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  • Author: Jan Klabbers
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The theory of functionalism dominates the law of international organizations, explaining why organizations have the powers they possess, why they can claim privileges and immunities, and often how they are designed as well. Yet, the theory of functionalism is rarely spelt out in any detail, and its origins have remained under-explored. The purpose of the present article is to outline how functionalism came about by focusing on the 'pre-history' of international institutional law. To that end, the article studies the work of a number of late 19th, early 20th century authors on the law of international organizations, paying particular attention to the writings of Paul Reinsch. It turns out that functionalism, as developed by Reinsch, was inspired by his familiarity with colonial administration: colonialism and international organization both manifested cooperation between states. While this is no reason to discard functionalism, it does provide an argument for viewing international organizations more critically than functionalism habitually does.
  • Topic: Law
  • Author: Stéphanie Dagron
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Lawrence O. Gostin's new book begins with the sentence '[t]his is a unique moment to offer a systematic account of global health law' and he is right. The book under review is published at a time when the most influential international institutions are emphasizing the necessity for multilateral cooperation in the field of public health. For example, the United Nations General Assembly (UNGA) addresses this point in its current deliberations on the post-2015 Millennium Development Goals Agenda. Contemporary globalization has irrevocably made borders porous to capital, services, goods, and persons. Global social, economic, and political changes, such as increasing industrialization, urbanization, environmental degradation, migration, drug trafficking, and the marketing strategies of transnational corporations (e.g., in the food, pharmaceutical, and tobacco industries) have a significant impact on health. This impact is transnational and intersectoral: global health hazards go beyond the control of individual nation states and extend beyond the restricted field of health care.
  • Topic: Economics, Health, Migration, United Nations, Food, Law
  • Author: Birgit Lode
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Already back in 1987 the Brundtland report by the World Commission on Environment and Development stressed that '[n]ational and international law is being rapidly outdistanced by the accelerating pace and expanding scale of impacts on the ecological basis of development'. Since then international environmental law regimes have multiplied and an up-to-date introduction to the constantly evolving field of international environmental law is very welcome, not least due to the lack of equally concise alternatives in the introductory literature. Aimed at filling this gap, Timo Koivurova with his Introduction to International Environmental Law chooses an approach well suited to the student readers he primarily intends to address. The book dispenses with footnotes, tables of treaties, and a comprehensive bibliography. Instead, a manageable number of endnotes accompany each chapter, preceded by a set of questions and research tasks, and followed by suggestions for further reading and websites addressing the respective topics. Thereby, the subject matter is presented in the most general fashion possible without making concessions to the scientific nature of the book, allowing '[i]nternational environmental law and politics [to] speak for themselves' (at xix). Moreover, in order to make the information provided easily accessible and comprehensible by a broad range of readers the book includes several boxes going into more detail on, e.g., specific cases, conventions, institutions, or environmental disasters. It illustrates topics and sometimes presents them from a different angle by adding photographs and figures, clarifying essentials as well as sparking the readers' imagination.
  • Topic: Environment, Politics, Law
  • Author: J.H.H. Weiler
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Fifty years have passed since the European Court of Justice gave what is arguably its most consequential decision: Van Gend en Loos. The UMR de droit comparé de Paris, the European Journal of International Law (EJIL), and the International Journal of Constitutional Law (I•CON) decided to mark this anniversary with a workshop on the case and the myriad of issues surrounding it. In orientation our purpose was not to 'celebrate' Van Gend en Loos, but to revisit the case critically; to problematize it; to look at its distinct bright side but also at the dark side of the moon; to examine its underlying assumptions and implications and to place it in a comparative context, using it as a yardstick to explore developments in other regions in the world. The result is a set of articles which both individually and as a whole demonstrate the legacy and the ongoing relevance of this landmark decision.
  • Topic: Development, Law
  • Political Geography: Europe
  • Author: Morten Rasmussen
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This is the abstract only. The full article is published in Int J Constitutional Law (2014) 12 (1): 136–163 doi:10.1093/icon/mou006 Did the famous Van Gend en Loos judgment constitute a breakthrough for a constitutional practise in European law or was it merely drawing the logical legal consequences of earlier case law and of the Treaties of Rome? Based on comprehensive archival studies, this article argues that neither earlier case law nor the Treaties of Rome can fully account for the judgment. Instead, Van Gend en Loos represented a genuine revolution in European law. Prompted by the legal service of the European Commission, the European Court of Justice (ECJ) took a decisive step towards addressing two major problems of international public law, namely the lack of uniform application of European law by national courts across the six member states and the lack of primacy granted to international law in several member states. The judgment was based on a new teleological and constitutional understanding of the Treaties of Rome developed by the legal service, and took the first step towards establishing an alternative enforcement system. The ECJ would already in 1964 take the second step by introducing primacy in the Costa v. E.N.E.L. judgment. The new enforcement system remained highly fragile, however, due to the dependency on the cooperation of national courts through the preliminary reference system. As a result, the full effects of the Van Gend en Loos judgment were only felt after the Single European Act (1986) pushed reluctant national governments and courts to finally come to terms with the legal order the ECJ had developed.
  • Topic: Government, Law
  • Political Geography: Europe
  • Author: Sophie Robin-Olivier
  • Publication Date: 02-2014
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of ('direct effect') EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, 'Revisiting Van Gend en Loos' leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).
  • Topic: Law
  • Political Geography: Europe
  • Author: Luis Castellvi Laukamp
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Dialogue, this noble art, which, like many other things, was invented by the Greeks, is always a sort of collaboration, a way of trying to attain the truth. Perhaps this is why Plato used it as a literary vehicle when he wrote his Socratic dialogues, a corpus of pieces in which he laid the foundations of Western philosophy. Deeply impressed by the death of his mentor Socrates, Plato wrote some of the most brilliant and insightful works of all time, perhaps in order to keep on debating with his master after his death. In all likelihood, no-one since has ever had the same great ability to create such architectures of thought. His enjoyable and entertaining dialogues deal with essential topics such as the nature of time, politics, love, and death. Not only is his style concise and meticulous, with a proverbial ability to pose the right questions, but also didactic and kind. His dialogues enable all participants to engage in an inquiry which, despite not always being successful in reaching the desired goal, has at least proved to be a fundamental tool in the development of all expressions of human thought. The book under review is inspired, mutatis mutandis, by this very same philosophy regarding dialogue. As its editors (Filippo Fontanelli, Giuseppe Martinico, and Paolo Carrozza) point out in their introduction, '[t]he process of fragmentation of the international legal order and the absence of constitutional devices governing the connections between the various legal regimes can be reduced to a rational picture only through the activity of the judges' (at 23). This is why judges play a key role in creating and developing links between the different legal systems which constitute our multi-level judicial environment. The increasingly complex nature of the interaction between national and international judges has often been
  • Topic: Development, Government, Politics, Law
  • Political Geography: Greece
  • Author: Alexander Somek
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article discusses the question whether Waldron's new analogy shifts the paradigm of international governance from a relationship that is based on law to a relationship that views participating actors as involved in some kind of common creative problem-solving effort. The implied change from 'law' to 'process' would raise serious concerns about what it might entail for the rights of citizens.
  • Topic: Governance, Law
  • Author: David Dyzenhaus
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: I argue that Hans Kelsen anticipated the main contribution of Jeremy's Waldron's article: the idea that the place of nation states in the international legal order is akin to that of administrative agencies in the domestic legal order, and thus as wielding delegated rather than original authority. For both wish to understand sovereignty as a kind of metaphor for the unity of a legal system rather than as a pre-legal entity. However, legal positivism is unable to make the move to conceiving of sovereignty that way, since the positivist prejudice against natural law has the result that the idea of a pre-legal sovereign is repressed in one place only to pop up in multiple others. In issue in this debate are two conceptions of the rule of law, a positivistic conception that the rule of law consists mainly of determinate rules and a Fullerian conception in which the rule of law is understood as facilitating a certain process of reason and argument. Since Waldron sees the attraction of the latter conception, and since that conception avoids the problem of the pesky sovereign, I suggest that Waldron should embrace it.
  • Topic: Sovereignty, Law
  • Author: Steven R. Ratner
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The International Committee of the Red Cross casts itself as both a unique protector of individual victims of war and a special guardian of the body of international humanitarian law. It manages and reconciles these two roles through a complex, unconventional strategy that includes secret communications with warring parties, ambiguity in conveying its legal views to them, and, at times, a complete avoidance of legal arguments when persuading actors to follow international rules. This modus operandi not only challenges some standard views about the methods used by actors seeking to convince law violators to comply with norms; it also opens the door to a richer theoretical understanding of legal argumentation in that process of persuasion. The resulting construct consists of a matrix of inputs that determine how a persuading entity will deploy legal arguments and outputs that convey the dimensions of the resulting argumentation. Both the theory and the ICRC's work suggest that entities concerned with compliance would often do best to settle for a target to act consistently with a norm rather than to internalize it. They also raise difficult moral questions about whether compliance with international law is the optimal goal if it has adverse consequences for the values an institution seeks to uphold.
  • Topic: War, Communications, Law
  • Author: Birgit Schlutter
  • Publication Date: 05-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: After the entry into force of the Lisbon treaty on 1 December 2010, and right in the middle of the European response to the recent financial and economic crisis, the review of the second edition of Armin von Bogdandy's and Jürgen Bast's Principles of European Constitutional Law appears to be a timely and anything but anachronistic or cynical enterprise. The European effort to combat the financial crisis and set up a joint framework to regulate the banking sector shows the constant need for research on the 'founding principles of the polity' and the sources of its legitimacy (at 1). And indeed, the second edition of the book, too, provides a thorough examination of the main themes underlying a more closely connected Europe.
  • Topic: Law
  • Political Geography: Europe, Lisbon
  • Author: Daphné Richemond-Barak
  • Publication Date: 11-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the intersection between the private security and military industry and the emerging framework of global administrative law ('GAL'). I explore in this article one aspect of this intersection, namely the use of GAL to create a taxonomy of the industry's regulatory schemes. The industry is characterized by a fragmented and decentralized regulatory framework, which has yet to be presented in a complete and orderly fashion. This article fills the gap by applying GAL's methodology to the private security and military industry. Using the industry as a case study in GAL, I identify (1) international formal administration (the United Nations Working Group on Mercenaries); (2) distributed domestic administration (contract and domestic legislation); (3) hybrid modes of administration (multi-stakeholder initiatives); and (4) private modes of administration (industry associations and codes of conduct). By emphasizing – but not limiting itself to – hybrid and private modes of administration, this article describes what is an increasingly complex manifestation of global governance. Its purpose is to highlight GAL's potential in understanding and contending with the growth of the private security and military industry.
  • Topic: War, Law
  • Political Geography: Africa, United Nations
  • Author: Luigi Crema
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article looks to the first formulations of 'restrictive interpretation' to identify with precision the content and meaning of this rule. First Vattel affirmed that odious clauses should be interpreted restrictively. Then, under the Permanent Court and the first decades of the ICJ, a restrictive interpretation emerged in favour of state sovereignty. Later, with the approval of the Vienna Convention on the Law of Treaties in 1969, the interpretation favourable to state sovereignty was abandoned in favour of an alleged neutral way of interpreting treaties. However, a new restrictive interpretation (of sovereignty) was established, as an expression of the new values emerging in international law. This interpretation was obtained by means of the application of the Vienna Convention on the Law of Treaties, an explicit argument, and Latin maxims. Through a parallel analysis of jurisdictions which hear claims between private parties and states, such as the Strasbourg and the San José Courts, and the ICSID arbitrations, the article reaches the conclusion that this mode of interpretation reveals some inconsistencies. It concludes, however, that international law already has the means to address these issues.
  • Topic: Law
  • Author: Kenneth Anderson
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even 'crowded' other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.
  • Topic: United Nations, Law
  • Author: Erich Vranes
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: A series of books and an even greater number of articles have examined, over the last 10 – 15 years, the interplay between WTO law and non-economic concerns, in particular those pertaining to environmental protection. Many of these works have focused inter alia on one particularly difficult issue: the question whether a WTO Member may restrict imports of goods which stem from production and processing methods which do not leave physically detectable traces on the products (so-called non-product-related process and production methods or NPR PPMs). A well-known example is the famous case of shrimp caught with devices which endanger sea turtles: such a method will not normally be physically detectable in the final product (shrimp) when it is imported into another country. Another example is products stemming from conditions of production which are perceived, by importing countries, as inhumane or otherwise problematic. Such measures are highly controversial from a legal perspective, given that some exporting countries tend to take the view that production conditions which do not affect the quality of the exported product are 'of no concern' to importing countries, so that WTO Members may not prohibit their importation. In academic writings, a series of divergent views have been taken on this issue; thus, it has repeatedly been held for example that such measures need to be justified under the GATT; moreover, it has been contended that justification may even be impossible in respect of such measures.
  • Topic: World Trade Organization, Law
  • Author: Dimitry Kochenov
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: When you are on the subway in New York, it is difficult not to notice numerous Spanish language information posters about equality and non-discrimination, such as 'Housing discrimination on the basis of sex, race, ethnic origin… is unlawful'. They not only state the law: a telephone number in the corner informs you of where to call to make sure that if you are the victim of discrimination, help is available. Have you seen such posters in a Romani language in the Prague metro? Or in Arabic on the trains around Rotterdam?
  • Topic: Law
  • Political Geography: New York, Europe
  • Author: Benedict Kingsbury
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: What constitutes 'law' in the efflorescent field of 'global administrative law'? This article argues for a 'social fact' conception of law, emphasizing sources and recognition criteria, but it extends this Hartian positivism to incorporate requirements of 'publicness' in law. 'Publicness' is immanent in public law in national democratic jurisprudence, and increasingly in global governance, where it applies to public entities rather than to identifiable global publics. Principles relevant to publicness include the entity's adherence to legality, rationality, proportionality, rule of law, and some human rights. This article traces the growing use of publicness criteria in practices of judicial-type review of the acts of global governance entities, in requirements of reason-giving, and in practices concerning publicity and transparency. Adherence to requirements of publicness becomes greater, the less the entity is able to rely on firmly established sources of law and legal recognition. 'Private ordering' comes within this concept of law only through engagement with public institutions. While there is no single unifying rule of recognition covering all of GAL, there is a workable concept of law in GAL.
  • Topic: Governance, Law
  • Author: Martin A. Schain
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Scholars have argued that the dynamics of immigration control have changed. Unlike previous waves of immigration which were controlled by national law and administration, this wave would be more difficult to control. Because of the constraints imposed by international agreements, international institutions, and national judicial authorities, controls would be embedded in international institutions and law that were assumed to be inclined to be less restrictive than national institutions and law. Looking at these patterns over the past 20 years, it now appears that international constraints on immigration control have been highly exaggerated. Indeed, international relations have become an important context for understanding the enhanced ability of states to control immigration, and to develop more muscular policies for integration. For this reason, international constraints may be less important for understanding the development of immigration policy than neo-nationalism, enhanced through intergovernmental relations in the international system. Therefore, what began as a scholarly discussion of the limits on restrictionist policies because of international constraints has developed into a discussion of the use of international relations to strengthen the effectiveness of restrictionist policies.
  • Topic: Law
  • Author: Ole Kristian Fauchald
  • Publication Date: 04-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This empirical analysis of the use of interpretive arguments by ad hoc tribunals of the International Centre for the Settlement of Investment Disputes covers almost 100 cases decided during the past 10 years. The cases are analysed with a view to determining which arguments the tribunals use and how the arguments are used in light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The analysis provides a basis for addressing the extent to which ICSID tribunals contribute to creating a predictable legal framework in which the interests of investors, states, and third parties are taken properly into account; the extent to which ICSID tribunals contribute to a coherent development of international investment law; and whether ICSID tribunals contribute to a 'fragmentation' of international law. Despite ICSID tribunals being ad hoc tribunals that solve legal disputes on the basis of heterogeneous legal sources, the article indicates that there is a tendency among ICSID tribunals to contribute to a homogeneous development of the methodology of international law. Nevertheless, the article concludes that ICSID tribunals could do significantly more to align their approaches to interpretive arguments with those of other international tribunals.
  • Topic: Development, Law
  • Political Geography: Vienna
  • Author: Marcello Di Filippo
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Notwithstanding the emphasis placed on the need for concerted international action to confront the problem of terrorism, positive international law is far from treating the issue of defining the criminal notion of terrorism coherently; the discussion of such a notion is being made hostage [sic!] to the abuse of the term 'terrorism' in the course of the debate and to the confusion between an empirical description of a phenomenon and its treatment under criminal law. Proposing a core-definition approach, this article elaborates a notion based upon the basic rights of civilians and on the unacceptability of their violation by terrorist methods carried out by private organized groups. The definition proposed here, which does not recognize in the perpetrator's motivations any material relevance because of the overwhelming importance of the value infringed, is able to minimize the relevance of some abused arguments (such as state terrorism or the treatment of 'freedom fighters'), could quickly gain customary status and would prove useful in interpretation and in drafting exercises, both at international and national level. As for the inclusion of terrorism in the category of international crimes, it is submitted that two interpretive options are open: to consider the category of crimes against humanity as already able to embrace core terrorism; or to place the strong rationale underlying the stigmatization of terrorist crimes in the perspective of the gradual emerging of a discrete international crime of terrorism. National case law seems to point to the latter option, but the question does not appear settled: for this reason, the discussion regarding the prospect of an amendment to the ICC Statute expressly to include terrorist crimes continues to be of interest. An express inclusion could be useful to avoid doubts or discrepancies at national level and to solve some outstanding issues of the international community's criminal policy.
  • Topic: International Cooperation, Terrorism, Law