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391. R2P: Perceptions and Misperceptions

Publication Date:
06-2011
Content Type:
Policy Brief
Institution:
The Global Centre for the Responsibility to Protect
Abstract:
The core underlying idea that states have an obligation to protect men and women from the worst atrocities is well established. Basic human rights principles were adopted in the UN Charter and the Universal Declaration of Human Rights, and there is a substantial body of international human rights law. The United Nations adopted the Convention on Genocide in 1948. The protection of civilians during armed conflict is well established in international humanitarian law. But with the advent of R2P, the international community accepted for the first time the collective responsibility to act should states fail to protect citizens from genocide, ethnic cleansing, war crimes, or crimes against humanity. R2P thus imposes two obligations—the first upon each state individually, the second on the international community of states collectively. With the embrace of the responsibility to protect, a long and unresolved debate over whether to act became, instead, a discussion about how and when to act.
Topic:
Human Rights, Human Welfare, International Law, Treaties and Agreements, and United Nations

392. Editorial: The Birth of Israel and Palestine – The Ifs of History, Then and Now; Junior Faculty Forum for International Law; The Last Page and Roaming Charges; Eric Stein RIP; In this Issue

Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
Given the promised September UN move by the Palestinian Authority it is of interest to recall some of the circumstances surrounding the birth of Israel. There are some interesting historical parallels and some differences. In public opinion and Hollywood movies, Israel was born with a UN midwife: UNGA Resolution 181, the famous Partition Resolution of 29 November 1947 (http://www.youtube.com/watch?v=ZpNpueivtWQ). The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! 'De Facto Solidarity' was not, apparently, invented with the Schuman Declaration.
Topic:
International Law
Political Geography:
Palestine and Jerusalem

393. Gaius, Vattel, and the New Global Law Paradigm

Author:
Rafael Domingo
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
Emer de Vattel (1714–1767), in his influential work The Law of Nations, established a new international statist paradigm which broke with the classical partition of the law into the three realities of 'persons, things and actions' (personae, res, actiones). This new paradigm substituted the state for the person, downgraded the generic concept of 'things' to the obligations among states in their relations, and changed the focus of the concept of 'action' to that of 'war' as a legal remedy to resolve conflicts between and among states. This international paradigm (or statist paradigm) has survived almost up to our time in international praxis. Nonetheless, today the statist paradigm appears to be in every way insufficient, since it does not consider humanity as a genuine political community, nor does it reflect the three-dimensionality of the global law phenomenon. The transformation of the law that governs our international community (international law) into a law that is capable of properly ordering the new global human community (global law) demands the creation of a new paradigm, originating in the following conceptual triad: global human community, global issues, and global rule of law. In the construction of this new global paradigm, cosmopolitan constitutionalism could play a key role.
Topic:
International Law
Political Geography:
Europe

394. Contribution of the Reims School to the Debate on the Critical Analysis of International Law: Assessment and Limits

Author:
Monique Chemillier-Gendreau
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
The changes which have occurred in the world and the failure of the mechanism of collective security oblige lawyers to open a new critical approach to international law. In this context, it is important to come back to the French movement known as Critique du droit, and more especially to the work produced in the Reims Colloquia under Professor Chaumont's authority. This theoretical contribution points out the link between the norms of law and the concrete conditions of their formation. It considers the compulsory nature of norms as a result of a compromise between several contradictions, and by doing so, it opens a new window on the understanding of law. But, today, this theory has to be completed by a deeper analysis of the concept of sovereignty. The consequence of this core concept is the contractual nature of most norms of international law. It is quite impossible to build a universal international law, the emergence of general imperative norms being hitherto too weak. International law, dominated by sovereignty, is inadequate to protect world society.
Topic:
International Law

395. The European Tradition in International Law: Walther Schücking

Author:
Christian J. Tams
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
In their 'mission statement', the European Journal's founding editors announced the launch of an occasional focus section devoted to the work of international lawyers who stood for particular aspects of the 'European Tradition in International Law', rather boldly set in the singular. Previous focus sections have assessed the continuing relevance of (and typically celebrated) the likes of, for example, George Scelle, Roberto Ago, Alfred Verdross, Hans Kelsen, and Max Huber.
Topic:
International Law
Political Geography:
Europe

396. Walther Schücking and the Pacifist Traditions of International Law

Author:
Mónica García-Salmones
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
In this article I discuss four pacifist traditions in international law in play during the 20th century, in the context of the Symposium on Walther Schücking. The article addresses the fact that these pacifist traditions have contributed to shaping the way in which we view international law today and how we understand our current world. Essentially, we see the globe as an entity legally organized through treaties, international courts for dispute settlement, and international organizations with worldwide jurisdiction. The science of law tries, with difficulty, to grasp all these phenomena in a unitary manner. Moreover, pacifism has influenced our choice of legal techniques. At the core of the pacifist traditions lies the wish of a group of pacifist intellectuals, among them Walther Schücking, to achieve a peaceful transition to what they viewed as an unavoidable state of economic interdependence on a global scale. Their specific purpose was peace – 'peace through law'. Beyond that, it occurred to almost none of them to question the beneficial aspects of their internationalist projects and the economic interdependence behind them. Peace was raised then to the level of the highest good. Who would dare dethrone it? This article suggests that we live in an era of pacifist international law. The article also takes the approach that the very existence of a variety of pacifist traditions shows that political pluralism may coexist with pacifism. Peace is indisputably a common good and pacifism does not necessarily prevent politics from continuing to flourish.
Topic:
International Law

397. Professor Walther Schücking at the Permanent Court of International Justice

Author:
Ole Spiermann
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
In 1930, it was seen as critical by many to have a German jurist elected to the bench of the Permanent Court of Justice, and this was indeed achieved by the election of Walther Schücking. It may seem a paradox that in the following years where, in many cases, the Permanent Court exercised self-restraint and embraced arguments based on state sovereignty, probably the greatest supporter of notions of international organization and community to be associated with the work of the Permanent Court, namely Walther Schücking, occupied a permanent position on the bench. But then his 'optimism' was simply an extrapolation of the state on to the international level, leaving key values such as state sovereignty essentially unaffected. The interest in Schücking's contributions to the work of the Permanent Court lies not least in the fact that, even today, many lawyers approach international law in manners similar to his.
Topic:
International Law and International Organization
Political Geography:
Germany

398. Roaming Charges: Moments of Dignity: Polish Youth on Warsaw's Pilsudski Square

Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
Roaming Charges, a new feature of EJIL, is aimed at enhancing the 'book experience' – a moment of reflection as well as aesthetic pleasure disconnected from any specific research interest and the usual cerebral activity of reading a learned article. It will feature different locales or scenes from around the world, which, in their way, have something to say – without words – about our present condition. 'Roaming', 'Charges', and those irritating 'Roaming Charges' – the title of this feature 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. Take a moment – enjoy, reflect. If you are online, pause before the next click.
Topic:
International Law

399. How Effective is the United Nations Committee Against Torture?

Author:
Ronagh McQuigg
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
This article examines the question of how states have responded to the comments of the United Nations Committee against Torture through an analysis of eight Western European states. It is concluded that the Committee's recommendations have had a substantial impact in four of the states surveyed, however only a limited effect in two other states, and little or no impact in the two remaining states. These findings lead to concerns as regards the effectiveness of the Committee against Torture. The article focuses on the Concluding Observations made by the Committee on the reports submitted by the states in question.
Topic:
International Law
Political Geography:
Europe and United Nations

400. Fighting Maritime Piracy under the European Convention on Human Rights

Author:
Stefano Piedimonte Bodini
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court's approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.
Topic:
Human Rights and International Law
Political Geography:
Europe