CIAO DATE: 10/2011
Volume: 22, Issue: 3
August 2011
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.
Gaius, Vattel, and the New Global Law Paradigm (PDF)
Rafael Domingo
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.
Monique Chemillier-Gendreau
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.
Solomon T. Ebobrah
According to the Protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and Peoples’ Rights, the main function of the Court is to complement the protective mandate of the already existing African Commission on Human and Peoples’ Rights. Thus, complementarity was introduced into the framework of the African human rights system. Since then, the concept of complementarity has also been brought into play in the Protocol to the Statute of the proposed African Court of Justice and Human Rights. Although the interim rules of procedure of the Court and of the Commission have sought to give meaning to the concept of complementarity, there is still very little understanding of how it will pan out in the system. Questions abound as to the exact implication it would have on the existing mechanisms of the Commission. Almost nothing has been said or written on its impact on the African Committee of Experts on the Rights and Welfare of the Child. Against this background, this article argues that complementarity in the African human rights system can be applied positively by adopting a normative approach that allows for the prescription of what the system’s supervisory institutions should do and how they should relate to each other in their work. The article argues further that the justifications for the introduction of judicial organs can also be employed to prescribe complementary functions for each supervisory institution. It concludes that applying complementarity positively would require encouraging each institution to focus on its strengths with a view to strengthening the overall effectiveness of the system.
The Genesis of the GATS (General Agreement on Trade in Services) (PDF)
Petros C. Mavroidis, Juan A. Marchetti
The Uruguay Round services negotiations saw the light of day amidst pressures from lobbies in developed countries, unilateral retaliatory actions, and ideological struggle in the developing world. The final outcome, the GATS, certainly characterized by a complex structure and awkward drafting here and there, is not optimal but is an important first step towards the liberalization of trade in services. This article traces the GATS negotiating history, from its very beginning in the late 1970s, paying particular attention to the main forces that brought the services dossier to the multilateral trading system (governments, industries, and academics), and the interaction between developed and developing countries before and during the Uruguay Round. We will follow the actions, positions, and negotiating stances of four trading partners – Brazil, the European Union, India, and the United States – that were key in the development of the GATS. Finally, we will, indicatively at least, try to attribute a ‘paternity’ (or, rather, a ‘maternity’) to some key features and provisions of the agreement.
The European Tradition in International Law: Walther Schücking (PDF)
Christian J. Tams
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. The German international lawyer and former judge of the Permanent Court of International Justice, Walther Schücking, has not shaped international law in the way these towering figures have. There is no ‘Schücking school’ (although one of Germany’s centres of international law research – the Walther Schücking Institute for International Law at the University of Kiel – has been named after its most prominent director since 1995, and very much embraces his legacy); and one looks in vain for a decisive ‘Schücking treatise’ that has defined a major area of the discipline. In fact, outside Germany, Schücking’s work is probably known to a specialist audience only. And still, Walther Schücking stands for one of the important European traditions: his vision of international law was that of a liberal internationalist and pacifist; it was informed by a firm belief in the civilizing mission of the discipline (which led him to move beyond the positivist approach dominant in his home Germany and elsewhere); and he seriously studied the move towards international organization when many of his contemporaries remained focused on the State as the only relevant subject or actor of international law.
Walther Schücking and the Idea of 'International Organization' (PDF)
Frank Bodendiek
The article concentrates on the core issue of Walther Schücking’s scientific efforts and his literary production as a publicist – the idea of international organization. It begins by situating Schücking’s methodological approach, notably his desire to move beyond legal positivism, before moving on to analyse Schücking’s specific understanding of the notion of international organization. Schücking argued that the general motto ‘peace through law’ should be attained by a ‘republican organization’ of the world and stated that a relevant trend towards a true rule of law on the international level was already on its way. In fact, Schücking went even further and postulated a world confederation ‘Weltstaatenbund’ as the centrepiece of the reform of international law and the key for the realization of all further progress in the field. Having assessed features of Schücking’s reform programme, which he put forward with considerable consistency, the article argues that Schücking is rightly seen as a pioneer who broke new ground in analysing the phenomenon of international organization.
Walther Schücking and the Pacifist Traditions of International Law (PDF)
Mónica García-Salmones
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.
Professor Walther Schücking at the Permanent Court of International Justice (PDF)
Ole Spiermann
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.
Law's Frontier – Walther Schücking and the Quest for the Lex Ferenda (PDF)
Jost Delbrück
Based on a short recapitulation of Schücking’s family background and his formative years as a law student and young scholar, the article then focuses on Schücking as a left-liberal politician and – strongly influenced by Kant’s tract on Perpetual Peace – as an adherent to a progressive international legal order based on the Organization of the World and the rule of law. Schücking participated in the Versailles Peace Conference and in this capacity supported the League of Nations project. However, he became increasingly critical with regard to the Versailles Peace Treaty which he held to be shortsighted and prone to lead to another World War. He withdrew from his political activities and concentrated on developing his concept of an international law as a dynamic tool to induce the necessary process of peaceful change.
Roaming Charges: Moments of Dignity: Polish Youth on Warsaw's Pilsudski Square (PDF)
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.
How Effective is the United Nations Committee Against Torture? (PDF)
Ronagh McQuigg
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.
Fighting Maritime Piracy under the European Convention on Human Rights (PDF)
Stefano Piedimonte Bodini
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.
Alexander Orakhelashvili
The present contribution will not provide yet another analysis of the law of immunities in relation to international crimes; this has been done elsewhere.1 It is instead a response to certain views put forward by Dapo Akande and Sangeeta Shah.2 Akande and Shah disagree with my own conclusion that jus cogens can, and does, prevail over state immunity. They however advance an alternative approach favouring the denial of immunity, and their conclusion as to the lifting of immunity in civil proceedings manifests that the disagreement is not as wide as it could seem.3 The aim of this contribution is to clarify whether, in attacking my views, Akande and Shah have moved the debate forward, or made an original case against the primacy of jus cogens. The following analysis will demonstrate that these objections to the primacy of jus cogens over immunities rely only on factors and evidence that support the conclusions reached in that contribution, disregard the evidence that would stand in their way, and ascribe to some authorities the impact they have never been intended to produce.
Dapo Akande, Sangeeta Shah
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.
Between the 'Public' and the 'Private' (PDF)
Reut Yael Paz
This review essay seeks to understand the link between Hersch Lauterpacht’s biography and his scholarship by using the dichotomy of the ‘private’/’public’ divide. It argues that this dichotomy is a repeated motif in Hersch’s life and work, and hence also in this biography. In the concluding section, the review shifts to discuss how this dichotomy is reflected in Elihu Lauterpacht’s writing.
W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law (PDF)
Stephan W. Schill
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.
Ebrahim Afsah
This is the second release by a research project undertaken by the Institute for International Law and Justice at New York University, following the previously reviewed (21 EJIL (2010): 251) From Mercenaries to Market. The Rise and Regulation of Private Military Companies (Simon Chesterman and Chia Lehnhardt (eds), Oxford University Press, 2007). In that commendable first volume, the editors sought to bring a variety of perspectives to bear on the increasingly topical issue of private security providers and their regulation by states. The contributions to that earlier collection were characterized by a distinctly pragmatic approach to the issue, seeking to re-assess the degree to which international law’s categorical proscription of mercenarism remained tenable in a world where most states, rich and poor, view private service providers as an increasingly important part of their military posture.
Dr. Kalliopi Chainoglou
Cooperating for Peace and Security presents a comprehensive collection of essays on multilateral security cooperation since 1989. Leading experts on wide-ranging topics within the ambit of international security and international cooperation analyse the complex relationship between multilateralism and United States security interests. After the end of the Cold War, scholars from various disciplines envisaged the United States, as the sole single-power of the international system, shaping international security arrangements in accordance with its security interests and policy considerations. The atrocious terrorist attacks of 9/11 put terrorism on the priorities of the US security agenda; as a consequence, the US started a ‘war on terror’, which effectively engaged not only the US and its allies, but also the United Nations. Up to 2003, when the US clashed with the UN, the US played a significant role in the evolution (and innovation) of international security institutions within and outside the UN.
Stephan W. Schill (ed.). International Investment Law and Comparative Public Law (PDF)
Dr. Andreas Kulick
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.1 Wolfgang Friedmann’s famous assessment of the role of public law as a source of (general) public international law in 1963 holds even truer vis-à-vis international investment law in 2011. The kind of disputes investment arbitration tribunals have to deal with and the substantive issues they have to decide are widely perceived as matters of public concern, and thus by far transgress the rather isolated bilateral relationship that is the typical characteristic of a private dispute.
Fernando Losada Fraga
Free movement of capital and freedom of establishment are among the very few areas of the European Union’s internal market law the limits of which still need clarification. The political relevance of both freedoms is remarkable, particularly in the current context of economic crisis. This was proven again last summer when the government of Portugal overruled Portugal Telecom shareholders’ decision to sell to Telefónica part of their shares in Vivo. The conflict between Member States’ desire to protect strategic public interests through the fostering of ‘national champions’ and the economic freedoms as conceived in the EU treaties has usually been solved by the Court of Justice of the European Union (ECJ) in favour of the latter.
The Poplars of East and West (PDF)
Eric Stein
Even the poplars of Bohemia marching along the lonely road fade in the descending darkness after sunset in the foreshortening landscape leaves fluttering in the gentle evening breeze simple, stolid, without pretense hordes from the West hordes from the East come, stay – go? no freedom left in the darkening land or in the home only in the heart