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21061. Editorial: Lautsi: Crucifix in the Classroom Redux

Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
There are few legal issues which still manage to evoke civic passion in the wider population. Increasingly, and sometimes for the wrong reasons, the place of religion in our public spaces has become one of them. In the age of the internet and Google we can safely assume that all readers of this Journal will have either read the Lautsi decision of the European Court of Human Rights or have read about it, thus obviating the need for the usual preliminaries. As is known, a Chamber of the Court held that the displaying in Italian public schools of the crucifix was a violation of the European Convention on Human Rights.
Topic:
Human Rights
Political Geography:
Europe

21062. Symposium: The Human Dimension of International Law: Introduction

Author:
Paola Gaeta
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This symposium comprises the contributions presented by five distinguished international lawyers at the European University Institute in Florence in October 2008 on a very special occasion. Antonio Cassese ('Nino' to his friends and colleagues) had recently celebrated his 70th birthday and, as is customary in many European countries, a group of his former students and friends chose this occasion to celebrate his academic and professional career with the publication of a selection of his most important writings on the three branches of public international law he has most influenced – international humanitarian law, international human rights law, and international criminal law. The outcome was a book, The Human Dimension of International Law, published in summer 2008 by Oxford University Press, the intention of which is to shed light on Nino's intellectual approach to these three areas of public international law. The publication of this volume also provided an excellent occasion to convene a small number of friends and colleagues as a token of appreciation and admiration for his many achievements as an international lawyer. As Nino shies away from any personal limelight (indeed, I am certain he will be troubled by these few lines about him), it was decided that this meeting at the …
Topic:
International Law
Political Geography:
Europe

21063. The Position of Individuals in International Law: An ILC Perspective

Author:
Giorgio Gaja
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
According to the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, any state to which an erga omnes obligation is owed may claim reparation in the interest of an individual who is the victim of an infringement and the beneficiary of the obligation. The ILC Articles on Diplomatic Protection should have specified that also the state of nationality may seek reparation only in the interest of the injured individual when his or her rights have been infringed.
Topic:
International Law

21064. Human Rights and International Humanitarian Law

Author:
Christian Tomuschat
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
It is recognized today that human rights law is not generally displaced in times of armed conflict by international humanitarian law (IHL). Yet in large part this new insight remains to be particularized as to its actual consequences. In particular, IHL is still predominantly under the influence of the concept of military necessity.
Topic:
Human Rights

21065. The Role of the Individual in International Law

Author:
Andrew Clapham
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This contribution reminds us that as individuals we play a role in the formation and understanding of international law. After recalling the key steps in the acknowledgement of international rights and obligations for individuals the article goes on to ask if the time has come to acknowledge that individuals can have obligations under international law that go beyond international crimes. In other words might there be international civil law obligations for the individual?
Topic:
International Law

21066. Some Thoughts about the Optimistic Pessimism of a Good International Lawyer

Author:
Luigi Condorelli
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
The author presents various critical comments on several developments of international law in fields which have been particularly studied and practised by Antonio Cassese. Some final reflections focus on the question whether international lawyers can realistically cherish feelings of optimism as to the development of international law in a humane direction, or whether instead the study of the past and the present ought not rather to impel one towards disillusioned pessimism.
Topic:
Development and International Law

21067. International Human Rights in an Environmental Horizon

Author:
Francesco Francioni
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing 'individualistic' perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation.
Topic:
Environment and Human Rights

21068. Prolegomena to a Class Approach to International Law

Author:
B.S. Chimni
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This article offers an introduction to a class approach to international law. It challenges the 'death of class' thesis and argues for the continued relevance of the category of 'class'. Among other things, the contention is that the category of 'class' subsumes without erasing the gender and race divides. Noting the emergence of a global social formation the article claims that a transnational capitalist class is shaping international laws and institutions in the era of globalization. It calls for the linking of the class critique of contemporary laws and institutions with the idea and practices of resistance, and considers in this setting the meaning of internationalism and class struggle today for an emerging transnational oppressed class. The article concludes by schematically outlining the advantages of a class approach to international law.
Topic:
Globalization and International Law

21069. The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques

Author:
Mario Mendez
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
It has been clear since a seminal ECJ ruling in the 1970s that the European Community is attached to a model of automatic treaty incorporation whereby the full panoply of Community law enforcement tools are available for the enforcement of Community Agreements. In the decades since, a rich body of case law has emerged concerning this growing body of treaty law to which the Community has become party. Much of this jurisprudence is testament to a maximalist approach to treaty enforcement which shares parallels with the approach to internal Community law. Most recently, however, the Intertanko ruling indicates that the ECJ is not averse to employing judicial avoidance techniques to preclude review where it is Community action that is challenged. The current trajectory of treaty enforcement is thus indicative of a twin-track approach whereby the ECJ is reluctant to transpose the maximalist approach to treaty enforcement which characterizes its contribution where action at the Member State level is challenged. Such a trajectory, built in accordance with the defensive submissions of the Community's political institutions, raises significant questions about the EU's much-vaunted commitment to international law.
Political Geography:
Europe

21070. The Requirement of 'Belonging' under International Humanitarian Law

Author:
Katherine Del Mar
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This article argues that the notion of 'belonging to a Party' to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of 'belonging' demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state's behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to 'belong' under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as 'international'. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.
Topic:
International Law
Political Geography:
Yugoslavia