members.
  • Author: Elisa Morgera
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The interaction between bilateral and multilateral action is evolving in the context of 'global environmental law' – a concept that is emerging from the promotion of environmental protection as a global public good through a plurality of legal mechanisms relying on a plurality of legal orders. The notion of global public goods can thus help one better to understand recent bilateral initiatives aimed at supporting the implementation of multilateral environmental agreements and the decisions of their compliance mechanisms. Innovative linkages between the compliance system under the Convention on International Trade in Endangered Species and bilateral trade agreements recently concluded by the European Union and the US provide an example. Innovative opportunities for bilateral initiatives supporting the implementation of the 2010 Nagoya Protocol on Access and Benefit-sharing are likely to lead to even more complex inter-relationships between different legal orders. This new approach to bilateralism that aims to support the interests of the international community can be assessed in the context of earlier debates on unilateralism, with a view to emphasizing the role of international law in the identification and delivery of global public goods, and the role of global environmental law in understanding the interactions among a plurality of legal orders.
  • Political Geography: United States, Europe