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  • Author: André Nollkaemper
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article, based on the non-controversial proposition that the way and degree in which international courts can contribute to the protection of a public good depends, in part, on the procedural law of such courts, sets out to expose the plurality of connections between procedure and substance. Procedures can further the substantive values of public goods but can also serve interests of their own and can even work against such substantive values. This article articulates the normative choices that courts inevitably have to make and reflects on the question of whether, and to what extent, the shaping of these connections is properly part of the international judicial function, taking into account problems of legitimacy that may arise when judge-made procedures undo state-made substantive law.
  • Publication Date: 08-2012
  • 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 photo- graph: people shot up; the ravages of pollution and all other manner of photojournalism.
  • Political Geography: Japan
  • Author: Vahagn Avedian
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: By studying the continuity between the Ottoman Empire and its succeeding Turkish Republic, this article aims to address one crucial aspect of the denial of the Armenian genocide by the Turkish state, namely the issue of state responsibility. There are psychological barriers in Turkey which have largely suppressed the memories of possible wrongdoings during World War I and the ensuing 'Independence War'. However, the barrier that is created by the issue of state responsibility is identified here as the fundamental obstacle for genocide recognition by the Turkish state. This article aims to apply some of the existing legal principles and theories of international law in order to test their applicability to the two Turkish states and the issue of internationally wrongful acts committed during World War I and the ensuing years. In addition to the Turkish Republic bearing the identity of the Ottoman Empire, this article suggests that the Republic not only failed to stop doing the wrongful acts of its predecessor, but it also continued the very internationally wrongful acts committed by the Young Turk government. Thus, the insurgent National Movement, which later became the Republic, made itself responsible for not only its own wrongful acts but also those of its predecessor, including the act of genocide committed in 1915–1916. The issue of possible liability has ever since the creation of the Republic formed the denialist policy which is Turkey's to this day.
  • Political Geography: Turkey
  • Author: Pulat Tacar, Maxime Gauin
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We have been asked by the European Journal of International Law to write a reply to an article entitled 'State Identity, Continuity and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide'. The article accuses Turkey of 'practising a denialist policy' with regard to 'the act of genocide committed during 1915–1916', demanding that it 'make itself responsible for its own internationally wrongful acts committed against Armenians and other Christian minorities', and also accuses it of 'expanding the massacres beyond its borders into the Caucasus and the territories of the independent Republic of Armenia'. According to the same article, there is a state succession and continuation of responsibility from the Ottoman Empire to the Turkish Republic, and the Republic must assume full responsibility for and should also repair the injury caused by the Ottoman Empire.
  • Political Geography: Europe, Turkey
  • Author: William E. Conklin
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article claims that the quest for the identity of peremptory norms in terms of sources is misdirected. Instead of the identity of a discrete rule or right of international law, one needs to examine why a peremptory norm is binding. The latter issue addresses the referent of the identity issue: namely, the international community as a whole. Various significations of the latter are recognized and found wanting. The article examines three general forms of the international community: the community as an aggregate of inter-dependent states, the community as a rational construction, and the community as a social-cultural ethos independent of members and yet for the members. The first two forms are found wanting. First, they presuppose that a state is a self-creative author expressing its own will. Secondly, the community is reified vis-à-vis the social-cultural ethos in which the community is immersed. Thirdly, the community is exclusionary. The three problems take for granted that a territorial-like boundary separates outsiders from between insiders. The article concludes that the notion of an international community needs excavation before jurists can be assured that peremptory norms exist and why they exist.
  • Author: Alexander Orakhelashvili
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Professor Conklin's analytical effort to explain the nature of jus cogens is not only highly impressive, but also very timely. It demonstrates the continuing relevance of jus cogens as it increasingly arises in multiple areas of international law, regardless of doctrinal calls from the 1980s onwards that it should have faded away. Since then, there have been those who have suggested that jus cogens does not make sense and should be abandoned, those who suggest that jus cogens has merely aspirational relevance and does not make a difference on the ground, and those who argue that jus cogens is merely 'primary' law, not to be applied in the area of enforcement. What happens interestingly – and problematically – is that doctrinal debates on the conceptual rationale of jus cogens and on its more specific effects are often pursued separately. Conklin's contribution is a gentle reminder of the crucial issues of the background and essence of jus cogens that both writers and practitioners often tend to overlook when addressing the implications of jus cogens in specific areas of international law.
  • Author: William E. Conklin
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Alexander Orakhelashvili has generously responded to my 'The Peremptory Norms of the International Community' with an understanding which requires a clarification on my part. On the one hand, consistently with my argument, he urges the departure from the '“cut and paste” repetition' of the sources of law. Such sources offer an 'ordinary, or mainline, justification' which is 'insufficient or irrelevant' to justify peremptory norms. On the other hand, he insists that 'none of this is meant to challenge positivist foundations of international law'. Although he emphasizes public policy as an important factor in that foundation, he also highlights fundamental values and the will, choices and universality of an international community. Orakhelashvili adds that the international social ethos, which I privileged, was 'a correct premise for jus cogens, but not a sufficient one'. What is also needed, he advises, is that the ethos be given 'a legal expression' or language. When the nature of such a legal language is addressed, one is advised that the language remains a 'consensual positivism'. Public policy is emphasized as such an expression commonly accepted in domestic and international legal discourses, we are advised.
  • Author: Andreas Wagner
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This review discusses two recent publications – a critical edition of a primary source and a collection of essays – around the Theory of International Law of Alberico Gentili (1552–1608). On the one hand it examines Gentili's interest in ancient Rome and how he used it as a paradigmatic case of imperial order. But on the other, it questions our own interest in Gentili's work. In line with Gentili's own focus on questions of justice, it not only shows that Gentili presents us with his own complex blend of political responsibility and natural law, but highlights structural features and possible blind spots of his 'natural/private law' paradigm that might apply also to current suggestions of how to organize international law.
  • Author: Muin Boase, Mansur Boase
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The book under review, which was awarded an ASIL Certificate of Merit, critically examines international law in the period following decolonization. Engaging both legal history and philosophy, the gnawing question which motivates this work, and risks getting lost under the wealth of scholarship, is: ‘Why has international law failed the Third World?’. The author claims that in order to answer this question, we must trace how a development thesis has been universalized and expose the transformative dynamic of a new ruling rationality based on the twin concepts of development and economic growth. The outcome is a regulatory framework, universally applied, which has subsumed the creative promise of international law. The claim is not that international law has shifted the operation of power, but rather that international law has itself become a new mode of power. Despite affirming political equality, the Third World, by avowing economic backwardness, unwittingly endorsed a rhetoric of development and a separation of the economic from the political. Once institutionalized through the Bretton Woods Institutions and the United Nations respectively, this disembedding of economics from politics, which we know from Polanyi’s The Great Transformation (1944) can only ever be an illusion, has facilitated a new imperialism of international economic law in the national arena. The historical repercussions are well known: the ever-expanding reach of an international technical law positioned as superior to national law, intervening, often violently, to maintain an unfavourable and asymmetric status quo in the name of idealized economic, political, and social models that cast themselves as universal. This pattern is well documented in Anghie’s Imperialism, Sovereignty and the Making of International Law (2004). Anghie argues that the branding of the ‘other’ as uncivilized and particular does not emerge from universals, but rather animates their formation. International law, by this account, was motivated by a civilizing mission, which Anghie terms ‘the dynamic of difference’, and this dynamic endures under very distinctive styles of jurisprudence from 16th century naturalism to 19th century positivism to modern-day pragmatism predicated on an assumed initial consent. Pahuja looks at the most recent form of this dynamic, not so much regarding its consequences as the legal and philosophical reasons for its endurance and even stabilization into the present.
  • Author: Ekaterina Yahyaoui Krivenko
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Legitimacy has become a popular subject in international law and international relations in the last decade. If previously the issue of legitimacy was addressed only subsidiarily to other issues, today books and articles taking the issue of legitimacy as their main subject abound. The books under review illustrate this trend. They all address 'legitimacy', but approach the notion from different perspectives.
  • Author: Giuseppe Cataldi
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The book under review concludes research on the practice of domestic courts begun by the author over 10 years ago as part of a project entitled International Law in Domestic Courts. As pointed out in the preface, international doctrine lacked a systematic analysis of the domestic judicial application of international law, one based not on a theorization of relations between domestic law and international law but on an accurate analysis of data emanating from the decisions of domestic courts.
  • Author: Michael Fakhri
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Accounts of trade law usually are written in a technical style or focus on the WTO's legitimacy. Nevertheless, an increasing number of scholars are asking theoretical questions regarding why WTO law is structured as it is and operates the way it does. Some look to political or economic theory to answer the question. Lang, like some others, focuses more on social dynamics.
  • Author: Mónica García-Salmones
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The two books reviewed here invite international lawyers to mobilize. Jean D'Aspremont's Formalism calls for a renewal of the practice of formally ascertaining international legal rules. D'Aspremont attempts to develop a theory for this endeavour to be employed in an age of pluralized normativity. Essentially this theory is grounded in a social thesis with robust Hartian support. Jörg Kammerhofer's Uncertainty in International Law, for its part, argues in favour of a much more theoretical approach to international law, one that is normativist and, more specifically, Kelsenian. Both texts are original and challenging in their effort to draw our attention to new ways of thinking about form. In d'Aspremont's view, the most problematic aspect of the ascertainment of law is the absence of social consciousness in law-applying authorities. He views the absence of a subjective (community) commitment to formalism – that is a commitment to respect the necessity of legal boundaries – as more of an obstacle in the objective production of law than fragmentation. The remedy proposed for this problem is the elaboration of written linguistic indicators which ensure the identification of international legal acts – as distinct from informal mechanisms such as the intent of the law-maker. D'Aspremont regards the written linguistic indicators generally as more suitable to the reality of our times, where informal law-making procedures abound, but nevertheless the need to distinguish law from non-law remains. According to d'Aspremont, what is at stake in the issue of formalism is not just an elementary respect for the rule of law, but also the possibility of critique of international legal rules. Kammerhofer dissects important aspects of the positive international legal order: self-defence, customary international law, interpretation and modification, conflicts of norms, and the idea of a constitution, following Kelsen's Pure Theory. The author devotes the larger part of the book to showing the impossibility of avoiding uncertainty in current international law. The climax is reached in the last chapter with a call to rethink the need for the Grundnorm (Kelsen's famous basic norm) in international legal theory. As Kelsen famously put it, the cognition of a norm as norm, rather than as a psychological or sociologico-empirical reality, is possible only if the norm has a presupposed Grundnorm, because to deny the dichotomy of Is and Ought means to deny the nature of (international) norms. According to Kammerhofer we need, and will always need, to return to the Grundnorm. In essence – and here is the gist of Kammerhofer's formalism – this means to accept the distinction between reality and value. Kammerhofer's insight that the Grundnorm does nothing but restate the idea of normativity reveals his reading of Kelsen and, more generally, his familiarity with the Vienna School of Law. But rather than in taking the Vienna School further, his contribution lies in using some of the theories developed in that school to think about current positive international law. Formalism and the Sources of International Law and Uncertainty in International Law both consider that the rules which determine the law-making powers of any given authority have an existence autonomous from the actual relations of power. In that sense, they constitute useful texts for gaining insights into the latest developments in positivist international legal theory.
  • Author: Gregory Shaffer
  • Publication Date: 08-2012
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Osama bin Laden is dead. Killed by the Americans in Abbottabad, a garrison town in the night on a skillful raid, photographed dead, but without the pictures released, dumped at sea in debated accordance with debated scripture, from an un-debated carrier, it seems.
  • Political Geography: America
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: EJIL receives hundreds of unsolicited articles each year. We welcome these submissions. They are an important part of who we are. They constitute the pool from which, alongside the pieces we commission ourselves, we build our individual issues. A few of the submissions are just awful. But most are good and, naturally, we receive many more fine articles than we are able to publish. We know it is disappointing for authors to receive a rejection letter. We truly hope that authors will not give up on us if they are not always successful with this or that submission. In 21 years we have never laid bare our selection and editorial process. This is not exactly an apology: at one time or another I have sat on the Editorial, Advisory, Scientific and other such Boards of over 23 different journals and do not recall ever seeing another journal doing such. Be that as it may, I decided that both our authors and readers should know how the process works. I also compiled some basic aggregate statistics on our authors over the first 20 years of EJIL – and slightly more detailed stats from the last two years. (Relax, nothing personal – country of submission, gender, etc.) We ourselves were surprised by some of the results. But first things first: How is the selection of articles for publication made?
  • Political Geography: Europe
  • Author: Francesco Francioni
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 1. In introducing this EJIL symposium, I cannot help but recall a much debated article published in 1986 in the American Journal of International Law. The author of that article, Stanford professor John Merryman, theorized that there are \'two ways of thinking about cultural property\'. 1 The first, he argued, is the national(istic) way, which conceives of cultural property as part of the nation, with the attendant desire of governments to jealously retain it within state boundaries and to limit its international circulation. The second is the international way, which views cultural property as the heritage of humankind and supports the broadest access and circulation to facilitate exchange and cultural understanding among different peoples of the world. The author left no doubt that the latter view was to be preferred for its alleged capacity to contribute to a cosmopolitan order, in which cultural property can be freely accessed and thus contribute to the intellectual and moral progress of humanity. One may wonder whether this dual perspective accurately reflected the spirit of the law and the policy attitudes of the time when the article was written. Certainly, it cannot adequately explain the present state of the law and, in particular, of international law. Today, there are more than just two ways of thinking about cultural property. Cultural property may be seen as part of national identity, especially in the post-colonial and post-communist context, but it can also be looked at as part of the \'territory\', the physical public space that conditions our world view and which is part of what we normally call \'the environment\' or the \'landscape\'. Cultural property may be seen as moveable artifacts susceptible to economic evaluation, and for this reason subject to exchange in international commerce; but it may also be thought of as objects endowed …
  • Topic: Economics, Government
  • Political Geography: America
  • Author: Ana Filipa Vrdoljak
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The protection of minorities in modern international law is intimately connected with and fuelled the recognition of the crimes of persecution and genocide. Minority protection represented the proactive component of the international efforts to ensure the contribution of certain groups to the cultural heritage of humankind. Prohibition and prosecution of persecution and genocide represented the reactive element of these same efforts. The restitution of cultural property to persecuted groups by the international community was recognition that their ownership and control of these physical manifestations was necessary for the realization of this purpose. In this article, I consider the emergence, contraction, and revival of the interconnection between minority protection, the prevention and punishment of genocide, and the protection and restitution of cultural heritage over the last century-long development of international law. It is argued that the central aim driving and interweaving these initiatives is the effort to ensure the continuing contribution of each group to the cultural heritage of all humanity.
  • Topic: Development, International Law
  • Author: Thérèse O'Donnell
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article considers the legal difficulties associated with restituting Holocaust-looted art. Can such claims provide platforms for examining the associated cultural implications of both the looting and restitution programmes? Not with standing its centrality to Nazism and the Holocaust, looting's reversal was not a post-war Allied priority. Consequently, looting's painful after-effects leave a sense of unfinished business. Restitution traditionally envisages a high profile for law and, in particular, courts. Taken together with restitution's importance within reconciliation processes, this highlights that these cases are clearly located within transitional justice discourse. For example, property restoration is entwined with reconstitution of individual and group identities. The article concludes that restitution is crucial to successful completion of transitional justice processes. However, law's role must be re-imagined beyond the current adversarial/judicial paradigm which fails within its own limited understandings of restitution and hampers rather than enhances reconciliation processes.
  • Author: Lucas Lixinski
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article discusses the international protection of intangible cultural heritage (ICH) by a UNESCO-based regime created by the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. This Convention has experienced very fast ratification (127 states parties less than seven years after its approval), but this is in no small part attributable to a certain lack of 'legal bite' of the instrument. There are several layers of state sovereignty imbued in the instrument, as well as weak mechanisms for community participation. These are reflected by a state prerogative in determining what the intangible heritage within their territories is for international safeguarding purposes, therefore having the chance to stifle internal dissent by ignoring minority cultures or even appropriating them and depriving them of political meanings. The early practice under the Convention, including the first nominations, puts these structural shortcomings in further evidence. However, recent reforms to the operational directives for the implementation of the Convention have already taken decisive steps towards increasing community participation, even when this means eroding state privileges with regard to the Convention.
  • Topic: Politics
  • Author: Federico Lenzerini
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Intangible cultural heritage (ICH), made up of all immaterial manifestations of culture, represents the variety of living heritage of humanity as well as the most important vehicle of cultural diversity. The main 'constitutive factors' of ICH are represented by the 'self-identification' of this heritage as an essential element of the cultural identity of its creators and bearers; by its constant recreation in response to the historical and social evolution of the communities and groups concerned; by its connection with the cultural identity of these communities and groups; by its authenticity; and by its indissoluble relationship with human rights. The international community has recently become conscious that ICH needs and deserves international safeguarding, triggering a legal process which culminated with the adoption in 2003 of the UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage. This Convention correctly highlights the main elements of ICH and is based on the right philosophical rationale, but its operational part – structured on the model provided by the 1972 World Heritage Convention – appears to be inadequate to ensure appropriate safeguarding of the specificities of intangible heritage. This article argues that to correct such inadequacy, international safeguarding of ICH must rely on the concomitant application, even though in an indirect manner, of international human rights law, for the reason that ICH represents a component of cultural human rights and an essential prerequisite to ensure the actual realization and enjoyment of individual and collective rights of its creators and bearers.
  • Topic: Human Rights, Culture
  • Author: Siegfried Wiessner
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The novel international legal regime of the rights and status of indigenous peoples has emerged in direct response to the concerted efforts and demands of indigenous communities regarding the survival and the flourishing of their distinct cultures. Its high point, as of yet, has been the 2007 UN Declaration on the Rights of Indigenous Peoples, now enjoying virtually universal support. This article locates the regime of the Declaration within post-World War II value-oriented international law; it highlights its novel, essentially communal rights to culture, self-determination, and land; and it assesses its content within existing sources of international law. It ends with an appraisal of the progress made, and an evaluation of the challenges ahead.
  • Topic: International Law, United Nations, Culture
  • Author: Karen Engle
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article traces the development of the international human rights and international indigenous rights movements, with a particular eye towards their points of convergence and divergence and the extent to which each has influenced the other. Focusing on the United Nations Declaration on the Rights of Indigenous Peoples, it argues that the document, while apparently pushing the envelope in its articulation of self-determination and collective rights, also represents the continued power and persistence of an international human rights paradigm that eschews strong forms of indigenous self-determination and privileges individual civil and political rights. In this sense, it signifies the continued limitation of human rights, especially in terms of the recognition of collective rights, in a post-Cold War era in which a particular form of human rights has become the lingua franca of both state and non-state actors.
  • Topic: Cold War, Human Rights, United Nations
  • Author: Gaetano Pentassuglia
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As expert analysis concentrates on indigenous rights instruments, particularly the long fought for 2007 UN Declaration on the Rights of Indigenous Peoples, a body of jurisprudence over indigenous land and resources parallels specialized standard-setting under general human rights treaties. The aim of the present article is to provide a practical and comparative perspective on indigenous land rights based on the process of jurisprudential articulation under such treaties, principally in the Inter-American and African contexts. While specialized standards inevitably generate a view of such rights (and, indeed, indigenous rights more generally) as a set of entitlements separate from general human rights, judicial and quasi-judicial practice as it exists or is being developed within regional and global human rights systems is effectively shaping up their content and meaning. I argue that indigenous land rights jurisprudence reflects a distinctive type of human rights discourse, which is an indispensable point of reference to vest indigenous land issues with greater legal significance. From a practical standpoint, focussing on human rights judicial and quasi-judicial action to expand existing treaty-based regimes and promote constructive partnerships with national courts, though not a panacea to all the intricacies of indigenous rights, does appear to offer a more realistic alternative to advocacy strategies primarily based on universally binding principles (at least at this stage) or the disengagement of domestic systems from international (human rights) law.
  • Topic: Human Rights, United Nations
  • Political Geography: Africa, America
  • Author: Micaela Frulli
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article undertakes a comparative analysis of the two main international legal instruments providing for offences against cultural property and cultural heritage in times of armed conflict in order to assess existing gaps and lacunas, and to make suggestions on how better to advance the protection of cultural property through international criminal law. The International Criminal Court Statute takes a very retrograde attitude to this kind of crime – which the author calls the civilian-use approach – whereas the Second Protocol to the 1954 Hague Convention on the Protection of Cultural Property in Times of Armed Conflict seems far more innovative, preferring a cultural-value oriented approach. The author concludes that the latter approach is more appropriate and that, at present, the most effective tool for pursuing war crimes against cultural property is Protocol II to the 1954 Hague Convention. It is thus crucial to promote ratification by a large number of states and to encourage states to adopt implementing legislation that may allow domestic judges to prosecute the most serious crimes against cultural heritage on the basis of jurisdictional criteria provided for in Protocol II to the 1954 Hague Convention.
  • Topic: Culture
  • Author: Sandesh Sivakumaran
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The regulation of internal armed conflict by international law has come a long way in a very short space of time. Until the early 1990s, there were a minimum of international law rules applicable to internal armed conflict. Today, the situation has changed almost beyond recognition with a healthy body of international law applicable to internal armed conflict. This change has taken place in three principal ways – through analogy to the law of international armed conflict, through resort to international human rights law, and through the use of international criminal law. Each of these approaches stressed its similarity to internal armed conflict or to international humanitarian law. They proved immensely important, filling in what was a more or less blank canvas. However, there are limits to how far they can take us. Today, the canvas is no longer blank and a step back is needed in order to assess the existing state of affairs. Focusing not on the similarities between international and internal armed conflicts or between the various bodies of international law, but on their differences, will allow us to ascertain what further work is in order. It will allow us to identify gaps in regulation and refine relevant rules. It will also force us to re-think our approach to particular issues. Only in this way will we be able to develop the international law of internal armed conflict further.
  • Topic: Government, Human Rights, International Law
  • Author: Gabriella Blum
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The prevailing view of the form which the effort to regulate non-international armed conflicts should take has been summarized by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić interlocutory appeal on jurisdiction: '[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife'.This mirroring approach of emulating the laws applicable in international armed conflicts in the non-international context was subsequently adopted by the drafters of the Rome Statute of the International Criminal Court in 1998; the drafters chose to include a list of war crimes applicable in cases of non-international armed conflicts which resembled (though was still narrower than) the list of crimes applicable in international conflicts. The recent Kampala ICC review conference expanded the non-international crimes list, further narrowing the gap between the 'international' and the 'non-international' lists of crimes.Taking a similar position, the 2005 study on customary international humanitarian law (IHL) published by the International Committee of the Red Cross concluded that all but a handful of the rules identified as customary applied in international and non-international armed conflicts equally.Given the traditional resistance by states to assuming the same degree and range of constraints which apply in international armed conflicts in internal ones, humanitarian advocates have sought to advance the regulation of internal armed conflicts by supplementing IHL with norms borrowed from international criminal law (ICL) and international human rights laws (IHRL). The resulting international law of internal armed conflicts has thus been a patchwork of norms which ostensibly apply to all non-international armed conflicts, drawn from the IHL of international conflicts, ICL, and IHRL, often proving to be incoherent, unworkable, and ineffective. Sandesh Sivakumaran's contribution to this volumetakes a critical view of the path …
  • Topic: Development, Government, International Law
  • Author: Sandesh Sivakumaran
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I am grateful to Professor Gabriella Blum for her thoughtful response to my article. Blum's response invites further consideration of three principal issues. She notes my use of the terminology of 'internal' as opposed to 'non-international' armed conflict and its juxtaposition with 'international' armed conflict and queries whether my 'methodological approach as well as specific suggestions would remain equally compelling in other types of non-international armed conflicts'. The choice of terminology was deliberate. I find the descriptor 'non-international' to be somewhat misleading as it unhelpfully defines the category by what it is not. It suggests that there is but one armed conflict and, if it is not international in character, by default it is non-international. However, in practice, an internal/non-international armed conflict is identified in a rather different manner. For example, in order for an internal/non-international armed conflict to exist, the violence must reach a certain level of intensity; yet, for an international armed conflict to exist one dominant view is that there is no such requirement. The category of internal/non-international armed conflict is thus in no way a default category which serves to catch those conflicts which are excluded from the international category. Yet this is what is suggested through the use of the terminology of 'non-international' armed conflict. What the terminology of 'internal' may suggest is that it is limited to those conflicts which are fought entirely within the territorial boundaries of a state. However, even this may be true only up to a certain point. For example, an internal armed conflict with a certain overspill, such as onto the high seas or into the territory of a third state, is still characterized as an internal …
  • Topic: Government, Human Rights, International Law
  • Political Geography: Sri Lanka
  • Author: Ingo Venzke
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The concept of global governance epitomizes transformations in the structure of political organization and highlights changes in the ways in which public authority is exercised. Times of change invite scholars to contemplate the plausibility of orthodox beliefs and doctrinal concepts. They push them towards innovation and there is indeed a strong sense among international lawyers that the terms of debate about the legitimacy of international law are shifting. A number of contributions over the past years have tried to respond to the challenges which phenomena of global governance pose to international legal scholarship. 1 The mounting wealth of literature now comes to speak in Steven Wheatley's book on The Democratic Legitimacy of International Law in which he calls on the legal profession to engage with questions of first principle, to reflect on the nature of international law, and to consider in closer detail the justification of legal constraints beyond the state. The book's main argument is at the outset rather straightforward. Wheatley observes a proliferation of sites of norm production and argues that the delegation of authority to international or transnational actors inevitably involves a loss for democracy. To remedy this deficit, he suggests restating requirements for democratic legitimacy in terms of the deliberative ideal as it is developed in the work of Jürgen Habermas. The book claims the use of Habermas' thought as its innovative edge, and develops its core argument accordingly. '[T]he legitimate exercise of public authority through law', it claims, 'is conditioned by respect for the cardinal principles of deliberative democracy: equality and public reason' (at 2). The book begins by taking stock of accounts suggesting that state sovereignty has lost its plausibility as an exclusive reference point in normative argument. While the grand variety of approaches under discussion converge in agreement on the facts of what …
  • Topic: International Law, Governance
  • Author: Fernando Losada Fraga
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: When the current economic crisis began, political leaders all around the world spread the idea that capitalism needed somehow to be reformed. 1 A couple of years later one might think that not much has been achieved in that direction and blame politicians for their lack of will. However, it is not so clear that reforms – even if the political will existed – would be easy to realize. As Danny Nicol argues, the neoliberal conception of capitalism is constitutionally shielded as a result of the content and the development of different but coexisting legal regimes such as the World Trade Organization (WTO) or the European Union (EU), and of the activism of the European Court of Human Rights (ECtHR). Describing the resulting 'constitutional protection of capitalism' is precisely what this book is about: Nicol tries to determine to what extent national politics are predetermined by the ongoing economic integration. Or, putting it differently, his research aims at explaining how much room for manoeuvre states, and in particular the United Kingdom, maintain now that the international and European economic integration treaties they ratified years ago have evolved in an unexpected way. The author thus identifies two trends 'that have pervaded the evolution of transnational regimes' (at 156), namely their widened scope and their enhanced binding character, and claims that such developments have a special impact on the freedom of Parliament to decide, 2 a freedom which, as we must bear in mind, is at the core of British constitutionalism. Both the title and the cover of this book, in which the symbol of the British Parliament, Big Ben, blurs among the buildings of the City, are very explicit about the national perspective from which this book approaches transnational regimes. The book is structured in five chapters. The first describes the …
  • Topic: Development, Economics, Government
  • Author: Jean Allain
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: One would expect no less from this study of contemporary forms of slavery by Emmanuel Decaux than that it identifies the fundamental puzzle at the heart of legal issues surrounding human exploitation, namely, that: there is a permanent contradiction between the successive attempts focused on 'slavery in all its forms' as well as 'the practices and institutions similar to' – which are at the heart of international instruments, and the programmes of action of international organisations and non-governmental organisations –; and the criminal law approach which requires a precise definition to incriminate; either domestically, in the name of the determinacy of the crimes and of the penalty, or internationally to allow for criminal cooperation. 1 It is to this fundamental paradox that Decaux devoted his attention during his lectures at The Hague Academy of International Law in 2008. These lectures were published in The Collected Courses of the Hague Academy series and were also reproduced as part of a pocketbook series. 2 The beauty of considering studies written in another language is to liberate oneself from assumptions – the given starting and end points of argument, and the continuity of well established discourses. If nothing else, surveying works in other languages opens the possibility of new revelations and discoveries – even for the most seasoned expert in an area – which come from narratives forged, in this case, in Paris, as opposed to a London or a Washington. With this in mind, Les formes contemporaines de l'esclavage does not disappoint. More so than in a monograph, the chapters of a study emanating from the Hague Academy stand alone, as each originates in a public lecture and thus must stand on its own merits. In seeking to work beyond the fundamental contradiction related to issues of human exploitation, the approach which …
  • Topic: Government, International Law, Non-Governmental Organization
  • Political Geography: Washington, London
  • Author: Mirko Sossai
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The renewed interest in the law of belligerent occupation probably reached its peak in 2009, when various monographs were published by distinguished authors as well as by younger scholars. The book under review originated from a doctoral thesis defended by Andrea Carcano at the University of Milan. His investigation focuses on the 2003 occupation of Iraq as the ideal test-case to verify whether the existing legal regime is adequate to address the challenges posed by present-day scenarios, including Afghanistan, Congo, and the Arab–Israeli conflict. The book is divided into three parts. The first one comprises two chapters, which present respectively the legal framework of belligerent occupation and the other applicable norms of international law. Chapter I takes a historical perspective on the legal concept of occupation, which the author considers functional to the subsequent analysis for two main reasons: to investigate the underlying values guiding the development of the law of belligerent occupation; and to compare current theories regarding the role of the law in such a situation with similar arguments upheld in the past (at 13). Carcano identifies three epochs, which modelled different concepts of occupation. The first one is valid until the Modern Age and is influenced by the Roman law tradition: occupation is considered as 'conquest and exploitation of the territory'. The modern notion of occupation, defined as 'administration and effective control', emerged during the 18th century, at the time of the consolidation of sovereign states in Europe. Whereas Vattel had already in theory identified the differentiation between sovereignty and private ownership, it was August Heffter, a century later, who first recognized the legal implications of the distinction between occupatio bellica and debellatio (at 24). Finally, the last model is that of the occupation as 'transformation': Carcano identifies it as 'a military action aimed at the radical …
  • Topic: Development, International Law
  • Political Geography: Afghanistan, Europe, Israel, Paris, Arabia
  • Author: Luis Castellvi Laukamp
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Dialogue, this noble art, which, like many other things, was invented by the Greeks, is always a sort of collaboration, a way of trying to attain the truth. Perhaps this is why Plato used it as a literary vehicle when he wrote his Socratic dialogues, a corpus of pieces in which he laid the foundations of Western philosophy. Deeply impressed by the death of his mentor Socrates, Plato wrote some of the most brilliant and insightful works of all time, perhaps in order to keep on debating with his master after his death. In all likelihood, no-one since has ever had the same great ability to create such architectures of thought. His enjoyable and entertaining dialogues deal with essential topics such as the nature of time, politics, love, and death. Not only is his style concise and meticulous, with a proverbial ability to pose the right questions, but also didactic and kind. His dialogues enable all participants to engage in an inquiry which, despite not always being successful in reaching the desired goal, has at least proved to be a fundamental tool in the development of all expressions of human thought. The book under review is inspired, mutatis mutandis, by this very same philosophy regarding dialogue. As its editors (Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza) point out in their introduction, '[t]he process of fragmentation of the international legal order and the absence of constitutional devices governing the connections between the various legal regimes can be reduced to a rational picture only through the activity of the judges' (at 23). This is why judges play a key role in creating and developing links between the different legal systems which constitute our multi-level judicial environment. The increasingly complex nature of the interaction between national and international judges has often been
  • Topic: Development, Government, Politics, Law
  • Political Geography: Greece
  • Author: Constantin von der Groeben
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Aida Torres Pérez' Conflicts of Rights in the European Union. A Theory of Supranational Adjudication 1 is a comprehensive monograph dealing with one of the most striking normative challenges in the European Union (EU): the relationship between the European Court of Justice (ECJ) and Member State courts in adjudicating fundamental rights. Torres Pérez presents the existing spheres of fundamental rights protection in the EU and provides a thorough analysis of the conflicts that emerge where these different spheres overlap. Her volume covers a number of different approaches and provides suggestions on how to deal with these conflicts and eventually proposes a normative model for ECJ adjudication through judicial dialogue based on comparative constitutional reasoning. The book is well structured in three parts. The first part gives a brief but thorough overview of the different systems of fundamental rights protection open to EU citizens. The author describes these different systems as the multilevel protection of rights in Europe and distinguishes between human rights protection through national constitutions (constitutional rights), through the ECJ (EU fundamental rights) and through the European Convention on Human Rights (convention rights). She outlines the conflicts that arise when these different systems of fundamental rights protection overlap. In general, such conflicts may arise when different rights are considered to be fundamental (at 10) and where community members disagree regarding fundamental rights interpretation (at 11), especially concerning sensitive issues like abortion or affirmative action (at 16). A potential for conflict exists whenever states act within a field of application of EU law which includes two types of situations: (i) state acts implementing EU law, and (ii) state acts derogating from the EU basic freedoms of movement (at 16). An example of a rights conflict between German courts and the ECJ is the 'banana saga', where the courts disagreed on …
  • Topic: Human Rights, Governance
  • Political Geography: Europe
  • Author: Gregory Shaffer
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Step after step is still the only way to Sengge La (the Lion Pass), those of my guide Karma and our horseman Ramlal, of the French woman whom two years back …
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European construct has played a decisive role in the history of the last 60 years. It has created the framework for post-war reconstruction and has ingeniously provided the inspiration and mechanisms for a historical reconciliation between nations which hitherto had gone to war with each other – the horrors of which surpass even the worst of today's excesses – in every generation for the previous two centuries. This cannot but give inspiration and a sliver of hope in the face of our own intractable conflicts. The European Coal and Steel Community, the 60th Anniversary of which we mark this year, incorporated the Schuman Declaration and combined peace and prosperity in its blueprint, whereby peace was to breed prosperity and prosperity was to consolidate peace. It has all worked out splendidly – revisionist history notwithstanding. Europe has also been a catalyst (not more) – at times the 'prize' – for the achievement and subsequent consolidation of democracy, first in Greece, Spain and Portugal, and later across Eastern Europe.
  • Topic: Politics
  • Political Geography: Europe, Eastern Europe, Libya
  • Author: Nehal Bhuta
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this symposium, we publish Jeremy Waldron's article, 'Are Sovereigns Entitled to the Benefit of the Rule of Law?' together with four responses, by Samantha Besson, David Dyzenhaus, Thomas Poole and Alexander Somek. Waldron is justifiably renowned as a jurisprude and theorist of the concept of the rule of law. His engagement with international law is more recent, but no less significant. In this article, he takes a familiar (perhaps even tired) question among international lawyers – can there be something akin to a rule of law in international affairs? – and recasts how we ought to think about it. With characteristically deft and plain-speaking arguments, Waldron burrows to the heart of the issue: What might it mean to speak of an 'international rule of law,' and who or what are properly understood as its beneficiaries? Waldron leads us first along a familiar path: the absence of a sovereign of sovereigns puts into …
  • Topic: International Law
  • Author: Jeremy Waldron
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The applicability of the ideal we call 'the Rule of Law' (ROL) in international law (IL) is complicated by (1) the fact that there is no overarching world government from whom we need protection (of the sort that the ROL traditionally offers) and it is also complicated by (2) the fact that IL affects states, in the first instance, rather than individuals (for whose sake we usually insist on ROL requirements). The article uses both these ideas as points of entry into a consideration of the applicability of the ROL in IL. It suggests that the 'true' subjects of IL are really human individuals (billions of them) and it queries whether the protections that they need are really best secured by giving national sovereigns the benefit of ROL requirements in IL. For example, a national sovereign's insistence that IL norms should not be enforced unless they are clear and determinate may mean that individuals have fewer protections against human rights violations. More radically, it may be appropriate to think of national sovereigns more as 'officials' or 'agencies' of the IL system than as its subjects. On this account, we should consider the analogous situation of officials and agencies in a municipal legal system: are officials and agencies in need of, or entitled to, the same ROL protections as private individuals? If not, then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level.
  • Topic: Government, Human Rights
  • Author: Alexander Somek
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article discusses the question whether Waldron's new analogy shifts the paradigm of international governance from a relationship that is based on law to a relationship that views participating actors as involved in some kind of common creative problem-solving effort. The implied change from 'law' to 'process' would raise serious concerns about what it might entail for the rights of citizens.
  • Topic: Governance, Law
  • Author: Thomas Poole
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two analogies lie at the core of Professor Waldron's article. The first is the claim that the standard analogy by which the state in international law is like the individual in domestic law is misleading; the state in international law is more like a government agency in domestic law. The second is that international law is (or is like) a species of public law and should be treated as such by domestic legal systems. I examine both claims, arguing (a) that even if we accept the first analogy it does not get us to the deeper levels of respect and commitment to international law that Waldron argues for, and (b) that the 'floating normativity' inherent in the second claim leads Waldron to overlook the specific organizational and structural conditions of international law. This leaves Waldron's position weakest where it should have most to offer: namely, in instances where our commitment to international law on one hand and the rule of law on the other seem to pull in opposite directions.
  • Topic: International Law, Sovereignty
  • Author: David Dyzenhaus
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I argue that Hans Kelsen anticipated the main contribution of Jeremy's Waldron's article: the idea that the place of nation states in the international legal order is akin to that of administrative agencies in the domestic legal order, and thus as wielding delegated rather than original authority. For both wish to understand sovereignty as a kind of metaphor for the unity of a legal system rather than as a pre-legal entity. However, legal positivism is unable to make the move to conceiving of sovereignty that way, since the positivist prejudice against natural law has the result that the idea of a pre-legal sovereign is repressed in one place only to pop up in multiple others. In issue in this debate are two conceptions of the rule of law, a positivistic conception that the rule of law consists mainly of determinate rules and a Fullerian conception in which the rule of law is understood as facilitating a certain process of reason and argument. Since Waldron sees the attraction of the latter conception, and since that conception avoids the problem of the pesky sovereign, I suggest that Waldron should embrace it.
  • Topic: Sovereignty, Law
  • Author: Samantha Besson
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In my reply to Jeremy Waldron's article 'Are Sovereigns Entitled to the Benefit of the International Rule of Law?', I draw upon and in some ways expand Waldron's important contribution to our understanding of the international rule of law. First of all, I suggest that Waldron's argument about the international rule of law can be used to illuminate how we should understand the legitimate authority of international law over sovereign states, but also how some of sovereign states' residual independence ought to be protected from legitimate international law. Secondly, I argue that the democratic pedigree of the international rule of law plays a role when assessing how international law binds democratic sovereign states and whether the international rule of law can and ought to benefit their individual subjects. Finally, I emphasize how Waldron's argument that the international rule of law ought to benefit individuals in priority has implications for the sources of international law and for what sources can be regarded as sources of valid law.
  • Topic: International Law, Sovereignty
  • Author: Jeremy Waldron
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Some of the points made in these comments presuppose that I have a more radical agenda than in fact I have. In this article, I wanted to reorient our understanding of the national state's position in international law, from that of subject to that of source and agency of that legal system, and I wanted to explore the implications of this reorientation for our understanding of the rule of law in the international realm. This reorientation of course requires us to take international law seriously. But it does not necessarily require any particular philosophical view of the relation between international law and national law. 1 In particular it does not direct us to any sort of jurisprudential monism (although it is not incompatible with monism). I think it is quite compatible with a dualist view of the relation between international and national law (not that it commits us to dualism either). It simply assigns the state a somewhat different role from that conventionally assigned in dualist theories. My analysis implies that some of what we would call national state and legal functions can (and should) sometimes be conceived as functions of the international legal system. When a state patrols its borders, for example, it is acting in part as an agency of the international refugee regime. 2 But the exercise of any given legal function can be understood in multiple ways. As I …
  • Topic: International Law
  • Author: Pierre-Marie Dupuy
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: René-Jean Dupuy and Wolfgang Friedmann were good friends and for a large part shared a common vision of how post-World War II international law was structured and the ways in which it was evolving. It is worth comparing their respective views as they reflect the way in which a generation of international lawyers perceived in particular the impact of international organizations on modern international law seen as a true international legal order. Although influenced by the ideas of that period (the 1960s and 1970s), the views of these two great 'men of vision' remain of immense interest for the present and for times to come.
  • Topic: International Law
  • Author: Alix Toublanc
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: R.-J. Dupuy's works are based on a dialectical approach to international law which integrates the inner strife and the various antagonisms that beset the 'terrestrial city'. Nevertheless he refused Hegel's dialectic which opposes thesis and anthithesis to produce a sterile synthesis and leads to rigidity. On the contrary, Dupuy's 'open dialectic' is based on the rejection of mechanistic and deterministic philosophies, and his description of the terrestrial city is dynamic, perpetually confronting opposite points of view through the eyes of the 'Captain', the 'Surveyor', and the 'Poet' symbolizing the need for order, for change, and for transcendence.
  • Topic: International Law
  • Author: Evelyne Lagrange
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: If the thoughts of René-Jean Dupuy had to be reduced to an expression, it would be his method of 'open dialectic' applied to international law and society which enabled him to highlight the dynamic opposition of 'relational' and 'institutional' international trends in an impressive array of short surveys and ambitious synthesis. This article first aims to remind readers of the accuracy of Dupuy's comprehensive approach to international law and society, in that he never disregarded the meaning of rules and institutions for actors – mainly political ones – the underlying values and justice considerations or even myths beyond technical rules or political antagonisms. But it does not suffice to celebrate the visionary and rhetorical skills of Dupuy. His contribution to the methodology of international law has to be assessed. Did he build up a new paradigm? Considering some incertainties in the method of open dialectic and some shortcomings in his core concepts (inter alia a quite static conception of sovereignty), it may be doubted.
  • Topic: International Law, Sovereignty
  • Author: Julien Cantegreil
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic awards refer to concession contract provisions and a political context that are now obsolete. Thus, this article argues on the one hand that the award on the merits, delivered in January 1977, provides an unparalleled opportunity to survey almost every facet of the world of international investment arbitration of the past. On the other hand, the award must nevertheless also be read as forward-looking. By fostering a shift from the traditional hegemony of national jurisdiction in international investment law to the internationalization of international contracts, the article underlines that the award on the merits remains the finest example of René-Jean Dupuy's long-lasting contribution to international law doctrine. By way of conclusion, it suggests that it provides the very best expression and point of entry into Professor Dupuy's understanding and shaping of what he coined 'la communauté'.
  • Topic: Government, International Law
  • Political Geography: Asia, Libya, California, Arabia
  • Author: Steven R. Ratner
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The International Committee of the Red Cross casts itself as both a unique protector of individual victims of war and a special guardian of the body of international humanitarian law. It manages and reconciles these two roles through a complex, unconventional strategy that includes secret communications with warring parties, ambiguity in conveying its legal views to them, and, at times, a complete avoidance of legal arguments when persuading actors to follow international rules. This modus operandi not only challenges some standard views about the methods used by actors seeking to convince law violators to comply with norms; it also opens the door to a richer theoretical understanding of legal argumentation in that process of persuasion. The resulting construct consists of a matrix of inputs that determine how a persuading entity will deploy legal arguments and outputs that convey the dimensions of the resulting argumentation. Both the theory and the ICRC's work suggest that entities concerned with compliance would often do best to settle for a target to act consistently with a norm rather than to internalize it. They also raise difficult moral questions about whether compliance with international law is the optimal goal if it has adverse consequences for the values an institution seeks to uphold.
  • Topic: War, Communications, Law
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Roaming Charges is a new feature of EJIL aimed at enhancing the 'book experience' - a moment of reflection as well as aesthetic pleasure disconnected from any ...
  • Political Geography: Berlin
  • Author: Susan Marks
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In 1992 the American Journal of International Law published an article by Tom Franck entitled 'The Emerging Right to Democratic Governance'. The article inaugurated an important debate on the relationship between international law and democracy. Reviewing that debate, I examine four different ways of thinking about the contemporary significance of the emerging right to democratic governance. While not claiming that any is wrong, I consider some respects in which each is limited. I also discuss Haiti, as a country which inspired the thesis of the emerging democratic entitlement, and one which remains illuminating for it today.
  • Topic: Governance
  • Political Geography: America
  • Author: Steven Wheatley
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the way in which we should make sense of, and respond to, the democratic deficit that results from global governance through international law following the partial collapse of the Westphalian political settlement. The objective is to evaluate the possibilities of applying the idea of deliberative ('democratic') legitimacy to the various and diverse systems of law. The model developed at the level of the state is imperfectly applied to the inter-state system and the legislative activities of non-state actors. Further, regulation by non-state actors through international law implies the exercise of legitimate authority, which depends on the introduction of democratic procedures to determine the right reasons that apply to subjects of authority regimes. In the absence of legitimate authority, non-state actors cannot legislate international law norms. The article concludes with some observations on the problems for the practice of democracy in the counterfactual ideal circumstances in which a plurality of legal systems legislate conflicting democratic law norms and the implications of the analysis for the regulation of world society.
  • Topic: International Law
  • Political Geography: Westphalia