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  • 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
  • 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: 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: 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: 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: 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
  • 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: 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
  • 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: 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
  • 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: 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: 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: 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
  • 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: 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
  • Author: Stefan B. Kirmse
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: My reading of The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters, has undoubtedly been framed by my own field of research. This field is not international law, but the historical anthropology of Russia and Eurasia and includes changing legal practice in a context of increasing global connectedness. My review is therefore not intended to relate the Oxford Handbook to the wider historiography of international law, which I leave to other contributions in this symposium; it is meant to offer an external perspective on the question of Eurocentric analysis. The editors of the Handbook have identified Eurocentrism as one of the key challenges to overcome in the study of international law.
  • Topic: International Law
  • Political Geography: Russia, Persia
  • Author: Nahed Samour
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Overcoming Eurocentrism is one of the self-proclaimed aims of the editors of The Oxford Handbook of the History of International Law. In the following, I shall offer a critique of the Handbook from a largely Islamic international law perspective as (but) one example of a supranational non-European legal system. The depth of the volume covering a variety of times, spaces, and themes provides us with a much awaited tool against the 'gaps' and the 'forgetfulness' of how today's doctrines and practices of international law came about, not shying away from the voices that question the narrative of international law serving peace and justice. The Handbook is therefore laudable for a number of things.
  • Topic: International Law, Islam
  • Political Geography: Europe
  • Author: Will Hanley
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Oxford Handbook is a welcome and necessary intervention in the history of international law. In the introduction, the editors signal their reformist programme: out with the progressive, triumphalist narrative; in with the dark side of international law and its side tracks outside the European experience. In addition to this programme, the project displays two further signs of its serious intent to change the field. First, the authors embarked on a truly collective project, including a week of face-to-face consultation, in a rare effort to define a reasonably unified agenda. Scholarly redirection is a social as well as an intellectual undertaking, and the community built around this volume marks its purposefulness. Secondly, the book's scope is massive: more than five dozen chapters, more than three dozen authors, and more than 1,000 pages of text provide the bulk necessary to accomplish the paradigm shift that the editors intend. The extensive range of the book, especially in its 'Regions' section, does what is necessary to transform globalizing intent into actuality. It is a foundational volume, and any scholarly edifice building upon it will have a broader footprint than was previously possible.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Anne-Charlotte Martineau
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Last Spring, the Rechtskulturen programme, an initiative of the Wissenschaftskolleg zu Berlin at the Transregionale Studien Forum, invited me to participate in a symposium on the Oxford Handbook of the History of International Law – a robust book of 1250 pages. I was asked to 'critically assess' the Handbook's 'global history' approach, that is, to assess whether it was a successful step in 'overcoming Eurocentrism' in the history of international law. The symposium turned out to be a wonderful event, a gathering of historians, anthropologists, political scientists, and lawyers, where I became very conscious of my own professional language but where I also experienced a willingnesss to transcend disciplinary boundaries and biases. The following remarks should be interpreted as a continuation of that discussion. Before looking at some of the contributions in the Handbook that did depart from 'well-worn paths' (to use the editors' expression) (3), I would like to say few words about the 'global history' approach (1) and the unfortunate resilience of Eurocentric voices in the Handbook (2).
  • Topic: International Law
  • Political Geography: Europe
  • Author: Anne Peters, Bardo Fassbender
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As we remarked in the Introduction to our Handbook, it is exciting but also risky to leave a well-worn path (at 2). It means meeting unforeseen obstacles. We were quite aware of the fact that if we wanted to shed light on historical developments in international law which so far had remained in darkness or obscurity, we had to be prepared to encounter the unexpected and not so readily understood – that is, accounts and narratives which call into question conventional wisdom and which, at least initially, pose additional problems rather than providing easy answers. We knew that new research on issues which had rarely been examined before would not be perfect or 'complete'. In other words, we expected, and in fact expressly invited, criticism of a work which tried to break new ground.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Timo Kolvurova
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Those who follow the newspapers and media in general are led to believe that the stakes are getting higher in the Arctic. Climate change is melting the sea ice and opening up new economic opportunities: oil, gas, moving fish stocks, and shorter navigational routes are among the benefits to be had by those who are bold enough to make a move. According to the media, China and other emerging economies are claiming their own piece of the Arctic. In the scramble among states for the riches of the Arctic, we sense a scenario that may even drive states to the point of military conflict. Yet, this scramble does not take place in a legal vacuum – there are plenty of legal rules that govern the behaviour of states and other actors in the region. Indeed, this is one of the salient points that Michael Byers makes in his book.
  • Topic: Environment, International Law, Oil
  • Political Geography: China
  • Author: Anne Orford
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today's highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Tilmann Altwicker, Oliver Diggelman
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: There is a tendency in international legal discourse to tell the story of international law as a story of progress. 'Progress' is a concept which is tied to the process of secularization and Western 18th and 19th century philosophy. It still inspires the debate on international law – despite all setbacks in 'real history'. This article argues that progress narratives in the inter-national legal discourse are constructed by – more or less subtle – argumentative techniques. It highlights four such techniques – four 'bundles of arguments' – which play a key role: ascending periodization, proving increasing value-orientation of international law, detection of positive trends, and paradigm shift-talk. The article offers an explanation of why the pro-gress argument often succeeds in international legal discourse.
  • Topic: International Law, Weapons of Mass Destruction
  • Author: Arnulf Becker Lorca
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Conventionally, self-determination is understood to have evolved in a linear progression from a political principle during World War I into an international right after World War II. The history of the right to self-determination before 1945 is thus part of 'pre-history'. This article explores that 'pre-history' and finds the conventional linear narrative unconvincing. During the first three decades of the 20th century and in particular during the interwar period, non-Western lawyers, politicians, and activists articulated international law claims to support the demand for self-government. In this process, they appropriated and transformed the international law discourse. Removing the legal obstacles that prevented self-government beyond the West – that is, by eliminating the standard of civilization – interwar semi-peripherals made possible the emergence of a right to self-determination later, when the international political context changed after the second post-war reconstruction of international law.
  • Topic: International Law, War
  • Author: Laszlo Blutman
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Andrew Guzman declares that customary international law is in trouble. I disagree. It is those who seek to explain it who are in trouble. Theoretical efforts are plagued with descriptive insufficiencies (for example, the formation of various customary norms takes place within a heterogeneous, opaque process that resists any general and meaningful description in specific cases), systemic uncertainties (for example, locating the source of rules that govern the formation of customary norms), semantic problems (such as what exactly is general practice) and the divergence of conceptions articulated within international practice. These difficulties, which hamper a better understanding of international law itself, originate from the conceptual level. This article will therefore focus on certain symptomatic conceptual and methodological problems. Nine of them are outlined, and three will be analysed in greater detail, namely the relationship between opinio juris and acceptance, the characteristics of the concept 'general practice' and the failure of attempts to describe customary international law by dichotomies. As a conclusion, the author identifies seven requirements of, and assumptions about, a possible, workable theory of customary international law.
  • Topic: International Law
  • Author: David Roth-Isigkeit
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: That positivism is not the promised land of legal methods has become a truism among critical international lawyers. All too often the proclaimed objectivity, neutrality and science has turned out to be intertwined with ideology and domination. In line with the historical-economic turn of the Helsinki school, Monica García-Salmones Rovira's book The Project of Positivism in International Law finds the historical roots of positivism deeply embedded in the development of a global neo-liberal economy. The economic foundations of the method are unearthed with two intellectual biographies of its founding fathers, Lassa Oppenheim and Hans Kelsen, whose life projects have so far escaped critical scrutiny. The book weaves into these two biographical studies the story of international law as a pragmatist and scientific project that freed the discipline from the tradition of natural law to become a servant of global economic interests.
  • Topic: International Law, War
  • Author: Giedre Jokubauskaite
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Philipp Dann has long been committed to the legal issues of international development cooperation, and now his monograph on this subject, originally written in German, has been published in English. The comprehensive monograph entitled The Law of Development Cooperation skilfully builds upon the knowledge that already exists on this topic and systematizes an enormous amount of relevant literature. The reader is presented with a stimulating text that is dense in terms of its arguments and yet easy to engage with.
  • Topic: International Law
  • Author: Alexandre Skander Galand
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: State Sovereignty and International Criminal Law, edited by Morten Bergsmo and Ling Yan, brings together two recent issues of international law: the rise of international criminal law as a building block in the nascent constitution of the international legal order and the increasingly active participation of China in international law. Even though China is a permanent member of the United Nations Security Council (UNSC), it has until recently been de facto absent from the debates over norms of international law. Likewise, international criminal justice is a field of law that stagnated for more than 40 years. The last two decades have witnessed a revival of both phoenixes.
  • Topic: International Law
  • Political Geography: China
  • Author: Milan Kuhli
  • Publication Date: 05-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The book The Hidden Histories of War Crimes Trials – edited by Kevin Jon Heller and Gerry Simpson – is a compilation of 21 contributions to a conference convened in Melbourne at the end of 2010. The project aims at a scholarly recovery of accounts of war crimes trials that were ‘either neglected or under-rehearsed’ (at 1) in the discipline of international criminal law. Accordingly, the contributions tell ‘stories about familiar but under-explored and misunderstood landmarks in the conventional history of international criminal law’ as well as about trials that have been less analysed in this field (at 1). Gregory S. Gordon’s illustrative chapter on the trial of Peter von Hagenbach (chapter 2) is a story of the first kind, whereas Benjamin E. Brockman-Hawe’s comprehensive account of the Franco-Siamese tribunal for the Colonial Era (chapter 3) exemplifies the latter type.
  • Topic: International Law, War
  • Political Geography: Europe
  • Author: Congyan Cai
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Great Powers (GPs) have always been prominent in international relations. Their rise and fall often lead to structural transformations of international relations. In the past decade, the world has witnessed the rise of some New GPs (NGPs), which primarily consist of Brazil, Russia, India, China, and South Africa (BRICS). While the effect of the supremacy of the United States, an Old GP (OGPs), on international law has been examined extensively since 2000, international lawyers have hardly discussed how the rise of NGPs may shape and reshape international law. This article endeavours to examine the implications for such rise that stem from the rise of NGPs. In particular, as an 'insider' from an NGP, the author reviews the latest development in China's international legal policy and practice.
  • Topic: International Relations, International Law
  • Political Geography: Russia, United States, China, India, South Africa, Brazil
  • Author: John Dugard, John Reynolds
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Apartheid is a loaded term; saturated with history and emotion. It conjures up images and memories of discrimination, oppression, and brutality; indulgence, privilege, and pretension; racism, resistance, and, ultimately, emancipation. All of which come to us through the history of apartheid in South Africa. Although prohibited and criminalized by international law in response to the situation in southern Africa, the concept of apartheid was never given enormous attention by international lawyers. Following an awakening of interest in the international legal prohibition of apartheid as a potentially appropriate lens through which to view the situation of the Palestinians, this article examines the merits of such a claim in the context of Israeli law and practice in the occupied Palestinian territory.
  • Topic: International Law
  • Political Geography: Israel, South Africa, Palestine
  • Author: Yaffa Zilbershats
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I accept the authors' premise in their article entitled 'Apartheid, International Law, and the Occupied Palestinian Territory' that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The obligation of a state and its officials to refrain from practising any policy of apartheid is considered a jus cogens norm under international law. Whoever practises apartheid bears international criminal responsibility and may be put on trial for committing that crime, either in any state in the world based on universal jurisdiction or before the International Criminal Court. However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. In this article I expand on two of these errors - the failure to differentiate between the norms governing occupied and sovereign territory, and the authors' complete failure to address Israel's policies in the context of an armed conflict characterized by the Palestinians' use of terror. As I show, once the authors' errors are exposed and considered, it is clear that Israel's actions cannot be considered a basis for the crime of apartheid.
  • Topic: International Law
  • Political Geography: Israel, South Africa, Palestine
  • Author: Benoît Mayer
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The 2009 Copenhagen Conference of the Parties to the UNFCCC epitomizes the stalling of international negotiations on climate change mitigation and adaptation. In the grim days of climate change governance, the literature tends to neglect ethical arguments on the responsibility of polluting states. Rather, it turns to a desperate quest for 'whatever works'. This article addresses the development of a discipline round an emerging regime. It reviews in particular the principled approaches of climate governance, doctrinal analyses on mitigation, the shift from 'enforcement' to 'facilitation' and to 'liability', the fragmented governance of adaptation in the human rights, development and migration regimes, and innovative scholarship on the transnational regime complex concerning climate change.
  • Topic: Climate Change, Human Rights, International Law
  • Author: Monika Zalnieriute
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: While international law and political science disciplines were quite distant from one another for most of the past century, they have come closer to 'rediscovering' each other numerous times during the last two decades. The growing intersection between the two has been scrutinized, analysed, and promoted by many international law and international relations pioneers. The present collection brings together the leading scholars writing at the crossroads between the two disciplines to consider and reflect on the current state of interdisciplinary international law and international relations scholarship. The result is a book of high calibre that is not only essential, but also very delightful and enriching reading for scholars and students of international law and international relations.
  • Topic: International Law
  • Author: Ana Filipa Vrdoljak
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The protection of minorities in modern international law is intimately connected with and fuelled the recognition of the crimes of persecution and genocide. Minority protection represented the proactive component of the international efforts to ensure the contribution of certain groups to the cultural heritage of humankind. Prohibition and prosecution of persecution and genocide represented the reactive element of these same efforts. The restitution of cultural property to persecuted groups by the international community was recognition that their ownership and control of these physical manifestations was necessary for the realization of this purpose. In this article, I consider the emergence, contraction, and revival of the interconnection between minority protection, the prevention and punishment of genocide, and the protection and restitution of cultural heritage over the last century-long development of international law. It is argued that the central aim driving and interweaving these initiatives is the effort to ensure the continuing contribution of each group to the cultural heritage of all humanity.
  • Topic: Development, International Law
  • Author: Siegfried Wiessner
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The novel international legal regime of the rights and status of indigenous peoples has emerged in direct response to the concerted efforts and demands of indigenous communities regarding the survival and the flourishing of their distinct cultures. Its high point, as of yet, has been the 2007 UN Declaration on the Rights of Indigenous Peoples, now enjoying virtually universal support. This article locates the regime of the Declaration within post-World War II value-oriented international law; it highlights its novel, essentially communal rights to culture, self-determination, and land; and it assesses its content within existing sources of international law. It ends with an appraisal of the progress made, and an evaluation of the challenges ahead.
  • Topic: International Law, United Nations, Culture
  • Author: Sandesh Sivakumaran
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The regulation of internal armed conflict by international law has come a long way in a very short space of time. Until the early 1990s, there were a minimum of international law rules applicable to internal armed conflict. Today, the situation has changed almost beyond recognition with a healthy body of international law applicable to internal armed conflict. This change has taken place in three principal ways – through analogy to the law of international armed conflict, through resort to international human rights law, and through the use of international criminal law. Each of these approaches stressed its similarity to internal armed conflict or to international humanitarian law. They proved immensely important, filling in what was a more or less blank canvas. However, there are limits to how far they can take us. Today, the canvas is no longer blank and a step back is needed in order to assess the existing state of affairs. Focusing not on the similarities between international and internal armed conflicts or between the various bodies of international law, but on their differences, will allow us to ascertain what further work is in order. It will allow us to identify gaps in regulation and refine relevant rules. It will also force us to re-think our approach to particular issues. Only in this way will we be able to develop the international law of internal armed conflict further.
  • Topic: Government, Human Rights, International Law
  • Author: Gabriella Blum
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The prevailing view of the form which the effort to regulate non-international armed conflicts should take has been summarized by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić interlocutory appeal on jurisdiction: '[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife'.This mirroring approach of emulating the laws applicable in international armed conflicts in the non-international context was subsequently adopted by the drafters of the Rome Statute of the International Criminal Court in 1998; the drafters chose to include a list of war crimes applicable in cases of non-international armed conflicts which resembled (though was still narrower than) the list of crimes applicable in international conflicts. The recent Kampala ICC review conference expanded the non-international crimes list, further narrowing the gap between the 'international' and the 'non-international' lists of crimes.Taking a similar position, the 2005 study on customary international humanitarian law (IHL) published by the International Committee of the Red Cross concluded that all but a handful of the rules identified as customary applied in international and non-international armed conflicts equally.Given the traditional resistance by states to assuming the same degree and range of constraints which apply in international armed conflicts in internal ones, humanitarian advocates have sought to advance the regulation of internal armed conflicts by supplementing IHL with norms borrowed from international criminal law (ICL) and international human rights laws (IHRL). The resulting international law of internal armed conflicts has thus been a patchwork of norms which ostensibly apply to all non-international armed conflicts, drawn from the IHL of international conflicts, ICL, and IHRL, often proving to be incoherent, unworkable, and ineffective. Sandesh Sivakumaran's contribution to this volumetakes a critical view of the path …
  • Topic: Development, Government, International Law
  • Author: Sandesh Sivakumaran
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I am grateful to Professor Gabriella Blum for her thoughtful response to my article. Blum's response invites further consideration of three principal issues. She notes my use of the terminology of 'internal' as opposed to 'non-international' armed conflict and its juxtaposition with 'international' armed conflict and queries whether my 'methodological approach as well as specific suggestions would remain equally compelling in other types of non-international armed conflicts'. The choice of terminology was deliberate. I find the descriptor 'non-international' to be somewhat misleading as it unhelpfully defines the category by what it is not. It suggests that there is but one armed conflict and, if it is not international in character, by default it is non-international. However, in practice, an internal/non-international armed conflict is identified in a rather different manner. For example, in order for an internal/non-international armed conflict to exist, the violence must reach a certain level of intensity; yet, for an international armed conflict to exist one dominant view is that there is no such requirement. The category of internal/non-international armed conflict is thus in no way a default category which serves to catch those conflicts which are excluded from the international category. Yet this is what is suggested through the use of the terminology of 'non-international' armed conflict. What the terminology of 'internal' may suggest is that it is limited to those conflicts which are fought entirely within the territorial boundaries of a state. However, even this may be true only up to a certain point. For example, an internal armed conflict with a certain overspill, such as onto the high seas or into the territory of a third state, is still characterized as an internal …
  • Topic: Government, Human Rights, International Law
  • Political Geography: Sri Lanka
  • Author: Ingo Venzke
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The concept of global governance epitomizes transformations in the structure of political organization and highlights changes in the ways in which public authority is exercised. Times of change invite scholars to contemplate the plausibility of orthodox beliefs and doctrinal concepts. They push them towards innovation and there is indeed a strong sense among international lawyers that the terms of debate about the legitimacy of international law are shifting. A number of contributions over the past years have tried to respond to the challenges which phenomena of global governance pose to international legal scholarship. 1 The mounting wealth of literature now comes to speak in Steven Wheatley's book on The Democratic Legitimacy of International Law in which he calls on the legal profession to engage with questions of first principle, to reflect on the nature of international law, and to consider in closer detail the justification of legal constraints beyond the state. The book's main argument is at the outset rather straightforward. Wheatley observes a proliferation of sites of norm production and argues that the delegation of authority to international or transnational actors inevitably involves a loss for democracy. To remedy this deficit, he suggests restating requirements for democratic legitimacy in terms of the deliberative ideal as it is developed in the work of Jürgen Habermas. The book claims the use of Habermas' thought as its innovative edge, and develops its core argument accordingly. '[T]he legitimate exercise of public authority through law', it claims, 'is conditioned by respect for the cardinal principles of deliberative democracy: equality and public reason' (at 2). The book begins by taking stock of accounts suggesting that state sovereignty has lost its plausibility as an exclusive reference point in normative argument. While the grand variety of approaches under discussion converge in agreement on the facts of what …
  • Topic: International Law, Governance
  • Author: Jean Allain
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: One would expect no less from this study of contemporary forms of slavery by Emmanuel Decaux than that it identifies the fundamental puzzle at the heart of legal issues surrounding human exploitation, namely, that: there is a permanent contradiction between the successive attempts focused on 'slavery in all its forms' as well as 'the practices and institutions similar to' – which are at the heart of international instruments, and the programmes of action of international organisations and non-governmental organisations –; and the criminal law approach which requires a precise definition to incriminate; either domestically, in the name of the determinacy of the crimes and of the penalty, or internationally to allow for criminal cooperation. 1 It is to this fundamental paradox that Decaux devoted his attention during his lectures at The Hague Academy of International Law in 2008. These lectures were published in The Collected Courses of the Hague Academy series and were also reproduced as part of a pocketbook series. 2 The beauty of considering studies written in another language is to liberate oneself from assumptions – the given starting and end points of argument, and the continuity of well established discourses. If nothing else, surveying works in other languages opens the possibility of new revelations and discoveries – even for the most seasoned expert in an area – which come from narratives forged, in this case, in Paris, as opposed to a London or a Washington. With this in mind, Les formes contemporaines de l'esclavage does not disappoint. More so than in a monograph, the chapters of a study emanating from the Hague Academy stand alone, as each originates in a public lecture and thus must stand on its own merits. In seeking to work beyond the fundamental contradiction related to issues of human exploitation, the approach which …
  • Topic: Government, International Law, Non-Governmental Organization
  • Political Geography: Washington, London
  • Author: Mirko Sossai
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The renewed interest in the law of belligerent occupation probably reached its peak in 2009, when various monographs were published by distinguished authors as well as by younger scholars. The book under review originated from a doctoral thesis defended by Andrea Carcano at the University of Milan. His investigation focuses on the 2003 occupation of Iraq as the ideal test-case to verify whether the existing legal regime is adequate to address the challenges posed by present-day scenarios, including Afghanistan, Congo, and the Arab–Israeli conflict. The book is divided into three parts. The first one comprises two chapters, which present respectively the legal framework of belligerent occupation and the other applicable norms of international law. Chapter I takes a historical perspective on the legal concept of occupation, which the author considers functional to the subsequent analysis for two main reasons: to investigate the underlying values guiding the development of the law of belligerent occupation; and to compare current theories regarding the role of the law in such a situation with similar arguments upheld in the past (at 13). Carcano identifies three epochs, which modelled different concepts of occupation. The first one is valid until the Modern Age and is influenced by the Roman law tradition: occupation is considered as 'conquest and exploitation of the territory'. The modern notion of occupation, defined as 'administration and effective control', emerged during the 18th century, at the time of the consolidation of sovereign states in Europe. Whereas Vattel had already in theory identified the differentiation between sovereignty and private ownership, it was August Heffter, a century later, who first recognized the legal implications of the distinction between occupatio bellica and debellatio (at 24). Finally, the last model is that of the occupation as 'transformation': Carcano identifies it as 'a military action aimed at the radical …
  • Topic: Development, International Law
  • Political Geography: Afghanistan, Europe, Israel, Paris, Arabia
  • Author: Nehal Bhuta
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this symposium, we publish Jeremy Waldron's article, 'Are Sovereigns Entitled to the Benefit of the Rule of Law?' together with four responses, by Samantha Besson, David Dyzenhaus, Thomas Poole and Alexander Somek. Waldron is justifiably renowned as a jurisprude and theorist of the concept of the rule of law. His engagement with international law is more recent, but no less significant. In this article, he takes a familiar (perhaps even tired) question among international lawyers – can there be something akin to a rule of law in international affairs? – and recasts how we ought to think about it. With characteristically deft and plain-speaking arguments, Waldron burrows to the heart of the issue: What might it mean to speak of an 'international rule of law,' and who or what are properly understood as its beneficiaries? Waldron leads us first along a familiar path: the absence of a sovereign of sovereigns puts into …
  • Topic: International Law
  • Author: Thomas Poole
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Two analogies lie at the core of Professor Waldron's article. The first is the claim that the standard analogy by which the state in international law is like the individual in domestic law is misleading; the state in international law is more like a government agency in domestic law. The second is that international law is (or is like) a species of public law and should be treated as such by domestic legal systems. I examine both claims, arguing (a) that even if we accept the first analogy it does not get us to the deeper levels of respect and commitment to international law that Waldron argues for, and (b) that the 'floating normativity' inherent in the second claim leads Waldron to overlook the specific organizational and structural conditions of international law. This leaves Waldron's position weakest where it should have most to offer: namely, in instances where our commitment to international law on one hand and the rule of law on the other seem to pull in opposite directions.
  • Topic: International Law, Sovereignty
  • Author: Samantha Besson
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In my reply to Jeremy Waldron's article 'Are Sovereigns Entitled to the Benefit of the International Rule of Law?', I draw upon and in some ways expand Waldron's important contribution to our understanding of the international rule of law. First of all, I suggest that Waldron's argument about the international rule of law can be used to illuminate how we should understand the legitimate authority of international law over sovereign states, but also how some of sovereign states' residual independence ought to be protected from legitimate international law. Secondly, I argue that the democratic pedigree of the international rule of law plays a role when assessing how international law binds democratic sovereign states and whether the international rule of law can and ought to benefit their individual subjects. Finally, I emphasize how Waldron's argument that the international rule of law ought to benefit individuals in priority has implications for the sources of international law and for what sources can be regarded as sources of valid law.
  • Topic: International Law, Sovereignty
  • Author: Jeremy Waldron
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Some of the points made in these comments presuppose that I have a more radical agenda than in fact I have. In this article, I wanted to reorient our understanding of the national state's position in international law, from that of subject to that of source and agency of that legal system, and I wanted to explore the implications of this reorientation for our understanding of the rule of law in the international realm. This reorientation of course requires us to take international law seriously. But it does not necessarily require any particular philosophical view of the relation between international law and national law. 1 In particular it does not direct us to any sort of jurisprudential monism (although it is not incompatible with monism). I think it is quite compatible with a dualist view of the relation between international and national law (not that it commits us to dualism either). It simply assigns the state a somewhat different role from that conventionally assigned in dualist theories. My analysis implies that some of what we would call national state and legal functions can (and should) sometimes be conceived as functions of the international legal system. When a state patrols its borders, for example, it is acting in part as an agency of the international refugee regime. 2 But the exercise of any given legal function can be understood in multiple ways. As I …
  • Topic: International Law
  • Author: Pierre-Marie Dupuy
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: René-Jean Dupuy and Wolfgang Friedmann were good friends and for a large part shared a common vision of how post-World War II international law was structured and the ways in which it was evolving. It is worth comparing their respective views as they reflect the way in which a generation of international lawyers perceived in particular the impact of international organizations on modern international law seen as a true international legal order. Although influenced by the ideas of that period (the 1960s and 1970s), the views of these two great 'men of vision' remain of immense interest for the present and for times to come.
  • Topic: International Law
  • Author: Alix Toublanc
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: R.-J. Dupuy's works are based on a dialectical approach to international law which integrates the inner strife and the various antagonisms that beset the 'terrestrial city'. Nevertheless he refused Hegel's dialectic which opposes thesis and anthithesis to produce a sterile synthesis and leads to rigidity. On the contrary, Dupuy's 'open dialectic' is based on the rejection of mechanistic and deterministic philosophies, and his description of the terrestrial city is dynamic, perpetually confronting opposite points of view through the eyes of the 'Captain', the 'Surveyor', and the 'Poet' symbolizing the need for order, for change, and for transcendence.
  • Topic: International Law
  • Author: Evelyne Lagrange
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: If the thoughts of René-Jean Dupuy had to be reduced to an expression, it would be his method of 'open dialectic' applied to international law and society which enabled him to highlight the dynamic opposition of 'relational' and 'institutional' international trends in an impressive array of short surveys and ambitious synthesis. This article first aims to remind readers of the accuracy of Dupuy's comprehensive approach to international law and society, in that he never disregarded the meaning of rules and institutions for actors – mainly political ones – the underlying values and justice considerations or even myths beyond technical rules or political antagonisms. But it does not suffice to celebrate the visionary and rhetorical skills of Dupuy. His contribution to the methodology of international law has to be assessed. Did he build up a new paradigm? Considering some incertainties in the method of open dialectic and some shortcomings in his core concepts (inter alia a quite static conception of sovereignty), it may be doubted.
  • Topic: International Law, Sovereignty
  • Author: Julien Cantegreil
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic awards refer to concession contract provisions and a political context that are now obsolete. Thus, this article argues on the one hand that the award on the merits, delivered in January 1977, provides an unparalleled opportunity to survey almost every facet of the world of international investment arbitration of the past. On the other hand, the award must nevertheless also be read as forward-looking. By fostering a shift from the traditional hegemony of national jurisdiction in international investment law to the internationalization of international contracts, the article underlines that the award on the merits remains the finest example of René-Jean Dupuy's long-lasting contribution to international law doctrine. By way of conclusion, it suggests that it provides the very best expression and point of entry into Professor Dupuy's understanding and shaping of what he coined 'la communauté'.
  • Topic: Government, International Law
  • Political Geography: Asia, Libya, California, Arabia
  • Author: Steven Wheatley
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the way in which we should make sense of, and respond to, the democratic deficit that results from global governance through international law following the partial collapse of the Westphalian political settlement. The objective is to evaluate the possibilities of applying the idea of deliberative ('democratic') legitimacy to the various and diverse systems of law. The model developed at the level of the state is imperfectly applied to the inter-state system and the legislative activities of non-state actors. Further, regulation by non-state actors through international law implies the exercise of legitimate authority, which depends on the introduction of democratic procedures to determine the right reasons that apply to subjects of authority regimes. In the absence of legitimate authority, non-state actors cannot legislate international law norms. The article concludes with some observations on the problems for the practice of democracy in the counterfactual ideal circumstances in which a plurality of legal systems legislate conflicting democratic law norms and the implications of the analysis for the regulation of world society.
  • Topic: International Law
  • Political Geography: Westphalia
  • Author: Jean d'Aspremont
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Although going down a different path, this article reaches similar conclusions to those formulated by Susan Marks. It starts by showing that the years 1989–2010 can be hailed as an unprecedented epoch of international law during which domestic governance came to be regulated to an unprecedented extent. This materialized through the coming into existence of a requirement of democratic origin of governments which has been dubbed the principle of democratic legitimacy. However, this article argues that the rapid rise of non-democratic super-powers, growing security concerns at the international level, the 2007–2010 economic crisis, the instrumentalization of democratization policies of Western countries as well as the rise of some authoritarian superpowers could be currently cutting short the consolidation of the principle of democratic legitimacy in international law. After sketching out the possible rise (1) and fall (2) of the principle of democratic legitimacy in the practice of international law and the legal scholarship since 1989, the article seeks critically to appraise the lessons learnt from that period, especially regarding the ability of international law to regulate domestic governance (3) and the various dynamics that have permeated the legal scholarship over the last two decades (4). In doing so, it sheds some light on some oscillatory dynamics similarly pinpointed by Susan Marks in her contribution to this journal.
  • Topic: International Law
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Given the promised September UN move by the Palestinian Authority it is of interest to recall some of the circumstances surrounding the birth of Israel. There are some interesting historical parallels and some differences. In public opinion and Hollywood movies, Israel was born with a UN midwife: UNGA Resolution 181, the famous Partition Resolution of 29 November 1947 (http://www.youtube.com/watch?v=ZpNpueivtWQ). The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! 'De Facto Solidarity' was not, apparently, invented with the Schuman Declaration.
  • Topic: International Law
  • Political Geography: Palestine, Jerusalem
  • Author: Rafael Domingo
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Emer de Vattel (1714–1767), in his influential work The Law of Nations, established a new international statist paradigm which broke with the classical partition of the law into the three realities of 'persons, things and actions' (personae, res, actiones). This new paradigm substituted the state for the person, downgraded the generic concept of 'things' to the obligations among states in their relations, and changed the focus of the concept of 'action' to that of 'war' as a legal remedy to resolve conflicts between and among states. This international paradigm (or statist paradigm) has survived almost up to our time in international praxis. Nonetheless, today the statist paradigm appears to be in every way insufficient, since it does not consider humanity as a genuine political community, nor does it reflect the three-dimensionality of the global law phenomenon. The transformation of the law that governs our international community (international law) into a law that is capable of properly ordering the new global human community (global law) demands the creation of a new paradigm, originating in the following conceptual triad: global human community, global issues, and global rule of law. In the construction of this new global paradigm, cosmopolitan constitutionalism could play a key role.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Monique Chemillier-Gendreau
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The changes which have occurred in the world and the failure of the mechanism of collective security oblige lawyers to open a new critical approach to international law. In this context, it is important to come back to the French movement known as Critique du droit, and more especially to the work produced in the Reims Colloquia under Professor Chaumont's authority. This theoretical contribution points out the link between the norms of law and the concrete conditions of their formation. It considers the compulsory nature of norms as a result of a compromise between several contradictions, and by doing so, it opens a new window on the understanding of law. But, today, this theory has to be completed by a deeper analysis of the concept of sovereignty. The consequence of this core concept is the contractual nature of most norms of international law. It is quite impossible to build a universal international law, the emergence of general imperative norms being hitherto too weak. International law, dominated by sovereignty, is inadequate to protect world society.
  • Topic: International Law
  • Author: Christian J. Tams
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In their 'mission statement', the European Journal's founding editors announced the launch of an occasional focus section devoted to the work of international lawyers who stood for particular aspects of the 'European Tradition in International Law', rather boldly set in the singular. Previous focus sections have assessed the continuing relevance of (and typically celebrated) the likes of, for example, George Scelle, Roberto Ago, Alfred Verdross, Hans Kelsen, and Max Huber.
  • Topic: International Law
  • Political Geography: Europe
  • Author: Mónica García-Salmones
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In this article I discuss four pacifist traditions in international law in play during the 20th century, in the context of the Symposium on Walther Schücking. The article addresses the fact that these pacifist traditions have contributed to shaping the way in which we view international law today and how we understand our current world. Essentially, we see the globe as an entity legally organized through treaties, international courts for dispute settlement, and international organizations with worldwide jurisdiction. The science of law tries, with difficulty, to grasp all these phenomena in a unitary manner. Moreover, pacifism has influenced our choice of legal techniques. At the core of the pacifist traditions lies the wish of a group of pacifist intellectuals, among them Walther Schücking, to achieve a peaceful transition to what they viewed as an unavoidable state of economic interdependence on a global scale. Their specific purpose was peace – 'peace through law'. Beyond that, it occurred to almost none of them to question the beneficial aspects of their internationalist projects and the economic interdependence behind them. Peace was raised then to the level of the highest good. Who would dare dethrone it? This article suggests that we live in an era of pacifist international law. The article also takes the approach that the very existence of a variety of pacifist traditions shows that political pluralism may coexist with pacifism. Peace is indisputably a common good and pacifism does not necessarily prevent politics from continuing to flourish.
  • Topic: International Law
  • Author: Ole Spiermann
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In 1930, it was seen as critical by many to have a German jurist elected to the bench of the Permanent Court of Justice, and this was indeed achieved by the election of Walther Schücking. It may seem a paradox that in the following years where, in many cases, the Permanent Court exercised self-restraint and embraced arguments based on state sovereignty, probably the greatest supporter of notions of international organization and community to be associated with the work of the Permanent Court, namely Walther Schücking, occupied a permanent position on the bench. But then his 'optimism' was simply an extrapolation of the state on to the international level, leaving key values such as state sovereignty essentially unaffected. The interest in Schücking's contributions to the work of the Permanent Court lies not least in the fact that, even today, many lawyers approach international law in manners similar to his.
  • Topic: International Law, International Organization
  • Political Geography: Germany
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Roaming Charges, a new feature of EJIL, is aimed at enhancing the 'book experience' – a moment of reflection as well as aesthetic pleasure disconnected from any specific research interest and the usual cerebral activity of reading a learned article. It will feature different locales or scenes from around the world, which, in their way, have something to say – without words – about our present condition. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – the title of this feature 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 photographs. Take a moment – enjoy, reflect. If you are online, pause before the next click.
  • Topic: International Law
  • Author: Ronagh McQuigg
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the question of how states have responded to the comments of the United Nations Committee against Torture through an analysis of eight Western European states. It is concluded that the Committee's recommendations have had a substantial impact in four of the states surveyed, however only a limited effect in two other states, and little or no impact in the two remaining states. These findings lead to concerns as regards the effectiveness of the Committee against Torture. The article focuses on the Concluding Observations made by the Committee on the reports submitted by the states in question.
  • Topic: International Law
  • Political Geography: Europe, United Nations
  • Author: Stefano Piedimonte Bodini
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court's approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.
  • Topic: Human Rights, International Law
  • Political Geography: Europe
  • Author: Dapo Akande, Sangeeta Shah
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: We are grateful to Alexander Orakhelashvili for engaging with the points we make in our recent EJIL article on immunity and international crimes.1 He has written widely on this issue and his view that international law immunities are not available in judicial proceedings for violations of jus cogens norms is well known. In our article, we disagree with that view and show why that understanding of the relationship between jus cogens norms and international law immunities is untenable. However, it would be wrong to say, as he says, that we 'attack' his views (or indeed those of others who share that same perspective). There is, we believe, a reasonable disagreement of view. As is well known, international law provides two types of immunity for state officials from the jurisdiction of foreign states. The first type are 'status' immunities ('personal' immunities or immunities ratione personae) and the second is an 'official act' immunity ('functional' immunity or immunity ratione materiae). In our view, international law confers two types of 'status' immunity: the first type is limited to foreign heads of state and heads of government; it is absolute and applies even in cases alleging international crimes and even where the individual is abroad on private visit. The second type of immunity ratione personaeapplies only to those abroad on special mission (and therefore in the host state with its consent) and only for the duration of such mission. This special mission immunity is also applicable in cases concerning international crimes. However, we argue that the immunity ratione materiaewhich international law confers on those who perform official acts on behalf of the state will not be avail-able in cases where the act amounts to an international law crime. This is not because international crimes may not be official acts, or indeed because of any conflict with jus cogensnorms, but rather because of a different type of conflict of norms. There will be no immunity in these cases because international law rules and practice confer extra-territorial jurisdiction over such acts of state officials that are co-extensive with the immunity, or, alternatively, the rules conferring jurisdiction contemplate jurisdic-tion over official conduct.
  • Topic: International Law
  • Author: Stephan W. Schill
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Few international legal fields have seen an increase in literature over the past decade as steep as international investment law. This reflects the growing interest in practice and academia in what is probably not only the most dynamic area of international law but also one with significant impact on domestic law and policy-making. What is striking, apart from the sheer enormity of writing, however, is the changes the discourse on international investment law has undergone. Focus, topics, conceptual and methodological approaches, authorship, and audiences of the present literature differ significantly from that of the turn of the millennium. This reflects both an evolution in the law itself and changes in the professional, political, and institutional practices and communities involved. The literature on international investment law thus is a reflection of the sociological dimension of a discipline that until recently was the province of a small group of specialists and now is rapidly moving mainstream.
  • Topic: International Law, Sociology
  • Author: Dr. Andreas Kulick
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The science of international law can no longer be content with the analogous application of private law categories. It must search the entire body of the 'general principles of law recognized by civilized nations' for proper analogies. With the growing importance of international legal relations between public authorities and private legal subjects, public law will be an increasingly fertile source of international law.
  • Topic: International Law
  • Author: Jaye Ellis
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article explores the source 'general principles of international law' from the point of view of comparative law scholarship. The currently accepted definition of general principles and methodology for identifying such principles are critiqued. The criterion of the representativeness of the major families of legal systems, to which courts and tribunals tend to pay lip service rather than applying rigorously, is meant to anchor general principles in state consent, but is not a sound technique either for identifying principles of relevance to international law or for preventing judges from referring only to the legal systems they know best. Further - more, the emphasis on extracting the essence of rules results in leaving behind most of what is interesting and useful in what judges may have learned by studying municipal legal systems. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law.
  • Topic: Human Rights, International Law
  • Political Geography: Sri Lanka
  • Author: Anastasios Gourgourinis
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article takes issue with certain fundamental aspects of the fragmentation analysis by addressing the normative underpinnings of the proposition that international law is structured as a legal system. To this end, focus is had on the unitary character of the general/particular international law and primary/secondary rules terminology, as normative differentiations to the international legal system (the 'whole'), by virtue of the residual (default) applicability of the sets of norms they denote. Ergo, on the one hand, the doubts expressed by the ILC Study Group on Fragmentation concerning the allegedly obscure meaning and scope of the term 'general international law' are dispelled by demonstrating that the term indeed signifies the set of international legal norms binding erga omnes; on the other, the article elaborates on the crucial role of the distinction between primary and secondary norms for the proper operation of lex specialis, focal to the fragmentation analysis. Overall, the pertinence of the general/particular international law and primary/ secondary norms termini technici in international adjudication supports the view that the international legal system is indeed equipped with the proper normative tools to cope with the challenges set by fragmentation.
  • Topic: International Law
  • Author: Marco Dani
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In FIAMM and Fedon the European Court of Justice has ruled that Community firms hit by US trade sanctions authorized by the WTO Dispute Settlement Body are not entitled to compensation from EC political institutions. The article discusses the cases in the background of current debates on the attitude of the Court of Justice towards international law and, more broadly, on European legal pluralism. From this standpoint, it provides a critical assessment of the legal issues involved in this litigation – internal status of WTO obligations, scope for manoeuvre of EC political institutions in international trade relations, liability for unlawful and lawful conduct – and offers a comparative analysis of its possible solutions, suggesting that a finding of liability for lawful conduct would have been a preferable outcome in both theoretical and substantive terms.
  • Topic: International Law
  • Political Geography: United States, Europe
  • Author: Santiago Villalpando
  • Publication Date: 05-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article uses the emergence of the protection of community interests in international law as a theoretical framework to explain a number of legal notions and regimes, such as jus cogens, obligations erga omnes, international responsibility towards the international community as a whole, and individual criminal responsibility. With reference to various international conventions, the work of the International Law Commission, and the case law of different international tribunals, it describes how changes in social intercourse at the global level have entailed structural transformations of the international legal order, as well as tensions caused by the concurrent legal protection of community and individual interests. The article further explains how the proposed theoretical framework may be used to address several concrete issues which have arisen in the contemporary legal debate, such as the question of exceptions to the immunity of state officials from foreign criminal jurisdiction, countermeasures by states other than the injured state in international responsibility, the legal regime of jus cogens, etc.
  • Topic: International Law
  • Author: Paola Gaeta
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This symposium comprises the contributions presented by five distinguished international lawyers at the European University Institute in Florence in October 2008 on a very special occasion. Antonio Cassese ('Nino' to his friends and colleagues) had recently celebrated his 70th birthday and, as is customary in many European countries, a group of his former students and friends chose this occasion to celebrate his academic and professional career with the publication of a selection of his most important writings on the three branches of public international law he has most influenced – international humanitarian law, international human rights law, and international criminal law. The outcome was a book, The Human Dimension of International Law, published in summer 2008 by Oxford University Press, the intention of which is to shed light on Nino's intellectual approach to these three areas of public international law. The publication of this volume also provided an excellent occasion to convene a small number of friends and colleagues as a token of appreciation and admiration for his many achievements as an international lawyer. As Nino shies away from any personal limelight (indeed, I am certain he will be troubled by these few lines about him), it was decided that this meeting at the …
  • Topic: International Law
  • Political Geography: Europe
  • Author: Giorgio Gaja
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, any state to which an erga omnes obligation is owed may claim reparation in the interest of an individual who is the victim of an infringement and the beneficiary of the obligation. The ILC Articles on Diplomatic Protection should have specified that also the state of nationality may seek reparation only in the interest of the injured individual when his or her rights have been infringed.
  • Topic: International Law
  • Author: Andrew Clapham
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This contribution reminds us that as individuals we play a role in the formation and understanding of international law. After recalling the key steps in the acknowledgement of international rights and obligations for individuals the article goes on to ask if the time has come to acknowledge that individuals can have obligations under international law that go beyond international crimes. In other words might there be international civil law obligations for the individual?
  • Topic: International Law
  • Author: Luigi Condorelli
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The author presents various critical comments on several developments of international law in fields which have been particularly studied and practised by Antonio Cassese. Some final reflections focus on the question whether international lawyers can realistically cherish feelings of optimism as to the development of international law in a humane direction, or whether instead the study of the past and the present ought not rather to impel one towards disillusioned pessimism.
  • Topic: Development, International Law
  • Author: B.S. Chimni
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article offers an introduction to a class approach to international law. It challenges the 'death of class' thesis and argues for the continued relevance of the category of 'class'. Among other things, the contention is that the category of 'class' subsumes without erasing the gender and race divides. Noting the emergence of a global social formation the article claims that a transnational capitalist class is shaping international laws and institutions in the era of globalization. It calls for the linking of the class critique of contemporary laws and institutions with the idea and practices of resistance, and considers in this setting the meaning of internationalism and class struggle today for an emerging transnational oppressed class. The article concludes by schematically outlining the advantages of a class approach to international law.
  • Topic: Globalization, International Law
  • Author: Katherine Del Mar
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article argues that the notion of 'belonging to a Party' to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of 'belonging' demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state's behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to 'belong' under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as 'international'. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.
  • Topic: International Law
  • Political Geography: Yugoslavia
  • Author: Roozbeh (Rudy) B. Baker
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article will survey the new non-traditional scholarship which has emerged in international law to challenge the two long-established sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer are. The new question, the new debate, will be over what the implications of this shift in the traditional building blocks of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national (domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years the jurisprudence of these international tribunals has, aside from finding its way into customary international law, also begun to seep into the domestic (mainly criminal) law of several countries.
  • Topic: International Law
  • Author: Lindsey Cameron, Rebecca Everly
  • Publication Date: 02-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article reviews five major recent works on the phenomenon of the administration of territory by international actors. Covering both legal and policy elements of the works, it delves into how the scholars treat the purported legitimacy deficit often associated with this activity. It then addresses the authors' approaches to the key international law questions, including the legal status of internationally administered territories, the legal basis for administration, the legal framework governing administrators' acts, and, finally, the accountability of the international actors involved.
  • Topic: International Law
  • Author: J.H.H. Weiler
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Several interconnected factors call for a re-examination of treaty interpretation. I will mention only three of many. First is the much noted – and contested – notion of fragmentation of international law. Here the focus is on the emergence of different regimes, self-contained or otherwise, which manage different jurisdictions and confront different materials. One important question which follows is, do they or should they all share a similar hermeneutic?
  • Topic: International Law
  • Author: Leena Grover
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article seeks to initiate a dialogue within international criminal law (ICL) on treaty interpretation. The state of the art is reviewed and three fundamental interpretive dilemmas are identified and analysed. In the author's view, these dilemmas need to be addressed before a method of interpretation for crimes in Articles 6, 7, and 8 of the Rome Statute of the International Criminal Court can be formulated and operationalized. The 'normative dilemma' highlights how the normative tensions underlying ICL might be perpetuated by the interpretive imperatives in Articles 21(3) and 22(2) of the Rome Statute. The 'interpretive aids dilemma' concerns the respective roles of the Elements of Crimes and custom as aids to interpreting crimes in the Rome Statute. The 'inter-temporal dilemma' pertains to whether these crimes are 'frozen' or are to be interpreted in light of relevant and applicable legal developments. Throughout, the aforementioned dilemmas are grafted onto Article 31 of the Vienna Convention on the Law of Treaties to illustrate that they are, at their core, universal problems of interpretation.
  • Topic: International Law
  • Political Geography: Vienna