Abstract The prevailing approach to the application of the right to life during the conduct of hostilities holds that the arbitrariness of loss of life in terms of international human rights law (IHRL) is determined by compliance with international humanitarian law (IHL). Through application of the interpretive principle of systemic integration, an alternative ‘normative approach’ is advanced. The normative approach is premised on a contextual consideration of the normative content and underlying values of the right to life rather than on the more mechanical approaches to its interpretation. The outcome reached that is based on this approach has two profound distinctions to that of the prevailing approach: (i) not all loss of life where IHL was not strictly complied with is ipso jure arbitrary and, conversely, (ii) at times, compelling factors necessitate a recalibration of arbitrariness along a spectrum between IHRL and IHL, with the result that loss of life may amount to arbitrary deprivation of life even when IHL is fully complied with. In the context of quintessential military operations, a two-pronged normative test is advanced to determine the circumstances in which non-compliance with IHL will result in arbitrary deprivation of life.
{"title":"The Alchemy of the Right to Life during the Conduct of Hostilities: A Normative Approach to Operationalizing the ‘Supreme Right’","authors":"Gus Waschefort","doi":"10.1093/ejil/chad045","DOIUrl":"https://doi.org/10.1093/ejil/chad045","url":null,"abstract":"Abstract The prevailing approach to the application of the right to life during the conduct of hostilities holds that the arbitrariness of loss of life in terms of international human rights law (IHRL) is determined by compliance with international humanitarian law (IHL). Through application of the interpretive principle of systemic integration, an alternative ‘normative approach’ is advanced. The normative approach is premised on a contextual consideration of the normative content and underlying values of the right to life rather than on the more mechanical approaches to its interpretation. The outcome reached that is based on this approach has two profound distinctions to that of the prevailing approach: (i) not all loss of life where IHL was not strictly complied with is ipso jure arbitrary and, conversely, (ii) at times, compelling factors necessitate a recalibration of arbitrariness along a spectrum between IHRL and IHL, with the result that loss of life may amount to arbitrary deprivation of life even when IHL is fully complied with. In the context of quintessential military operations, a two-pronged normative test is advanced to determine the circumstances in which non-compliance with IHL will result in arbitrary deprivation of life.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135002752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Fulvia Staiano. Transnational Organized Crime: Challenging International Law Principles on State Jurisdiction. Cheltenham: Edward Elgar","authors":"Cecily Rose","doi":"10.1093/ejil/chad047","DOIUrl":"https://doi.org/10.1093/ejil/chad047","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134998090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Roaming Charges Places with a Soul: Salon","authors":"","doi":"10.1093/ejil/chad037","DOIUrl":"https://doi.org/10.1093/ejil/chad037","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135055023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Miloš Vec, Review of Marcus M. Payk and Kim Christian Priemel (eds). Crafting the International Order: Practitioners and Practices of International Law since c. 1800","authors":"Milo Vec","doi":"10.1093/ejil/chad023","DOIUrl":"https://doi.org/10.1093/ejil/chad023","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41393105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Raphael Oidtmann, Review of Richard Gaskins. The Congo Trials in the International Criminal Court","authors":"Raphael Oidtmann","doi":"10.1093/ejil/chad022","DOIUrl":"https://doi.org/10.1093/ejil/chad022","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47857560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The In/Ex-clusiveness of International Law: Some Remarks from the Concluding Panel of the 17th Annual Conference of the European Society of International Law","authors":"Namira Negm","doi":"10.1093/ejil/chad016","DOIUrl":"https://doi.org/10.1093/ejil/chad016","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48441415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The In- or Ex-clusiveness of International Law","authors":"E. Achiume","doi":"10.1093/ejil/chad014","DOIUrl":"https://doi.org/10.1093/ejil/chad014","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45318045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The distinction between acta jure imperii and jure gestionis, while playing a pivotal role in the law of state immunity, appears alien to the law of state responsibility. However, recent practice has shown conceptual overlaps between these different areas of international law. The sovereign/commercial dichotomy has informed the attribution of parastatal entities’ conduct to a state under Article 5 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). More precisely, acta jure gestionis have been excluded from the scope of attributable conduct. Against this backdrop, this study investigates whether, and to what extent, the distinction between acta jure imperii and jure gestionis dictates the interpretation and application of Article 5 of ARSIWA. We conclude that the distinction does have relevance in this context, although Article 5 was not designed to preclude the attributability of commercial acts. However, its obscure wording has allowed subsequent practice to overly narrow the scope of attributable conduct. This study, critically analysing a restrictive doctrine of state responsibility, aims to provide a more accurate and desirable conception of the rule and a clear and detailed guideline on when the commercial act of parastatal entities can be attributable to the state.
{"title":"Can Acta Jure Gestionis Be Attributable to the State? A Restrictive Doctrine of State Responsibility","authors":"Yohei Okada","doi":"10.1093/ejil/chad018","DOIUrl":"https://doi.org/10.1093/ejil/chad018","url":null,"abstract":"\u0000 The distinction between acta jure imperii and jure gestionis, while playing a pivotal role in the law of state immunity, appears alien to the law of state responsibility. However, recent practice has shown conceptual overlaps between these different areas of international law. The sovereign/commercial dichotomy has informed the attribution of parastatal entities’ conduct to a state under Article 5 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). More precisely, acta jure gestionis have been excluded from the scope of attributable conduct. Against this backdrop, this study investigates whether, and to what extent, the distinction between acta jure imperii and jure gestionis dictates the interpretation and application of Article 5 of ARSIWA. We conclude that the distinction does have relevance in this context, although Article 5 was not designed to preclude the attributability of commercial acts. However, its obscure wording has allowed subsequent practice to overly narrow the scope of attributable conduct. This study, critically analysing a restrictive doctrine of state responsibility, aims to provide a more accurate and desirable conception of the rule and a clear and detailed guideline on when the commercial act of parastatal entities can be attributable to the state.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43636868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Massimo Lando, Review of La Protection des Intérêts Juridiques de l’État Tiers dans le Procès de Délimitation Maritime","authors":"Massimo Lando","doi":"10.1093/ejil/chad020","DOIUrl":"https://doi.org/10.1093/ejil/chad020","url":null,"abstract":"","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47777717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This EJIL Foreword is a personal retrospective of the Third World Approaches to International Law (TWAIL) movement. It provides an account of the origins of TWAIL and the political and intellectual context in which it emerged during the 1990s. It outlines some of the key themes and concerns of TWAIL – including ‘colonial continuities’, ‘capitalism, imperialism and political economy’, and ‘TWAIL and History’. It argues that the distinction between the ‘First’ and ‘Third’ Worlds continues to be relevant by examining the operation of this distinction in various fields of international law, such as the use of force, international migration law and human rights. The Foreword then outlines two of the author’s current research projects on themes that have been of major interest to TWAIL scholars: first, human rights and their relationship to imperialism; and second, race and reparations. The Foreword concludes by arguing that ‘Third World Approaches to International Law’ are relevant, not simply for the ‘third world’, but for the entire globe; it urges us to consider TWAIL as a cosmopolitan project.
{"title":"Rethinking International Law: A TWAIL Retrospective","authors":"Antony T. Anghie","doi":"10.1093/ejil/chad005","DOIUrl":"https://doi.org/10.1093/ejil/chad005","url":null,"abstract":"\u0000 This EJIL Foreword is a personal retrospective of the Third World Approaches to International Law (TWAIL) movement. It provides an account of the origins of TWAIL and the political and intellectual context in which it emerged during the 1990s. It outlines some of the key themes and concerns of TWAIL – including ‘colonial continuities’, ‘capitalism, imperialism and political economy’, and ‘TWAIL and History’. It argues that the distinction between the ‘First’ and ‘Third’ Worlds continues to be relevant by examining the operation of this distinction in various fields of international law, such as the use of force, international migration law and human rights. The Foreword then outlines two of the author’s current research projects on themes that have been of major interest to TWAIL scholars: first, human rights and their relationship to imperialism; and second, race and reparations. The Foreword concludes by arguing that ‘Third World Approaches to International Law’ are relevant, not simply for the ‘third world’, but for the entire globe; it urges us to consider TWAIL as a cosmopolitan project.","PeriodicalId":47727,"journal":{"name":"European Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.2,"publicationDate":"2023-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48927398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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