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6161. The Original Sin (and Salvation) of Functionalism

Author:
Guy Fiti Sinclair
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This Comment interrogates the central and determining role accorded to functionalism in Jan Klabbers’ account of international organizations (IOs) law in his recent article, ‘The EJIL Foreword: The Transformation of International Organizations Law’. Specifically, it expresses doubts regarding Klabbers’ designation of functionalism as the dominant, paradigmatic theory of IOs law; questions whether the article’s account of functionalism’s historical origins is persuasive; and argues that the ‘rise and fall’ narrative set forth in the article presents an overly sanitized picture of IOs law, largely free from political struggle. The development of IOs law has been more contested than Klabbers’ narrative suggests; minimizing that contestation carries the danger of closing off possibilities for reimagining IOs law today.
Topic:
International Relations, International Law, International Organization, and Critique
Political Geography:
Europe and Global Focus

6162. The Transformation of International Organizations Law: A Rejoinder

Author:
Jan Klabbers
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Jan Klabbers responds to critiques by Laurence Boisson de Chazournes, André Nollkaemper and Guy Fiti Sinclair of his EJIL Foreword.
Topic:
International Relations, International Law, International Organization, and Critique
Political Geography:
Europe and Global Focus

6163. The Modern Practice of Intervention by Invitation in Africa and Its Implications for the Prohibition of the Use of Force

Author:
Erika de Wet
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article examines how two prominent criteria for permissible military intervention by invitation as developed in doctrine are currently implemented by states as well as how this impacts the prohibition of the use of force. Controversies concern, in particular, the determination of the authority entitled to extend the invitation, as recently illustrated by the Russian claim that its military intervention in the Crimea was based on the invitation of (former) President Yanukovych. Does the inviting authority need to enjoy democratic legitimacy and/or be in de facto control of a state’s territory? Furthermore, it remains highly contentious whether an invitation for forcible intervention may be extended during a civil war. By analysing modern state practice in Africa – where most of the contemporary invitations for military assistance occur – and comparing it with recent developments in other regions, the author concludes that effective control rather than democratic legitimacy is (still) the point of departure for determining the legitimate government of a state. Once recognized, incumbent governments enjoy a large discretion when inviting military assistance from foreign governments. They seem to retain the right to military assistance even in situations of civil war and while exercising limited control over the territory.
Topic:
International Law, Sovereignty, United Nations, and Military Intervention
Political Geography:
Africa, Russia, Europe, and Crimea

6164. Interrogations of Consent: A Reply to Erika de Wet

Author:
Dino Kritsiotis
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article presents a critical engagement with the issue of force and intervention undertaken with the consent of the state in whose territory it ultimately occurs and offers a critical assessment of Erika de Wet’s article ‘The Modern Practice of Intervention by Invitation in Africa and Its Implication for the Prohibition of the Use of Force’. It considers the different interpretative approaches suggested for consent and the Charter of the United Nations’ prohibition of force as well as the principle or principles that have come to govern the issuing of valid consent in international law. The contribution turns to some of the methodological positions taken in exploring the continuing validity of the so-called ‘effective control principle’ in modern African practice, and, as it does so, it probes the utility of questions for the jus ad bellum of ‘other’ international law (such as developments within the jus in bello and the law on self-determination).
Topic:
International Law, Sovereignty, United Nations, and Military Intervention
Political Geography:
Africa and Europe

6165. Domestic Violence as a Human Rights Issue: Rumor v. Italy

Author:
Ronagh J.A. McQuigg
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
This article focuses on the recent developments concerning domestic violence within the context of the Council of Europe. Since 2007, the European Court of Human Rights has issued a series of important judgments in cases involving domestic violence. The most recent of these is Rumor v. Italy, in which the Court issued its judgment on 27 May 2014. The article analyses this case in the context of the Court’s previous jurisprudence on domestic violence. In addition, on 1 August 2014, the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence entered into force, and the article will include a number of reflections on the potential held by this Convention. No violation of the European Convention on Human Rights was found in Rumor; however, the question of whether Italy would have been in breach of the provisions of the new Convention, to which it is a party, had this Convention been in force at the time of the relevant events, will be examined.
Topic:
Human Rights, International Law, Women, Gender Based Violence, and Courts
Political Geography:
Europe and Italy

6166. EJIL Editors’ Choice of Books 2015

Author:
Sarah Nouwen, Christian Tams, Jan Klabbers, and Jean d'Aspremont
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
At the end of 2014, we invited the EJIL Board members to reflect on the books that had had a significant impact on them during the year. Their contributions, posted on EJIL: Talk!, were met with great interest and curiosity. As the end of another year approaches, we decided once more to invite our Board members to look back on their reading in 2015. In the following pieces Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont write about the books they read or re-read this year and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.
Topic:
Human Rights, International Law, History, and Courts
Political Geography:
Africa, Europe, and South Sudan

6167. Surabhi Ranganathan. Strategically Created Treaty Conflicts and the Politics of International Law

Author:
Sabrina Safrin
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Treaty conflicts may be inevitable, but what do we make of conflict by design? In Strategically Created Treaty Conflicts and the Politics of International Law, Surabhi Ranganathan thoughtfully explores nations’ purposeful creation of conflicts between treaties to advance their political goals and to restrict the impact of treaties to which they object. Essentially, states fight legal fire with legal fire. If they object to a multilateral treaty regime, they create another regime that effectively conflicts with, or cabins, the treaty regime that they object to rather than simply walking away.
Topic:
International Law, Treaties and Agreements, Book Review, and Law of the Sea
Political Geography:
Europe and United States of America

6168. M. Sornarajah. Resistance and Change in the International Law on Foreign Investment

Author:
Harm Schepel
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
In 1994, Muthucumaraswamy Sornarajah published the first edition of his treatise, The International Law on Foreign Investment. There, he sought to demonstrate that investment law as a separate branch of international law was ‘in the process of development’ and could and should be isolated for separate study. Organizing his material from the disparate sources of domestic law, contract-based arbitration and public international law along the overarching tension between the interests of developing countries and those of traditionally capital-exporting states, his stated aim was to ‘help in the identification of the nature of the disputes’, which would lead, in turn, to the ‘formulation of acceptable solutions’. The treatise was a well-timed pioneering effort that rightfully earned the author a lasting reputation as one of the founding fathers and towering figures of the academic discipline. There seems to be no one better placed, then, to ask, 20 years on, what happened or, rather, what went wrong. Investment law has developed with breathtaking speed into a (very) separate branch of international law – yes – but almost entirely on the waves of treaty-based investor–state arbitration, which has all but eclipsed contractual and domestic processes, at least in terms of academic interest. And this system has, in the eyes of Sornarajah and many others, rather spectacularly failed to lead to ‘acceptable solutions’, especially for developing countries.
Topic:
International Law, Treaties and Agreements, Foreign Direct Investment, Neoliberalism, and Book Review
Political Geography:
Europe and United States of America

6169. Mur sous ma main

Author:
Guillaume Landais
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
A poem by Guillaume Landais.
Topic:
Poem
Political Geography:
Europe and Global Focus

6170. Alliance Coercion and Nuclear Restraint: How the United States Thwarted West Germany's Nuclear Ambitions

Author:
Gene Gerzhoy
Publication Date:
03-2015
Content Type:
Journal Article
Journal:
International Security
Institution:
Belfer Center for Science and International Affairs, Harvard University
Abstract:
When does a nuclear-armed state's provision of security guarantees to a militarily threatened ally inhibit the ally's nuclear weapons ambitions? Although the established security model of nuclear proliferation posits that clients will prefer to depend on a patron's extended nuclear deterrent, this proposition overlooks how military threats and doubts about the patron's intentions encourage clients to seek nuclear weapons of their own. To resolve this indeterminacy in the security model's explanation of nuclear restraint, it is necessary to account for the patron's use of alliance coercion, a strategy consisting of conditional threats of military abandonment to obtain compliance with the patron's demands. This strategy succeeds when the client is militarily dependent on the patron and when the patron provides assurances that threats of abandonment are conditional on the client's nuclear choices. Historical evidence from West Germany's nuclear decisionmaking provides a test of this logic. Contrary to the common belief among nonproliferation scholars, German leaders persistently doubted the credibility and durability of U.S. security guarantees and sought to acquire an independent nuclear deterrent. Rather than preferring to renounce nuclear armament, Germany was compelled to do so by U.S. threats of military abandonment, contradicting the established logic of the security model and affirming the logic of alliance coercion.
Topic:
Arms Control and Proliferation and Nuclear Weapons
Political Geography:
United States, Europe, Germany, and West Germany