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4031. Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law

Author:
Ana Filipa Vrdoljak
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by the then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 1940s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims. The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, whose personal and familial histories traverse the tragedies of 20th century Europe, was instrumental in the realization of these twin efforts. This article examines their respective contributions to contemporary international law by concentrating on their European experience from their youth in Central Europe and the early days of the League of Nations to their mature work up to and including the Nuremberg Judgment. Important events – whether serious, happy or unfortunate – do not change a man's soul, they merely bring it into relief, just as a strong gust of wind reveals the true shape of a tree when it blows off all its leaves. Such events highlight what is hidden in the shadows; they nudge the spirit towards a place where it can flourish.
Topic:
International Law and United Nations
Political Geography:
Europe

4032. Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention

Author:
Sarah Miller
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
European participation in controversial aspects of the 'war on terror' has transformed the question of the extraterritorial scope of the European Convention on Human Rights from abstract doctrine into a question with singularly pressing political and legal ramifications. Yet the European Court of Human Rights has failed clearly to articulate when and why signatory states' extraterritorial actions can be brought within the jurisdiction of the European Convention. The Court has veered between a narrow view of extraterritorial jurisdiction confined to four fixed categories of cases and a broader view which contemplates extraterritorial jurisdiction when a signatory state effectively controls an individual's ability to exercise fundamental Convention rights. Scholars have favoured the latter, arguing that the universality of human rights demands an expansive concept of extraterritorial jurisdiction. This article proposes a different theory: existing categories of extraterritorial jurisdiction can best be understood as limited exceptions to the rule of territorial jurisdiction because they all require some significant connection between a signatory state's physical territory and the individual whose rights are implicated. Properly understood, extraterritorial jurisdiction under the European Convention is and should be limited to such situations to maintain a workable balance between the Convention's regional identity and its universalist aspirations.
Topic:
Human Rights
Political Geography:
Europe

4033. Jean d'Aspremont. L'Etat Non Démocratique en Droit International. Étude Critique du Droit International Positif et de la Pratique Contemporaine.

Author:
Christian Pippan
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
In 1992, shortly after the dissolution of the Warsaw Pact and the Soviet Union marked the formal end point of the Cold War, Thomas Franck, who sadly passed away this year, famously proclaimed the emergence of a global 'right to democratic governance'. Against the backdrop of the dramatic political changes in Central and Eastern Europe, the progressive consolidation of democratic government in Latin America, burgeoning democratic reforms in various parts of Africa, and a rapidly increasing pro-democratic activism by the United Nations and other international organizations, he asserted that 'both textually and in practice, the international system is moving toward a clearly designated democratic entitlement, with national governance validated by international standards and systematic monitoring of compliance'.1 As is well known, Franck's thesis – which is largely grounded in the peoples' right to (internal) self-determination and a new reading of participatory norms contained in international human rights treaties – had a significant resonance in international legal scholarship and ushered in what came to be known as the 'democratic entitlement school'. Though the debate over the sweeping claim that, in the post-Cold War era, democracy is becoming – or has already become – a universal norm probably saw its heyday in the 1990s, it has, to this day, lost neither attraction nor relevance. Indeed, the claim's provocative nature (in light of international law's traditional indifference towards domestic constitutional orders), its assumptions about the kind of democracy advanced by the international system, as well as its potentially far-reaching consequences for states deemed to be in violation of the emerging norm continue to inspire scholars of international law and fuel an ongoing controversial discussion.
Political Geography:
Europe and Latin America

4034. Carlos Jimenez Piernas (ed.) The Legal Practice in International Law and European Community Law – A Spanish Perspective.

Author:
Jaume Ferrer Lloret
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
This article reviews the book edited by Professor Carlos Jiménez Piernas entitled The Legal Practice in International Law and European Community Law – A Spanish Perspective. As the editor points out in his prologue, this publication is an updated and revised English edition of a volume published in 2003 in Spanish. The new publication retains the Spanish edition's general structure of five substantive parts, plus indexes, which deal with legal practice before International Tribunals in International Organizations and in the European Union, national legal practice in international law, as well as with some legal tools for international lawyers, in particular to determine evidence of state practice and concerning sources of knowledge of international law on the internet. The title of the book is suggestive and confusing at the same time. It is suggestive in that it apparently deals with a topic which is seldom addressed in the literature on international law, i.e., 'legal practice'. Indeed, the book covers innovative topics which, in the near future, may become very relevant both for states and international organizations, as well as individuals and private companies.
Political Geography:
Europe

4035. Jan Klabbers. Treaty Conflict and the European Union

Author:
Maja Smrkolj
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
This volume aims to contribute to an understanding of the relationship and conflict between the obligations of EU Member States arising under international treaties and their obligations under EU law. In the preface the author, Jan Klabbers, admits that at the outset he did not have a thesis but rather 'an intuition: the intuition that the EC Court usually makes things too simple for itself by ignoring the international law aspects'. When reading these lines, some of the more recent instances confirming such uneasiness, including the 2008 Kadi, Interanko and FIAM cases, immediately come to mind.
Political Geography:
Europe

4036. Urfan Khaliq. Ethical Dimensions of the Foreign Policy of the European Union. A Legal Appraisal

Author:
Helmut Philipp Aust
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
It is a perennial question what role law has to play in the conduct of foreign policy. Urfan Khaliq asks this question for the European Union (EU). The starting point of his analysis is the commitment of the EU to a certain set of 'ethical values', namely the promotion of human rights, the rule of law, and democracy. While these values are central to the identity of the EU (Article 6 of the Treaty Establishing the EU), it is open to debate whether they play an equally important role in the conduct of its foreign policy. Other studies have been devoted to this issue or have analysed the discrepancy between the way the constitutional principles of the EU apply internally and externally. The monograph under review is not so much interested in a doctrinal assessment of these issues. Rather, Khaliq raises the point to what extent the foreign policy of the EU is conducted in a coherent manner, whether it can fulfil its objectives, and, most importantly, what role international law in general and the internal law of the EU in particular has to play in this regard.
Political Geography:
Europe

4037. Peter Van Elsuwege. From Soviet Republics to EU Member States

Author:
Dimitry Kochenov
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
There is indeed an extremely long way from Soviet Republics to EU Member States. Although fitting into one and a half decades, the complexity of this transformation is truly stunning and concerns all spheres of life of the Baltic States.
Political Geography:
Europe and Soviet Union

4038. Constantin Stefanou and Helen Xanthaki (eds). Towards a European Criminal Record

Author:
Ilias Bantekas
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
If anyone were best suited to writing a book on the European criminal record (ECR) it would certainly be the current editors. The EC Commission commissioned them to study and analyse the potential of creating an ECR, and it is on the basis of their reports that the matter has generally progressed within the legislative committees of the Union. Moreover, their studies have been used as benchmarks in relevant Commission discussions. It is therefore no accident that they have compiled the essays which are incorporated in this book in such a manner that reflects a very significant practical as well as theoretical expertise by means of an insider's viewpoint.
Political Geography:
Europe

4039. Somalia and the Pirates

Author:
Rob de Wijk and David M Anderson
Publication Date:
12-2009
Content Type:
Working Paper
Institution:
Centre for European Policy Studies
Abstract:
Even though kidnappings, killings, attacks on UN and NGO compounds, suicide bombings, and the assassinations of local judges and other public figures, and the many other features of lawlessness in the Horn of Africa have become so commonplace that they are rarely now reported by European news media, from September 2008 Somalia once again dominated the news agenda. In that month pirates operating from small ports and harbours along Somalia's eastern coast mounted a series of successful attacks against international shipping, first capturing a Ukrainian vessel with its cargo of heavy armaments bound for southern Sudan (via the Kenyan port of Mombasa), and then intercepting a number of container ships before mounting an attack on a passenger vessel that was repelled by the crew. Finally, in November, the pirates landed the prize of a fully-laden Saudi-owned oil tanker. By the end of the year the pirate gangs operating out of Eyl, Haradheere and other harbours along the desolate eastern coast of Puntland, were reckoned to be holding no fewer than 40 vessels for ransom, with more than 200 crew members in captivity.
Topic:
Crime, International Law, and Maritime Commerce
Political Geography:
Africa, Europe, and Somalia

4040. Optimisation of Central Asian and Eurasian Trans-Continental Land Transport Corridors

Author:
Michael Emerson and Evgeny Vinokurov
Publication Date:
12-2009
Content Type:
Working Paper
Institution:
Centre for European Policy Studies
Abstract:
There is at present an overlapping but inadequately coordinated combination of strategic trans-continental transport corridors or axes stretching across the Eurasian landmass, centred on or around Central Asia. There are three such initiatives - from the EU, China and the Asian Development Bank, and the Eurasian Economic Community. This paper reviews these several strategic transport maps, and makes proposals for their coordination and rationalisation. So far the EU Central Asia strategy has not paid much attention to these questions. However the EU's own initiatives (the Pan-European Axes and the TRACECA programme) are in need of updating and revision to take into account major investments being made by other parties. In particular the case is made for a 'Central Eurasian Corridor' for rail and road that would reach from Central Europe across Ukraine and Southern Russia into West Kazakhstan, and thence to the East Kazakh border with China, thus joining up with and completing the West China-West Europe corridor promoted by the Asian Development Bank. There should also be a North-South corridor that would cross over this Central Eurasian Corridor in West Kazakhstan and lead south to the Middle East and South Asia. These adaptations of existing plans could become an exemplary case of cooperation between Central Asia and all the major economic powers of the Eurasian landmass.
Topic:
International Trade and Finance and Infrastructure
Political Geography:
Russia, China, Europe, Central Asia, Ukraine, and Kazakhstan