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  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I can think of no 'happy ending' scenario to this unfolding saga: like malaria, it is a malaise that has nested since British accession back in 1973, and erupts from time to time, though the current eruption is potentially of fatal proportions.
  • Author: Jan Klabbers
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article discusses the ongoing transformation of international organizations law. It first provides an overview (an anatomy) of the paradigmatic theory concerning the law of international organizations: the theory of functionalism. Subsequently, it investigates how functionalism came about and how, from the 1960s onwards, its flaws increasingly became visible. The argument, in a nutshell, is that functionalism, as a theory concerned with relations between international organizations and their member states, has little or nothing to say about the effects of international organizations on third parties – non-member states, individuals and others. Moreover, it is often applied to entities that can hardly be deemed 'functional' in accordance with the theory. All of this is increasingly viewed as problematic and forces functionalism to adapt. Whether it can do so is questionable, though, since some of its problems are structural rather than contingent. Things are illustrated by the invocation of the United Nations's possible responsibility for causing (or failing to prevent) the outbreak of cholera in Haiti.
  • Author: Janina Dill
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article introduces three ways in which a state at war can attempt to accommodate the often contradictory demands of military necessity and humanitarianism – three 'logics' of waging war. The logics of sufficiency, efficiency and moral liability differently distribute the harm and destruction that waging war inevitably causes. International law demands belligerents follow the logic of sufficiency. Contemporary strategic imperatives, to the contrary, put a premium on waging war efficiently. Cross-culturally shared expectations of proper state conduct, however, mean killing in war ought to fit the logic of moral liability. The latter proves entirely impracticable. Hence, a belligerent faces a choice: (i) renounce the right and capacity to use large-scale collective force in order to meet public expectations of morally appropriate state conduct (logic of liability); (ii) defy those expectations as well as international law and follow strategic imperatives (logic of efficiency) and (iii) follow international law (logic of sufficiency), which is inefficient and will be perceived as illegitimate. This is the 21st-century belligerent's trilemma.
  • Topic: International Law
  • Author: Amanda Alexander
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article questions the conventional histories of international humanitarian law, which view international humanitarian law as the heir to a long continuum of codes of warfare. It demonstrates instead that the term international humanitarian law first appeared in the 1970s, as the product of work done by various actors pursuing different ends. The new idea of an international humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions. Nevertheless, many of the provisions of the Protocols remained vague and contested, and their status, together with the humanitarian vision of the law they outlined, was uncertain for some time. It was only at the end of the 20th century that international lawyers, following the lead of human rights organizations, declared Additional Protocol I to be authoritative and the law of war to be truly humanitarian. As such, this article concludes that international humanitarian law is not simply an ahistorical code, managed by states and promoted by the International Committee of the Red Cross. Rather, it is a relatively new and historically contingent field that has been created, shaped and dramatically reinterpreted by a variety of actors, both traditional and unconventional.
  • Topic: International Law
  • Political Geography: Geneva
  • Author: Bart L. Smit Duijzentkunst
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: When a peace process involves contention over land boundaries, parties may consent to resolve their dispute through arbitration. Yet while tribunals resolve disputes on paper, their awards often fail to bring peace in practice. Initial consent to arbitration does not guarantee a successful outcome: once granted, consent can wax and wane, it can be delivered under duress and it can be withdrawn as fast as it is given. This article explores the consent management dynamics that shape – and are shaped by – the arbitral process. Drawing on scholarship from peacekeeping and relational contract theory, it develops a model that explains why consent to arbitration differs from consent to a peace process. It then applies the model to examine strategies that tribunals have used to bridge this gap. Case studies involving the Brčko District in Bosnia and Herzegovina, the Eritrea–Ethiopia Boundary Commission and the Abyei arbitration demonstrate how arbitrators manipulate procedural and substantive law to maintain consent. The three cases also offer insights into the varying success of consent management strategies. The article plots these cases onto the model to draw lessons for future arbitrations on the basis of one simple but crucial question: 'Who should consent to what?'
  • Political Geography: Ethiopia
  • Author: Ulf Linderfalk
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Although treaty interpretation is undoubtedly an activity governed by international law, and by Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties (VCLT) in particular, some commentators continue repeating the pre-Vienna adage that treaty interpretation is a matter of art and not science, the implication of which is that no understanding of a treaty provision can ever be explained rationally. As the present article argues, this idea of interpretation must be rejected. While, sometimes, an assumed meaning of a treaty cannot be justified based on international law simpliciter, many times it can still be explained based on the structural framework of Articles 31–33 of the VCLT. Consequently, any characterization of treaty interpretation in the abstract as either art or science is misplaced. Whether treaty interpretation is an art or a science remains a question of fact inextricably tied to the approach taken by each and every law-applying agent in particular cases.
  • Topic: International Law
  • Publication Date: 05-2015
  • 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.
  • Political Geography: France
  • Author: Stéphanie Hennette Vauchez
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Building on the heightened attention that the optic of judicial selection receives in the world of international courts, this article focuses its attention on one particular criterion that is gaining in importance in that respect: gender. By choosing the European Court of Human Rights as a case in point, the article provides a unique analysis of the history of the 2004 Resolution of the Council of Europe's parliamentary assembly that formulated a rule of gender balance on the list of candidates presented by states for the post of judge at the Court. It first unearths the dynamics that allowed the adoption of the rule as well as all of the fierce opposition it triggered as well as the ways in which counter-mobilization eventually prevailed and watered down the initial rule, with the help of states, the Committee of Ministers and the Court itself (which delivered its first advisory opinion on the topic in 2008). It then looks beyond the static analysis of the rule as a mere constraint and addresses in a more dynamic fashion the multiple interpretations, strategies and, ultimately, politics it opens up. By providing a unique qualitative, comparative and exhaustive analysis of the curriculum vitae of all the 120-odd women who were ever listed as candidates to the Strasbourg judicial bench (1959–2012), the article delivers original data and analyses both the features that women candidates put forth when listed for the job and the strategies of states with regard to the gender criterion. It concludes that while there is a strong proportion of candidates that support the notion that states do not differentiate according to gender or require different qualities from men and women candidates, there is a comparable proposition that contrarily indicates that the world of international judicial appointments is far from gender neutral.
  • Topic: Human Rights, Politics
  • Political Geography: Europe
  • Author: Françoise Tulkens
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Having spent almost 14 years as a judge at the European Court of Human Rights, the author responds to and shares the critical view expressed by Hennette Vauchez in her article on the presence of women judges at the European Court of Human Rights. Some steps forward have admittedly been made through the voluntary action of the Council of Europe Parliamentary Assembly, but there has also been resistance in the implementation of these new rules. The gains are fragile and there are risks of regression. This situation confirms Kenney's analysis: women's progress is not natural, inevitable nor irreversible. A reaction is all the more necessary and urgent since, in the coming months of 2015 and subsequently, many elections of judges to the Court will take place, due in particular to the non-renewable nine-year term of office of judges introduced by Protocol No. 14 to the European Convention on Human Rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Fionnuala Ní Aoláin
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article responds to a thoughtful intervention by Stéphanie Hennette Vauchez documenting the selection process for women seeking judicial appointment to the European Court of Human Rights. Written in the context of the author's experience as candidate for appointment to the Court, the analysis concentrates on the gendered dimensions of international institutional cultures, habits and practices that frame selection to judicial office as much as any formally applicable rules. I explore the ways in which ostensible access to international judicial bodies conceals the manifold ways in which Courts are coded masculine, and how female candidacy requires careful deliberation on performance, presentation and identity. Drawing on 'new institutionalism' theory, I underscore that female presence alone rarely undoes embedded institutional practices. Rather, transforming institutional practices and values must parallel female presence, thereby redefining the institution and the forms of power it exercises. The article concludes by reflecting on the importance of feminist judging, and argues that it is precisely the transformative political and legal changes sought by self-defined feminists that may stand the best chance of undoing the structures, habits and practices that continue to exclude women from being appointed and from engaging on terms of full equality when they arrive.
  • Topic: Human Rights
  • Political Geography: Europe