CIAO DATE: 04/2011
Volume: 21, Issue: 4
November 2010
These are challenging times for the European Union. Internally, important, even fundamental, decisions are on the agenda as the Union struggles with the Euro crisis and its underlying economic fissures. (Mercifully, the scapegoating of the USA as an escape from facing Europe’s very own breathtaking governmental and private-sector financial and fiscal irresponsibility has all but disappeared – mercifully, since facing reality unflinchingly is a necessary condition for dealing with it effectively.) What is subprime in Europe is the decisional structure of the Union: the European Politburo – President of the Commission, newly-minted President of the Council, tired-old-moresenseless-than-ever rotating Member State Presidency, recycled High Representative answerable to two bosses and thus to none – has proven at best irrelevant to the real actors in you know where (Berlin, Paris, the formidable Merkel, the erratic Sarkozy), at worst distracting – was the able President of the Council’s productive moves really helped by the forced tango with his opposite number at the Commission? About a year after the entry into force of the Treaty of Lisbon, it is clear that at least some of the principal objectives intended by the new decisional structure at the top are turning out to be as ineffective (some claim laughable) as critics anticipated
Immunities of State Officials, International Crimes, and Foreign Domestic Courts (PDF)
Dapo Akande, Sangeeta Shah
This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic court
Sovereign Immunity: Rule, Comity or Something Else? (PDF)
Jasper Finke
Sovereign immunity is best understood not as a specific rule of customary international law, but as a legally binding principle. If not bound by detailed treaty obligations, states are free to frame and define the scope and limits of sovereign immunity within their legal orders as long as they observe the boundaries set by other principles of international law. Viewing sovereign immunity as a principle provides for a much better explanation of the still diverse state practice than the currently prevailing concept that conceives immunity as a rule of customary international law and its denial as an exception to that rule. The distinction between principle and rule also has far-reaching practical implications. Instead of asking whether state practice allows for a certain exception, the focus must be on the limits that international law prescribes. States therefore enjoy much greater liberty to define the limits and scope of sovereign immunity, even though this liberty is restricted
Third State Responsibility for Human Rights Violations (PDF)
Annie Bird
The International Law Commission’s Draft Articles on State Responsibility attempt to transcend the bilateralist paradigm of international law by distinguishing between injured states and ‘third’ states. Although not directly injured, the Draft Articles recognize that third states have a legal interest in compliance with ‘peremptory norms’ and ‘obligations to the international community as a whole’ by reason of the importance of the rights involved. Although breaches of these obligations often involve serious human rights violations, it is not clear to what extent the Draft Articles accurately reflect human rights law. The progressive development of the Draft Articles in outlining rights and obligations for third states remains controversial, and thus provides a compelling opportunity to discuss the relationship between these two bodies of law. This article helps illustrate the extent to which international law is moving away from a purely bilateral conception of responsibility to accommodate human rights
The Role of Atypical Acts in EU External Trade and Intellectual Property Policy (PDF)
Henning Grosse Ruse-Khan, Thomas Jaeger, Robert Kordic
This article discusses atypical acts of the European Union (EU) concerning intellectual property (IP) protection within the EU’s internal legal order and its external relations. Internally, atypical acts are used in IP for flexible pre- and post-regulation purposes or for soft guidance and steering. Yet in IP and elsewhere, those flexibilities come at the cost of deficits in democratic legitimacy, legality, and legal certainty. Atypical acts are also common in the external trade relations of the EU. Like more formal conduct of trade relations by means of international agreements, they focus on the enforcement of IP rights. The less formal (and legal) character of these acts often allows them to be more policy-driven and so makes it easier to address key political concerns relevant for EU external trade relations in a more flexible and current manner. Some of these policies are subsequently turned into ‘hard’ law – for example in the course of the negotiations over the controversial Anti-Counterfeiting Trade Agreement (ACTA). Based on the comparative analysis of the role of atypical acts in the EU’s internal legislation for IP vis-à-vis their role in external action, this article explores possibilities of limiting the drawbacks while preserving the benefits of a use of atypical acts in external policies.
Doing Justice to the Political: The International Criminal Court in Uganda and Sudan (PDF)
Sarah M.H. Nouwen, Wouter G. Werner
International criminal justice has become a weapon in political struggles in Uganda and Sudan. In this light, this article discusses the political meaning of the International Criminal Court’s judicial interventions. It argues that the ICC, presented by its advocates as a legal bastion immune from politics, is inherently political by making a distinction between the friends and enemies of the international community which it purports to represent. Using original empirical data, the article demonstrates how in both Uganda and Sudan warring parties have used the ICC’s intervention to brand opponents as hostis humani generis, or enemies of mankind, and to present themselves as friends of the ICC, and thus friends of the international community. The ICC Prosecutor has at times encouraged this friend–enemy dichotomy. These observations do not result in a denunciation of the Court as a ‘political institution’. On the contrary: they underline that a sound normative evaluation of the Court’s activities can be made only when its political dimensions are acknowledged and understood.
The Concept of International Law in the Jurisprudence of H.L.A. Hart (PDF)
Mehrdad Payandeh
This article analyses H.L.A. Hart’s concept of international law from the perspective of anaytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart’s view that international law is ‘law’ but not a ‘legal system’. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart’s general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart’s methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart’s analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.
EU Obligation to the TRIPS Agreement: EU Microsoft Decision (PDF)
Sujitha Subramanian
In Microsoft v. Commission, Microsoft was ordered by the European Court of First Instance (CFI) to license interface information to its competitors on reasonable terms and to supply a fully functioning version of Windows Personal Computer Operating System without Windows Media Player. Microsoft claimed that the remedies infringed the minimum standards of IP protection provided by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, the CFI refused to examine the TRIPS provisions, on the basis that international agreements do not prevail over primary Community law, and in any case, the TRIPS agreement permits members to restrain anti-competitive abuse of IP rights. This article examines the issues that arise from this position: first, is the Microsoft decision TRIPS compliant? Secondly, to what extent is the EU bound to its obligations under the TRIPS Agreement? The article highlights the lack of a clear-cut hierarchy of norms and illustrates how EU law is placed within a multi-layered governance structure involving national law and international law. The article finds that the EU does not engage in consistent interpretation or application of the TRIPS provisions.
Helen Keller, Andreas Fischer, Daniela Kuhne
The purpose of this article is to give new impetus to the topical debate on reforming the ECHR in the wake of the Interlaken Conference, at which the ECHR states parties agreed on a roadmap for the future evolution of the Convention system. We highlight two issues which have so far been underexposed in the literature. First, reform measures relating to the new admissibility criterion, just satisfaction, and the pilot judgment procedure are only partially promising, because they are premised on the condition of their being applicable telle quelle in all the states parties. If Convention reforms are to be effective, they must take due account of differing realities relating to a country's human rights situation and the quality of its judiciary. Secondly, given the very high proportion of so-called manifestly ill-founded applications, the Court's practice of rejecting them without giving reasons leads it into a legitimacy problem. We suggest a new provision in the Rules of Court which makes the Court's practice concerning the handling of manifestly ill-founded applications more transparent.
The Treaty of Lisbon: Half Way toward a Common Investment Policy (PDF)
Wenhua Shan, Sheng Zhang
As a follow-up study on the external investment policy of the EU, this article attempts to analyse the relevant provisions in the Lisbon Treaty and assesses their legal implications on the international investment treaty practice of the Union and its Member States. It first briefly reviews the EU’s foreign investment competence before the Treaty of Lisbon, followed by an assessment of the different views concerning the interpretation of the Lisbon Treaty provision including ‘foreign direct investment’ under the common commercial policy. The practical legal implications of the change are discussed in the third part, including intra- and extra-EU investment treaty practices. It is concluded that while the change is significant and will greatly enhance the treaty-making competence of the EU in external investment areas, it is only a half way success toward a full common investment policy (CIP). Potential paths to achieve the ultimate goal are also briefly explored.
On Holism, Pluralism, and Democracy: Approaches to Constitutionalism beyond the State (PDF)
Thomas Kleinlein
The idea of a ‘constitutionalization’ of international law and international institutions owes much to a long tradition of idealistic international law scholarship. It gained momentum with the end of the Cold War, only to be frustrated some years later. US hegemonic tendencies after 9/11, the unauthorized invasion of Iraq in 2003, and the impasse of the Doha Development Round in the WTO are only some of the factors demonstrating that the dissolution of the Eastern Bloc had not signalled the end of history.1 These setbacks, however, did not render the academic discourse on ‘constitutionalization’ of global governance silent, and there is now a burgeoning literature on the subject. Recently, three books have stimulated the discussion: Ruling the World?, edited by Jeffery L. Dunoff and Joel P. Trachtman,2 and the two books under review.
Imperfect Justice at Nuremberg and Tokyo (PDF)
Kirsten Sellars
When the international criminal tribunals were convened in Nuremberg and Tokyo in the mid-1940s, the response from lawyers was mixed. Some believed that the Second World War was an exceptional event requiring special legal remedies, and commended the tribunals for advancing international law. Others condemned them for their legal shortcomings and maintained that some of the charges were retroactive and selectively applied. Since then, successive generations of commentators have interpreted the tribunals in their own ways, shaped by the conflicts and political concerns of their own times. The past two decades have seen the establishment of new international courts, and an accompanying revival of interest in their predecessors at Nuremberg and Tokyo. Recent commentaries have analysed the founding documents, the choice of defendants, the handling of the charges, the conduct of the cases – and also the legal and political legacies of the tribunals. They demonstrate that long-standing disagreements over antecedents, aims and outcomes have still not been settled, and that the problems inherent in some of the original charges have still not been solved, despite the appearance of similar charges within the remit of the International Criminal Court today.
Robbie Sabel
It may be that only in Middle East negotiations would the interpretation of a century-old letter from a British official addressed to a tribal Sheikh be considered a topical legal issue. The reality is, however, that the parties in the Middle East conflict are still interpreting, for example, the 1915 correspondence between Sir Henry McMahon, the British High Commissioner in Egypt, and Sharif Hussein of Mecca. Kattan’s book is an invaluable, albeit partisan, resource book for those of us who enjoy delving into such minutiae of the legal arguments of Israelis and Palestinians.
Daniel Moeckli. Human Rights and Non-discrimination in the 'War on Terror'. (PDF)
Toby King
Since 11 September 2001, countries across the world have adopted an enormous range of anti-terrorism laws with the potential to undermine even the most basic and long-established human rights. Fundamental principles such as habeas corpus and public trial before an independent and impartial tribunal have been thrown into question. Administrative detention without trial is no longer, in Justice John Paul Stevens’s words, ‘the hallmark of the totalitarian state’, but already a reality in some democracies and under serious consideration in others.
Elsa Stamatopoulou. Cultural Rights in International Law. (PDF)
Valentina Sara Vadi
Does Man have a right to culture? Can people freely express their own cultural distinctiveness, be it in a language, physical appearance, or a specific set of norms and values? Should the state intervene to support and protect cultural rights of individuals, minority groups, or even the majority? And what role can the international community play in this endeavour to further cultural rights? Can a careful and balanced scrutiny of cultural claims contribute to a constructive ‘dialogue among civilizations’?1 Does culture necessarily clash with other human rights? Notwithstanding early case law and the formal entry of cultural rights into the human rights catalogue after World War II,2 cultural rights have been neglected for a long time and have been less developed than civil, political, economic, and social rights.3 The book under review gives an excellent and systematic overview of the existing law and practice concerning cultural rights and, by offering answers to the questions mentioned above, surely contributes to the development of legal doctrine.
Ronnie R.F. Yearwood
There is without a doubt a growing academic and popular literature about the World Trade Organization (WTO), and more broadly international trade law. Reading Patterson and Afilalo, I came away with the feeling that, given time, this book may be one of those books that straddle both worlds. Given that there is often a divide between academic and popular works, I think that this is a work which should be welcomed. It is well written and, importantly for a book that could cross over into a wider market than academia, it reads with the ease of a story. Patterson and Afilalo deserve credit for being good storytellers. They weave a seamless story about the changing nature of the state and the corresponding changes in the international trading system.
Marc Jacob
The title could hardly be more portentous. The Past and Future of EU Law. All of it. In one volume. Luckily, neither the more down- to-earth subtitle – The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty – nor the various contributions in this intriguing collection, edited by Miguel Poiares Maduro and Loїc Azoulai, insist on the title’s totalizing flight of fancy. What we have here is an assortment of almost 50 short papers written by the great and good of EU law. They ponder select judgments of the ECJ, which are widely acknowledged to be titanic pronouncements that profoundly shaped the European legal landscape. Simply listing the names and affiliations of those involved in this project, let alone producing a synopsis of the substantive points raised, would have made this review resemble a telephone directory – both in terms of length and interest. I therefore content myself with the rider that it would be impossible to do justice to the subtleties developed in the individual papers in the space available and will instead dive right into the format and gist of the collection as a whole.
Robert Schütze. From Dual to Cooperative Federalism: The Changing Structure of European Law (PDF)
Dimitry Kochenov
The study of European law is finally saved from the dark age of narcissistic ideology of sui generis thinking. That ‘the EU is unique’ is probably true, but certainly not from the point of view of legal studies. Notwithstanding the first stages of the study of EU law inspired by federative thinking (especially with the help of American scholars versed in federalism theory), the philosophy of EU law soon entered a state of flux where it long remained. This was because of two important factors: short-sighted dogmatism and unrestricted self-love.
Last Page (PDF)
Leslie Williams
I am not finished Gorging on the verdure of July— Dear cathedral architects, I’m often sure we’ll be received In a big Delft sky,