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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: 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: 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: Karen Engle
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article traces the development of the international human rights and international indigenous rights movements, with a particular eye towards their points of convergence and divergence and the extent to which each has influenced the other. Focusing on the United Nations Declaration on the Rights of Indigenous Peoples, it argues that the document, while apparently pushing the envelope in its articulation of self-determination and collective rights, also represents the continued power and persistence of an international human rights paradigm that eschews strong forms of indigenous self-determination and privileges individual civil and political rights. In this sense, it signifies the continued limitation of human rights, especially in terms of the recognition of collective rights, in a post-Cold War era in which a particular form of human rights has become the lingua franca of both state and non-state actors.
  • Topic: Cold War, Human Rights, United Nations
  • Author: Gaetano Pentassuglia
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As expert analysis concentrates on indigenous rights instruments, particularly the long fought for 2007 UN Declaration on the Rights of Indigenous Peoples, a body of jurisprudence over indigenous land and resources parallels specialized standard-setting under general human rights treaties. The aim of the present article is to provide a practical and comparative perspective on indigenous land rights based on the process of jurisprudential articulation under such treaties, principally in the Inter-American and African contexts. While specialized standards inevitably generate a view of such rights (and, indeed, indigenous rights more generally) as a set of entitlements separate from general human rights, judicial and quasi-judicial practice as it exists or is being developed within regional and global human rights systems is effectively shaping up their content and meaning. I argue that indigenous land rights jurisprudence reflects a distinctive type of human rights discourse, which is an indispensable point of reference to vest indigenous land issues with greater legal significance. From a practical standpoint, focussing on human rights judicial and quasi-judicial action to expand existing treaty-based regimes and promote constructive partnerships with national courts, though not a panacea to all the intricacies of indigenous rights, does appear to offer a more realistic alternative to advocacy strategies primarily based on universally binding principles (at least at this stage) or the disengagement of domestic systems from international (human rights) law.
  • Topic: Human Rights, United Nations
  • Political Geography: Africa, America
  • Author: Jan Klabbers
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: International lawyers have long held international organizations in high esteem. Paul Reinsch, arguably the first author to write comprehensively on the law of international organizations about a century ago and largely responsible for laying the foundations for the functionalist approach to international organizations, already welcomed them as working for the common global good. The sentiment culminated in Nagendra Singh's classic statement that organizations serve the 'salvation of mankind'. States were considered bad; organizations, by contrast, were considered inherently good.
  • Topic: United Nations
  • Author: Anne-Laurence Brugère
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 'Every constitution encounters the difficult problem of distinguishing interpretation and adaptation, progressive development and amendment'. The question whether, and to what extent, the practice of an organization does not merely interpret but also modify its constitutive instrument lies at the very heart of Thomas Grant's volume on Article 4 of the United Nations Charter. The volume, divided into seven chapters, is based on a thorough account of the United Nations' practice from 1945 onwards in the matter of admission, from the 'early years' (Chapter 2) to the present day controversies over Kosovo and Taiwan (Chapters 5 and 6). Grant highlights perfectly the shift in 1955–1956 from a rigorous process over admission to the presumed right of states to membership; that is to say, from the wartime alliance to the universal organization (Chapter 3). This, in turn, raises the question of the legal justification for this change, a key issue addressed in Chapter 4 which this book review will concentrate on. The legal framework applicable to admission is examined in the first and last chapters. Chapter 1 intends to give an overview of the provisions of the Charter governing admission, though it deals exclusively with the procedural mechanism set out in Article 4(2). As for Chapter 7, it examines the legal con - sequences for a state of being admitted to the United Nations.
  • Topic: United Nations
  • Political Geography: Taiwan, Kosovo
  • Author: Christina Binder
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Treaties are the major legal instruments governing inter-state relations and an indispensable tool for diplomacy: since 1945 some 54,000 treaties have been registered with the United Nations, still representing only about 70 per cent of treaties which have entered into force.
  • Topic: United Nations
  • Author: Dino Kritsiotis
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article considers the prominence that threats of force have had in international political life since the end of the Cold War, and how we tend to overlook these threats in favour of the actual uses of force. Security Council Resolution 678 of November 1990 is one such example. Emblematic of the rule of law and its New World Order, it is often invoked for the 'authorisation' it gave to Member States of the United Nations 'co-operating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent resolutions and to restore international peace and security in the area' - but this provision was made contingent upon whether 'Iraq on or before 15 January 1991 fully implements [previous] resolutions'. We examine the range of circumstances in which threats of force have arisen and find that these go beyond the archetypal 'close encounter' between states - such as the Cuban Missile Crisis of 1962 and the 'threats of force' directed against Iraq prior to Operation Desert Fox (1998) and Operation Iraqi Freedom (2003). Making use of the jurisprudence of the International Court of Justice from its Nuclear Weapons advisory opinion (1996), we advance the idea of a prohibition of the application of force, and consider the logistics of its operation in state practice; first, in the recent relations between the United States and Iran and, then, through a modern reprise of the facts of the Corfu Channel Case of April 1949. We allude to the importance of the legislative background and purpose behind this prohibition, constantly reflecting upon the intricacies of state relations in which this provision of the United Nations Charter seeks to make its mark.
  • Topic: Security, Cold War, Government, United Nations
  • Political Geography: United States, Iraq, Kuwait
  • 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: Christian J. Tams
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Whether states can use force against terrorists based in another country is much discussed. The relevant provisions of the UN Charter do not provide a conclusive answer, but have to be interpreted. The present article suggests that in the course of the last two decades, the Charter regime has been re-adjusted, so as to permit forcible responses to terrorism under more lenient conditions. In order to illustrate developments, it juxtaposes international law as of 1989 to the present state of the law. It argues that the restrictive approach to anti-terrorist force obtaining 20 years ago has come under strain. As far as collective responses are concerned, it is no longer disputed that the Security Council could authorize the use of force against terrorists; however, it has so far refrained from doing so. More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.
  • Topic: Security, Development, International Law, Terrorism, United Nations
  • Author: Alexander Orakhelashvili
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: It is indisputable that the fight against impunity for the perpetrators of serious international crimes is a fundamental policy of the international community. As the International Court of Justice emphasized in the Arrest Warrant case, the functionally and temporarily limited immunity of the foreign minister of the Congo was not the same as according impunity to that official, because the number of ways of prosecuting him remained intact ( Arrest Warrant of 11 April 2000, Merits, General List No. 121, 14 February 2002, paras 60 – 61). The efforts to combat impunity for the perpetrators of serious crimes are conducted by two methods. The first method relates to establishing international tribunals, which has been the case since the Nuremberg and Tokyo Tribunals in the aftermath of World War II. This method is limited, because international tribunals necessarily have limited jurisdiction. They cannot address the problems of impunity in general, but only those aspects of it which are covered by their mandate as specified in their statutes. Even if this mandate is quite general, as is the case with the International Criminal Court (ICC), the actual extent to which impunity will be combatted still depends on the voluntary decision of states to become party to the Statute. The second method reflects the limited nature of international criminal tribunals. The remaining problems of impunity are addressed through the exercise of jurisdiction by national courts. This is reflected in the fact that the multiplication of international criminal tribunals over the past 15 years has not caused any decline in the activities of national courts in this field. Quite the contrary; the growth of international criminal jurisdiction has been accompanied by the equally remarkable growth of national criminal jurisdiction to address international crimes, including those committed extraterritorially.
  • Topic: United Nations, War
  • Political Geography: Democratic Republic of the Congo, Tokyo
  • Author: Pasquale De Sena, Maria Chiara Vitucci
  • Publication Date: 02-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The recent case law of various international tribunals facing questions related to UN Security Council resolutions shows the clear tendency to grant primacy to the UN legal order. This trend, far from being well founded on formal arguments, appears to be a tribute to a legal order perceived as superior, and, at the same time, is revealing of the 'value oriented' approach followed by the courts. Such an approach can be categorized from a theoretical perspective in the light of Scelle's theory of relations between legal orders, whereby the courts implement in their respective legal orders values stemming from the UN legal order. Various critical remarks can be advanced in relation to this attitude. Basically, when different legal values are at stake, the need arises to strike a balance between them, as the ECJ has recently done in the appeal decision in the Yusuf and Kadi cases. Such a tendency, if consistently followed, could serve as a valuable instrument to find the correct equilibrium between the security interest and the need for respect of human rights.
  • Topic: Security, Human Rights, United Nations
  • Political Geography: Europe
  • Author: Roger S. Clark
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: In February 2009, the International Criminal Court's Special Working Group on the Crime of Aggression concluded its efforts to draft the 'provision' called for in Article 5(2) of the Rome Statute 'defining the crime [of aggression] and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime'. It produced two draft Articles: Article 8bis, the 'definition', and Article 15bis, the 'conditions'. There was substantial agreement on the definition (and on 'Elements' of the crime produced in June 2009); there was much disagreement concerning the conditions. The author examines the most significant drafting issues. For the definition, these include: applying General Assembly Resolution 3314 to individual responsibility; articulating the 'leadership' nature of this crime; the threshold requirement that the violation of the United Nations Charter be 'manifest'; and consistency with provisions in the Statute, especially those in the 'general part'. In respect of conditions, the difficult issue surrounds the role of the Security Council and the many variations on that theme in draft Article 15bis. The contribution concludes with a fundamental procedural question: can the amendment be applied erga omnes or does it apply only to those states specifically accepting it?
  • Topic: Security, United Nations
  • Author: Ana Filipa Vrdoljak
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: 2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
  • Topic: International Law, United Nations
  • Political Geography: Europe
  • Author: Philip Alston, Jason Morgan-Foster, William Abresch
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: Since 2003, as part of its 'war on terror', the United States has taken the position that the UN Commission on Human Rights and its successor, the UN Human Rights Council, as well as the system of 'special procedures' reporting to both bodies, all lack the competence to examine abuses committed in the context of armed conflicts. The article examines the arguments put forward by the US in the specific context of the work of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The authors conclude that the consistent practice of the human rights organs for almost 25 years, often supported and until 2003 never opposed by the US, runs counter to the current US position. Acceptance of the US position would not only undermine efforts to hold the US accountable but would also have a major impact on the international system of accountability as a whole.
  • Topic: Human Rights, United Nations
  • Political Geography: United States
  • Author: Kjetil Mujezinovic Larsen
  • Publication Date: 06-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article addresses the issue of whether conduct in international peace operations is attributable to the troop contributing states or to the United Nations, taking the European Court of Human Rights' admissibility decision in the Behrami and Saramati cases as a point of reference. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attributable to the United Nations. The article examines the content of the 'ultimate authority and control' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view difficult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's decision, when seen in connection with previous case law, in practice renders the European Convention on Human Rights irrelevant in international peace operations.
  • Topic: Human Rights, International Organization, United Nations
  • Political Geography: Europe
  • Author: Mary Ann Glendon
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The topic of human rights was prominent in Pope Benedict 's address to the United Nations General Assembly in the year of the Universal Declaration's 60th anniversary. As with many of Pope Benedict's speeches, his 18 April address to the United Nations is one in which some rather complex ideas are expressed in a very condensed fashion. It is a speech that needs, as they say, to be 'unpacked'.
  • Topic: Human Rights, United Nations
  • Author: Michel Bourbonnière, Ricky J. Lee
  • Publication Date: 11-2007
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The Bush Administration of the United States recently released a revised National Space Policy. Although the revised National Space Policy can be interpreted as a step towards the weaponization of space, it does not necessarily weaponize space. It nonetheless brings to the forefront important legal issues concerning the basing of conventional weapons in space. The present international law matrix on the issue of space-based weapons is to be found in international space law, principally in the Outer Space Treaty, where certain prohibitions apply to nuclear weapons and to weapons of mass destruction. Space must also be used for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Space objects must be registered in accordance with the Registration Convention. The UN collective security system and the customary right of self-defence govern the use of force or jus ad bellum. The means and methods through which self-defence is exercised are in turn governed by international humanitarian law. Should space be weaponized the basing of these weapons and their use will be subject not only to international space law but also to the UN Charter and to international humanitarian law. The interface between these legal regimes consequently gains in importance, possibly forcing a reinterpretation of certain space treaties along with a correction in state practice.
  • Topic: Humanitarian Aid, Nuclear Weapons, United Nations
  • Political Geography: United States