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Preview: European Journal of International Law - current issue

European Journal of International Law Current Issue





Published: Mon, 10 Jul 2017 00:00:00 GMT

Last Build Date: Mon, 10 Jul 2017 05:51:47 GMT

 



Itamar Mann. Humanity at Sea: Maritime Migration and the Foundations of International Law

2017-07-10

MannItamar. Humanity at Sea: Maritime Migration and the Foundations of International Law. Cambridge: Cambridge University Press, 2016. Pp. 244. £69.99. ISBN: 9781107148765.



Andrea Bianchi, Daniel Peat and Matthew Windsor (eds). Interpretation in International Law

2017-07-10

BianchiAndrea, PeatDaniel and WindsorMatthew (eds). Interpretation in International Law. Oxford: Oxford University Press, 2015. Pp. 432. £70.00. ISBN: 9780198725749.



Mathias Albert. A Theory of World Politics

2017-07-10

AlbertMathias. A Theory of World Politics. Cambridge: Cambridge University Press, 2016. Pp. 278. €94.58. ISBN: 9781107146532.









The Use of Force by Non-State Actors and the Limits of Attribution of Conduct: A Rejoinder to Ilias Plakokefalos

2017-07-10

Abstract
I am grateful to Ilias Plakokefalos for his thought-provoking comments on my article. Plakokefalos makes two overarching critiques. First, he argues that my normative claim conflates the distinction between primary and secondary rules and is closer to an argument in favour of a new primary rule prohibiting aid or assistance (complicity) of states in the use of force by non-state actors (NSAs). Second, Plakokefalos submits that there is insufficient support in case law for the construction of complicity as a basis for the attribution of conduct.



Khundi

2017-07-10




Within and Beyond Interdisciplinarity in International Law and Human Rights

2017-07-10

HirschMoshe. Invitation to the Sociology of International Law. Oxford: Oxford University Press, 2015. Pp. 240. £50. ISBN: 9780199688111.



The International Court of Justice and the Judicial Politics of Identifying Customary International Law

2017-07-10

Abstract
It is often observed in the literature on customary international law that the identification practice of the International Court of Justice (ICJ) for customary norms deviates from the traditional definition of customary law in Article 38 (1) lit. b of the ICJ Statute. However, while there are many normative and descriptive accounts on customary law and the Court’s practice, few studies try to explain the jurisprudence of the ICJ. This study aims at closing this gap. I argue that the ICJ’s argumentation pattern is due to the institutional constraints that the Court faces. In order for its decisions to be accepted, it has to signal impartiality through its reasoning. However, the analysis of state practice necessarily entails the selection of particular instances of practice, which could tarnish the image of an impartial court. In contrast, if the Court resorts to the consent of the parties or widely accepted international documents, it signals impartiality.



MFN Clubs and Scheduling Additional Commitments in the GATT: Learning from the GATS

2017-07-10

Abstract
Scheduling additional commitments for policies affecting trade in goods in the General Agreement on Tariffs and Trade has been plagued by two sources of ambiguity: the treatment of changes introduced unilaterally by members subsequent to an initial commitment and the treatment of new commitments by World Trade Organization (WTO) members pertaining to non-tariff policy measures affecting trade in goods. This is not the case for trade in services, as the General Agreement on Trade in Services makes explicit provision for additional commitments to be scheduled. Neither secondary law, in the form of decisions formally adopted by the WTO membership, nor case law has clarified the situation for trade in goods. This matter is important for the WTO as it determines the feasibility of clubs of countries agreeing to new enforceable policy disciplines that bind only signatories but are applied on a non-discriminatory basis to all WTO members. In this article, we discuss the legal state of play and the ‘policy space’ that WTO members have to establish most-favoured-nation, club-based disciplines for non-tariff measures.



To Be or Not to Be: The Ontological Predicament of State Creation in International Law

2017-07-10

Abstract
International law is classically based on a system of states whose members it attempts to identify by virtue of their effectiveness, their recognition by other states, and their creation in accordance with the rules of international law. In this article, I illustrate the indeterminacy of these three dimensions and argue that assessments of individual state creations are instead necessarily based on blunt, but silent, ontological commitments to any potential state’s full presence or absence. While the ‘great debate’ between declaratory and constitutive doctrines of recognition has emphasized, but not finally determined, the ontology of the state, attempts to find compromises between material effectiveness and constitutive recognition as well as the turn towards the proper legal regulation of state creation have only bracketed and invisibilized its decisive role. The deconstruction of state identifications reveals an essentially empty state ontology that confronts scholars and practitioners with the predicament of having to ultimately presuppose any particular state’s existence or its absence. This not only allows for reflecting on the stakes of individual assessments but also shows how all state identifications inevitably reproduce the hegemonic image of an exclusive and neatly delineated state system that brings its unruly fringes under control time and again.



Does and Should International Law Prohibit the Prosecution of Children for War Crimes?

2017-07-10

Abstract
This article investigates whether international law prohibits the prosecution of children for war crimes and, if it does not, whether it should do so. In particular, the interplay between restorative and retributive post-conflict justice mechanisms, on the one hand, and juvenile rehabilitative justice mechanisms, on the other, is discussed in detail. The article suggests that in certain, narrow, circumstances children having committed war crimes should be prosecuted.



The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control

2017-07-10

Abstract
This article conducts a comparative analysis of the American and European Conventions on Human Rights to review the relationship between conventionality control and constitutionality control assumed by domestic courts. First, the analysis negates the monist pyramid model by pointing out the limits of the supremacy of international law and constitution. Given the integration of conventionality control into constitutionality control in practice, this study instead presents the normative framework of the trapezium model, crowning the common values recognized by both national constitutions and international law. This research also contributes to clarifying the pro homine principle, a fitting concept to the trapezium schema, focusing on the most favourable treatment for individuals. Specifically, it proves the principle’s double function to offensively pierce or defensively safeguard the boundary between international and domestic legal orders. Finally, it argues that in cases of conflicting rights between different individuals, the pro homine principle relativizes an absolute protection of certain rights to strike balance between them. In essence, conventionality control and constitutionality control should be coordinated by the open-minded, substance-oriented, pro homine principle within the pluralist trapezium, in lieu of the principle of the closed, formal supremacy of international law or constitution within the monist pyramid.



Conforming Instrumentalists: Why the USA and the United Kingdom Joined the 1949 Geneva Conventions

2017-07-10

Abstract
Why have major Western powers committed to international laws of war? Given recent American conduct amid the War on Terror, lively debate rages over this important question in scholarly and policy circles, featuring arguments that range from sheer hypocrisy and self-interest to domestic politics and international social pressures. Through a careful study of the British and American process of deciding whether to sign and ratify the core modern law-of-war treaties – the Geneva Conventions of 1949 – and to do so with or without reservations, this article demonstrates that international social conformity pressures and instrumental motives jointly influenced these countries’ signature and ratification decisions. American and British reasoning was neither as self-serving as some realists presume nor as aloof to international social dynamics as rational institutionalist and liberal scholars commonly allow. The article calls for the further refinement of the theoretical debate on state commitment to international law of humane conduct, including humanitarian and human rights law, and encourages the pursuit of alternative methods, namely archival sources, to answer these and other enduring puzzles.



When Institutional Design Is Flawed: Problems of Cooperation at the United Nations War Crimes Commission, 1943–1948

2017-07-10

Abstract
The United Nations War Crimes Commission (UNWCC) (1943–1948) was the principal multilateral institution set up by the Allied powers to consider evidence of war crimes committed by the enemy in World War II. From the outset, the UNWCC’s main purpose was to achieve post-war ‘preparedness’ in relation to war crimes, so that the delays and mistakes made in trying suspected German war criminals after World War I were not repeated. Although the UNWCC was originally conceptualized as a fact-finding body, it did not have its own investigatory arm or the resources to undertake investigations. Rather, the evidence of war crimes was meant to be gathered by each member nation and then submitted to the UNWCC for consideration. The limited flow of information to the UNWCC in 1943–1944, however, made it clear that this self-reporting system was flawed, putting at risk the goal of preparedness. This article first examines how problems of national level UNWCC collaboration were recognized and the concerns about information flow that were articulated. Second, it examines the unsuccessful proposal put forward by the Australian representative, Lord Wright of Durley, to modify the institutional design of the UNWCC to incorporate an investigatory function. While the UNWCC achieved far too much in its short lifespan to be considered a failed organization, the flaws in its institutional design created collaboration problems during the war and also ensured that it was too easily sidelined by the Allied governments after the war.



Between Systematization and Expertise for Foreign Policy: The Practice-Oriented Approach in Germany’s International Legal Scholarship (1920–1980)

2017-07-10

Abstract
German international legal scholarship has been known for its practice-oriented, doctrinal approach to international law. On the basis of archival material, this article tracks how this methodological take on international law developed in Germany between the 1920s and the 1980s. In 1924, as a reaction to the establishment of judicial institutions in the Treaty of Versailles, the German Reich founded the Kaiser Wilhelm Institute for Comparative Public Law and International Law. Director Viktor Bruns institutionalized the practice-oriented method to advance the idea of international law as a legal order as well as to safeguard the interests of the Weimar government before the various courts. Under National Socialism, members of the Institute provided legal justifications for Hitler’s increasingly radical foreign policy. At the same time, some of them did not engage with völkisch-racist theories, but systematized the existing ius in bello. After 1945, Hermann Mosler, as director of the renamed Max Planck Institute, took the view that the practice-oriented approach was not as discredited as the more theoretical approach of völkisch international law. Furthermore, he regarded the method as a promising vehicle to support the policy of Westintegration of Konrad Adenauer. Also, he tried to promote the idea of ‘international society as a legal community’ by analysing international practice.



Roaming Charges: Moments of Dignity: Selling Love Locks in Rome

2017-07-10

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.



The Use of Force by Non-State Actors and the Limits of Attribution of Conduct

2017-07-10

Abstract
The grounds of attribution of conduct as codified by the International Law Commission in the Articles on State Responsibility for Internationally Wrongful Acts fail to capture different dimensions of the use of force by non-state actors. The conflicts in Syria, Ukraine and Yemen demonstrate the difficulty in applying the classical attribution framework to complex situations with multiple actors and varying degrees of state involvement in the internationally wrongful acts. This article proposes to redraw the boundaries between the concepts of a de facto organ of a state, the control thresholds for the attribution of non-state actors’ conduct and complicity as an additional ground of attribution of conduct in international law.



The Law of Walls

2017-07-10

Abstract
Recently, Western democracies have turned to building border walls as a strategy of immigration control. This article makes two claims. First, human rights courts and quasi-judicial bodies are deeply implicated in this move. Drawing on an analysis of case law, I show that they have worked out a system in which walls have become a predictable strategic solution for states that seek to retain control over immigration. They use variants of access to guarantee hyper protection to individual non-nationals who have either entered a host state or come under its effective control. This limits state responsibility by denying any responsibility that is extraterritorial in a very formal way. Being outside the wall means being beyond the state’s human rights-based responsibility. Second, the way human rights enforcement bodies have treated border walls has made them legally permitted and even encouraged their construction. Immigration walls raise a jurisdictional challenge. Human rights law and the national law of many democratic states guarantee individuals that have established territorial presence access to basic human rights. A porous border is thus required by the very concept of universal human rights. In one view, because a wall is concrete in a way that the jurisdictional border is not, erecting a wall closes the porous border and thus becomes a matter of human rights. In another view, the construction of a wall is an administrative technique for controlling immigration and is, from a human rights perspective, a non-event. Neither view, however, can be wholly supported. The first is politically unsustainable, while the second is morally indefensible. Human rights enforcement bodies avoid taking a stand by regulating the physical structure of the wall. They focus on whether a wall was properly constructed. The result is the redrawing of borders that is politically unstable and normatively unjustifiable.