German Yearbook of International Law / Jahrbuch für Internationales Recht
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Giegerich, T., Proelß, A. (Eds.) (2010). German Yearbook of International Law / Jahrbuch für Internationales Recht. Vol. 52 (2009). Duncker & Humblot. https://doi.org/10.3790/978-3-428-53375-6
Giegerich, Thomas and Proelß, Alexander. German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 52 (2009). Duncker & Humblot, 2010. Book. https://doi.org/10.3790/978-3-428-53375-6
Giegerich, T, Proelß, A (eds.) (2010): German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 52 (2009), Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-53375-6
Format
German Yearbook of International Law / Jahrbuch für Internationales Recht
Vol. 52 (2009)
Editors: Giegerich, Thomas | Proelß, Alexander
German Yearbook of International Law / Jahrbuch für Internationales Recht, Vol. 52
(2010)
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Abstract
The German Yearbook of International Law, founded as the Jahrbuch für Internationales Recht, provides an annual report on new developments in international law and is edited by the Walther Schücking Institute for International Law at the University of Kiel. Since its inception in 1948, the Yearbook has endeavored to make a significant academic contribution to the ongoing development of international law. Over many decades the Yearbook has moved beyond its origins as a forum for German scholars to publish their research and has become a highly-regarded international forum for innovative scholarship in international law. In 1976, the Yearbook adopted its current title and began to publish contributions written in English in order to reach the largest possible international audience. This editorial decision has enabled the Yearbook to successfully overcome traditional language barriers and inform an international readership about current research in German academic institutions and, at the same time, to present international viewpoints to its German audience. Fully aware of the paramount importance of international practice, the Yearbook publishes contributions from active practitioners of international law on a regular basis. The Yearbook also includes critical comments on German state practice relating to international and EU law, as well as international reactions to that practice.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Contents | 5 | ||
| FORUM | 9 | ||
| Thomas Giegerich: The Federal Constitutional Court’s Judgment on the Treaty of Lisbon – The Last Word (German) Wisdom Ever Has to Say on a United Europe? | 9 | ||
| A. Introduction: The Federal Constitutional Court as Substitute Political Forum | 9 | ||
| B. Admissibility of the Constitutional Complaints against the Treaty of Lisbon | 10 | ||
| I. Right to Vote in German Federal Parliamentary Elections: The Key to the Court’s Supervisory Power | 11 | ||
| II. Political Questions? – The Two Extraordinary Features of the Lisbon Judgment | 13 | ||
| III. The Permanent Integration of Germany into a United Europe: How Was an Insurance Policy Turned into an Accident? | 14 | ||
| C. Merits: Aiming at Europe – But Hitting only Home Soil | 17 | ||
| I. Eternal Cementation of German Sovereign Statehood | 17 | ||
| II. Trying to Stem the Disempowerment of Germany in General and the German Parliament in Particular | 19 | ||
| 1. The Court’s Partially Considered Starting Point: Characterizing the EU as an Inter-Governmental Organization under Public International Law | 19 | ||
| 2. The Four Alleged Consequences of the Basic Law’s Democratic Principle | 21 | ||
| 3. Protecting German State and Popular Sovereignty by Claiming the Final Say for the Federal Constitutional Court | 22 | ||
| a) The Federal Constitutional Court’s Role as Ultimate Arbiter of the Basic Law: Reserving “Identity Review” of European Acts | 23 | ||
| b) The Federal Constitutional Court’s Role as Ultimate Arbiter of the EU Treaty: Reserving “Ultra Vires Review” of European Acts | 25 | ||
| c) Should the German Legislature Enact the Court’s Claimed Review Powers into Law? | 29 | ||
| III. Guaranteeing Democracy at EU Level | 30 | ||
| 1. Bolstering EU Democracy by Strengthening Its National Component | 30 | ||
| a) Preventing the German Parliament from Transferring too Many Powers to the EU | 30 | ||
| b) Extending the German Parliament’s Final Say with Regard to German EU Policy | 32 | ||
| 2. Curing the Democratic Deficit of the EU by Delegitimizing the European Parliament? | 34 | ||
| D. Legislative Follow-Up in Germany: Transforming the Court’s Precepts into Statutory Law | 38 | ||
| I. The New Veto Rights of the Bundestag in EU Matters | 38 | ||
| II. Avoiding Making the German Ratification of the Lisbon Treaty Subject to a Reservation | 40 | ||
| E. Conclusion: Learning to Thrive Cautiously with Unexploded Ordnance | 41 | ||
| FOCUS SECTION: CHANCES AND CHALLENGES OF REGIONAL HUMAN RIGHTS PROTECTION | 45 | ||
| Gina Bekker: The African Human Rights System: An Uphill Struggle | 45 | ||
| A. Introduction | 45 | ||
| B. Human Rights on the Periphery: Historical Context to the Adoption of the African Charter | 47 | ||
| C. The African Charter on Human and Peoples’ Rights: The Paradox of Sameness and Difference | 49 | ||
| D. The African Commission on Human and Peoples’ Rights: An Assessment | 52 | ||
| I. The Promotion of Human Rights: A Series of Missed Opportunities | 53 | ||
| II. The Protection of Human Rights: Two Steps Forward … | 56 | ||
| E. Transformation of the OAU into the AU and the Fragmentation of Rights Protection | 62 | ||
| I. The Protocol Establishing an African Court on Human and Peoples’ Rights | 63 | ||
| II. ‘Supplementing’ Article 18 (3) of the African Charter: The Adoption of Additional Instruments on Women and Children | 69 | ||
| F. Merger of the African Court on Human and Peoples’ Rights and the African Court of Justice – the First Step Towards Consolidation? | 72 | ||
| G. Conclusion | 73 | ||
| Kamran Hashemi: Muslim States, Regional Human Rights Systems and the Organization of the Islamic Conference | 75 | ||
| A. Introduction | 75 | ||
| B. Muslim States, Regionalism and Human Rights | 77 | ||
| C. Muslim Law (Muslim Legal Traditions) in its Historical Context, and the Concept of Rights | 82 | ||
| D. The Cairo Declaration on Human Rights in Islam | 86 | ||
| E. The Arab League and the New Arab Charter on Human Rights | 89 | ||
| F. The OIC’s New Internal Approach to the Promotion and Protection of Human Rights | 94 | ||
| I. Covenant on the Rights of the Child in Islam | 95 | ||
| II. The New Vision of the OIC | 97 | ||
| III. The OIC Ten-Year Program of Action | 98 | ||
| IV. The New OIC Charter | 99 | ||
| V. Initial Steps to Form the OIC Permanent Human Rights Commission | 100 | ||
| G. Concluding Remarks | 103 | ||
| Peter Malanczuk: Regional Protection of Human Rights in the Asia-Pacific Region | 107 | ||
| A. Introduction | 107 | ||
| B. The Arab Charter of Human Rights | 109 | ||
| C. Developments in ASEAN | 111 | ||
| I. The 1993 Bangkok Declaration | 111 | ||
| II. The 2007 ASEAN Charter | 113 | ||
| III. The ASEAN Intergovernmental Commission on Human Rights (AICHR) | 117 | ||
| IV. Other ASEAN Proposals (Women, Children and Migrant Workers) | 121 | ||
| D. Towards a Regional Human Rights Mechanism for the Pacific Region? | 122 | ||
| I. Pacific Community, Pacific Island Forum, and Pacific Islands | 122 | ||
| II. The 1989 Draft Pacific Charter of Human Rights | 123 | ||
| III. The 2005 Pacific Plan and New Designs for a Regional Pacific Human Rights Mechanism | 124 | ||
| E. Prospects for Australia and New Zealand in a Regional Human Rights Mechanism | 128 | ||
| F. The Role of National Human Rights Institutions | 129 | ||
| G. Evaluation and Concluding Remarks | 131 | ||
| Michael O’Boyle and John Darcy: The European Court of Human Rights: Accomplishments, Predicaments and Challenges | 139 | ||
| A. Creation and First Stage of Development | 141 | ||
| I. Formative Years | 142 | ||
| II. Mounting Challenges | 145 | ||
| B. Metamorphosis | 147 | ||
| I. Court Organization and Operation | 148 | ||
| II. Inter-State Jurisdiction | 152 | ||
| III. Interim Measures | 153 | ||
| C. Accomplishments: The Contribution of the Court as a “Constitutional Instrument of European Public Order” | 155 | ||
| I. Direct and Indirect Impact | 157 | ||
| II. Systemic Implications | 159 | ||
| III. Distant Effects | 160 | ||
| D. The Statistics of Case Overload | 161 | ||
| E. Reform Measures | 164 | ||
| I. Protocol No. 14 | 164 | ||
| II. Wise Persons Report | 166 | ||
| III. A New Architecture for the Convention System? | 168 | ||
| 1. National Measures – The Need for a Holistic and Systematic Strategy | 170 | ||
| 2. Preserving but Qualifying the Right of Individual Petition | 172 | ||
| 3. A More Efficient Filtering System | 174 | ||
| 4. Tapping the Potential of the Pilot Judgment | 175 | ||
| 5. Strengthening Links with the National Judiciary: Advisory Opinions | 177 | ||
| F. Conclusion | 179 | ||
| Jo M. Pasqualucci: The Inter-American Human Rights System: Progress Made and Still To Be Made | 181 | ||
| A. Introduction | 181 | ||
| B. Brief History of the Inter-American Human Rights System | 184 | ||
| C. American Convention on Human Rights | 186 | ||
| D. Inter-American Commission on Human Rights | 190 | ||
| E. Inter-American Court of Human Rights | 195 | ||
| I. The Evolution of the Victim’s Role before the Inter-American Court | 197 | ||
| II. The Role of the Inter-American Commission before the Court | 199 | ||
| III. Procedural Efficiency | 200 | ||
| IV. Amicus Curiae, Increased Participation of Civil Society | 202 | ||
| V. Human Rights Precedents Established by the Inter-American Court | 202 | ||
| VI. Reparations | 206 | ||
| VII. Advisory Jurisdiction | 212 | ||
| VIII. Interim Measures | 213 | ||
| F. Increased Range of Human Rights Protections | 217 | ||
| G. Challenges to the System; Progress Still to be Made | 219 | ||
| I. Under-Funding | 219 | ||
| II. Failure of OAS Political Organs to Oversee State Compliance | 222 | ||
| III. Lack of Universality | 223 | ||
| IV. Lack of Domestic Implementation | 225 | ||
| V. Non Transparency in the Nomination and Election of Commissioners and Judges | 227 | ||
| H. Conclusion | 228 | ||
| SYMPOSIUM: THE NORD STREAM PIPELINE: LEGAL, ECONOMIC AND ENVIRONMENTAL ISSUES | 231 | ||
| Roland Götz: The Nord Stream Pipeline: The Energy Policy Background | 233 | ||
| A. European Gas Demand | 233 | ||
| B. Gazprom’s Diversification Strategy and European Pipeline Policy | 235 | ||
| C. Gazprom’s Strategy: Commercial or Political Intentions | 236 | ||
| D. Gazprom’s Strategies and European Energy Security Policy | 239 | ||
| E. Further Reading | 240 | ||
| Sergei Vinogradov: Challenges of Nord Stream: Streamlining International Legal Frameworks and Regimes for Submarine Pipelines | 241 | ||
| A. Introduction | 241 | ||
| I. International Pipelines: The Context | 241 | ||
| II. Evolving Legal Regimes for Cross-Border Pipelines | 245 | ||
| B. Cross-Border Submarine Pipelines: The Case of Nord Stream | 249 | ||
| I. Types of Submarine Pipelines | 249 | ||
| II. The Nord Stream Pipeline Project: Legally Relevant Factors | 256 | ||
| 1. Background | 256 | ||
| 2. The Pipeline Route: Legal Implications | 259 | ||
| 3. The Pipeline and Marine Environment: Legal Aspects | 265 | ||
| C. International Legal Frameworks for Submarine Pipelines | 269 | ||
| I. Introductory Remarks | 269 | ||
| II. Global Legal Framework: UNCLOS | 274 | ||
| 1. Territorial Sea | 276 | ||
| 2. High Seas | 278 | ||
| 3. EEZ and Continental Shelf | 280 | ||
| III. Regional Legal Frameworks: The Baltic Sea Context | 286 | ||
| D. Conclusion | 289 | ||
| Timo Koivurova and Ismo Pölönen: Transboundary Environmental Impact Assessment in the Case of the Baltic Sea Gas Pipeline | 293 | ||
| A. Introduction | 293 | ||
| B. Transboundary EIA in the Case of the BSGP – A Challenge to the Espoo Convention | 300 | ||
| C. How the Transboundary EIA was Organized in the Case of the BSGP | 304 | ||
| I. Arrangements at the Transboundary Level | 304 | ||
| II. The Transboundary EIA as it is Linked to the Finnish EIA Procedure | 309 | ||
| III. Comments on the Espoo Report | 314 | ||
| D. How Should the BSGP Transboundary EIA Have Been Done? | 318 | ||
| E. Concluding Remarks | 322 | ||
| Stefan Leible: Private International Law: Contracts for the Delivery of Gas | 327 | ||
| A. Introduction | 327 | ||
| B. Long-Term Gas Supply Contracts with Take-or-Pay (ToP) Conditions | 328 | ||
| C. Contract Drafting | 329 | ||
| I. Applicable Law | 329 | ||
| 1. Principle | 329 | ||
| 2. Problems with State Contracts | 331 | ||
| II. Content of the Contract | 333 | ||
| 1. Price Clauses | 333 | ||
| (a) Price Indexing | 333 | ||
| (b) Price Adaptation | 335 | ||
| 2. Force majeure clauses | 336 | ||
| D. Dispute Resolution | 337 | ||
| E. Conclusion | 340 | ||
| Richard Happ: The Nord Stream Pipeline: Settlement of Disputes under the Energy Charter Treaty? | 341 | ||
| A. What is the Energy Charter Treaty? | 342 | ||
| B. ECT Dispute Settlement Mechanisms | 346 | ||
| C. How Have the Dispute Settlement Mechanisms Been Used in Practice? | 350 | ||
| D. The ECT and the Disputes Relating to the Nord Stream Pipeline | 351 | ||
| E. Conclusion | 354 | ||
| Achim-R. Börner: Comment on the Private Law Aspects of the Nord Stream Pipeline | 355 | ||
| A. Construction and Repairs | 356 | ||
| B. Financing | 359 | ||
| I. Cash Flow | 359 | ||
| II. Pipeline | 359 | ||
| C. Transportation | 363 | ||
| D. Maintenance | 364 | ||
| E. Officers and Staff | 365 | ||
| F. Compliance | 365 | ||
| G. Insurance | 366 | ||
| GENERAL ARTICLES | 367 | ||
| Paul David Mora: The Legality of Civil Jurisdiction over Torture under the Universal Principle | 367 | ||
| A. The Framework of Jurisdiction under International Law | 367 | ||
| B. Conventional International Law: The 1984 Convention against Torture | 371 | ||
| I. The Obligation to Provide a Civil Remedy for Acts of Torture under Article 14 CAT | 371 | ||
| II. Article 14 (2) CAT | 379 | ||
| C. Customary International Law | 380 | ||
| I. The Universal Principle | 380 | ||
| II. Jus Cogens and the erga omnes Concept | 384 | ||
| D. The Legality of the Assertions of Universal Civil Jurisdiction made by the United States under the Alien Tort Claims Act and the Torture Victim Protection Act | 395 | ||
| E. Conclusion | 403 | ||
| Anja Seibert-Fohr: Judicial Independence in European Union Accessions: The Emergence of a European Basic Principle | 405 | ||
| A. Introduction | 405 | ||
| B. The Evolving Normative Framework for Enlargement | 407 | ||
| I. The Rule of Law as an Integral Part of the European Legal Order | 407 | ||
| 1. From Practice to Codification | 408 | ||
| 2. The Normative Value of the Rule of Law Concept Under the Lisbon Treaty | 411 | ||
| II. Judicial Independence of Domestic Courts and its Role for European Integration | 412 | ||
| 1. Judicial Independence as Part of the Rule of Law | 413 | ||
| 2. The Right to an Independent Court | 414 | ||
| 3. The Relevance of Judicial Independence for the acquis communautaire | 415 | ||
| 4. Economic Relevance of Judicial Independence | 416 | ||
| III. The Meaning of Independence Under Primary Law | 417 | ||
| C. The Evolving Interpretation by the European Commission | 419 | ||
| I. Efforts to Specify the Copenhagen Criteria in the Fifth Enlargement Round | 419 | ||
| 1. Evaluation of Applications | 419 | ||
| 2. Negotiations | 420 | ||
| II. The Commission’s Parameters of Judicial Independence | 423 | ||
| 1. Structural Independence | 424 | ||
| a) Administration of the Judiciary | 425 | ||
| b) Judicial Selection and Career | 426 | ||
| 2. Substantive Independence | 428 | ||
| 3. Personal Independence: Conditions of Service and Tenure | 428 | ||
| 4. Evaluation | 430 | ||
| D. Conclusion | 434 | ||
| Anthony D’Amato: The Coerciveness of International Law | 437 | ||
| A. Six Perspectives on Non-Coerciveness | 440 | ||
| I. Dualism | 440 | ||
| II. Consent | 441 | ||
| III. Domestication | 443 | ||
| IV. Soft Law | 444 | ||
| V. The New Haven School | 446 | ||
| VI. Exceptionalism | 448 | ||
| B. International Law is a Coercive Order | 450 | ||
| I. Reprisals Inside a Treaty Regime | 452 | ||
| II. Customary International Law Reprisals | 454 | ||
| III. The Daily Fare of Reprisals and Retorsions | 455 | ||
| IV. Reprisals Against a Superpower | 456 | ||
| C. Rules Governing Reprisals | 458 | ||
| D. Conclusion | 460 | ||
| Lydia F. Müller: Judicial Independence as a Council of Europe Standard | 461 | ||
| A. Introduction | 461 | ||
| B. The Requirement to Guarantee Independent Tribunals in the Jurisprudence of the European Court of Human Rights | 462 | ||
| I. Manner of Appointment | 463 | ||
| II. Term of Office | 464 | ||
| III. Guarantees against Outside Pressure | 466 | ||
| 1. Irremovability | 466 | ||
| 2. Not Being Subjected to Instructions | 467 | ||
| 3. Binding Nature of Decisions | 469 | ||
| 4. Secrecy of Deliberations | 470 | ||
| IV. Appearance of Independence | 470 | ||
| V. Further Elements | 471 | ||
| C. Council of Europe Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges | 474 | ||
| D. European Commission for Democracy through Law (“Venice Commission”) | 477 | ||
| E. Conclusion | 483 | ||
| Karin Oellers-Frahm: The Principle of Consent to International Jurisdiction – Is it Still Alive? Observations on the Judgment on Preliminary Objections in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) | 487 | ||
| A. Introduction | 487 | ||
| B. Court Decisions in Related Cases | 489 | ||
| I. Genocide Convention Case (Bosnia and Herzegovina v. Serbia and Montenegro) | 489 | ||
| 1. The 1996 Judgment on Jurisdiction | 489 | ||
| 2. The 2007 Judgment on the Merits | 490 | ||
| 3. Revision Judgment | 492 | ||
| II. Legality of Use of Force Cases | 493 | ||
| C. History of the Croatia Case | 494 | ||
| D. The Decision of the Court | 495 | ||
| I. Access to the Court, Article 35 (1) of the Statute | 495 | ||
| II. Jurisdiction under the Genocide Convention | 498 | ||
| 1. Applicability of the Genocide Convention | 498 | ||
| 2. Were the Conditions of Article XI of the Convention Fulfilled? | 500 | ||
| E. Analysis of the Decision | 501 | ||
| I. Remedying Defects of the Original Application: The Mavrommatis Principle | 501 | ||
| 1. Time Factor | 501 | ||
| 2. The Character of the Defect | 503 | ||
| II. Access to the Court | 505 | ||
| 1. Access to the Court Under Article 35 (1) of the Statute | 505 | ||
| a) The 1992 Resolutions of the SC and the GA | 505 | ||
| b) Access to the Court on the Basis of Article 35 (2) of the Statute | 508 | ||
| aa) Statute of the PCIJ | 509 | ||
| bb) Statute of the ICJ | 510 | ||
| cc) Validity of Treaty Clauses Dating Later Than the Statute | 511 | ||
| c) “Unilateral” Interpretation of Article 35 (2) of the Statute | 512 | ||
| III. Applicability of Genocide Convention | 513 | ||
| 1. The Court’s Finding: Declaration of Succession | 514 | ||
| 2. The Continuity Claim and “Estoppel” | 516 | ||
| 3. Automatic Succession | 518 | ||
| a) The 1978 Convention on State Succession in Respect of Treaties | 518 | ||
| b) Present Day Applicable Law | 519 | ||
| c) Succession to Dispute Settlement Clauses | 520 | ||
| F. Concluding Remarks | 521 | ||
| Andreas Fischer-Lescano and Lena Kreck: Piracy and Human Rights: Legal Issues in the Fight against Piracy within the Context of the European “Operation Atalanta” | 525 | ||
| A. The Extraterritoriality of Fundamental and Human Rights | 528 | ||
| I. The Validity of Fundamental and Human Rights without Reference to Territory? | 529 | ||
| 1. Extraterritorial Validity under the Basic Law | 529 | ||
| 2. Extraterritorial Validity under the ECHR | 530 | ||
| a) Extraterritorially Exercised Effective Jurisdiction | 532 | ||
| b) Flag Sovereignty as Jurisdiction under Maritime Law | 533 | ||
| c) The Fiction of Sovereignty through the Ban on Circumvention | 534 | ||
| 3. Extraterritorial Validity According to the EU Charter of Fundamental Rights | 535 | ||
| 4. Extraterritorial Validity According to the UN Civil Rights Covenant | 536 | ||
| 5. Interim Findings | 537 | ||
| II. No Role for International Humanitarian Law | 537 | ||
| 1. The Application of the Geneva Conventions | 537 | ||
| 2. No Particular Relation | 538 | ||
| III. No Transfer of German Sovereignty | 539 | ||
| IV. Interim Conclusions | 540 | ||
| B. Legal Issues of Detention | 540 | ||
| I. Interference in the Protected Scope | 541 | ||
| 1. Deprivation of Liberty | 541 | ||
| 2. Requirement of Judicial Approval | 541 | ||
| 3. Interim Conclusions | 542 | ||
| II. The Basis for Interference | 542 | ||
| 1. Article 105 UNCLOS in Connection with Security Council Resolutions | 543 | ||
| a) UN Resolutions | 544 | ||
| b) No Sufficiently Precise Basis for Authorization | 545 | ||
| 2. The Law of the EU: Joint Action 2008/851/CFSP | 547 | ||
| 3. Interim Conclusion | 547 | ||
| III. The Allocation of Authority | 547 | ||
| IV. Interim Conclusions | 549 | ||
| C. Legal Issues of the Handover | 550 | ||
| I. The Handover Ban According to Article 105 UNCLOS | 550 | ||
| II. Duties to Protect in the Case of “Substantial Grounds” | 551 | ||
| 1. Grounds | 552 | ||
| 2. Duties to Protect | 553 | ||
| a) Diplomatic Assurances | 554 | ||
| b) The Ban of Handover | 555 | ||
| III. Subjective Secondary Rights | 555 | ||
| IV. Interim Conclusions | 558 | ||
| D. Conclusion | 558 | ||
| Mart Susi: Application of the Access to Court Doctrine by the European Court of Human Rights: Estonia’s Concept of Comprehensive Court Protection | 563 | ||
| A. Introduction | 563 | ||
| I. The Position of the Access to Court Right in the Convention System | 563 | ||
| II. The Access to Court Right as lex specialis of Article 13: The Right to an Effective Remedy | 566 | ||
| 1. General Remarks | 566 | ||
| 2. The Search for Origins | 569 | ||
| B. Unproblematic and Problematic Areas of the Applicability of the Access to Court Right | 574 | ||
| I. Unproblematic Areas | 574 | ||
| II. Problematic Areas | 576 | ||
| 1. The Ukrainian Cases of Salary Recovery | 576 | ||
| 2. Remedy Against the Search of Premises and Seizure of Documents | 579 | ||
| 3. “Borderline” Cases | 581 | ||
| 4. In Summary | 587 | ||
| C. The Estonian Supreme Court’s Doctrine of Comprehensive Court Access | 590 | ||
| I. The Application of ECtHR Case Law by the Estonian Supreme Court | 590 | ||
| II. The Right of Access to Court and to an Effective Remedy Applied by the Estonian Supreme Court | 593 | ||
| D. Conclusion | 598 | ||
| Alberto Alvarez-Jiménez: The World Trade Organization (WTO) Appellate Body’s Limited Autonomy to Modify the WTO Dispute Settlement System | 601 | ||
| A. A Brief Description of Luhmann’s Theory of Autonomous Social Systems | 603 | ||
| B. The Appellate Body and Its Autonomy to Transform the WTO Dispute Settlement System | 605 | ||
| I. Appellate Body’s Possibility of Adopting Decisions About Itself and About the WTO Dispute Settlement System | 606 | ||
| II. The Appellate Body Has a Menu of Alternatives to Choose from When Deciding to Self-Transform or Transform the WTO Dispute Settlement System | 608 | ||
| III. The Appellate Body’s Ability to Steer their Self-Transformations by Determining their Timing, Extent, and Justification | 610 | ||
| 1. Judicial Bargaining: A View from the Decision-Making Process of the United States Supreme Court | 610 | ||
| 2. Judicial Bargaining in the Appellate Body: Two-Level Collegial Decision-Making Process of the Appellate Body | 611 | ||
| 3. The Appellate Body’s Steering of Its Self-Transformations by Selecting the Timing, Scope and Extent of Transformations of the WTO Dispute Settlement System | 613 | ||
| a) The Appellate Body’s Capacity to Determine the Timing of Transformations of the WTO Dispute Settlement System | 613 | ||
| b) The Appellate Body’s Capacity to Determine the Extent of Its Transformations of the WTO Dispute Settlement System | 614 | ||
| c) The Appellate Body’s Capacity to Determine the Justification of Its Transformations of the WTO Dispute Settlement System | 615 | ||
| C. The Autonomy to Self-Transform Is a Permanent Institutional Feature of the Appellate Body | 616 | ||
| D. Some Transformations Introduced to the WTO Dispute Settlement System by the Appellate Body | 617 | ||
| I. The Appellate Body’s Expansion of Its Jurisdiction and that of the WTO Dispute Settlement System | 618 | ||
| 1. The Expansion of the Appellate Jurisdiction: Appellate Review of Compliance Panel Reports | 618 | ||
| 2. Appellate Body’s Extension of the Jurisdiction of the WTO Dispute Settlement System over Issues Deemed to Belong Exclusively to WTO Political Bodies | 619 | ||
| II. Appellate Body and Panels’ Increasing Control Over Disputes | 620 | ||
| 1. Bolstering the WTO Quasi-Judiciary’s Fact-Finding Powers | 621 | ||
| 2. Creation of the Appellate Body’s Judicial Economy | 622 | ||
| III. The Openness of the WTO Dispute Settlement System | 624 | ||
| IV. Self-Transformations that Did Not Take Place | 626 | ||
| 1. The Self-Imposed Limits to the Expansion of the Jurisdiction of the WTO Dispute Settlement System | 626 | ||
| 2. The Appellate Body’s Refusal to Resolve the Sequencing Problem of Articles 21.5 and 22.6 of the DSU | 626 | ||
| E. Limits to the Appellate Body’s Autonomy to Introduce Changes to the WTO Dispute Settlement System | 627 | ||
| I. The Appellate Body is Not a Self-Starter | 627 | ||
| II. Self-Observation as a Restraint to the Autonomy of the Appellate Body to Transform the WTO Dispute Settlement System | 628 | ||
| III. The Collegial Decision-Making Process as an Internal Constraint on the Exercise of the Appellate Body’s Autonomy to Transform the WTO Dispute Settlement System | 629 | ||
| IV. The External Environment as a Constraint on the Autonomy of the Appellate Body to Introduce Changes to the WTO Dispute Settlement System | 630 | ||
| F. Conclusion | 633 | ||
| GERMAN PRACTICE | 635 | ||
| Thomas Giegerich and Alexander Proelss: Foreword from the Editors | 635 | ||
| Eike Blitza and Oliver Daum: The Parental Rights of Unmarried Fathers in the Jurisprudence of the European Court of Human Rights – Zaunegger v. Germany | 636 | ||
| Felix Bieker and Lorenz Frahm: The Retroactive Abolition of the Maximum Period of Preventive Detention – M. v. Germany | 641 | ||
| Tobias Thienel: Momentous Judgments against Germany in the European Court of Human Rights: Zaunegger v. Germany and M. v. Germany | 647 | ||
| Patrick Braasch: Germany’s Compliance with the European Convention of Human Rights’ Length of Procedure Requirements | 657 | ||
| Björn Elberling: German Involvement in the Prosecution of Somali Piracy Suspects | 661 | ||
| Dörte Herrmann: The German Ratification of the Convention on the Rights of Persons with Disabilities and its Optional Protocol | 669 | ||
| Heiko Leitsch: No Deportation of Asylum Seekers to Greece? The Decisions of the German Federal Constitutional Court of 8 September, 23 September, 5 November, 13 November and 8 December 2009 | 679 | ||
| Alexander Proelss: Action of a Foreign Municipality against the Permission to Operate a Former Military Border-Zone Airport for Civil Purposes | 684 | ||
| Laura Schmeckthal and Philip Seifert: Administrative Court of Stuttgart: Level 1 Family Allowance for Registered Partnerships | 690 | ||
| Berenike Schriewer: “Rescuing” Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms: Germany’s Declaration of Acceptance | 697 | ||
| Julia-Pia Schütze: Germany’s Ratification of the Optional Protocol to the UN Convention against Torture | 700 | ||
| Christoph Seidler and Philip Seifert: Federal Administrative Court of Germany: Article 13 (2) (c) of the International Covenant on Economic, Social and Cultural Rights and the Legality of Tuition Fees for Higher Education | 703 | ||
| Philip Seifert: Motion to Initiate Legislation for the Belated Implementation of the UNESCO World Heritage Convention Defeated in German Federal Parliament | 708 | ||
| BOOK REVIEWS | 717 | ||
| Vincent Chetail (ed.): Post-Conflict Peacebuilding – A Lexicon (Ursula Blanke-Kießling) | 717 | ||
| O. Corten/P. Klein (eds.): Les Conventions de Vienne sur le Droit des Traités – Commentaire Article par Article (Andreas Zimmermann) | 720 | ||
| M. E. Villiger: Commentary on the Vienna Convention on the Law of Treaties (Andreas Zimmermann) | 720 | ||
| Richard K. Gardiner: Treaty Interpretation (Antonios Tzanakopoulos) | 721 | ||
| Ulf Linderfalk: On the Interpretation of Treaties. The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Antonios Tzanakopoulos) | 721 | ||
| Walter Kälin/Jörg Künzli: The Law of International Human Rights Protection (Robin Geiß) | 724 | ||
| Vaughan Lowe/Adam Roberts/Jennifer Welsh/Dominik Zaum: The United Nations Security Council and War – The Evolution of Thought and Practice since 1945 (Robin Geiß) | 727 | ||
| Susan Marks (ed.): International Law on the Left – Re-examining Marxist Legacies (Björn Elberling) | 729 | ||
| Elke Schwager: Ius bello durante et bello confecto. Darstellung am Beispiel von Entschädigungsansprüchen der Opfer von Antipersonenminen (Sue M. Stubbe) | 733 | ||
| Wenhua Shan/Norah Gallagher: Chinese Investment Treaties: Policies and Practice (Christian J. Tams) | 735 | ||
| Daniel Terris/Cesare P. R. Romano/Leigh Swigart: The International Judge (Christian J. Tams) | 737 | ||
| BOOKS RECEIVED | 739 | ||
| LIST OF CONTRIBUTORS | 741 |