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18901. 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

18902. 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

18903. Towards a Positive Application of Complementarity in the African Human Rights System: Issues of Functions and Relations

Author:
Solomon T. Ebobrah
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
According to the Protocol to the African Charter on Human and Peoples' Rights establishing the African Court on Human and Peoples' Rights, the main function of the Court is to complement the protective mandate of the already existing African Commission on Human and Peoples' Rights. Thus, complementarity was introduced into the framework of the African human rights system. Since then, the concept of complementarity has also been brought into play in the Protocol to the Statute of the proposed African Court of Justice and Human Rights. Although the interim rules of procedure of the Court and of the Commission have sought to give meaning to the concept of complementarity, there is still very little understanding of how it will pan out in the system. Questions abound as to the exact implication it would have on the existing mechanisms of the Commission. Almost nothing has been said or written on its impact on the African Committee of Experts on the Rights and Welfare of the Child. Against this background, this article argues that complementarity in the African human rights system can be applied positively by adopting a normative approach that allows for the prescription of what the system's supervisory institutions should do and how they should relate to each other in their work. The article argues further that the justifications for the introduction of judicial organs can also be employed to prescribe complementary functions for each supervisory institution. It concludes that applying complementarity positively would require encouraging each institution to focus on its strengths with a view to strengthening the overall effectiveness of the system.
Topic:
Human Rights
Political Geography:
Africa

18904. The Genesis of the GATS (General Agreement on Trade in Services)

Author:
Petros C. Mavroidis and Juan A. Marchetti
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
The Uruguay Round services negotiations saw the light of day amidst pressures from lobbies in developed countries, unilateral retaliatory actions, and ideological struggle in the developing world. The final outcome, the GATS, certainly characterized by a complex structure and awkward drafting here and there, is not optimal but is an important first step towards the liberalization of trade in services. This article traces the GATS negotiating history, from its very beginning in the late 1970s, paying particular attention to the main forces that brought the services dossier to the multilateral trading system (governments, industries, and academics), and the interaction between developed and developing countries before and during the Uruguay Round. We will follow the actions, positions, and negotiating stances of four trading partners – Brazil, the European Union, India, and the United States – that were key in the development of the GATS. Finally, we will, indicatively at least, try to attribute a 'paternity' (or, rather, a 'maternity') to some key features and provisions of the agreement.
Topic:
Government
Political Geography:
United States, Europe, India, and Brazil

18905. 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

18906. Walther Schücking and the Idea of 'International Organization'

Author:
Frank Bodendiek
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
The article concentrates on the core issue of Walther Schücking's scientific efforts and his literary production as a publicist – the idea of international organization. It begins by situating Schücking's methodological approach, notably his desire to move beyond legal positivism, before moving on to analyse Schücking's specific understanding of the notion of international organization. Schücking argued that the general motto 'peace through law' should be attained by a 'republican organization' of the world and stated that a relevant trend towards a true rule of law on the international level was already on its way. In fact, Schücking went even further and postulated a world confederation 'Weltstaatenbund' as the centrepiece of the reform of international law and the key for the realization of all further progress in the field. Having assessed features of Schücking's reform programme, which he put forward with considerable consistency, the article argues that Schücking is rightly seen as a pioneer who broke new ground in analysing the phenomenon of international organization. The biography of Walther Schücking displays a very colourful picture of a most industrious legal scholar who in fact had the strong ambition to have an effect on the 'real world' outside the academic community. A short glance at the bibliography of Walther Schücking reflects his intent of having an effect on very different addressees. However, on closer inspection, it is immediately clear that – in particular in the years before World War I – Schücking's scientific efforts as well as his literary production as a publicist very much focused on one core issue: the concept of 'international organization.
Topic:
International Organization

18907. 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

18908. 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

18909. Law's Frontier – Walther Schücking and the Quest for the Lex Ferenda

Author:
Jost Delbrück
Publication Date:
08-2011
Content Type:
Journal Article
Abstract:
Based on a short recapitulation of Schücking's family background and his formative years as a law student and young scholar, the article then focuses on Schücking as a left-liberal politician and – strongly influenced by Kant's tract on Perpetual Peace – as an adherent to a progressive international legal order based on the Organization of the World and the rule of law. Schücking participated in the Versailles Peace Conference and in this capacity supported the League of Nations project. However, he became increasingly critical with regard to the Versailles Peace Treaty which he held to be shortsighted and prone to lead to another World War. He withdrew from his political activities and concentrated on developing his concept of an international law as a dynamic tool to induce the necessary process of peaceful change.
Topic:
International Organization and Politics

18910. 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