CIAO DATE: 08/2012
Volume: 23, Issue: 2
May 2012
EJIL and its sister publication, I-CON are peer-reviewed journals. This is a counter-cultural posture in an age which celebrates, for some very good reasons (and some less admirable), the freedom that self-publication on the internet provides. Our own very successful Blog, EJILTalk!, is an example of a highly interesting and useful form of self-publication and I-CONnect will be launched soon. There are surely others like ours. SSRN is a more ambiguous example, but even there, there are some diamonds in the rough, if you have the patience to do some heavy-duty prospecting and sifting. Be that as it may, SSRN is not just part of contemporary academic culture; it is a defining part, both reflective and constitutive.
Armin von Bogdandy
This article argues that Articles 9 to 12 of the EU Treaty provide a promising way to conceptualize and develop the democratic legitimation of international organizations. To be sure, the current European Union is not a democratic showcase. However, an innovative concept of democracy, neither utopian nor apologetic, has found its way into its founding treaty. It can point the way in conceiving and developing the democratic credentials not just of the EU, but of public authority beyond the state in general. Since comparison is a main avenue to insight, this article will present those Articles and show what lessons can be learnt for international organizations.
The Crisis of the European Union in the Light of a Constitutionalization of International Law (PDF)
Jürgen Habermas
The crisis of the European Union showcases the asymmetry between transnational capacities for political action and social as well as economic forces unleashed at the transnational level. But recovering the regulatory power of politics by way of increased supranational organization frequently arouses fears about the fate of national democracy and of the democratic sovereign threatened to be dispossessed by executive powers operating independently at the global level. Against such political defeatism this contribution takes the example of the European Union to refute the underlying claim that a transnationalization of popular sovereignty cannot be achieved without lowering the level of democratic legitimation. It focuses on three components of every democratic polity – the association of free and equal legal persons, a bureaucratic organization for collective action, and civic solidarity as a medium of political integration – to argue that the new configuration they take at the European level, when compared with the context of the nation-state, does not in principle diminish the democratic legitimacy of the new transnational polity. The contribution continues to argue, however, that the sharing of sovereignty between the peoples and citizens of Europe needs to be better reflected in symmetry between Council and Parliament while political leadership and the media must contribute to a greater sense of civil solidarity.
Transnational Holocaust Litigation (PDF)
Leora Bilsky
International adjudication of the Holocaust has played a defining role in the development of international criminal law. Its legacy has recently been challenged by the Holocaust restitution actions brought before American courts in the 1990s. Settled for unprecedented amounts, the litigation has been sharply criticized by legal scholars and historians, who raise doubts as to the justice achieved for victims, and criticize the representation of the Holocaust in the actions. This article assesses the contribution of civil proceedings to conceptions of justice in international law. First, contrary to the critics, it argues that the civil class action provides an appropriate legal tool to deal with the liability of bureaucratic institutions for participation in gross human rights violations. Secondly, this article argues that the restitution actions altered the relationship between law and the history of the Holocaust as shaped under the paradigm of criminal law. Precisely because it was structured as a civil action and was settled, the litigation made a substantial contribution to historical research on the relationship between the state, corporations, and civil society in the carrying out of mass crimes. Thus, in opposition to the prevailing view that criminal law is the privileged form of law for dealing with atrocity, this article uncovers the valuable contribution of this new model of litigation to international law.
Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm (PDF)
Virginie Barral
The wide dissemination of sustainable development in international law has generated considerable academic interest. However, because of the evasive and flexible content of what has been termed by the ICJ a concept in the Gabcˇíkovo-Nagymaros case, and more recently an objective in the Pulp Mills case, academic commentary has often struggled to ascertain sustainable development’s legal nature, which has proved a notion defying legal classification. One attractive thesis has been Lowe’s analysis of sustainable development as an interstitial or modifying norm which exerts its normative influence as an interpretative tool in the hands of judges. Its interpretative function is certainly very significant. Judicial bodies have used it to legitimize recourse to evolutive treaty interpretation, as a rule of conflict resolution, and even to redefine conventional obligations. However, beyond this convenient hermeneutical function, by laying down an objective to strive for in hundreds of treaties, sustainable development primarily purports to regulate state conduct. As an objective, it lays down not an absolute but a relative obligation to achieve sustainable development. Such obligations are known as obligations of means or of best efforts. Legal subjects are thus ultimately under an obligation to promote sustainable development.
Giuseppe Martinico
The aim of this article is to answer the question, ‘are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights’? This article does not intend to examine the broader issue of the rapprochement between the legal systems of the EU and the European Convention on Human Rights (ECHR) but it concentrates on how national judges treat the norms of the ECHR compared with their treatment of EU law. I have structured this article in three parts. The first part offers a first look at the ‘constitutional variety’ existing in terms of constitutional provisions devoted to the impact of the ECHR and EU laws on the national systems. In the second part I will move to analyse the relevant case law of the domestic judges on three factors of potential convergence: consistent interpretation, disapplication of national law conflicting with European provisions, and emergence of a counter-limits doctrine. Finally, in the third part I will offer some concluding remarks on the convergence issue.
Roaming Charges Places of Entry: Tel Aviv Airport (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. ‘Roaming’, ‘Charges’, and those irritating ‘Roaming Charges’ – 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. As we roam around the world we aim for images which charge us: please and challenge, even irritate, at the same time. We seek photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to that which is, like human dignity, permanent and enduring. Take a moment – enjoy, reflect. If you are online, pause before the next click. Photos from our readers should be sent to ejil@eui.eu.
The WTO Legality of the Application of the EU's Emission Trading System to Aviation (PDF)
Lorand Bartels
The aviation industry has been included in the EU’s emissions trading scheme (ETS) since 1 January 2012. Airlines now have to acquire and ‘surrender’ allowances for the carbon emissions produced by their flights. The scheme is comprehensive: it applies to EU and non-EU airlines (subject to a potential exemption), to passenger and cargo flights, and to flights between EU airports and between EU and non-EU airports. An airline that fails to surrender allowances is fined €100 per allowance and must make up the shortfall the following year. The EU’s scheme has already given rise to legal action in connection with the EU’s international civil aviation obligations. But, due to its impacts on trade in goods and services, the scheme also has implications for the EU’s obligations under WTO law: specifically, under the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). Some of these issues are specific to this scheme, but in other respects they are connected with the current debate on the WTO legality of border carbon adjustments (BCAs). As this article shows, it is challenging to design a carbon scheme that is both administratively feasible and justifiable under WTO law.
EU Climate Change Unilateralism (PDF)
Joanne Scott, Lavanya Rajamani
The EU is engaged in an ambitious, controversial, and high-stakes experiment to extend the reach of its climate change law. It is seeking to use its market power to stimulate climate action, and to substitute for climate inaction, elsewhere. This is most apparent in relation to the EU’s decision to include aviation in its emissions trading scheme. While we are sympathetic to the EU’s objectives, and do not take issue with its unilateral means, we argue that the EU is not giving adequate weight to the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC). While the status, meaning, and implications of this principle are contested and unclear, it requires that developed countries should take the lead in addressing the causes and effects of climate change. We argue that the concept of CBDRRC retains relevance in the context of unilateral climate action, and that the EU’s Aviation Directive should be interpreted, applied, and where necessary adjusted in the light of it. We put forward two concrete proposals to achieve this end.
Boundary Agreements in the International Court of Justice's Case Law, 2000–2010 (PDF)
Alberto Alvarez-Jimenez
Boundaries are a key element of the exercise of states’ power and sovereignty. One of the cornerstones of boundaries is consent, as the ICJ has made clear. One should then expect from states that they be extremely careful when concluding agreements in such a critical realm. The undisputed character of consent as the pillar of boundaries by no means implies that the existence of a boundary or the attribution of sovereignty over territory is always clear when states have negotiated on these issues. The purpose of this article is to illustrate the different modalities of disputes over boundary agreements, in the ICJ’s jurisprudence over the first decade of the new millennium; to present the Court’s pronouncements on this particular issue; and to offer a general overview of this jurisprudence. Basically, this case law reveals that there are two general kinds of dispute. First, there were controversies relating to the existence of a boundary agreement. The second type of dispute involved controversies relating not to the existence of a boundary agreement but to its validity. As a conclusion, it can be said that the Court’s jurisprudence displays two trends. First, the Court was strict in finding the existence of a boundary agreement between the parties relating to a particular territory. Secondly, once the Court decided that a boundary agreement existed, it was reluctant to declare its unlawfulness.
Three Case Studies on 'Anti-Discrimination' (PDF)
Jakob Cornides
In recent years, the EU has adopted a series of new directives to promote ‘equality’ and to fight ‘discrimination’. Further measures are planned. But given that they are based on highly abstract concepts leaving wide margins of interpretation, the true meaning and impact of these new laws is difficult to understand in advance. In this article, I analyse three recent cases that give a foretaste of where European legislators, in their quest for more ‘equality’, may be heading.
'The Secret of Tomorrow': International Organization through the Eyes of Michel Virally (PDF)
Jorge E Viñuales
The contribution of the late French Professor Michel Virally to international law is vast and touches on most areas of this discipline. Yet, Virally devoted particular attention to two main areas of inquiry, namely the philosophy of law and international organization. I have ana lysed Virally’s contribution to the former elsewhere. This article focuses on his contribution to international organization widely understood as the study of international organizations and that of world organization. Virally considered international organization as a new political phenomenon, which would shape the dynamics of the two main driving forces of the second half of the 20th century, i.e., the East–West and the North–South divides. He developed a sophisticated theory of international organizations, with a strong functional focus. He used this theory to shed light on questions such as the management of international conflicts, the decolonization process, or the increasing influence of newly independent and developing states. His views on how these forces would shape the evolution of international law were far-sighted and allowed him to identify, with remarkable accuracy, the areas of international law where development considerations would require deep transformation, namely trade, investment, and the environment. In this regard, Michel Virally is also our contemporary and his contribution remains fully relevant for the analysis of international organization at large.
A Transnational Take on Krisch's Pluralist Structure of Postnational Law (PDF)
Gregory Shaffer
Nico Krisch. Beyond Constitutionalism: The Pluralist Structure of Postnational Law. Oxford: Oxford University Press, 2010. Pp. 330. £50. ISBN: 9780199228317. This article critiques Nico Krisch’s Beyond Constitutionalism: The Pluralist Structure of Postnational Law. The book’s primary foil is the turn to rethinking the international legal order in constitutionalist terms. Its contrasting normative vision is a post-national, pluralist one in which there is no legal centre or hierarchy. This vision, although less ambitious than the constitutional programme, is nonetheless quite radical, and shares more with most constitutionalist visions than it acknowledges. Krisch’s critique of his constitutionalist foil could be more radical than it is, and the article provides arguments for such a critique. Nonetheless, the essay finds that Krisch’s post-national vision is also too radical for the world outside Europe in being grounded in a European experience, as reflected in his case studies. The article contends that a framework addressing transnational legal ordering in which states continue to play a central role is superior, given the ongoing centrality of the nation state in governance. The article also finds that Krisch’s normative framework fails to address variation in its evaluation of institutional alternatives in which some hierarchy at times is preferable. Krisch’s vision is pluralist all the way through, while there are strong pragmatist arguments to be more context-specific in prescriptions.
Gerd Hankel
In Ruti Teitel’s view there is absolutely no doubt that we live in a world in which legal relationships are undergoing ever more significant change, a fact of which she informs the reader right at the beginning of her book. States alone are no longer the main actors; instead persons and peoples are assuming greater prominence. Their interests and needs for protection increasingly dictate the content of international law which is becoming humanity’s law as a result.
Michael Byers
International law has long been seen as a ‘primitive legal order’ lacking key components such as a generally applicable enforcement mechanism.1 There is some truth to this view, as evidenced by the long absence of another component that is common to developed legal systems, namely responsibility for actors who deliberately aid, assist, or are otherwise complicit in illegal acts.
Jörg Kammerhofer
In order to make ‘headway’ in one of the most intractable debates in our field – the nature and workings of customary international law – authors seem to employ one of three tactics. One is to repeat and rehash the same narrow, doctrinal debates that scholars have been having for the last forty-odd years. Another and far more courageous approach is for the author to seek to completely re-imagine (and remake) customary international law. A third, finally, is to reflect on the nature of customary law more widely and to include insights from jurisprudence/legal theory, legal history, and moral/political philosophy. An example of that third approach is the book under review, The Nature of Customary Law, edited by Amanda Perreau-Saussine and James Bernard Murphy and based on a conference at the University of Cambridge in 2005. It is decidedly the most notable and the most accomplished project in recent years. The two editors have assembled 13 authors, who have undertaken to elucidate certain historical and philosophical/theoretical aspects of the problematique resulting, it must be said, in a very well-executed bricolage. The more pragmatic readers are warned at the outset that neither is it a book on customary law in international law nor, for the most part, does it purport to describe how customary law comes about or is ascertained. But, as mentioned above, this was a conscious choice and one that has a great deal of merit. Beyond international legal scholarship and practice’s narrow account lie the very rich ‘domestic’ debates in the common law culture as well as parallel efforts in moral philosophy and (legal) historiography. The conscious decision of the editors to take account of these debates, coupled as it is with their choice of collaborators, does result, however, in a significant cultural bias.
Marina Mancini
The volume under review is published in the series ‘The Collected Courses of the Academy of European Law’, which draws upon the lectures given at the European University Institute in Florence within the Academy of European Law Summer School. It includes eight essays, most of which are authored by the lecturers in the session on the human rights law of the 2008 Academy of European Law Summer School. Their common denominator is the exploration, to a greater or lesser degree, of the interaction between international humanitarian law (IHL) and international human rights law (IHRL) and its functioning in practice.
Filippo Fontanelli
Many scholars have struggled to try to figure out ways to preserve a unitary perspective on international law in light of, and more frequently going beyond, the conservative guidelines formulated by Martti Koskenniemi and his ILC Working Group, collected in the 2006 Report on Fragmentation.
Nocturnal Vision (PDF)