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43201. The Protection of Humanitarian Legal Goods

Author:
Nicolás Carrillo-Santarelli and Carlos Espósito
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
National judges are increasingly exposed to deciding on issues regulated by the international legal system, given its expansion and specialization. However, this is just one of the many ways in which national judges interact with international law: they have the potential not only to receive and take into account international law, but also to shape and contribute to its modification, acting alone or in conjunction with other judicial authorities, and considering or ignoring the interests of several actors. The attitude of judges towards international norms, in the reception and modification dimensions, depends on a variety of factors worth exploring in detail. Such exploration allows us to ascertain how and when judges are more prone to protecting legal goods enshrined by international norms. The fact that national judges are empowered by a domestic legal system to act, while generating tensions and paradoxes when norms created in different levels of governance clash, does not detract from the possibility for them to defend interests and values, i.e., legal goods, belonging to other legal systems, even those generated in a global space of interaction where interests and values shared by different legal systems are shaped, including the protection of human dignity.

43202. . . . and New York and The Hague and Tokyo and Geneva and Nuremberg and . . .: The Geographies of International Law

Author:
David Koller
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
In the dominant narrative of international law, historical events in space and time are made to fall along an invisible line of progress, from Westphalia in 1648 through the Bretton Woods and San Francisco conferences of 1944 and 1945 to the present day and continuing on through the future to a more just world. Against this, a counter-narrative has emerged which denies the possibility of such linear development and consigns international law to forever tracing an unending circular path between points of idealism and realpolitik. This article examines how international lawyers have created and continue to create these metaphysical geographies of international law. Drawing on the work of the French multi-disciplinary thinkers Gilles Deleuze and Félix Guattari, this article shows that both approaches, and indeed the very concept of international law, can at most only replicate and impose pre-conceived theories and that the imposition of such theories is contrary to the natural patterns of human consciousness. It urges us to see international law rather as but one manifestation of the ongoing struggle between efforts to impose unity on and to control human consciousness and the mind's efforts to break free of such restricting structures.
Political Geography:
Geneva, New York, Tokyo, San Francisco, Papua, and Westphalia

43203. Al-Skeini and Al-Jedda in Strasbourg

Author:
Marko Milanovic
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
The article analyses the European Court of Human Rights' recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.
Political Geography:
United Kingdom and Europe

43204. International Courts and the European Legal Order

Author:
Matthew Parish
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
The growth of a range of different areas of international law gives rise to the possibility of conflict between them. International courts and tribunals created by one branch of international law may be called upon to adjudicate in other areas of the discipline. The risk of conflict presents a particularly acute problem to the EU legal order, because the Court of Justice of the European Union sees itself as the final, and exclusive, authority on questions of interpretation of EU law. On two occasions the Court has issued opinions prohibiting EU Member States from signing agreements creating international courts, because those courts' roles would necessitate construing EU law and their composition would mean they could not guarantee the 'homogeneity' necessary to EU law. The more recent of these opinions, concerning the European and Community Patents Court, sets an unusual legal test for the consistency of international tribunals with the EU legal order that, taken to its logical conclusion, would preclude several well-established international courts and tribunals to which EU Member States are parties. Ultimately this standard may fetter development of EU law, and the ECJ would do well to adopt a more flexible approach.
Political Geography:
Europe

43205. National, Ethnic, Racial, and Religious Groups Protected against Genocide in the Jurisprudence of the ad hoc International Criminal Tribunals

Author:
Agnieszka Szpak
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
The aim of this article is to analyse the jurisprudence of the ad hoc International Criminal Tribunals with regard to the understanding of the notion of the groups protected against genocide. According to the Convention on the Prevention and Punishment of the Crime of Genocide, only national, ethnic, racial, and religious groups are protected. Among the conclusions is the one according to which the Tribunals developed this notion in a creative way and contributed to its dynamic application, especially by way of introducing the concepts of stable and permanent groups being protected as well as the concepts of positive/negative and objective/subjective notions of the targeted group.

43206. Roaming Charges: Moments of Dignity: Bicycle Repair Man, Peking

Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution and all other manner of photojournalism.

43207. The Laws of Occupation and Commercial Law Reform in Occupied Territories: Clarifying a Widespread Misunderstanding

Author:
Jose Alejandro Carballo Leyda
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
Since the publication of the widely quoted book by Eyal Benvenisti on The International Law of Occupation, there seems to be a generally accepted premise that Article 64 of the IV Geneva Convention is applicable to all types of laws (including commercial laws) and that, therefore, its legal regime replaced Article 43 of the 1907 Hague Regulations. With all due respect, this article argues that such approach is wrongfully grounded. Furthermore, almost no author seems to give any relevance to the formal obligation imposed by the IV Geneva Convention to publish (in the language of the inhabitants) the commercial law norms enacted by the occupying power.
Political Geography:
Geneva and Papua

43208. The Laws of Occupation and Commercial Law Reform in Occupied Territories: A Reply to Jose Alejandro Carballo Leyda

Author:
Eyal Benvenisti
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
The essay 'The Laws of Occupation and Commercial Law Reform in Occupied Territories: Clarifying a Widespread Misunderstanding' accuses my 1993 book of fostering the 'misleading' contention that Article 64 of the Fourth Geneva Convention of 1949 recognizes the authority of occupants to modify all types of laws (and not only penal laws), beyond the limited scope of legislative authority recognized under Article 43 of the 1907 Hague Regulations. The criticism is unconvincing for several reasons. I limit my response to the claim that my interpretation of Geneva 64 is a misunderstanding, spelling out in more detail the discussion in the book. Addressing this claim offers an opportunity to gain insight not only into the specific meaning of Geneva 64 but also into the more general question of how to read and assess travaux préparatoires of complex multilateral treaties.
Political Geography:
Geneva

43209. The Laws of Occupation and Commercial Law Reform in Occupied Territories: A Rejoinder to Eyal Benvenisti

Author:
Jose Alejandro Carballo Leyda
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
I thank Professor Benvenisti for his response to my article and hope that this discussion will be helpful and fruitful. Nevertheless, I concur with Pictet that Article 43 of the 1907 Hague Regulations 'imposes obligations of a general nature on the Occupying Power', while Article 64 of the IV Geneva Convention contains a specific exception for penal legislation. Therefore, Article 43 HR still remains the applicable norm regarding commercial law reform in occupied territories.
Political Geography:
Geneva

43210. Editorial Note

Author:
Linos-Alexander Sicilianos and Thomas Skouteris
Publication Date:
02-2012
Content Type:
Journal Article
Abstract:
This symposium on interwar international law jurist Nicolas Politis is part of EJIL's long-standing project to reappraise the European tradition of international law. This brief Editorial Note has two aims. First, it casts an inward – if furtive – glance at the enterprise of intellectual history in international law at large. Secondly, it explains the choice of Nicolas Politis as the focus of this symposium as well as the part played by the five essays featured therein.
Political Geography:
Europe