CIAO DATE: 05/2012
Volume: 23, Issue: 1
February 2012
Integration Through Fear (PDF)
Quos Deus vult perdere prius dementat! The manner in which Europe is addressing its grave crisis seems to be validating this piece of wisdom attributed to Euripides, Seneca and others. One manifestation is an argument which has become prevalent. In his very first speech as Premier elect to the Italian Senate, Mario Monti warned that ‘the end of the Euro would unravel the single market, its rules, its institutions, and would take us back to where we were in the 1950s’. The same nonsensical scare tactics – if the Euro fails, so does Europe as a whole – have been used by all major European leaders, from Barroso and van Rompuy to the Merkozy twins.
Ingo Venzke, Armin Bogdandy
Court judgments are epitomes of sovereign rule in many grand theoretical sketches. How may such judicial power be justified nowadays? Many domestic courts decide in the name of the people and thus invoke the authority of the democratic sovereign literally at the very beginning of their decisions. International courts, to the contrary, do not say in whose name they speak the law. This void sparks our driving question: how does the power of international courts relate to the principle of democracy? How can it be justified in accordance with basic premises of democratic theory? Our contribution develops an understanding of international adjudication as an exercise of public authority. It places emphasis on the asymmetry between international adjudication and parliamentary politics, unfolds legitimacy problems in the practice of international courts, and sketches how to interpret and develop international law in response. Procedural adjustments and politicization could react to power vested in decisions, elections might respond to the exercise of public authority, and systemic interpretation as well as a dialogue between courts may perhaps ease problems of fragmentation. We ultimately suggest that domestic constitutional organs will retain a critical role in relieving the international level from shouldering the whole legitimatory burden, contesting and accommodating authority in a normative pluriverse. We finally contend that the idea of transnational and possibly cosmopolitan citizenship should further guide the democratic justification of international courts’ public authority.
Do International Criminal Courts Require Democratic Legitimacy? (PDF)
Marlies Glasius
International criminal courts have in recent years been criticized for being ‘undemocratic’ in their dealings with populations affected by the crimes they are concerned with. They are beginning to formulate responses to these criticisms. This article will first outline the nature of these critiques and the courts’ responses. Then it will take inspiration from classical and recent theories in legal sociology and legal anthropology to assess whether there is a theoretical basis for the demand for democracy. It concludes that there is no viable argument that would support requiring a direct democratic basis for international criminal courts, but there are clear points of departure for insisting that they should pursue wider social aims, for identifying these aims, and for identifying principles that can guide the conduct of relationships with affected populations.
The Protection of Humanitarian Legal Goods by National Judges (PDF)
Nicolás Carrillo-Santarelli, Carlos Espósito
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.
David Koller
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.
Al-Skeini and Al-Jedda in Strasbourg (PDF)
Marko Milanovic
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.
International Courts and the European Legal Order (PDF)
Matthew Parish
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.
Agnieszka Szpak
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.
Roaming Charges: Moments of Dignity: Bicycle Repair Man, Peking (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. 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.
Jose Leyda
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.
Eyal Benvenisti
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.
Jose Leyda
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 Regulations1 ‘imposes obligations of a general nature on the Occupying Power’, while Article 64 of the IV Geneva Convention2 contains a specific exception for penal legislation.3 Therefore, Article 43 HR still remains the applicable norm regarding commercial law reform in occupied territories.
Editorial Note (PDF)
Linos-Alexander Sicilianos, Thomas Skouteris
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 history1 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.
The 'Government Intellectuals': Nicolas Politis – An Intellectual Portrait (PDF)
Marilena Papadaki
This article sketches an intellectual portrait of Nicolas Politis (1872–1942), a liberal Greek jurist and a naturalized Frenchman of the interwar period. The main lines of his thought’s evolution and his socio-political engagement over the course of his life are considered typical of a new type of intellectual, the ‘government intellectual’, who appeared on the international scene at the beginning of the 20th century. The profile of the ‘government intellectual’, proposed to study his career, is closely tied to the scholar’s discourse concerning politics. It allows one to observe the emergence of a space of intellectual production and of institutional positions, relatively autonomous vis-à-vis specifically national considerations, but always in the service of their interests, which were in liberal thought conceived as consistent with the interests of international society. The richness of his career allows one to consider the intellectual engagement of jurists in new terms, by closely associating the strategies of individual actors with the various contexts that they had themselves contributed to creating.
Politis and Sociological Jurisprudence of Inter-War International Law (PDF)
Robert Kolb
This article attempts to shed some light on the French Sociological Law School, its doctrinal presuppositions, social surroundings, and different personal expressions, focusing then on the contribution to that doctrine of one of its major exponents, Nicholas Politis.
Politis and the Limits of Legal Form (PDF)
Umut Özsu
Prolific as a scholar, active in the League of Nations, and agent for Greece before the Permanent Court, Nicolas Politis is remembered today as a key figure both in the development of international legal doctrine and in the organization of international political relations. This short article examines three of Politis’ texts – the first an early foray into scholarship dealing with issues arising from the 1897 Greek–Turkish War, the second a set of mid-career lectures at the Hague Academy of International Law, and the third the posthumously published La morale internationale, a work of considerable ambition that never quite managed to find its audience. The article’s chief aim is to demonstrate that Politis’ trajectory was marked by recurring appeals to extra-legal ideas and arguments – a broadly anti-formalistic tendency which made its influence felt with increasing visibility over time, but which was present even in his earliest and most conventional work.
Nicholas Tsagourias
This article focuses on Nicholas Politis’ efforts to outlaw war and define aggression, and places them within the progress narrative of the interwar international law discourse. This narrative is defined by its rejection of sovereignty; its belief in codification; and the recognition of the individual as a subject of international law. Politis’ projects envisage international law as a means towards an ecumenical world order built around individuals.
Neutrality – A Survivor? (PDF)
Maria Gavouneli
Nicolas Politis argued in 1935 that the law of neutrality was obsolete, a product of the international anarchy of the times, doomed to be replaced by a new centralized international community. His vision of the League of Nations ended in the fire of World War II but his prediction proved to be mostly true. In the collective security system created by the UN Charter and its prohibition of the use of force, the traditional rules of neutrality do not find scope of application. Yet, transposed into fundamental principles of humanitarian law, they continue to rule over peace-keeping and humanitarian operations. In addition, they complement the existing rules for military action mandated by the UN Security Council, especially during operations at sea. He was essentially right: the institution had to change and it has changed.
Kimberley N. Trapp, State Responsibility for International Terrorism.Problems and Prospects (PDF)
Helmut Aust
Ten years after the terrorist attacks of 11 September 2001, the priorities of world politics now appear to shift to different topics and themes. Accordingly, it is time for international lawyers to identify whether the international fight against terrorism has an enduring legacy. The monograph by Kimberley Trapp will be of particular help for this endeavour with respect to the allocation of state responsibility for international terrorism.
Günther Auth
Global governance has been the buzzword for many internationalists for quite some time now, and the United Nations has been one of the primordial focal points in controversies about global order. This prominence of the UN has been especially remarkable in the context of deliberations about the legality and legitimacy of military force. For, despite the growing importance of the US as the world’s most capable superpower, internationalists have not been muted by voices stressing the impossibility of successfully grappling with power-based interests and high-political considerations of predominant states through international law and organization. The emergence of a unipolar moment, a constellation supposedly characterized by a high concentration of military capabilities and widespread scepticism as regards the fruitfulness of multilateralism in the US has rather enticed many commentators to ponder all the more seriously the potential role of multilateral institutions, such as the UN – as a mediating structure vis-à-vis national interests, as a legitimacy-conferring agent the main function of which it is to rationalize the regime of the great powers, or as a potential counterweight to US-American unilateralism. The author of the book under review adds to this list as he endeavours to show that, after the end of the Cold War in 1990, the Secretariat of the UN repeatedly championed views that brought it into conflict with the US and other influential member states of the UN. Based on his own experience as a staff member in the Office of Legal Affairs since 1973, as the Director of the UN Secretariat’s Office of Legal Counsel since 1988, and as an Assistant Secretary-General for Legal Affairs of the United Nations from 1998 to 2005, he delivered The Sir Hersch Lauterpacht Memorial Lectures at Cambridge University in 2008, in which he made a strong point for an independent role for the UN Secretariat as regards questions concerning the legality and legitimacy of military force.
Daniel H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty (PDF)
Dieter Fleck
The 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which was extended indefinitely in 1995, provides a comprehensive legal structure of rights and obligations designed to protect mankind from nuclear aggression and accidental extinction. Yet its implementation takes place in a political environment of uncertainties and controversies. The still existing universality gap,1 an apparent implementation gap (Iran), and the absence of effective measures towards general and complete nuclear disarmament – which are to be seen against the background of the global challenge that non-state actors are getting access to weapons of mass destruction – call for urgent and effective measures to increase implementation of the NPT and ensure compliance with its rules. Any of these measures at first requires an interpretation of the Treaty.
Anne Orford, International Authority and the Responsibility to Protect (PDF)
Ramesh Thakur
Rwanda’s three-month 1994 genocide that killed 800,000 people was not prevented due to a failure of political will, not lack of military capacity. Then in Kosovo in 1999, NATO did take forceful action in the name of humanitarian intervention, but without UN authorization. Both incidents triggered legal and political controversies, as a consequence of which Secretary- General (SG) Kofi Annan pushed for a new doctrine which would allow the international community to take timely and effective action against humanitarian atrocities.
P.G. McHugh, Aboriginal Title. The Modern Jurisprudence of Tribal Land Rights (PDF)
Katja Göcke
The recognition of aboriginal title – i.e., land rights not derived from the Crown/government but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial – is probably the greatest achievement of indigenous peoples in their decade-long struggle to defend their land and culture. Since indigenous peoples define themselves as a people through their genealogical connection to certain areas, the realization of the right to own, use, and live on their ancestral territories has always been at the centre of their struggle for the recognition and enforcement of their rights. Ownership of and control over their ancestral land and its resources are not only considered a significant contribution to solving the terrible social and economic problems indigenous peoples are facing.
Andreas Müller
Whether and where to locate the individual in the universe of international law has become a standard question for the discipline. While in the 19th and still in the early 20th centuries international legal doctrine could not see in the human person anything other than a mere object of international law,1 at the beginning of the 21st century, the individual presents itself as habitué of international law with major treatises dedicating a substantial number of pages, if not whole chapters to the topic.2 The last hundred years have thus witnessed a remarkable development which has shifted the individual’s place in international law from the utmost periphery of the discipline to perhaps not its centre, but at least to its inner circles.
Julien Topal
Jose Alvarez and Karl Sauvant have compiled an interesting and diverse set of 12 essays from authors representing scholarly, NGO, and legal practitioners’ perspectives on the international investment regime. The essays are based on papers presented at the second Columbia International Investment Conference of 2007. They are complemented by an insightful introduction from the editors, a sketch of the ‘context’ (Jeffrey Sachs), and a report on the debates ensuing at the conference (Andrea Bjorklund).
The Second Wave (PDF)