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Journal Cover European Journal of International Law
  [SJR: 0.722]   [H-I: 38]   [168 followers]  Follow
   Hybrid Journal Hybrid journal (It can contain Open Access articles)
   ISSN (Print) 0938-5428 - ISSN (Online) 1464-3596
   Published by Oxford University Press Homepage  [370 journals]
  • Editorial: Those Who Live in Glass Houses ...; In this Issue
    • Authors: .
      Pages: 665 - 668
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx061
      Issue No: Vol. 28, No. 3 (2017)
  • Someone Else’s Deal: Interpreting International Investment Agreements in
           the Light of Third-Party Agreements
    • Authors: Mitchell A; Munro J.
      Pages: 669 - 695
      Abstract: This article considers whether an international investment agreement (IIA) between two states parties can be interpreted in the light of a ‘third-party IIA’ (defined as a party’s IIA with a third state, a party’s model IIA or an IIA between other states parties). A significant number of tribunals have been willing to interpret the IIA before them with reference to third-party IIAs, drawing inferences from differences or similarities in their texts. However, the use of third-party IIAs in this manner often reflects an erroneous application of the customary rules of treaty interpretation set out in Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT). These conclusions have significant implications for international investment law and state practice. If investment tribunals continue to look to third-party IIAs beyond the parameters of the VCLT, beyond consent of the disputing parties and beyond the common intention of treaty parties, contemporary developments in treaty drafting may have unintended or even perverse consequences.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx057
      Issue No: Vol. 28, No. 3 (2017)
  • Untangling the International Responsibility of the European Union and Its
           Member States in the World Trade Organization Post-Lisbon: A
           Competence/Remedy Model
    • Authors: Durán G.
      Pages: 697 - 729
      Abstract: The aim of this article is to shed light on the legally important and politically sensitive question of the respective responsibility of the European Union (EU) and its member states for the performance of World Trade Organization (WTO) obligations. Specifically, it seeks to challenge two propositions often found in the literature on the basis of a rigorous analysis of WTO dispute settlement practice. First, the claim that the EU’s exclusive responsibility for breaches of WTO law by its member states has been widely accepted by other WTO members and dispute settlement organs is not well grounded in existing WTO jurisprudence nor supported by recent post-Lisbon WTO dispute settlement practice. Second, and contrary to what some EU law scholars appear to suggest, what has been decisive in assigning international responsibility in the WTO is not the division of external (treaty-making) competences between the EU and its member states but, rather, the allocation and exercise of internal (treaty-infringing/treaty-performing) competences. In this sense, the Treaty of Lisbon has not fundamentally changed how the issue of EU/member states international responsibility is to be approached in the WTO, insofar as the EU member states remain members of that organization in their own right. With this in mind, a redefined ‘competence/remedy’ model is put forward to help us untangle ‘who is responsible’ to third parties for breaches of WTO law.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx046
      Issue No: Vol. 28, No. 3 (2017)
  • The David Effect and ISDS
    • Authors: Puig S; Strezhnev A.
      Pages: 731 - 761
      Abstract: The legitimacy of international investment law is fiercely contested. Chiefly, scholars argue that investor–state dispute settlement empowers corporations from rich nations over governments of poor ones. Some also assert that poor nations facing investment claims have limited ability to improve their standing in this setting of adjudication. Based on a first-of-its-kind experiment conducted on 257 international arbitrators, this article argues that one avenue to improve standing is for developing countries to exploit their ‘underdog’ status. We presented arbitrators with a vignette describing an investor–state dispute and randomly assigned different features to test their effect. Our results suggest arbitrators are prone to a particular type of bias – surveyed professionals were more likely to grant poor respondent states reimbursement of their legal costs compared to wealthy states when the respondent won the dispute. Based on this ‘David effect’, we argue for re-conceptualizing investor–state arbitration as a tool for partially mitigating power imbalances.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx058
      Issue No: Vol. 28, No. 3 (2017)
  • The Value of the European Court of Human Rights to the United Kingdom
    • Authors: Amos M.
      Pages: 763 - 785
      Abstract: National debates concerning the appropriate role of the European Court of Human Rights (ECtHR) in the United Kingdom (UK) recently intensified with the suggestion by the government that the UK might leave the European Convention on Human Rights system. It has been argued that a British Bill of Rights, to replace the current system of national human rights protection provided by the Human Rights Act 1998, would provide better protection than the ECtHR, making its role in the national system redundant. Claiming that the ECtHR is legitimate and has an impact that is usually illustrated by the transformative power of judgments more than 10 years’ old, have not provided a convincing answer to this claim. In this article, rather than legitimacy or impact, the value of the ECtHR to the objective of protecting human rights through law is assessed. Three different levels of value are identified from the relevant literature and then applied to the judgments of the Court concerning the UK from 2011 to 2015 to determine what has happened in practice. It is concluded that given that the UK government’s objective remains to protect human rights through law, although some types of value are now more relevant than others, overall the potential value of the Court to the UK in achieving this objective is still clearly evident.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx044
      Issue No: Vol. 28, No. 3 (2017)
  • The Principle of Nulla Poena Sine Lege Revisited: The Retrospective
           Application of Criminal Law in the Eyes of the European Court of Human
    • Authors: Sanz-Caballero S.
      Pages: 787 - 817
      Abstract: This article deals with the application by the European Court of Human Rights (ECtHR) of the principle nulla poena sine lege, which is enshrined in Article 7 of the European Convention on Human Rights, in two cases against Cyprus and Spain – Kafkaris v. Republic of Cyprus of 12 February 2008 and Inés del Río Prada v. Spain of 21 October 2013. To do so, the article frames the evolution of the Court’s case law before the two rulings. The article revises the existing Strasbourg doctrine on the contents of Article 7(1) and analyses how this doctrine has been particularly applied in the two cases where the applicants, two unrepentant murderers, requested an early release from the state authorities. The article compares the facts under scrutiny, the legal reasoning of the ECtHR and the final verdict in both cases and tries to shed some light on the shift in Strasbourg case law from Kafkaris to del Río Prada.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx049
      Issue No: Vol. 28, No. 3 (2017)
  • Res Interpretata , Erga Omnes Effect and the Role of the Margin of
           Appreciation in Giving Domestic Effect to the Judgments of the European
           Court of Human Rights
    • Authors: Arnardóttir O.
      Pages: 819 - 843
      Abstract: This article argues that Articles 1, 19 and 32 of the European Convention on Human Rights (ECHR) provide for a principle of res interpretata, which has also been confirmed in the case law of the European Court of Human Rights (ECtHR). This engenders a legal obligation under international law for the contracting states to take the full body of the Court’s case law into account when performing their obligations under the Convention. It further argues that the principle of res interpretata is confirmed and operationalized in the ECtHR’s more recent case law on the margin of appreciation, where the Court seeks to facilitate a more direct and timely involvement of its jurisprudence in the legal systems of the contracting states. Therefore, while the erga omnes effect for the judgments of the ECtHR is not expressly provided by the ECHR, the principle of res interpretata and the margin of appreciation doctrine de facto translate to introduce such an effect. After analysing the relevant case law and explaining the nuances of the Court’s different approaches to incentivizing domestic courts, on the one hand, and domestic policymakers, on the other, the article will elaborate on the extent to which the obligations imposed on states through the principle of res interpretata can reach. While pointing out some dangers inherent in the trends analysed, and cautioning the Court to be careful not to compromise its role under Article 32 of the ECHR of upholding the interpretation and application of Convention rights, the article concludes with a relatively positive assessment of the developments discussed.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx045
      Issue No: Vol. 28, No. 3 (2017)
  • Geography, Politics and Culture in the United Nations Human Rights
    • Authors: Shikhelman V.
      Pages: 845 - 869
      Abstract: The United Nations Human Rights Committee, the monitoring treaty body of the International Covenant on Civil and Political Rights, is one of the most important and highly regarded international human rights institutions. This article seeks to explore if geograph ical, political and cultural considerations influence the votes of committee members in decisions on individual communications. This article introduces an original dataset of the votes and backgrounds of committee members (CMs), hand coded by the author. The method used in the article is an empirical-quantitative analysis of the votes of CMs. The article finds that certain geopolitical voting patterns do exist in the votes of CMs. Evidence for cultural voting patterns is more limited. However, the article finds that usually voting patterns of individual CMs do not influence the final decision of the committee and that the decisions of the committee should be generally regarded as unbiased.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx056
      Issue No: Vol. 28, No. 3 (2017)
  • Consensus and Contestability: The ECtHR and the Combined Potential of
           European Consensus and Procedural Rationality Control
    • Authors: Kleinlein T.
      Pages: 871 - 893
      Abstract: This article explores the contestability of European consensus and its significance for the legitimacy of the European Court of Human Rights (ECtHR). The ECtHR’s combined legitimation strategy, comprising European consensus and the new procedural approach to the margin of appreciation, which has been seen in several judgments, opens up space for democratic contestation and deliberation. Progressive, rights-friendly judgments that consider a mere trend in ‘vanguard’ state parties as European consensus will probably provoke domestic contestation in ‘laggard’ states. This potential backlash can be productive because it can subsequently impart additional legitimation on the ECtHR’s judgments. Procedural rationality control ensures that this avenue of democratic legitimation is kept open and that there are institutional structures and processes to balance human rights adequately in domestic debates. Combining consensus-based arguments with a procedural approach to the margin of appreciation reconciles the impact of a European consensus and the need for democratic deliberation. High standards in domestic procedures can possibly rebut the presumption in favour of the solution adopted by the majority of Convention states. Potentially, this approach also allows democratic domestic law-making institutions to react to judgments of the ECtHR based on European consensus.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx055
      Issue No: Vol. 28, No. 3 (2017)
  • Roaming Charges: A Window Apart
    • Pages: 895 - 898
      Abstract: We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution and all other manner of photojournalism.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx050
      Issue No: Vol. 28, No. 3 (2017)
  • The Concept of ‘Due Diligence’ in the UN Guiding Principles on
           Business and Human Rights
    • Authors: Bonnitcha J; McCorquodale R.
      Pages: 899 - 919
      Abstract: Due diligence is at the heart of the United Nations Guiding Principles on Business and Human Rights, which establish the main parameters internationally for considering corporate responsibility for human rights violations. However, the Guiding Principles invoke two different concepts of due diligence: the first is a process to manage business risks and the second is the standard of conduct required to discharge an obligation. In this article, we show that the Guiding Principles invoke these two concepts without explaining how they relate to each other. This confusion creates uncertainty about the extent of businesses’ responsibility to respect human rights and uncertainty about how that responsibility relates to businesses’ correlative responsibility to provide a remedy when they infringe human rights. On this basis, we propose and justify an interpretation of the Guiding Principles that clarifies the relationship between the two concepts of due diligence.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx042
      Issue No: Vol. 28, No. 3 (2017)
  • The Concept of ‘Due Diligence’ in the UN Guiding Principles on
           Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert
    • Authors: Ruggie J; Sherman J, III.
      Pages: 921 - 928
      Abstract: We welcome the opportunity to respond to Jonathan Bonnitcha and Robert McCorquodale’s discussion of the 2011 United Nations Guiding Principles on Business and Human Rights (Guiding Principles).11 The UN Human Rights Council unanimously endorsed the Guiding Principles in June. They constitute the only official guidance the Council and its predecessor, the Commission on Human Rights, have issued for states and business enterprises on their respective obligations in relation to business and human rights. It also marked the first time that either body ‘endorsed’ a normative text on any subject that governments did not negotiate themselves. UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein describes the Guiding Principles as ‘the global authoritative standard, providing a blueprint for the steps all states and businesses should take to uphold human rights’.22 The Guiding Principles have been widely drawn upon in standard setting by other international organizations, governments, businesses, law societies, including the International Bar Association33 and even the International Federation of Football Associations.44 Civil society groups and workers organizations use them as advocacy tools.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx047
      Issue No: Vol. 28, No. 3 (2017)
  • The Concept of ‘Due Diligence’ in the UN Guiding Principles on
           Business and Human Rights: A Rejoinder to John Gerard Ruggie and John F.
           Sherman, III
    • Authors: Bonnitcha J; McCorquodale R.
      Pages: 929 - 933
      Abstract: We are grateful to John Gerard Ruggie and John F. Sherman for engaging with our art icle.11 We share their objective of more firmly grounding businesses’ respect for human rights and agree that the 2011 United Nations Guiding Principles on Business and Human Rights (Guiding Principles) have already made a significant contribution to this end.22 We admire their ongoing commitment to promoting the Guiding Principles and businesses’ respect for human rights. We welcome the opportunity to respond to their Reply in this constructive spirit.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx048
      Issue No: Vol. 28, No. 3 (2017)
  • The Revolutionary Doctrines of European Law and the Legal Philosophy of
           Robert Lecourt
    • Authors: Phelan W.
      Pages: 935 - 957
      Abstract: The creation of today’s European legal order is usually traced back to a set of remarkable decisions made by the European Court of Justice in 1963 and 1964. Where, however, did the content of those judgments come from' After all, the doctrines advanced by the Court in its Van Gend en Loos, Costa v. ENEL and Dairy Products decisions were not set out in the Treaty of Rome itself. This article uses writings by French judge Robert Lecourt to show how the legal philosophy which Lecourt had developed before his appointment to the Court, in his scholarship on French property law, can be directly related to the fundamental doctrines that the Court created after his appointment, indicating that one of the major objectives of the dominant faction on the Court in 1963 and 1964 was a comprehensive rejection of any form of reciprocal or retaliatory self-help between the European states.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx054
      Issue No: Vol. 28, No. 3 (2017)
  • The ICJ and Jus Cogens through the Lens of Feminist Legal Methods
    • Authors: Yahyaoui Krivenko E.
      Pages: 959 - 974
      Abstract: This article explores the persistent gap in receptivity to feminist approaches to public international law within international institutions, using the International Court of Justice (ICJ) as an example. The article argues that the ICJ, as the main judicial organ of the United Nations, remains non-receptive to feminist analyses of public international law. Mainstream public international law, therefore, still has a long way to go before we can affirm that feminist critiques of public international law are fully acknowledged and being addressed. In order to defend this argument, the article analyses the ICJ’s position on the notion of jus cogens, including the dissenting and separate opinions of individual judges, through the lens of feminist legal methods.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx043
      Issue No: Vol. 28, No. 3 (2017)
  • Lauren Benton and Lisa Ford. Rage for Order: The British Empire and the
           Origins of International Law, 1800–1850 Andrew Fitzmaurice. Sovereignty,
           Property and Empire, 1500–2000
    • Authors: Singh P.
      Pages: 975 - 986
      Abstract: BentonLauren and FordLisa. Rage for Order: The British Empire and the Origins of International Law, 1800–1850. Cambridge, MA: Harvard University Press, 2016. Pp. 288. $39.95. ISBN: 9780674737464.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx060
      Issue No: Vol. 28, No. 3 (2017)
  • L’Europe à soixante [Trent ans après l’Acte unique
           européen] *
    • Authors: Wilms G.
      Pages: 987 - 988
      Abstract: L’Europe n’est plus la mêmeQu’il y a une trentaineLes yeux cernésPar manqueD’amourAu jour le jourLa bouche uséePar les baisersTrop peu etTrop mal donnésLe teint d’un gris pastelMalgré le prix NobelPlus pâle qu’uneTâche de luneL’Europe n’est plus la mêmeQu’il y a une trentaineLes seins vidésOnt trop donnésNe portent pasL’ancien appasLe corps blesséPeu caresséTrop rarement etTrop mal aiméLe dos voutéForcé de porterDes souvenirsQu’elle voulait fuirL’Europe n’est plus la mêmeQu’il y a une trentaineN’en ris pasN’y touche pasGarde tes larmesEt tes sarcasmesSi c’est vraiment la paixQue tu viens chercherSon âme, ses mainsS’offrent aux tiensEt ce sont ses valeursNées de nos pleursEt de nos blessuresQui te rassurent.
      PubDate: 2017-11-13
      DOI: 10.1093/ejil/chx062
      Issue No: Vol. 28, No. 3 (2017)
School of Mathematical and Computer Sciences
Heriot-Watt University
Edinburgh, EH14 4AS, UK
Tel: +00 44 (0)131 4513762
Fax: +00 44 (0)131 4513327
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