Search

You searched for: Journal European Journal of International Law Remove constraint Journal: European Journal of International Law Topic Government Remove constraint Topic: Government
Number of results to display per page

Search Results

  • 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: 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: Francesco Francioni
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 1. In introducing this EJIL symposium, I cannot help but recall a much debated article published in 1986 in the American Journal of International Law. The author of that article, Stanford professor John Merryman, theorized that there are \'two ways of thinking about cultural property\'. 1 The first, he argued, is the national(istic) way, which conceives of cultural property as part of the nation, with the attendant desire of governments to jealously retain it within state boundaries and to limit its international circulation. The second is the international way, which views cultural property as the heritage of humankind and supports the broadest access and circulation to facilitate exchange and cultural understanding among different peoples of the world. The author left no doubt that the latter view was to be preferred for its alleged capacity to contribute to a cosmopolitan order, in which cultural property can be freely accessed and thus contribute to the intellectual and moral progress of humanity. One may wonder whether this dual perspective accurately reflected the spirit of the law and the policy attitudes of the time when the article was written. Certainly, it cannot adequately explain the present state of the law and, in particular, of international law. Today, there are more than just two ways of thinking about cultural property. Cultural property may be seen as part of national identity, especially in the post-colonial and post-communist context, but it can also be looked at as part of the \'territory\', the physical public space that conditions our world view and which is part of what we normally call \'the environment\' or the \'landscape\'. Cultural property may be seen as moveable artifacts susceptible to economic evaluation, and for this reason subject to exchange in international commerce; but it may also be thought of as objects endowed …
  • Topic: Economics, Government
  • Political Geography: America
  • Author: Sandesh Sivakumaran
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The regulation of internal armed conflict by international law has come a long way in a very short space of time. Until the early 1990s, there were a minimum of international law rules applicable to internal armed conflict. Today, the situation has changed almost beyond recognition with a healthy body of international law applicable to internal armed conflict. This change has taken place in three principal ways – through analogy to the law of international armed conflict, through resort to international human rights law, and through the use of international criminal law. Each of these approaches stressed its similarity to internal armed conflict or to international humanitarian law. They proved immensely important, filling in what was a more or less blank canvas. However, there are limits to how far they can take us. Today, the canvas is no longer blank and a step back is needed in order to assess the existing state of affairs. Focusing not on the similarities between international and internal armed conflicts or between the various bodies of international law, but on their differences, will allow us to ascertain what further work is in order. It will allow us to identify gaps in regulation and refine relevant rules. It will also force us to re-think our approach to particular issues. Only in this way will we be able to develop the international law of internal armed conflict further.
  • Topic: Government, Human Rights, International Law
  • Author: Gabriella Blum
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The prevailing view of the form which the effort to regulate non-international armed conflicts should take has been summarized by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić interlocutory appeal on jurisdiction: '[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife'.This mirroring approach of emulating the laws applicable in international armed conflicts in the non-international context was subsequently adopted by the drafters of the Rome Statute of the International Criminal Court in 1998; the drafters chose to include a list of war crimes applicable in cases of non-international armed conflicts which resembled (though was still narrower than) the list of crimes applicable in international conflicts. The recent Kampala ICC review conference expanded the non-international crimes list, further narrowing the gap between the 'international' and the 'non-international' lists of crimes.Taking a similar position, the 2005 study on customary international humanitarian law (IHL) published by the International Committee of the Red Cross concluded that all but a handful of the rules identified as customary applied in international and non-international armed conflicts equally.Given the traditional resistance by states to assuming the same degree and range of constraints which apply in international armed conflicts in internal ones, humanitarian advocates have sought to advance the regulation of internal armed conflicts by supplementing IHL with norms borrowed from international criminal law (ICL) and international human rights laws (IHRL). The resulting international law of internal armed conflicts has thus been a patchwork of norms which ostensibly apply to all non-international armed conflicts, drawn from the IHL of international conflicts, ICL, and IHRL, often proving to be incoherent, unworkable, and ineffective. Sandesh Sivakumaran's contribution to this volumetakes a critical view of the path …
  • Topic: Development, Government, International Law
  • Author: Sandesh Sivakumaran
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I am grateful to Professor Gabriella Blum for her thoughtful response to my article. Blum's response invites further consideration of three principal issues. She notes my use of the terminology of 'internal' as opposed to 'non-international' armed conflict and its juxtaposition with 'international' armed conflict and queries whether my 'methodological approach as well as specific suggestions would remain equally compelling in other types of non-international armed conflicts'. The choice of terminology was deliberate. I find the descriptor 'non-international' to be somewhat misleading as it unhelpfully defines the category by what it is not. It suggests that there is but one armed conflict and, if it is not international in character, by default it is non-international. However, in practice, an internal/non-international armed conflict is identified in a rather different manner. For example, in order for an internal/non-international armed conflict to exist, the violence must reach a certain level of intensity; yet, for an international armed conflict to exist one dominant view is that there is no such requirement. The category of internal/non-international armed conflict is thus in no way a default category which serves to catch those conflicts which are excluded from the international category. Yet this is what is suggested through the use of the terminology of 'non-international' armed conflict. What the terminology of 'internal' may suggest is that it is limited to those conflicts which are fought entirely within the territorial boundaries of a state. However, even this may be true only up to a certain point. For example, an internal armed conflict with a certain overspill, such as onto the high seas or into the territory of a third state, is still characterized as an internal …
  • Topic: Government, Human Rights, International Law
  • Political Geography: Sri Lanka
  • Author: Fernando Losada Fraga
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: When the current economic crisis began, political leaders all around the world spread the idea that capitalism needed somehow to be reformed. 1 A couple of years later one might think that not much has been achieved in that direction and blame politicians for their lack of will. However, it is not so clear that reforms – even if the political will existed – would be easy to realize. As Danny Nicol argues, the neoliberal conception of capitalism is constitutionally shielded as a result of the content and the development of different but coexisting legal regimes such as the World Trade Organization (WTO) or the European Union (EU), and of the activism of the European Court of Human Rights (ECtHR). Describing the resulting 'constitutional protection of capitalism' is precisely what this book is about: Nicol tries to determine to what extent national politics are predetermined by the ongoing economic integration. Or, putting it differently, his research aims at explaining how much room for manoeuvre states, and in particular the United Kingdom, maintain now that the international and European economic integration treaties they ratified years ago have evolved in an unexpected way. The author thus identifies two trends 'that have pervaded the evolution of transnational regimes' (at 156), namely their widened scope and their enhanced binding character, and claims that such developments have a special impact on the freedom of Parliament to decide, 2 a freedom which, as we must bear in mind, is at the core of British constitutionalism. Both the title and the cover of this book, in which the symbol of the British Parliament, Big Ben, blurs among the buildings of the City, are very explicit about the national perspective from which this book approaches transnational regimes. The book is structured in five chapters. The first describes the …
  • Topic: Development, Economics, Government
  • Author: Jean Allain
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: One would expect no less from this study of contemporary forms of slavery by Emmanuel Decaux than that it identifies the fundamental puzzle at the heart of legal issues surrounding human exploitation, namely, that: there is a permanent contradiction between the successive attempts focused on 'slavery in all its forms' as well as 'the practices and institutions similar to' – which are at the heart of international instruments, and the programmes of action of international organisations and non-governmental organisations –; and the criminal law approach which requires a precise definition to incriminate; either domestically, in the name of the determinacy of the crimes and of the penalty, or internationally to allow for criminal cooperation. 1 It is to this fundamental paradox that Decaux devoted his attention during his lectures at The Hague Academy of International Law in 2008. These lectures were published in The Collected Courses of the Hague Academy series and were also reproduced as part of a pocketbook series. 2 The beauty of considering studies written in another language is to liberate oneself from assumptions – the given starting and end points of argument, and the continuity of well established discourses. If nothing else, surveying works in other languages opens the possibility of new revelations and discoveries – even for the most seasoned expert in an area – which come from narratives forged, in this case, in Paris, as opposed to a London or a Washington. With this in mind, Les formes contemporaines de l'esclavage does not disappoint. More so than in a monograph, the chapters of a study emanating from the Hague Academy stand alone, as each originates in a public lecture and thus must stand on its own merits. In seeking to work beyond the fundamental contradiction related to issues of human exploitation, the approach which …
  • Topic: Government, International Law, Non-Governmental Organization
  • Political Geography: Washington, London
  • Author: Luis Castellvi Laukamp
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Dialogue, this noble art, which, like many other things, was invented by the Greeks, is always a sort of collaboration, a way of trying to attain the truth. Perhaps this is why Plato used it as a literary vehicle when he wrote his Socratic dialogues, a corpus of pieces in which he laid the foundations of Western philosophy. Deeply impressed by the death of his mentor Socrates, Plato wrote some of the most brilliant and insightful works of all time, perhaps in order to keep on debating with his master after his death. In all likelihood, no-one since has ever had the same great ability to create such architectures of thought. His enjoyable and entertaining dialogues deal with essential topics such as the nature of time, politics, love, and death. Not only is his style concise and meticulous, with a proverbial ability to pose the right questions, but also didactic and kind. His dialogues enable all participants to engage in an inquiry which, despite not always being successful in reaching the desired goal, has at least proved to be a fundamental tool in the development of all expressions of human thought. The book under review is inspired, mutatis mutandis, by this very same philosophy regarding dialogue. As its editors (Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza) point out in their introduction, '[t]he process of fragmentation of the international legal order and the absence of constitutional devices governing the connections between the various legal regimes can be reduced to a rational picture only through the activity of the judges' (at 23). This is why judges play a key role in creating and developing links between the different legal systems which constitute our multi-level judicial environment. The increasingly complex nature of the interaction between national and international judges has often been
  • Topic: Development, Government, Politics, Law
  • Political Geography: Greece
  • Author: Jeremy Waldron
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The applicability of the ideal we call 'the Rule of Law' (ROL) in international law (IL) is complicated by (1) the fact that there is no overarching world government from whom we need protection (of the sort that the ROL traditionally offers) and it is also complicated by (2) the fact that IL affects states, in the first instance, rather than individuals (for whose sake we usually insist on ROL requirements). The article uses both these ideas as points of entry into a consideration of the applicability of the ROL in IL. It suggests that the 'true' subjects of IL are really human individuals (billions of them) and it queries whether the protections that they need are really best secured by giving national sovereigns the benefit of ROL requirements in IL. For example, a national sovereign's insistence that IL norms should not be enforced unless they are clear and determinate may mean that individuals have fewer protections against human rights violations. More radically, it may be appropriate to think of national sovereigns more as 'officials' or 'agencies' of the IL system than as its subjects. On this account, we should consider the analogous situation of officials and agencies in a municipal legal system: are officials and agencies in need of, or entitled to, the same ROL protections as private individuals? If not, then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level.
  • Topic: Government, Human Rights