CIAO DATE: 02/2012
Volume: 22, Issue: 4
November 2011
Nino – In His Own Words; In this Issue; The Last Page and Roaming Charges (PDF)
I have no intention of listing all of Antonio Cassese’s many distinctions and achievements as one of the great international lawyers of his generation. Readers of EJIL will be familiar with all of that, and Wikipedia (a decent entry) is just one click away. It is the person behind the public figure who is of interest. One has to be personal. I met Nino for the first time in 1978. I was a young(ish) Assistant at the European University Institute. He was a Professor ‘down town’ in Florence. Relations between the faculty at the University and the EUI on the top of the hill were frosty. At best an entente cordiale. Nino would have none of that. He embraced me and within months of my arrival invited me, first to his home, and then to contribute to a major project he was directing on Parliamentary Control of Foreign Policy. I was asked by him to write the Report on the European Communities. It was a telling moment. The late Christoph Sasse, distinguished professor of EC law from Hamburg, was indignant: ‘a role for a Professor, not an Assistant’. Nino had no patience for that stuff either. He really did not know me all that well and was taking a risk. But it was typical of him: reaching out, welcoming, having faith, including the young, foreigners. It galvanized me. It was, too, a lesson for life.
General Principles and Comparative Law (PDF)
Jaye Ellis
This article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. The currently accepted definition of general principles and methodology for identifying such principles are critiqued. The criterion of the representativeness of the major families of legal systems, to which courts and tribunals tend to pay lip service rather than applying rigorously, is meant to anchor general principles in state consent, but is not a sound technique either for identifying principles of relevance to international law or for preventing judges from referring only to the legal systems they know best. Furthermore, the emphasis on extracting the essence of rules results in leaving behind most of what is interesting and useful in what judges may have learned by studying municipal legal systems. Comparative scholarship is an obvious, rich, and strangely neglected source of guidance for international judges who wish to draw insights from legal systems outside international law.
Munich Alumni and the Evolution of International Human Rights Law (PDF)
Thilo Rensmann
As a tribute to Bruno Simma on the occasion of his 70th birthday this article follows the traces of two of his fellow alumni from Munich University who belonged to the first generation of ‘droit-de-l’hommistes’. In the early 1940s they laid the foundations for the entrenchment of human rights in the international legal order. Ernst Rabel and Karl Loewenstein, who taught in Munich during the inter-war period, each played a significant role in breaking the mould of isolationism prevalent in German legal scholarship at the time. Hitler's rise to power, however, put an abrupt end to the internationalization of legal thought in Germany. Rabel and Loewenstein, like many other legal scholars of Jewish descent, were forced into exile. It so happened that in 1942 the two Munich alumni were invited by the American Law Institute to join a committee ‘representing the major cultures of the world’. This committee was charged with the momentous task of drafting an international bill of rights for a new post-war global order. Their draft was later to become the single most important blueprint for the Universal Declaration of Human Rights. Against this backdrop the article attempts to identify the specific contribution made by Rabel and Loewenstein to the evolution of international human rights law.
Anastasios Gourgourinis
This article takes issue with certain fundamental aspects of the fragmentation analysis by addressing the normative underpinnings of the proposition that international law is structured as a legal system. To this end, focus is had on the unitary character of the general/particular international law and primary/secondary rules terminology, as normative differentiations to the international legal system (the ‘whole’), by virtue of the residual (default) applicability of the sets of norms they denote. Ergo, on the one hand, the doubts expressed by the ILC Study Group on Fragmentation concerning the allegedly obscure meaning and scope of the term ‘general international law’ are dispelled by demonstrating that the term indeed signifies the set of international legal norms binding erga omnes; on the other, the article elaborates on the crucial role of the distinction between primary and secondary norms for the proper operation of lex specialis, focal to the fragmentation analysis. Overall, the pertinence of the general/particular international law and primary/secondary norms termini technici in international adjudication supports the view that the international legal system is indeed equipped with the proper normative tools to cope with the challenges set by fragmentation.
Regulating War: A Taxonomy in Global Administrative Law (PDF)
Daphné Richemond-Barak
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.
Sonia Morano-Foadi, Stelios Andreadakis
This article, based on a broader project, focuses on the interaction between the two European Courts (the Court of Justice of the European Union – ECJ and the European Court of Human Rights – ECtHR) and uses the specific area of expulsion/deportation of third country nationals (non-EU nationals) from European territory as a case study. The work examines the ECJ’s and ECtHR’s divergent approaches in this area of law, and it then provides some preliminary reflections on the potential of the EU Charter of Fundamental Rights and the EU’s accession to the European Convention of Human Rights (ECHR) to achieve a more harmonious and convergent human rights system in Europe. It finally argues that the post-Lisbon era has the potential to enhance the protection of fundamental rights within the continent.
Abigail Deshman
A diverse set of national and international bodies is increasingly commenting upon other organizations’ compliance with ‘global administrative law’ norms, creating a complex network of interaction and review. Although many forms of interaction can be identified and observed, horizontal review between international organizations appears to be relatively rare. This article examines one instance in which review did emerge: the Parliamentary Assembly of the Council of Europe's criticisms of the transparency and accountability of the World Health Organization (WHO) during the H1N1 pandemic. Two key questions arise from the case study. First, what structural or institutional features allowed inter-institutional review to take place? And, secondly, why would two institutions have such divergent views of an international organization's accountability and transparency? The analysis suggests that a key factor in allowing horizontal review to occur is diversity in institutional composition – in terms either of membership, distribution of power between members, or interests represented by members. In this case study, the Parliamentary Assembly represented the interests of states’ legislative branches, whereas the WHO representatives reflect the interests of states’ executive branches. Variations in baseline assumptions regarding the WHO's function in regulating infectious disease response and to whom it should be accountable may partially explain the substantive divergence of opinion.
Roaming Charges: Places of Worship: Piazza Duomo Milano (PDF)
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.
Roda Mushkat
The academic literature on the systems that govern relations between states is rich but not without gaps. The subject of international legal regime formation is one that may benefit from further exploration. The protracted and unnerving process leading to the signing of a path-breaking agreement between China and the United Kingdom regarding the future of Hong Kong, a topic which has fascinated historians but has not galvanized socio-legal researchers into action on a meaningful scale, may offer considerable insights pertaining to the development of governance systems that regulate complex interaction between states.
Kevin Tan
Professor Roda Mushkat’s article, arguing for the application of international regime theory to understanding the Sino-British Joint Declaration, is a curate’s egg. As I read it, I often found myself nodding in agreement with her, especially her analysis and critiques of various international relations theories and methodologies. But she fails to make the case for regime theory analysis in general and for its application to the Sino-British Declaration in particular.
International regime theory has been with us since John Ruggie introduced this concept to international relations through his seminal article ‘International Reponses to Technology: Concepts and Trends’1 in 1975. Underlying this theory is the notion that imperatives of behaviour coordination compel the formation of international regimes. Thus, ‘regimes’ include international organizations such as the International Monetary Fund (IMF) or international agreements, such as the Kyoto Protocol. They evolve – become structured ‘regimes’ – because they serve as a forum to standardize and facilitate discussion, communications and agreements across various countries. Scholars like Stephan Krasner (whom Mushkat cites) argue that the presence of a hegemon – such as a superpower like the United States – gives momentum to the creation of the regime. This has been called the ‘hegemonic stability theory’2 because hegemons use their power to create regimes. Correspondingly, when the power of these hegemons wane, the effectiveness of the same regimes come under threat. Regimes can be subjects of international law in that they shape the behaviour of states, sometimes to the extent that state practice may constitute a source of customary international law.
Roda Mushkat
I appreciate Professor Tan’s willingness to assume the role of a discussant and endeavour to initiate the process of a collective exploration of the issues addressed in my article. It must be stated at the outset that I find his arguments not compelling, am disappointed that he has not approached the task more carefully and wish that he had ventured deeper into methodological and theoretical territory. However, the two-way flow of ideas for which the EJILprovides a fertile platform yields intellectual benefits even when it is uneven and incomplete.
Bas Schotel
This article is a reaction to Sarah Nouwen and Wouter Werner, ‘Doing Justice to the Political. The International Criminal Court in Uganda and Sudan’, 21 EJIL(2010) 941. It takes issue with attempts to understand international law and particularly the workings of the International Criminal Court in terms of Carl Schmitt’s thesis on the political as distinguishing between friend and enemy. My contention is that parties to a violent/political conflict may try to mobilize the law in their struggle, but that the structure of the law itself escapes the logic of the political: law cannot be ‘political’ in the Schmittian sense. The unexpected upshot of this is that Schmitt’s notion of the political may operate as a normative criterion for testing whether legal officials are still respecting the constraints of their practice. If legal authorities are indeed in the business of defining the enemy of mankind, then they are not doing this through or with the help of the law. They may simply act against the law. To substantiate this point, the article thinks through the difference between conventional and absolute/real enemies and contrasts these notions with the characteristics of (international criminal) law.
Sarah Nouwen, Wouter Werner
Is it possible for the ICC to become an actor in political struggles over the definition and labelling of friends and enemies? In our article ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ we gave an affirmative answer to this question, based on empirical findings from Uganda and Sudan and a concept of the political derived from Schmitt, Kirchheimer and Shklar. Taking Schmitt’s concept of the ‘enemy of mankind’ as his starting point, Schotel disputes our conclusions. Although ‘parties to a violent/political conflict may try to mobilize the law in their struggle’, Schotel argues, ‘the structure of the law itself escapes the political: law cannot be “political” in the Schmittian sense’. He continues: ‘If legal authorities are indeed in the business of defining the enemy of mankind, then they are not doing this through or with the help of the law. They may simply act against the law.’ Schotel’s main points of disagreement with our article concern (i) the way in which ‘enemies of mankind’ are created; (ii) the structure of international criminal law; and (iii) the difference between the law and the people applying the law.
On First Understanding Plato's Republic (PDF)
Philip Allott
A book can change a mind, but only if that mind is ready to be changed. The mind of a particular child formed, up to the age of reason, in a time of war, is liable to be ready to ask questions of a particular kind about the human condition – still more so, when, at the age of eight, that child sees, on the front-page of the newspaper, images of Belsen and Hiroshima, images that would never be forgotten. In the 1940s it was still possible to believe in childish innocence. Now even small children know too much about the worst that human beings can do.
Jan Klabbers
The great British philosopher Michael Oakeshott once observed that ideally teaching should be a personalized affair and take place one on one, as ‘practical knowledge can be acquired only by continuous contact with one who is perpetually practising it’.1 This way, someone of shown mastery in a subject could guide a pupil along, instruct on points of detail, correct him or her where he or she would threaten to make a mistake, and carefully track the pupil's progress and suggest bespoke improvements. The pupil would learn far more effectively than he or she ever would in a classroom setting and, in particular, be able to reach beyond purely technical knowledge. After all, as Oakeshott explained elsewhere, education ‘is the transaction between the generations in which newcomers to the scene are initiated to the world which they are to inhabit. This is a world of understandings, imaginings, meanings, moral and religious beliefs, relationships [and] practices’.2
Sir Hersch Lauterpacht, The Function of Law in the International Community (PDF)
Isabel Feichtner
Almost eight decades after its publication in 1933, Oxford University Press recently republished Hersch Lauterpacht's book, The Function of Law in the International Community, with a new preface by Martti Koskenniemi that situates the work within the German legal tradition.1 The Function of Law is a significant work for several reasons and its renewed accessibility therefore very much welcomed.
Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (PDF)
Isabelle Ley
Despite its important tradition in international law, international legal philosophy has, for the most part, been left aside by scholars during the past decades. While there has been a revival in legal philosophy in most fields starting with Hart and Rawls in the 1960s, international law has been conspicuously left out of this move. The founders of the discipline at the beginning of legal modernity (Grotius, Pufendorf, Vattel), as well as the pioneers of current ways of thinking about law and politics in the international sphere (Kelsen, Lauterpacht, Morgenthau), are, of course, all acknowledged – but not so much reread, rediscovered, or even overturned by contemporary research. Is it time to catch up?
Anne-Laurence Graf-Brugère
Notions such as ‘peace’, ‘war’, ‘threat to the peace’, ‘maintenance of international peace and security’, and ‘collective security’ are not only open-textured but also living concepts. Their content and definition evolve with time and experience. In fact, these concepts are based on a consensus which exists at a particular time between members of the international community. The 2004 Report of the Secretary-General's High-Level Panel on Threats, Challenges and Changes, A More Secured World: Our Shared Responsibility (thereinafter ‘HLP Report’) and the reports that followed (the then Secretary-General's In Larger Freedom Report and the 2005 World Summit Outcome Document) aim precisely at delineating such a consensus on the global idea of collective security, ‘global’ in the sense that it touches upon all the notions mentioned above, notably the one of threat to international security (not to be confused with the threat to international peace and security).
Gerd Hankel, Das Tötungsverbot im Krieg (PDF)
Sigrid Mehring
Contrary to its narrowly phrased title, Das Tötungsverbot im Krieg (‘The Prohibition to Kill in War’), Gerd Hankel in his most recent publication presents his thoughts on contemporary armed conflicts, humanitarian interventions, and the future of the laws of armed conflict. One should not be fooled by the small and handy format of the book; in its six manageable chapters, Hankel provides a plethora of recent and older examples and explanations to support his call for the revision of international humanitarian law.
Jane McAdam (ed.), Climate Change and Displacement. Multidisciplinary Perspectives (PDF)
Jenny Stoutenburg
The discourse on environmentally induced migration has now been going on for more than a quarter of a century.1 Still, to this day there exists no empirical or conceptual clarity regarding the existence and number of environmentally displaced persons, as well as the terminology and legal protection mechanisms that should be applied to them. In recent years, the focus of scholarly and institutional attention has shifted from environmentally induced migration in general to migration induced by climate change, adding further complexity to an already difficult topic. Climate change-induced migration now needs to be distinguished not only from the social, economic, and political factors compelling human movement, but also from the ‘background noise’ of general environmental change that might cause people to seek a livelihood elsewhere.
Peter H. Sand, Atoll Diego Garcia: Naturschutz zwischen Menschenrecht und Machtpolitik (PDF)
Ebrahim Afsah
There are many ways of looking at the international system, but two dichotomies stand out: there are those who believe international behaviour is primarily motivated by systemic forces and those who believe that the internal composition of the individual units dramatically affects how they act internationally, and especially that democratic polities are more peaceful and law-abiding than others. Like many essentially untestable hypotheses, the debate between these two positions has resisted a clear resolution. One of the reasons the debate has been so vicious and largely unproductive lies in its implicit reliance on the other, even less testable dichotomy in international affairs, viz. the disputed nature of man as primarily good or primarily evil,1which is closely linked to the legal debate about the sources of obedience to law.2
Mary Footer
As the 10th anniversary of the launch of the WTO multilateral trade negotiations at Doha approaches, this collection of essays serves as a painful reminder that the so-called ‘Doha Development Round’ is far from concluded. It also recalls how the WTO's dispute settlement system has continued to have an important ‘norm-generating function’.1 Nowhere is this more so than in disputes involving developing countries. In some instances developing country Members initiate formal dispute settlement proceedings at the WTO precisely to promote wider reforms of their governance and administrative structures. In others the participation of Member governments in formal dispute settlement procedures at the WTO has been supported by industry and the business sector. A few developing country governments have drawn on dialogue with local civil society organizations in bringing or defending complaints with important social implications for their citizens.
Rüdiger Wolfrum, Peter-Tobias Stoll and Holger P. Hestermeyer (eds), WTO: Trade in Goods (PDF)
Sungjoon Cho
This notable book is part of an ambitious project entitled ‘Max Planck Commentaries on World Trade Law’. As is widely known, the concept of commentaries originates in the civil law tradition and may be traced back to what the editors of this volume dub the ‘Roman legal science’ (at ix), crystallized in the Corpus Juris Civilis which Justinian I commissioned one and a half millennia ago.
Andre Stemmet
In an interview with BBC television on 19 March 2011, British Prime Minister David Cameron described the use of force against Libya in terms of United Nations Security Council resolution 1973 (2011) as ‘necessary, legal and right’. This statement once again illustrated the fact that, especially with respect to the use of force in the execution of foreign policy, justification in terms of applicable international law principles weighs heavily on the minds of statesmen. It is therefore not surprising that it is increasingly being recognized in contemporary academic discourse that international law and international politics and security are intertwined subjects and that international law provides a useful paradigm for the analysis of international relations. The momentous events of 11 September 2001, which marked the advent of asymmetric warfare, challenged the ability of especially Western democracies to deal with hitherto unknown security challenges within the established framework of international law. These developments provided fertile soil for developing a discourse on the relationship between international law and international relations and diplomacy, conducted by both academics and practitioners.
Alessandro Chechi
This volume collects the essays presented at the workshop entitled ‘National Judges and Supranational Laws: On the Effective Application of EU Law and the ECHR’, hosted by the Sant’Anna School of Advanced Studies (Pisa) on 15 and 16 January 2010. The workshop gathered 21 scholars from across Europe to discuss two fundamental questions: whether domestic judiciaries handle European Union (EU) law and the European Convention of Human Rights (ECHR) in a similar manner; and whether national courts facilitate a convergence in the implementation of EU law and the ECHR in domestic legal orders.
Alexandra Kemmerer
In his first seminal Hague lectures, published in 1994, Bruno Simma defined the ‘community interest’, which in the meantime has become an indispensable component of the discipline’s conceptual toolbox, as ‘a consensus according to which respect for certain fundamental values is not to be left to the freedisposition of States individually or inter se but is recognized and sanctioned by international law as a matter of concern to all States’.
On Reading Horace Odes 3.2 with Rusty Latin (PDF)
Jonathan Shaw