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  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: From time to time, we are asked about the relationship between EJIL and the European Society of International Law (ESIL). That relationship is simple: the Journal and the Society are two separate, but mutually supportive and complementary entities. Indeed, past and present EJIL Editors can boast, with parental pride, of having been present at the conception, as well as the birth, of the Society! From its inception, membership in ESIL has included automatic online and print subscriptions to EJIL – including very soon a tablet version.The relationship has only strengthened in recent years, with ESIL Presidents and Presidents-elect serving ex officio on the EJIL Board. It is in the spirit of that growing bond that we wholeheartedly share in ESIL's 10-year celebrations, and have invited the following Guest Editorial from its leadership.
  • Topic: International Relations
  • Political Geography: Europe
  • Author: Jochen von Bernstorff
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The article aims to contribute from a history of science angle to the recent debate on the relation between legal scholarship, utopian ideals, and practice, which was spurred by the EJIL Symposium on Antonio Casseses Realizing Utopia and subsequent publications in this journal. It defends a conception of legal scholarship that keeps a reflexive distance vis--vis practice and current political trends in international relations. It focuses on traditional background assumptions of international legal scholarship, which constantly threaten this reflexive distance. Arguably these background assumptions are a 19th century legacy and today in a context of fragmentation and globalization stand in the way of developing the full potential of international legal scholarship as a medium of societal reflection. The classic role of the scholar as a law reformer in the current context turns out to be more problematic than it may have been in the past. Inspired by Kelsenian concerns and Nietzschean metaphorics, the article instead suggests that international legal scholarship functions as a cooling medium for the overheated discursive operations of the political, economic and legal subsystems of World Society./p
  • Author: Kristina Daugirdas
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The International Law Commissions Draft Articles on the Responsibility of International Organizations have met a sceptical response from many states, international organizations (IOs), and academics. This article explains why those Articles can nevertheless have significant practical effect. In the course of doing so, this article fills a crucial gap in the IO literature, and provides a theoretical account of why IOs comply with international law. The IO Responsibility Articles may spur IOs and their member states to prevent violations and to address violations promptly if they do occur. The key mechanism for realizing these effects is transnational discourse among both state and non-state actors in a range of national and international forums. IOs have reason to be especially sensitive to the effects of this discourse on their reputations. A reputation for complying with international law is an important facet of an IOs legitimacy. The perception that an IO is legitimate is, in turn, crucial to the organ izations ability to secure cooperation and support from its member states. This article argues that IOs and their member states will take action to prevent and address violations of international law in order to deflect threats to IOs reputations and to preserve their effectiveness./p
  • Author: Richard Bellamy
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>International Human Rights Courts (IHRCts), such as the European Court of Human Rights (ECtHR), have come under increasing criticism as being incompatible with domestic judicial and legislative mechanisms for upholding rights. These domestic instruments are said to possess greater democratic legitimacy than international instruments do or could do. Within the UK this critique has led some prominent judges and politicians to propose withdrawing from the European Convention on Human Rights (ECHR). Legal cosmopolitans respond by denying the validity of this democratic critique. By contrast this article argues that such criticisms are defensible from a political constitutionalist perspective but that International Human Rights Conventions (IHRCs) can nevertheless be understood in ways that meet them. To do so, IHRC must be conceived as legislated for and controlled by an international association of democratic states, which authorizes IHRCts and holds them accountable, limiting them to weak review. The resulting model of IHRC is that of a two level political constitution. The ECHR is shown to largely accord with this model, which is argued to be both more plausible and desirable than a legal cosmopolitan model that sidelines democracy and advocates strong review./p
  • Author: Oisin Suttle
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Notwithstanding International Economic Laws (IELs) inevitable distributional effects, IEL scholarship has had limited engagement with theoretical work on global distributive justice and fairness. In part this reflects the failure of global justice theorists to derive principles that can be readily applied to the concrete problems of IEL. This article bridges this gap, drawing on existing coercion-based accounts of global justice in political theory to propose a novel account of global distributive justice that both resolves problems within the existing theoretical literature and can be directly applied to both explain and critique concrete issues in IEL, including in particular WTO law. By complementing existing coercion-based accounts with a more nuanced typology of international coercion, it distinguishes two morally salient classes of economically relevant measures: External Trade Measures (ETMs), which pursue their goals specifically through the regulation of international economic activity; and Domestic Economic Measures (DEMs), which do not. The distinctive intentional relationship between ETMs and the outsiders they affect means such measures require more stringent justification, in terms of global equality or other goals those outsiders themselves share; whereas DEMs can be justified under the principle of self-determination. Non-Product Related Production Processes and Methods (NPRPPMs) provide a case study to show how this framework can illuminate recurring problems in IEL./p
  • Author: Lorand Bartels
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>In principle, there are two ways in which states and international organizations can violate the human rights of persons outside their territorial jurisdiction. The first is by extraterri t orial conduct; the second is by domestic conduct, in the form of policies with extraterritor ial effect. This article considers the second of these scenarios, taking as its case study the EUs obligations under EU law. To this end, it analyses Articles 3(5) and 21(3)(1) of the EU Treaty, EU fundamental rights, and the EUs international obligations, which are also binding under EU law. It concludes by looking at the enforcement of any such obligations by individuals, the EU institutions, and EU Member States./p
  • Author: Enzo Cannizzaro
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The scope of human rights is undergoing a paradigm shift, from a territory-based conception to a functional conception, which tends to protect human rights against the extraterritorial exercise of public authority. In the EU domestic system, this is upheld by Articles 3(5) and 21 TUE, which establish the promotion and protection of human rights as a foreign policy directive. However, the normative effect of these provisions is limited. Due to restraints deriving from the EU Treaties, these two provisions do not seem capable of providing a sufficient legal basis for EU action aimed at promoting and protecting human rights. To endow the Union with the means of action necessary to discharge the engaging function of global protector of human rights, a further development of the European constitutional framework seems to be indispensable.</p>
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>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/p
  • Author: Helmut Philipp Aust
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Today mostly forgotten, Andr Mandelstam (18691949) was a pioneer of the human rights movement in the interwar period. Originally a diplomat in the service of the Russian Empire, he went into exile after the Bolshevik revolution and became an important member of the internationalist scene in Paris. An active contributor to the various professional associations and institutions of the time, Mandelstam came to draft the first ever international human rights declaration which was adopted by the Institut de droit international at its New York session in 1929. His work on human rights protection was influenced by his experiences as a diplomat in Constantinople where, in the years preceding World War I, he had witnessed the growing tensions over the treatment of the Armenian population of the Ottoman Empire. This article traces Mandelstams impact on the development of international human rights law and uncovers the driving forces for his work: the end of the Russian and Ottoman empires as well as his career change from diplomat to academic activist. The contribution invites us to reconsider traditional narratives of the origins of international human rights protection as well as to rethink the imperial(ist) influences upon this development./p
  • Author: Reut Yael Paz
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>This article seeks to create a historical contextualization of the first female law professor in America, Helen Silving-Ryu (19061993). Relying on Pierre Bourdieus work on the social and historical determinants of cultural production, this article situates Silving in her days at the University of Vienna as one of the first six female students to be admitted and as the only female scholar to be mentored by Hans Kelsen (18811973). Much of this article deals with Kelsens importance to Silvings intellectual development, particularly because they worked together again in Harvard after both escaped National Socialism. Despite Silvings later academic contributions and successes, her history has received little attention from the legal discipline by and large. Apart from recovering Silvings voice, through what she calls Acts of Providence, this article also shows why, and more importantly how, Silving and thus also a part of Kelsens history has been forgotten./p
  • Author: Thomas Schultz, Cédric Dupont
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Investorstate arbitration, also called investment arbitration, is often accused of harming developing states facing economic hardship for the benefit of a wealthy few from the Global North. Its proponents respond that it is the only available means to resolve disputes impartially, and that its increased use clarifies international law. In this article, the authors investigate the empirical manifestations of the uses and functions of investment arbitration, with an original dataset that compiles over 500 arbitration claims from 1972 to 2010. The study reveals that until the mid-to-late 1990s, investment arbitration was mainly used in two ways. On the one hand, it was a neo-colonial instrument to strengthen the economic interests of developed states. On the other, it was a means to impose the rule of law in non-democratic states with a weak law and order tradition. But since the mid-to-late 1990s, the main function of investment arbitration has been to provide guideposts and determine rights for investors and host states, and thus to increase the predictability of the international investment regime. In doing so, however, it seems to favour the haves over the have-nots, making the international investment regime harder on poorer than on richer countries./p
  • Author: Elizabeth Stubbins Bates
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>In recent decades, there has been an increase in the volume and sophistication of works on compliance theory in international law in general,1 and in human rights in particular.2 This body of work is interdisciplinary, influenced by political science and international relations in substance and method.3 The typology of compliance theories, once formed of several separate strands,4 coalesced into two duelling perspectives. These were broadly characterized by rational choice approaches, focused on hegemony, sanctions, incentives, and material self-interest, with Andrew T. Guzmans addition of reputational concerns;5 and constructivist approaches, which argue that repeated interactions, argumentation, and exposure to norms characterize and construct state practice.6 Each of the three works reviewed in this essay critically engages with constructivist research and incorporates some analysis of material incentives, suggesting that constructivism is eclectic and rigorous, willing to debate its own assumptions. Taken together, their contributions are evidence of modern constructivisms sophistication and methodological breadth./p
  • Author: Hanne Sophie Greve
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Lazy (as Used by Men) ... Ive often realized, not without a sense of disquiet, that talking isnt easy, that my words often propagate all kinds of misunderstandings once theyve flown out of my mouth. Ive also discovered that even a powerful propaganda machine lacks absolute controlling power over understanding and, similarly, sinks repeatedly into the mire of ambiguity ... hed been an employee of the Country Film Company but had been relieved of his duties due to his exceeding the birth quota. It wasnt that hed failed to comprehend the consequences of exceeding the birth quota: ... After Id spoken with him, after Id turned it over endlessly and uncomprehendingly in my mind, there was only one conclusion I could draw: he operated on another vocabulary system, one in which a great many words transgressed ordinary peoples imaginings. For example, violating law and order wasnt necessarily a bad or an ugly thing to do quite the contrary, violating law and order was a proof of strength, a privilege of the strong, a crucial source of happiness and glory./p
  • Author: Jan Klabbers
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>When Fritz Kratochwil published his classic Rules, Norms and Decisions in 1989, it was reviewed by an obviously bewildered David Bederman in the American Journal of International Law. Clearly, it seemed, here was something international lawyers should take note of, but equally clearly, Bederman, no intellectual slouch by any standard, had a hard time figuring out what made the book relevant, or even just interesting, for international lawyers. It seems Bederman was expecting something along the lines of a description of the role of law in global politics, but no such story unfolded. Instead, Rules, Norms and Decisions posited not a description, but a way of looking at the role of norms in international politics, and did so unlike much of what had gone on before: this was neither a variation on realism, nor riding the wave of institutional liberalism, nor anything like the New Haven approach or sociological jurisprudence or Henkin- style behaviouralism. As it turned out, Rules, Norms and Decisions became the closest thing to a manifesto of constructivism in the study of world politics, and therewith became pigeonholed as one of the three grand theories of international relations.</p>
  • Author: Oliver Diggelmann
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>Isabel V. Hulls book aims to demonstrate that post-1919 writings have contributed to obscuring rather than clarifying international laws role in how World War I was fought. She develops an original and highly differentiated view on the topic. On the basis of thorough historiographical research, she analyses the belligerents legal views put forward during the war and examines their effect on the conduct of war. The title takes up a quotation that later became a clich about international laws role in World War I. Immediately after the German attack on Belgium, the German Chancellor Theobald von Bethmann Hollweg called the treaty guaranteeing Belgiums neutrality a scrap of paper. This might suggest that World War I was a time of non-existence for international law, a black hole. Hulls book demonstrates how complex the legal situation predominantly was and that the course of the war was closely interlinked with legal questions and arguments./p
  • Author: Peter Hilpold
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>There is surely no dearth of studies on genocide, but Mark Levene, a reader in history at the University of Southampton and an expert in genocide research, has demonstrated that it is still possible to add a thorough study to the enormous library already existing on this subject. True, some of Levenes basic assumptions may be contested in academia but this does not detract from the value of his enormous research projects outcome. Already on the first page of his monumental study he clearly states its basic assumption: according to Levene, genocide is not an aberrant phenomenon in modern history but integral to a mainstream historical trajectory of development towards a single, global, political economy composed of nation states (vol. I, at 1). He sees the cases of genocide as a consequence of a more general Great Power conflict and the breakdown of the great multinational states, the Ottoman Empire, the Habsburg Empire, and the Russian Empire of the Romanovs./p
  • Author: Niels Petersen
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: <p>The concept of precedent has not received much attention in international law scholarship to date. International courts and tribunals are usually not formally bound by previous decisions. Nevertheless, there is no denying that precedents play a significant role in the practice of international courts. Courts cite and rely on previous decisions in order to lend their arguments more force. Two recently published studies aim to shed more light on this tension in the use of precedents: while Marc Jacob analyses precedents in the case law of the European Court of Justice, Valriane Knig examines the precedential effect of decisions in international arbitration. Both books not only analyse the same concept in different contexts, they also have a common methodological point of departure. They rely to a certain extent on an empirical analysis. They construct a database of decisions and draw several quantitative and qualitative inferences from this database. They thus contribute to a laudable trend in international law scholarship towards a greater focus on empirical analyses, even though the extent and the informational value of the quantitative analysis are limited in both cases./p
  • Author: Jonathan Shaw
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Not hi ROSH ima – Everything before and after the central rush of spit mere prelude and pathetic aftermath
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I think it is difficult to contest that the most important state player in world affairs over the last one hundred years – and consistently so over this period – has been the United States of America. World War I – into which, to borrow from Christopher Clark's justly celebrated book, we 'sleepwalked' – marks a useful starting point. It is not only the fairly important role America played in bringing WWI to an end that signals the beginning of this era, but also the no less important role it played in shaping the aftermath. Wilson's 14 points were considered at the time 'idealistic' by some of the yet-to-be 'Old Powers'. But by dismantling the Ottoman Empire through the principle of self-determination (not at that time a universal legally binding norm) it was an early swallow to the demise, a mere generation later, of all other colonial empires and the truly decisive reshaping of the balance of power in the post-WWII world. The US played an equally cardinal role in ideating and realizing the United Nations Organization and the Universal Declaration of Human Rights – two lynchpins of our current world order.
  • Topic: Human Rights, War
  • Political Geography: United States, America, Gaza
  • Author: Jan Klabbers
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The theory of functionalism dominates the law of international organizations, explaining why organizations have the powers they possess, why they can claim privileges and immunities, and often how they are designed as well. Yet, the theory of functionalism is rarely spelt out in any detail, and its origins have remained under-explored. The purpose of the present article is to outline how functionalism came about by focusing on the 'pre-history' of international institutional law. To that end, the article studies the work of a number of late 19th, early 20th century authors on the law of international organizations, paying particular attention to the writings of Paul Reinsch. It turns out that functionalism, as developed by Reinsch, was inspired by his familiarity with colonial administration: colonialism and international organization both manifested cooperation between states. While this is no reason to discard functionalism, it does provide an argument for viewing international organizations more critically than functionalism habitually does.
  • Topic: Law
  • Author: Michelle Leanne Burgis-Kasthala
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This study employs a select ethnography of Palestinian workers in the field of international law and human rights to explore how an epistemic community gives content and meaning to international law in its professional and personal life. Through a series of interviews conducted in the West Bank in the wake of the Palestinian attempt to gain full United Nations membership in September 2011, the article constructs a meta-narrative about the nature of international legal discourse as spoken on the Palestinian periphery. It shows how speakers of international law are required to restate or over-state the distinction between law and politics so as to sustain their hope and desire for Palestinian statehood in the face of despair about its protracted denial. The article then is an exploration about the politics of meaning making through international law and a call for methodological hybridity within the discipline of international law.
  • Topic: Human Rights, International Law, Politics, United Nations
  • Author: Mark Chinen
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article argues that a gap that has always existed in the law of state responsibility is now becoming more apparent. That gap divides a state from its citizens, making it difficult to justify why state responsibility should be distributed to them. Purely legal approaches to the issue are not likely to resolve the problem, and although the literature of moral collective responsibility suggests some bases for having citizens share the costs of state responsibility, none are completely satisfying. Concepts from complexity theory show why this is so. If the theory is correct, the state is neither a legal abstraction nor reducible to the individuals who purportedly comprise it. Instead, it is an emergent phenomenon that arises from complex interactions among individuals, formal and informal subgroups, and the conceptual tools and structures that individuals and subgroups use to comprehend and respond to their physical and social environments. The theory is consistent with a basic premise of international law that the state as such is an appropriate bearer of responsibility. However, because in a complex system there is no linear connection between the emergent phenomenon and its underlying constituents, this suggests that the divide between a state and its citizens in the distribution of state responsibility may never be bridged.
  • Topic: International Law
  • Author: Jan Wouters, Joost Pauwelyn, Ramses A. Wessel
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Formal international law is stagnating in terms both of quantity and quality. It is increasingly superseded by 'informal international lawmaking' involving new actors, new processes, and new outputs, in fields ranging from finance and health to internet regulation and the environment. On many occasions, the traditional structures of formal lawmaking have become shackles. Drawing on a two-year research project involving over 40 scholars and 30 case studies, this article offers evidence in support of the stagnation hypothesis, evaluates the likely reasons for it in relation to a 'turn to informality', and weighs possible options in response. But informal structures can also become shackles and limit freedom. From practice, we deduce procedural meta-norms against which informal cooperation is increasingly checked ('thick stakeholder consensus'). Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law ('thin state consent').
  • Topic: Environment, Health, International Law
  • Author: Mónica García-Salmones Rovira
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article examines the substance and form of 20th century positivist international law; in particular the way in which each determines the other. The text describes the turn to interests in international law, which evolved slowly in scope and depth. By examining Lassa Oppenheim's focus on 'common interests' that united states and Hans Kelsen's focus on the 'struggle of interests' that constituted politics, the article studies two phenomena produced by the foundational role taken by interests during the 20th century. First, this role contributed to putting an end to the moral discussion about the treatment of native populations. Secondly, it curbed debate about a common political project for a global order, thus creating conformity characterized by abuse of power – all in the name of the neutrality of positivist law. This article suggests that the work of these two leading theoreticians in the field has contributed to the shaping of the legal theory of mainstream positivist international law, and seeks to foreground discussions about the different theories on the role of law in politics. In this manner it aims to help reconceptualize law in such a way as to bring about a situation in which discussions of a common political project for the international arena are more central.
  • Topic: International Law, Politics
  • Political Geography: United States
  • Author: Jörg Kammerhofer
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this response to Mónica García-Salmones Rovira's article 'The Politics of Interest in International Law', the argument is developed that an interpretation of Kelsen's legal theory as founded on 'interests' or 'conflicts of interests' is not adequately supported by the primary materials, if read in their context. 'Interests' do not play a major role in Kelsen's writings, and where they are discussed, they do not form part of his legal theory, i.e., the Pure Theory of Law. This response argues that this 'context insensibility' in reading Kelsen may have its roots in the unwitting adoption of one over-arching method of scholarly cognition. It thereby implicitly discards one of the crucial axioms of Kelsen's theory of scholarship: the avoidance of a syncretism of methods through a consistent separation of scholarly enterprises and methods. Not to adopt such a separation is a legitimate stance; to foist the non-separation on an author whose theory hinges upon it is not.
  • Topic: International Law
  • Author: Mónica García-Salmones Rovira
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I am very grateful to Jörg Kammerhofer for his engagement with my text. Not only does he know Kelsen's main writings on legal theory very well, but he is himself a Kelsenian scholar. One is led, therefore, to speculate on the extent to which his reply comes close to what Kelsen himself would have written in respect of my article, and more generally in respect of the book on which it is based.
  • Topic: International Law
  • Publication Date: 02-2015
  • 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. 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: Lauri Mälksoo
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This introductory article opens the symposium which examines the legacy of the Russian international lawyer Friedrich Fromhold von (or Fyodor Fyodorovich) Martens (1845–1909). In the first section, the article critically reviews previous research and literature on Martens and discusses the importance of the Martens diaries that are preserved in a Moscow archive. In the second section, the article offers an intellectual portrait of Martens and analyses the main elements in his international legal theory as expressed in his textbook. In particular, his claim that international law was applicable only between 'civilized states' is illuminated and discussed.
  • Topic: International Law
  • Political Geography: Russia, Europe
  • Author: Rein Müllerson
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article concentrates on two controversial aspects of the writings of Friedrich Fromhold Martens – his treatment of the so-called mission civilisatrice of European nations and the potential clash of the two roles an international lawyer may have to perform: in the service of international law and representing national interests of his/her country or other clients. Both of these aspects in Martens' work have not lost their topicality; it is illuminating to draw parallels between his time and today's world.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Rotem Giladi
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Martens clause has made F. F. Martens one of the 'household names of our profession'. Since its first appearance in the preamble to the 1899 Hague Convention (II) on the Laws and Customs of War on Land, the clause has incessantly been puzzled over, historicized, celebrated, and re-enacted. Much of the extant discourse, however, is geared towards normative construction of the clause. This article, by contrast, seeks to depart from normative construction of the clause and draw attention, instead, to the discourse it has generated. To facilitate discursive exploration and demonstrate its pertinence, I offer a critical reading of the clause's origins as the enactment of an irony. Thus, the making of the clause saw words used to express something in the opposite of their literal meaning. In time, the clause itself came to represent that which is entirely the opposite of what it was first used for. These and other ironies underpin how the clause itself, its making, and Martens' role therein are interpreted, historicized, and celebrated today. They also pave the way for critical explorations of the clause's epistemic significance.
  • Topic: War
  • Author: Andreas T. Müller
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Friedrich F. Martens is famous for the clause named after him and his Cours of 1882. Much less known is his doctoral thesis of 1873 on 'The Office of Consul and Consular Jurisdiction in the East'. Apart from dealing with consular rights and duties in the Oriental states in general, Martens' special interest is in a particular institution of consular law in the 'East', i.e., consular jurisdiction. By virtue of so-called capitulations entered into in favour of Western states from the 16th century on, nationals of the latter nations were exempted from the territorial jurisdiction of their Oriental host states. In lieu of it, Western consuls exercised judicial authority over their fellow countrymen. Martens' analysis of consular jurisdiction is deeply immersed in the 19th century dichotomy of civilized and non-civilized nations, with this institution, from his point of view, assuming a key role in managing the relations between the two. He is convinced that intercourse between the West and the East and consequently a rise in the level of civilization of the Oriental states is only possible by mediation of consular jurisdiction. Thus, studying Martens' doctoral thesis contributes both to a better balanced assessment of Martens as an international lawyer and reminds us how quickly humanitarian arguments and purported promotion of civilizational purposes can turn into paternalistic reasoning.
  • Topic: Humanitarian Aid
  • Author: Shashank P. Kumar, Cecily Rose
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article provides empirical support for what might strike some as a truism: oral proceedings before the International Court of Justice (the Court) are dominated by male international law professors from developed states. In order to test this claim, our study examines the composition of legal teams appearing on behalf of states before the Court in contentious proceedings between 1999 and 2012. We have focused, in particular, on counsels' gender, nationality, the development status and geographical region of their country of citizenship, and their professional status (as members of law firms, barristers or sole practitioners, professors, or other). The results of our study raise questions about the evident gender imbalance among counsel who have appeared before the Court during the timeframe of this study, as well as the apparent preference that states have shown for 'repeat players' and professors of public international law. By presenting data on the composition of legal teams, and discussing possible explanations for the patterns that we have observed, this study aims to contribute to the development of a body of scholarship on international law as a profession.
  • Topic: International Law
  • Author: Gleider I. Hernández
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The proliferation of international courts and tribunals in the last two decades has been an important new development in international law, and the three books under review are at the vanguard in substantiating the claim that the judicialization of international law reflects its deepened legalization. All three have adopted ambitious empirical frameworks through which to assess the impact of international courts, and present valuable insights with respect to the phenomenon. Whilst all seek to make intelligible the growing relevance of the various international courts, their empirical methodology and mapping exercise reflects a faith that the legalization/judicialization of international law is a positive development, one that might nevertheless be contested. With the Oxford Handbook's mapping exercise, Karen Alter's 'altered politics' model of effectiveness, and Yuval Shany's 'goal-based' method for assessing effectiveness, the three books represent the forefront of scholarly efforts to study the practice of international courts. One should be careful, however: because the empirical exercise attempted in these three books goes beyond mere description into an attempt to model future outcomes, it has the drawback of privileging certain modes of cognizing the phenomenon of the proliferation of international courts. Although an important contribution, a solely empirical approach would create the impression of a purely linear progression in the judicialization of international law, one which might not be borne out in reality.
  • Topic: International Law
  • Author: Sara De Vido
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Water has been a challenging issue over the centuries. From questions of national boundaries and navigation, quite common in the past, to the development of a human right to water, this essential element for human life has always spurred debate among international lawyers, economists, political scientists, geographers, and anthropologists. The reason may be found in the scarcity of water, a phenomenon which affects both developed and developing countries. Much has been written on the topic, but the three books under review significantly contribute to a critical analysis of some pertinent legal issues related to water. The title of each monograph reflects the purpose of the respective study. Hence, International Law for a Water-Scarce World by Brown Weiss starts from the acknowledgement that 'the fresh water crisis is the new environmental crisis of the 21st century' (at 1) and provides an integrated analysis of water law, which considers climate implications, river basins, and the availability and quality of fresh water. Boisson De Chazournes' Fresh Water in International Law investigates the status of fresh water in international law. The choice of the titles of the chapters is particularly evocative. Thus, after a chapter on regulation of fresh water use, the book continues with chapters on the 'Economization' of the law applicable to fresh water, its 'Environmentalization', followed by its 'Humanization', and 'Institutionalization Trends in Fresh Water Governance', before focusing on dispute settlement mechanisms. The use of the ending '-zation' gives the immediate impression of the evolution of the law on fresh water resources, which now includes several separate but clearly interrelated aspects. The title of the third book, written by Thielbörger, deserves attention for two elements, the first being the letter 's' inside the parentheses and the second being the adjective 'unique' used for identifying the human right to water. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right pursues a different purpose from the two other books under review which adopt a more comprehensive approach. Thielbörger's book (based on his doctoral dissertation) studies the human right to water from a comparative and international perspective, emphasizing the complexity of a right which is strictly linked to other rights but constitutes at the same time a right of its own.
  • Topic: Development, Human Rights, International Law
  • Author: David Schneiderman
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Mainstream investment law scholars have delivered their verdict on the relevance of the past: it is 'anachronistic and obsolete'. Historic controversies over the meaning of customary international law between capital-exporting and capital-importing states have been overtaken, it is said, by nearly 3,000 bilateral investment treaties. This looks mostly like a strategic denial – cabining investment law's past makes the present appear free of the dynamics of domination that characterized prior conflicts. That history, the mainstream maintains, bears no relationship to the meaning and content of contemporary commitments made by states acting in their sovereign capacity and in relative positions of equality.
  • Topic: History
  • Author: Ruti Teitel
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Does international law have an answer to the question: 'what is a fair international society'? In her insightful book, Emmanuelle Tourne-Jouannet interrogates in a systematic fashion diverse areas of international law that touch upon or address, directly or indirectly, fairness, equity, or redistribution: from the law of development to minority rights to international economic law. By taking positive law as the point of departure for an inquiry about global justice, Tourme- Jouannet departs, in a refreshing way, from attempts to extrapolate from mainstream legal theory an abstract conception of global justice. '[W]hat is to be addressed here are not contemporary theories of justice and the philosophical questions that the topic raises .... [I]t is the aim to address them here from a different angle: from within legal practice, as it were .... I have opted for an approach based on existing legal practice, with a view to conceptualizing and questioning it' (at 3). For Tourme-Jouannet, the question about the fairness of international legal practice leads to a number of other legal-historical questions regarding the contemporary evolution of international law. The project is 'simply to begin by identifying the principles and legal practices relating to development and recognition' ( ibid. ). In her view, adopting a historical perspective, these practices – notwithstanding their differences – reflect a joint concern with achieving global justice over the years.
  • Topic: Economics, International Law
  • Author: Stéphanie Dagron
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Lawrence O. Gostin's new book begins with the sentence '[t]his is a unique moment to offer a systematic account of global health law' and he is right. The book under review is published at a time when the most influential international institutions are emphasizing the necessity for multilateral cooperation in the field of public health. For example, the United Nations General Assembly (UNGA) addresses this point in its current deliberations on the post-2015 Millennium Development Goals Agenda. Contemporary globalization has irrevocably made borders porous to capital, services, goods, and persons. Global social, economic, and political changes, such as increasing industrialization, urbanization, environmental degradation, migration, drug trafficking, and the marketing strategies of transnational corporations (e.g., in the food, pharmaceutical, and tobacco industries) have a significant impact on health. This impact is transnational and intersectoral: global health hazards go beyond the control of individual nation states and extend beyond the restricted field of health care.
  • Topic: Economics, Health, Migration, United Nations, Food, Law
  • Author: Birgit Lode
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Already back in 1987 the Brundtland report by the World Commission on Environment and Development stressed that '[n]ational and international law is being rapidly outdistanced by the accelerating pace and expanding scale of impacts on the ecological basis of development'. Since then international environmental law regimes have multiplied and an up-to-date introduction to the constantly evolving field of international environmental law is very welcome, not least due to the lack of equally concise alternatives in the introductory literature. Aimed at filling this gap, Timo Koivurova with his Introduction to International Environmental Law chooses an approach well suited to the student readers he primarily intends to address. The book dispenses with footnotes, tables of treaties, and a comprehensive bibliography. Instead, a manageable number of endnotes accompany each chapter, preceded by a set of questions and research tasks, and followed by suggestions for further reading and websites addressing the respective topics. Thereby, the subject matter is presented in the most general fashion possible without making concessions to the scientific nature of the book, allowing '[i]nternational environmental law and politics [to] speak for themselves' (at xix). Moreover, in order to make the information provided easily accessible and comprehensible by a broad range of readers the book includes several boxes going into more detail on, e.g., specific cases, conventions, institutions, or environmental disasters. It illustrates topics and sometimes presents them from a different angle by adding photographs and figures, clarifying essentials as well as sparking the readers' imagination.
  • Topic: Environment, Politics, Law
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There was an error in the title of this article. The correct title is: The Venice Commission of the Council of Europe – Standards and Impact. The title has been corrected in the online version of EJIL. The publishers would like to apologize for this error and for any confusion caused.
  • Political Geography: Europe
40. Vietnam
  • Author: Keith Ekiss
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The airport shuttle driver arrives at dawn. When I complain in jest about the hour, he fires back a phrase, then translates: 'Vietnamese for Tough shit, baby.' We pick up a woman bound for France and he unloads, as if between men there was untold conflict. Her long blonde hair curls in tendrils toward her waist, she leans forward, a hand to his shoulder. Thirty years after Da Nang, he brought gifts to an orphanage, wooden toys, no guns, the children too young to have known our war. I put it, I tried to put it behind me. I watch him squeeze a thumb and finger to his temple: I pressed it all in here. When I was a boy, no one said a word about the war. For all I knew, the country didn't exist, a place as distant as Paris, the French model city for Saigon.
  • Political Geography: Vietnam
  • 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
  • Author: Paolo Lobba
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Litigation concerning domestic restrictions on Holocaust denial has produced a 30-year-long jurisprudence of the European Court and European Commission of Human Rights. In spite of solemnly declared principles on free speech, the Strasbourg organs have progressively developed an exceptional regime in this regard based on the 'abuse clause' envisaged under Article 17. Had this detrimental treatment remained confined to its original sphere, it could have perhaps been considered as a negligible issue. However, the scope of the abuse clause was extended to encompass a growing class of utterances, including the denial of historical facts other than the Nazi genocide. This piece begins by examining the Strasbourg case law on Holocaust denial, with a view to enucleating the effects, scope and conditions of applicability of the special regime based upon Article 17. Once the shortcomings implied by this detrimental discipline have been exposed, it shall be argued that all expressions should be dealt with under the ordinary necessity test, in which the abuse clause ought to operate as an interpretative principle. In the alternative, and as a minimum, the Court should pay due regard to the political and social context of the country where restrictions on free speech were enforced, setting aside the uniquely harsh treatment reserved for Holocaust denial.
  • Topic: Genocide, Human Rights
  • Political Geography: Europe
  • Author: Helmut Philipp Aust
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Cities are beginning to assert themselves as internationally relevant actors. This is particularly noticeable in the climate change context. This development has so far not been accorded a great deal of attention by international lawyers. The review essay discusses four new books by political scientists which offer us a closer look at the political dimension of 'global cities', a term originally coined by sociologist Saskia Sassen. The four books under review as well as this essay pay particular attention to the C40 association – a movement of self-styled city leaders in climate change governance. This group of cities has developed numerous ties with international organizations and private corporations. The review essay analyses how cooperative endeavours such as C40 challenge our understanding of the relationship between the city and the state and assesses how international law as a discipline could come to terms with these developments. It is argued that international law should fulfil two functions in this regard: recognition and contestation. Whereas cities may not yet be recognized subjects of international law, they are moving closer to this illustrious circle. In any case, their law-making processes are beginning to have a significant impact on processes of global governance.
  • Topic: Climate Change, International Law, Governance
  • Author: Jochen von Bernstorff
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Global economic justice as a topic of moral philosophy and international law is back on the intellectual agenda and figures prominently in feuilletons, blogs and academic publications. A wave of recent studies by both international lawyers and moral philosophers on the dark side of economic globalization and the role of international law in this context is as such a remarkable phenomenon. The essay engages with diverging scholarly perspectives on global justice and international law as represented in the four volumes under review. Three substantive questions structure the non-comprehensive sketch of the global justice debate: (i) Is the current international economic order unjust? (ii) Can existing international legal rules and institutions be transformed or developed into a more just economic order? (iii) What is the potential role of international lawyers in this context?
  • Topic: Economics, Globalization, International Law
  • Author: Andreas Th. Müller
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Anne Peters' most recent book is an equally important and topical contribution to the international law discourse. At the core of her voluminous œuvre lies, as the subtitle indicates, the question of the 'legal status of the individual in public international law'. At the same time, the title Beyond Human Rights conveys the idea that the co-director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and former president of the European Society of International Law does not cover the subject matter in its entirety but, rather, has opted to leave aside, or rather to presuppose, the very area of international law where one would be inclined to look first for insight and inspiration, namely international human rights law. As the author acknowledges herself, international human rights are 'the pivotal and completely undisputed element of the international legal status of the individual' (at 27). In contrast, Peters' own study sets out for the more open and uncharted territory of so-called 'simple' rights and duties. It is with this peculiar perspective that the book seeks to tackle its guiding question – that is, how the phenomenon of a strongly increasing number of individual rights and duties that may be observed in contemporary international law 'can be described, systematised, and evaluated in a legally sound manner' (at 2).
  • Author: Annamaria Viterbo
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Developments over the last years have dramatically changed the field of monetary law. In the aftermath of the global financial crisis, the presence of the International Monetary Fund (IMF) in mainstream media has become constant, with international lawyers increasingly focusing on financial and monetary issues. Accordingly, international economic law studies and debates have gained a prominence unseen before. Nevertheless, in spite of the great importance the IMF has acquired, academic publications dedicated to it remain rather scarce. Therefore, the book Poteri e interventi del Fondo monetario internazionale by Giovanna Adinolfi comes at a time when an in-depth reflection on the IMF is greatly needed, thus filling a gap in academic research.
  • Author: Elaine Kellman
  • Publication Date: 05-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Poverty and the International Economic Legal System is an edited collection of essays arising out of a conference held at the University of Basel in October 2011 with the intention of establishing a research agenda on the specific and previously under-explored relationship between poverty and international laws of trade, investment and finance. The book is divided into four parts. Following a brief introductory section in Part 1, contributions in Part 2 examine how the international laws of trade, investment, arbitration and finance impact on states' abilities to fulfil their duty to reduce poverty. Adopting a capabilities approach, Part 3 addresses the effects of international economic law on populations that are particularly susceptible to poverty or its effects, and, in Part 4, contributors take a step back to consider the key question underpinning the book – that is, whether states actually have duties to reduce poverty and, if so, what the character of such duties is. Given the breadth of the material considered, this review will focus on Parts 2 and 4.
  • Author: Andrew Guzman
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the classic novel, Frankenstein , Doctor Frankenstein creates a living creature in the hope of cheating death. The monster turns against Doctor Frankenstein and kills several people, causing the doctor to regret his decision to make the monster in the first place. When states establish an international organization (IO), they create an institution with a life of its own. In doing so, states risk the institution becoming a monster and acting contrary to their interests. In contrast to Frankenstein, however, states are aware of this risk and are able to guard against it. This article explains that much of the existing landscape of international organizations has been formed by the state response to this 'Frankenstein problem'. The effort by states to avoid creating a monster explains, among other things, why there are so many IOs, why they vary so widely in scope, and the manner in which they are permitted (and not permitted) to affect international law and international relations. The article also identifies the four types of activities that IOs are typically allowed to undertake and explains how states choose which activities to place within which organizations. In addition to providing a new analytical perspective on IOs and how states use them, the article advances the normative argument that states have been too conservative. As if they learned the lessons of Frankenstein too well, states have been reluctant to give IOs the authority necessary to make progress on important global issues. Though there is a trade-off between the preservation of state control over the international system and the creation of effective and productive IOs, states have placed far too much weight on the former and not nearly enough on the latter.
  • Political Geography: United Nations
  • Author: Gerardo Vidigal
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Among the innovations accompanying the transformation of GATT into the WTO was the remarkable strengthening of multilateral institutions. While the paradigmatic change brought about by the institutionalization of the multilateral trading system has been generally acknowledged, its impact on WTO law-making has been largely overlooked. Much of the debate has concentrated on whether and to what extent 'external' international legal rules should be taken into account by WTO adjudicators. An analysis of the WTO jurisprudence, however, evidences a different approach. The interpretation (and, to some extent, modification) of WTO rules depends not on the bilateral relations between the parties to a particular dispute, which may affect the application as between them of the multilateral rules, but on the establishment – through subsequent agreement, subsequent practice, or broader normative evolution – of a 'common understanding' of the membership. Once established, a new interpretation is not limited to the context of a particular dispute, but affects the WTO rights and obligations of all members. As a result, the bilateral logic that ordinarily determines legal relations between states based on individual consent gives way to a multilateral logic, which allows a degree of normative change while preserving the integrity of the WTO legal system.
  • Author: Marko Milanovic, Linos-Alexander Sicilianos
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This Symposium examines the International Law Commission's work on reservations, specifically its recently completed Guide to Practice on Reservations to Treaties. The topic is very technical and the Guide itself gigantic, standing, together with its commentaries, at over 600 pages. The topic of reservations to treaties has been on the ILC's agenda since 1993; its Special Rapporteur, Professor Alain Pellet, produced 17 reports with many addenda and annexes. The ILC's work was so seemingly endless that it inspired (gentle and good-natured) parody. But now it has indeed come to an end. It needs to be assessed, and the purpose of this Symposium is to initiate that debate.
  • Topic: International Law
  • Author: Alain Pellet
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The purpose of this article is to revisit the long saga of the ILC Guide to Practice on Reservations to Treaties, as the Special Rapporteur has lived it for nearly 18 years and 16 reports. In its first part, the article recounts the elaboration procedure, pointing in particular to the elements of innovation and flexibility introduced in the process. The main one is the very type of instrument adopted, namely a Guide to Practice, and not a set of draft Articles that would eventually become a convention. In the second part, the main issues having retained the attention of the ILC, as well as of the other international bodies and of the academic community, are briefly recalled: the question of the unity or diversity of regimes, the permissibility of reservation and the status of the author of an impermissible reservation were among the most debated issues. Finally, the article explains the structure of the Guide to Practice.
  • Topic: International Law
  • Author: Michael Wood
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The aim of the Guide to Practice on Reservations to Treaties is to assist practitioners of international law, who are often faced with sensitive problems concerning, in particular, the validity and effects of reservations to treaties, and interpretative declarations. The chief interest in the Guide will be in the light it shines on the many difficult substantive and procedural issues concerning reservations and declarations left open by the Vienna Conventions. But the institutional aspects are also of considerable practical interest. The present contribution considers some of the institutional or cooperative bodies that may assist practitioners: depositaries; treaty monitoring bodies; the reservations dialogue; and 'mechanisms of assistance'. The first two are well-established. The third and fourth are innovative, and it remains to be seen whether they will be adopted by states and, if so, how useful they will be. In any event, the Special Rapporteur has shown considerable foresight in proposing what became the annex to the Guide to Practice on the reservations dialogue, as well as the Commission's resolution on 'mechanisms of assistance'.
  • Topic: International Law
  • Author: Daniel Muller
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Time is an important element in the process of reservations to treaties and, consequently, in the legal regime established by the Vienna Conventions for reservations and reactions thereto. The very definition of reservations, embodied in Article 2(1)(d) of the 1969 and 1986 Vienna Conventions, as well as in Article 2(1)(j) of the 1978 Vienna Convention, and incorporated in the definition adopted by the International Law Commission in its Guide to Practice, includes precise indications and limits concerning the moment in time for a reservation to be formulated. In practice, however, reservations have been made before and after this peculiar moment. The work of the International Law Commission has shown that these are still reservations, even if they are not contemplated by the Vienna regime. But they can nevertheless deploy their purported effects under some additional conditions. The same holds true with regard to objections to reservations which can be formulated prematurely or late. They are still objections even if their concrete legal effects may be affected. Whereas time is important for the legal consequences attached to reservations and reactions thereto, it plays a less important role in the overall process of reservations dialogue.
  • Topic: International Law
  • Political Geography: Vienna
  • Author: Ineta Ziemele, Lasma Liede
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article addresses the issue of reservations to human rights treaties in the light of the work done by the International Law Commission and its Special Rapporteur, Mr Alain Pellet. Section 1 gives a short historical background for the topic. Section 2 provides a concise overview of the variety of arguments that have been raised in the debate on the character of human rights treaties and the permissibility of reservations to those treaties, as well as their relationship with the reservations regime established under the Vienna Convention on the Law of Treaties. Section 3 gives a number of specific examples of reservations permitted under the human rights treaties and describes the approach taken by some human rights treaty bodies in that respect. It also depicts the manner in which some of these bodies have dealt with the intricate issue of the consequences of impermissible reservations. Section 4 analyses the guidelines adopted by the ILC and offers some reflection on their contribution to the development of international treaty law on this topic. Section 5 concludes by praising the comprehensive work of the ILC on the subject.
  • Topic: Human Rights, International Law
  • Political Geography: Vienna
  • Publication Date: 02-2014
  • 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: Andrew Williams
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The orthodox view of the ECHR and its Court as regime in the context of both the EU and UK has been that it has considerable value albeit with systemic flaws. The purpose of this article is to challenge this orthodoxy. Four inter-related submissions are made: that the ECHR has failed human rights conceptually (1); 'good' or lauded decisions of the ECtHR cannot remedy or sufficiently counter-balance this conceptual failure (2); 'bad' decisions further expose and exacerbate the failure (3); the procedural problems of the ECHR regime may contribute to the underlying failure of concept but their resolution cannot solve it (4). These submissions are to provoke a more intense assessment of value and how such value could be enhanced. It may be too late to see any influence on the accession process but this does not reduce the relevance of the critique for the future of human rights in both the EU and the UK. Ultimately an approach to the ECHR system needs to determine whether it continues to be lauded or its influence resisted (thus seeking reform or replacement - the alternative candidates being the EU Charter and/or a national Bill of Rights) and retained only as an iconic scheme of moral importance.
  • Topic: Human Rights
  • Political Geography: United States, Europe
  • Author: Stelios Andreadakis
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This reaction piece responds to the article by Andrew Williams entitled 'The European Convention on Human Rights, the EU and the UK: Confronting a Heresy'. In his article, Williams contends that we should not further support the 'orthodox' view that the Convention (ECHR) has been very successful in protecting and promoting human rights across Europe, offering four submissions to that end. It will be argued that Dr Williams' submissions regarding the ECHR's success and the European Court of Human Rights (ECtHR)'s role are not well supported and justified. The relationship between the ECHR and a future UK Bill of Rights will also be explored in the piece, as there is no sufficient link between the author's arguments about the ECHR regime and the UK legal system, making it rather artificial to refer to the UK as a possible model for human rights.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Rosa Rafaelli
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This short article aims to further the discussion over horizontal review between international organizations started by Deshman in her analysis of the role of the Parliamentary Assembly of the Council of Europe after the H1N1 pandemic. The article compares the historical evolution of the European Parliament to that of the Parliamentary Assembly and examines how the EP's involvement with issues such as human rights and international relations served to build its identity, to gain international recognition, and to obtain more formal powers. It suggests possible additional reasons explaining the PA's willingness to perform horizontal review over action carried out by the WHO, and potential paths for future developments.
  • Topic: International Relations, Human Rights
  • Political Geography: Europe
  • Author: Abigial C. Deshman
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Dr. Raffaelli's Reply to my article highlights some very useful areas for further exploration in the realm of global administrative law and inter-institutional interactions. Calling this a rejoinder may be a bit of a misnomer since I believe we are actually in broad agreement. In the spirit of debate, I will first draw out one apparent point of divergence – whether this is actually an instance of horizontal review – before canvassing our substantive areas of agreement.
  • Political Geography: Europe
  • Author: Gurdial Singh Nijar
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Traditional knowledge systems of indigenous and local communities have been of immense value over millennia. They have filled the breadbasket that has fed the world, provided medicines that have healed the world, and provided for the sustainable management of resources, including biodiversity. In short, these knowledge systems have fed, clothed, and healed the world. They may yet hold the key to dealing with the risks posed by climate change. Yet today they are in danger of being marginalized. This article identifies the threats, the inadequacy of the international legal architecture, and the faltering national attempts to reassert their role. It identifies the varying interests and elements and assesses their influence in the marginalization and resuscitation of traditional knowledge systems; and finally argues for the emancipation of these systems and their restoration to the plurality of knowledge systems to provide sustainable solutions to natural resource management.
  • Author: Christian Djeffal
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Commentaries on international law abound and proliferate. To reflect upon this trend in international legal scholarship, three commentaries on the Vienna Convention on the Law of Treaties are reviewed. They are compared with regard to the ways in which they deal with three pertinent issues in the law of treaties: the ascertainment of jus cogens norms, the notion of object and purpose and grounds of invalidity, termination, and suspension. As a scholarly genre, commentaries form part of the legal culture of legal systems. So the review discusses their function in the past, in the present, and in their possible future. Their roots lie in the schools working on Roman law in the Middle Ages. They gained importance for international legal scholarship when international law entered the process of codification. Today, commentaries fulfil several functions in international legal discourse, the most important of which is that they structure this discourse. Digitization will seriously impact on all fields of scholarly publishing. The review concludes by discussing the possible changes in this scholarly genre. Those are accessibility, layout, referencing, inclusion of other media, and the possibility of enhanced discourse within the commentary.
  • Political Geography: Vienna
  • Author: Tim Staal
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In the words of editor Duncan Hollis, The Oxford Guide to Treaties 'is a big book' (at vii). Yet, it is relatively small and accessible considering its ambition to 'explore treaty questions from theoretical, doctrinal, and practical perspectives'.
  • Political Geography: Vienna
  • Author: Gráinne de Búrca
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The intersection of constitutional ideas and international law has been the subject of a significant wave of scholarship in recent years. This monograph, written not by a lawyer but by a political theorist at Columbia University, addresses these themes in an engaging and rigorous way. And although it is a deeply scholarly work, it is also very much a politically engaged book, grappling with many fundamental questions of international law and governance today while trying to argue for 'realistic-utopian' reform.
  • Topic: International Law
  • Author: Loveday Hodson
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Her normative prescriptions, in other words, by insisting on a framework of constitutional pluralism and rejecting other forms of legal pluralism, leave aside the many other powerful global institutions and bodies that generate rules and norms, other than the UN Security Council or other UN bodies on which the book concentrates. While it is clear that the UN is the predominant global security organization, and the one with military power at its service, there are also many other organizations and bodies which have morphed or are morphing, as Cohen puts it in the book, into global governance institutions. Yet the book's focus on the need for political communities which participate in an overarching 'political community of communities' seems to leave many of these other important sites of legal and political authority out of the picture, and to reject as inadequate some of the more modest but perhaps also more currently feasible legal reform proposals which have been made.
  • Topic: Human Rights, International Law
  • Author: Erika George
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two recent publications present a defence of the right to health as it is articulated in international law and also provide insights into the array of impediments to realizing the health right. Despite a perceived conceptual lack of coherence and a limited appreciation of its relevance among health care professionals identified in these two books, the right to health has nevertheless succeeded in capturing greater attention in global policy circles. Local health care system reform initiatives around the globe increasingly make reference to the right to health. Both books are particularly helpful additions to the literature in light of recent advances in the development of the health right. Yet, each offers a very different assessment of its present status and prognosis for its future development.
  • Topic: Human Rights, Health Care Policy
  • Author: Julia Schmidt
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The European Union has gone through a profound development as an international crisis management actor. It was only in 2003 that the common security and defence policy became operational. Since then, the EU has conducted more than 25 civilian and military crisis management missions in many parts of the world. These missions are carried out in the name of the EU whose international legal personality has been formally recognized by the Treaty of Lisbon (Article 47 TEU). At the same time, the EU depends on capable and willing Member States to launch and to carry out an operation under the auspices of its common security and defence policy. The development of the EU as a military actor is remarkable in the light of the EU's historical evolution. In the 1950s, it started as a peace project that was based on economic integration. To prevent the emergence of a new war on the European continent, Robert Schuman proposed linking the coal and steel industries of France and Germany together 'within the framework of an organization open to the participation of the other countries of Europe'. Attempts to create a European army within the European Defence Community failed in 1954. Today, Europe has moved away from being merely a civilian power. When confronted with its inability adequately to respond to the Balkan crisis in its neighbourhood in the 1990s, the Cologne European Council of 1999 marked the birth of the EU's common security and defence policy. A process was put in motion that equipped the EU with the legal capacity and the civilian and military means to engage in 'missions outside the Union for peace-keeping, conflict prevention and strengthening international security' (Article 42(1) TEU). Civilian and military means may be used by the EU to fulfil the socalled Petersberg tasks, that include 'joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation' (Article 43(1) TEU). In political statements such as the European Security Strategy the EU has expressed great ambitions as a global security actor and has spoken of its responsibility to contribute to international security.
  • Political Geography: Europe
  • Author: Gregory Shaffer
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Where there was only shadow and brownish red and reddish brown crumbling stone against the sky now a sheen descends the folding slopes.
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: On 26–28 June 2014, in Florence, the European University Institute and NYU–La Pietra will host the Inaugural Conference of the newly established International Society of Public Law (ICON.S).
  • Political Geography: Europe
  • Author: Daniel Bethlehem
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This lecture, inaugurating a lecture series in honour of Sir Elihu Lauterpacht, looks at the changing place of geography in the international system and the challenges that this poses to international law, from the central place of geography in the Westphalian legal order to its less certain place in the rapidly globalizing and diffuse international society of the present day. Examining these issues through the contrasting prisms of the principal political organs of the United Nations in New York, on the one hand, and the UN Specialized Agencies centred in Geneva, on the other, the lecture also explores these issues by reference to Thomas Friedman's thesis that The World Is Flat. The lecture concludes by identifying a number of areas of international law, and the international legal system, that will require creative thinking in the period to come to reflect the diminishing importance of geography.
  • Topic: International Law
  • Political Geography: New York
  • Author: David S. Koller
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article responds to Daniel Bethlehem's assertions that globalization is diminishing the importance of geography, and thereby challenging the Westphalian order on which international law is constructed. It contends that international law does not take geography as it is but actively creates and sustains a state-based geography. It argues that the challenges Bethlehem identifies are not new but are inherent in international law's efforts to impose a state-based order on a global world. The question is not whether international lawyers will respond to these challenges, but how they will respond. Will they follow Bethlehem in reinforcing a statist order, or will they place sovereignty of states in the service of the global human community?
  • Topic: Globalization, International Law
  • Political Geography: New York, Europe
  • Author: Carl Landauer
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Daniel Bethlehem makes a convincing case in 'The End of Geography' that the growing challenges of our contemporary world require a move from our state-centred international legal system. This reply places Bethlehem's voice among a growing list of those who either describe or prescribe a move from the traditional Westphalian state system. It argues, however, that the challenges have always been transboundary and that the Westphalian state system has never been as strong or as long-lived as envisaged by its critics.
  • Topic: International Law
  • Political Geography: New York, Europe
  • Author: Maria Artistodemou
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article is a radical rethinking of public international law through the use of Lacanian psychoanalysis. Its central thesis is that while contemporary scholarship addresses what Lacan calls the symbolic and imaginary registers including law, politics, and ideology, it continues to ignore and repress the dimension of the real. The article illustrates this with a clinical example examined by Kris and discussed by Lacan. Imagining public international law as an indefatigable neurotic in search of 'fresh brains', the article shows why meeting her in the domains of law and politics is not enough to satiate her appetite. What continues to resist is the 'extimate', the inhuman element within the human that the subject hides so well from herself that it is excluded in the interior. A major instance of the extimate is the 'caffeinated neighbour', that is, the neighbour who is not in our image because her disturbing core has not been subtracted. The article argues that unless international law comes to terms with this inevitably ugly and obscene core, in oneself as well as in the neighbour, it cannot hope to achieve any meaningful changes. That the need to recognize the extimate is the ethical demand facing international law now; unless we address it, our symptoms will continue to grow and we will continue to crave fresh brains.
  • Topic: International Law
  • Political Geography: New York
  • Author: Christopher Wadlow
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The rights and remedies of private parties under the three principal global treaties for the protection of intellectual property are restricted to persons having the status of ressortissants under the relevant treaty, and by the general law of diplomatic protection. Two largely neglected issues arise in relation to ressortissants, which the treaties do not expressly resolve. The first concerns whether the obligations which state A assumes towards the nationals of state B can be enforced by states other than B. The second is whether the obligations assumed by a state under one of these treaties extend to that state's own nationals. It is suggested that the Bananas III and Havana Club decisions have effectively resulted in unlimited locus standi for WTO members to complain of breaches of TRIPs, including the incorporated provisions of the Paris and Berne conventions. The answer to the second question is more tentative, but it is suggested that there may be greater opportunities for arguing that the provisions of TRIPs are binding on states in relation to their own nationals, including incorporated Paris and Berne Articles, than there were under either of those earlier treaties on their own.
  • Topic: International Law
  • Political Geography: Europe, Paris
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I.CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to 'celebrate' Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of articles which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.
  • Topic: Development
  • Political Geography: Europe
  • Author: J.H.H. Weiler
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to 'celebrate' Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of articles which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.
  • Topic: Development, Law
  • Political Geography: Europe
  • Author: Eyal Benvenisti, George W. Downs
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In its Van Gend en Loos judgment, the ECJ assigned citizens directly enforceable rights vis-à-vis their respective state executives, and authorized national courts to protect those rights. What explains the Court's suspicion of state executives as the sole actors to implement Community law (acting directly or through the Commission)? What justifies its confidence in the ability of the national courts to protect the individuals? We submit that the ECJ was informed by the premise that national courts acting in unison could withstand political pressures and protect individuals while implementing the Treaty. Moreover, the ECJ understood that its interaction with national courts would put it in a position potentially to offer significant support for citizens of relatively weaker countries against various predatory policies employed by the more powerful states in the organization. In this article we explore these premises and present evidence to support them. More generally, we argue that there is good reason to endorse this model of judicial activism as a means to ensure democracy as judged by the effective and informed participation of individuals in public decision-making that affects them – within international organizations. This judgment demonstrates the promise of greater interaction and coordination between national and international tribunals in preventing democratic failures at both the national and international levels. Although judicial intervention often pre-empts public deliberation, it can also encourage it; although it may operate to pre-empt the vote, it can also function to ensure it.
  • Topic: International Organization
  • Political Geography: Belgium, Netherlands
  • Author: Damian Chalmers, Luis Barroso
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This is the abstract only. The full article is published in Int J Constitutional Law (2014) 12 (1): 105–134 doi:10.1093/icon/mou003 Three transformational developments flowed from Van Gend en Loos: the central symbols and ideals of EU law; an autonomous legal order with more power than traditional treaties; and a system of individual rights and duties. The judgment also set out how each of these developments was to be deployed. The symbols and ideals were set out to proclaim EU authority rather than to go to what the EU did. What the EU did was, above all, government through law. The EU legal order was conceived, above all, therefore, as a vehicle for the expression of EU government. This, in turn, shaped the allocation of individual rights which were predominantly granted only where they furthered the realization of the collective objectives of EU government. Conceiving EU law as governmental law also left a profound and negative effect on EU legal meaning. This became shaped by EU law being reduced to something to sustain activities valued by EU government rather than to provide a wider, more emancipatory imaginary.
  • Topic: Development, Government
  • Political Geography: Europe
  • Author: André Nollkaemper
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article assesses how, 50 years after the ECJ delivered its judgment in Van Gend en Loos (VGL), the doctrine of direct effect of international law has fared outside the European Union. While obviously the core of VGL (that is, that it is EU law, not national law, which requires direct effect) is not replicated anywhere else in the world, the courts of a considerable number of states have been able to give direct effect to international law. Against the background of an exceedingly heterogeneous practice, this article argues that the concept of direct effect is characterized by a fundamental duality. Direct effect may function as a powerful sword that courts can use to pierce the boundary of the national legal order and protect individual rights where national law falls short. But more often than not, the conditions of direct effect legitimize the non-application of international law and shield the national legal order from international law. International law provides support for both functions. But above all, it defers the choice between these functions to national courts. The practice of direct effect of international law exposes how national courts play a critical political function at the intersection of legal orders.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Morten Rasmussen
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This is the abstract only. The full article is published in Int J Constitutional Law (2014) 12 (1): 136–163 doi:10.1093/icon/mou006 Did the famous Van Gend en Loos judgment constitute a breakthrough for a constitutional practise in European law or was it merely drawing the logical legal consequences of earlier case law and of the Treaties of Rome? Based on comprehensive archival studies, this article argues that neither earlier case law nor the Treaties of Rome can fully account for the judgment. Instead, Van Gend en Loos represented a genuine revolution in European law. Prompted by the legal service of the European Commission, the European Court of Justice (ECJ) took a decisive step towards addressing two major problems of international public law, namely the lack of uniform application of European law by national courts across the six member states and the lack of primacy granted to international law in several member states. The judgment was based on a new teleological and constitutional understanding of the Treaties of Rome developed by the legal service, and took the first step towards establishing an alternative enforcement system. The ECJ would already in 1964 take the second step by introducing primacy in the Costa v. E.N.E.L. judgment. The new enforcement system remained highly fragile, however, due to the dependency on the cooperation of national courts through the preliminary reference system. As a result, the full effects of the Van Gend en Loos judgment were only felt after the Single European Act (1986) pushed reluctant national governments and courts to finally come to terms with the legal order the ECJ had developed.
  • Topic: Government, Law
  • Political Geography: Europe
  • Author: Francesca Martines
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Van Gend en Loos (VGL) decision established the conceptual premises of a crucial issue to shape the relationships between the European Union and international law: the function of direct effect as a powerful instrument to guarantee that the rules of one system are complied with in another legal order. However, if compared with direct effect of EU legal rules, the issue of the effects of EU international agreements is made more complicated by the combination of the more traditional question of the self-executing character of international agreement provisions and the narrow meaning of direct effect. The former issue, strongly affected by the technique of incorporation and the rank of international law obligations within the incorporating legal order, goes to the heart of the constitutional architecture of the EU legal order where a balance is to be found between the obligation to comply with international law and the integrity of the EU legal order. The latter notion concerns instead the relationship between the private person and the legal rule and defines the special character of the EU which distinguishes it from international law. Since such a quality of EU rules cannot be automatically applied to international law rules incorporated in the EU legal order it must be verified case by case. This is the reason why, for the present author, the double test approach, first applied by the ECJ in VGL, is the right test to determine direct effect of EU international agreements, but cannot be applied to verify the self-executing effect of international law in the traditional (broader) meaning.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Sophie Robin-Olivier
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of ('direct effect') EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, 'Revisiting Van Gend en Loos' leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).
  • Topic: Law
  • Political Geography: Europe
  • Author: Hélène Ruiz Fabri
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: WTO law does not require its direct effect in domestic legal orders. Whilst the stances taken in these are diverse, showing that direct effect is not denied on the whole to WTO law, all the major trading members of the WTO deny it. The fact that, in a case where a WTO member does not comply and is targeted by trade sanctions, the economic actors who in practice bear the burden of these sanctions are deprived of any recourse, may be considered unfair enough to question again the denial of direct effect. The analysis focuses notably on the EU where the debate has expanded more than anywhere else and concludes that direct effect should, even in the name of fairness or justice, be handled with caution.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Jan Komarek
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This essay argues, contrary to the widespread beliefs that prevailed after 1989, that the experience of post-communist countries and their peoples, both before and after 1989, can bring something new to our understanding of Europe's present predicament: sometimes as an inspiration, sometimes as a cautionary tale. The lessons offered by post-communist Europe concern some deeply held convictions about the very nature of the EU and its constitutional structure. Only if this experience is absorbed in Europe as its own will post-communist countries truly return to Europe – and Europe become united. The cautionary tales of post-communist Europe concern the worrying consequences of the suppression of social conflicts 'in the name of Europe'. Such conflicts often get translated into identitary politics, which in the context of European integration often turn against the Union. The second lesson concerns the ill fate of Havel's existential revolution. The attempts of some European constitutionalists to reform individualistic emphasis of the integration project are problematic for the same reason: they turn attention away from politics, where real solutions need to be found. This relates to the third suggestion made here: that the experience of living in a collective dream of socialism can be used as an inspiration rather than as something that needs to be erased from the collective memory of Europe.
  • Political Geography: Europe
  • Author: Michel Rosenfeld
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Upon conceiving constitutionalism on the scale of the nation-state as transparent and unproblematic, one may think global constitutionalism to be a mere utopia. On closer analysis, however, legitimation of nation-state constitutionalism turns out to be much more complex and contested than initially apparent, as becomes evident based on the contrast between liberal and illiberal constitutionalism. Upon the realization that nation-state liberal constitutionalism can only be legitimated counterfactually, the social contract metaphor emerges as a privileged heuristic tool in the quest for a proper balance between identity and difference. Four different theories offer plausible social contract justifications of nation-state liberal constitutionalism: a deontological theory, such as those of Rawls and Habermas, which privileges identity above difference; a critical theory that leads to relativism; a thick national identity based one that makes legitimacy purely contingent; and a dialectical one that portrays the social contract as permanently in the making without any definitive resolution. Endorsing this last theory, I argue that differences between national and transnational constitutionalism are of degree rather than of kind. Accordingly, it may be best to cast certain transnational regimes as constitutional rather than as administrative or international ones.
  • Topic: International Law
  • Political Geography: France, Netherlands
  • Publication Date: 02-2014
  • 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 patholo-gies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our schol-arly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photo-graph: people shot up; the ravages of pollution and all other manner of photojournalism. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photo-graphs. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring.
  • Political Geography: Europe
  • Author: Alina Mungiu-Pippidi, Dia Anagnostou
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Over the past couple of years, international law and international relations scholarship has shifted its focus from the question of whether human rights treaties bring any state-level improvements at all to investigations in the domestic context of the factors and dynamics influencing state compliance. In this direction, and focusing on the European Court of Human Rights, this study inquires into the factors that account for variable patterns of state compliance with its judgments. Why do national authorities in some states adopt a more prompt and responsive attitude in implementing these judgments, in contrast to other states that procrastinate or respond reluctantly? On the basis of a large-N study of the Strasbourg Court's judgments and a comparison across nine states, this article argues that variation in state implementation performance is closely linked to the overall legal infrastructure capacity and government effectiveness of a state. When such capacity and effectiveness are high and diffused, the adverse judgments of the Strasbourg Court are unlikely to be obstructed or ignored, even when the government, political elites, or other actors are reluctant and not in favour of substantive remedies.
  • Topic: International Relations, International Law
  • Political Geography: Europe
  • Author: Erik Voeten
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article responds to the valuable contribution by Dia Anagnostou and Alina Mungiu- Pippidi in which they analyse how nine countries implemented European Court of Human Rights judgments that found violations of Articles 8–11 of the European Convention on Human Rights. Their conclusion that capacity plays an important role in the implementation of ECtHR judgments is certainly correct. In this short response, I highlight various aspects of the authors' analysis where they make problematic choices with regard to data and statistical methods. First, I describe and use a more comprehensive dataset that allows us to reach more generalizable conclusions. Secondly, I show how survival analysis is a more appropriate framework than logit or linear regression for analysing these data. Thirdly, I argue that the difficulty of the implementation task needs to be accounted for in any analysis of cross-country variation in implementation. My re-analysis shows that low capacity countries attract judgments that are more difficult to implement. The analysis also uncovers a subtle relationship between time, institutional capacity, and checks and balances. High capacity helps willing politicians to implement judgments quickly. Yet, among judgments that have been pending longer, countries with higher capacity are no quicker to implement than lower capacity countries. By contrast, checks and balances initially slow down implementation but help to eventually ensure begrudging implementation.
  • Topic: Human Rights
  • Political Geography: Europe
  • Author: Rosa Freedman
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: National courts have long understood the UN to have absolute immunity from their jurisdiction, based upon provisions in the UN Charter and the Convention on Privileges and Immunities of the UN. While state immunity has evolved over recent decades, allowing restrictive immunity that distinguishes between acts jure imperii and those jure gestionis, questions have arisen as to whether that doctrine applies to international organizations and, specifically, the UN. The counterbalance to the UN's absolute immunity is the requirement that it provide alternative mechanisms for resolving disputes. This raises concerns about accountability and internal review. Case law from various courts demonstrates an increasing willingness to attempt to challenge absolute immunity on the basis that the bar to jurisdiction violates claimants' rights to access a court and to a remedy. In all of those cases, individuals' ability to access alternative mechanisms for dispute resolution has been used to show that their rights have been realized. Recent events concerning the 2010 cholera outbreak in Haiti may lead to a challenge to the UN's absolute immunity. The UN has deemed those claims to be 'not receivable', which denies the claimants their rights to access a court and to a remedy. In October 2013, lawyers for the Haiti cholera victims filed a class action in the Southern District of New York, seeking to challenge the UN's immunity by bringing the Organization before a national court. This article explores whether the events in Haiti may provide the first successful, human rights-based challenge to the UN's absolute immunity.
  • Topic: Human Rights
  • Political Geography: New York
  • Author: Heiko Meiertöns
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Herbert Kraus (1884–1965) is among the forgotten international lawyers of the 20th century. Kraus took part in a number of developments of great importance for the shaping of modern international law: he participated in the drafting process of the Versailles Peace Treaty and the Treaty on the European Coal and Steel Community and acted as defence counsel at Nuremberg. The founding director of the Institute for International Law at the University of Göttingen was forced to retire between 1937 and 1945 due to his criticism of National Socialism. The post-war perception of his work was coined by his forced retirement. However, his work between 1933 and 1937 sheds light on the dilemma of choosing between opposition and adjustment that Kraus was faced with during that period. This article re-introduces Kraus – a complex German character of international law – and the main features of his work.
  • Topic: International Law
  • Political Geography: New York
  • Author: Alexandra Kemmerer
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As usual, international law comes in late. It was already in the golden years of new world orders and geopolitical shifts after the end of the Cold War that historiography began its global turn. Of course, there had been pioneers and path-breakers before, but it was only in the 1990s that an ambiance of globalization and trans-nationalization triggered new approaches on a larger scale. An actual experience of political, economic and cultural interconnectedness put historiographical emphasis on transfers, networks, connections and cooperation, on transformation and translation.Historical analysis was called to overcome not only the boundaries of the nation-state, but also the limitations of material and epistemic Eurocentrism in its various forms. During the past decade, there has been a growing interest in global histories in many parts of the world.
  • Topic: International Law
  • Political Geography: Africa, Europe
  • Author: Rose Parfitt
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The editors of this impressive and timely volume, Anne Peters and Bardo Fassbender, begin their Introduction (at 2) with the following statement of purpose: [W]e, the editors and authors, [have] tried to depart from ... the 'well-worn paths' of how the history of international law has been written so far — that is, as a history of rules developed in the European state system since the 16th century which then spread to other continents and eventually the entire globe.
  • Topic: International Law
  • Political Geography: Europe