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  • Author: Alejandro Rodiles
  • Publication Date: 12-2013
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Non-permanent members of the United Nations Security Council experience clear and well-known limits. Yet, there are certain tools at their disposal which, beyond lucky political constellations, allow them to exercise a more systemic influence on the Council's work and outcomes. These tools are of a juridical nature, often established and developed through the organ's practice, but their efficient use depends primarily on diplomatic expertise and imagination channeled through informal venues. The present article shows how said tools have been used in the case of the promotion of the 'international rule of law'. However contested the concept and restricted its practical consequences on the organ's functions, the evolution of its promotion within the Security Council is both a demonstration of and a further vehicle for non-permanent members' influence on this body. That this in turn serves to legitimate the Council under its current configuration can be seen critically. However, it seems important to underline that the UN Security Council's efficiency depends ever more on the legitimacy that non-permanent members can best imprint on it. In a non-polar world, this tendency can be expected to increase.
  • Political Geography: United Nations
  • Author: Pierre Thielbörger
  • Publication Date: 06-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: This article uses the case of the Libya intervention to address three general claims about international law. Firstly, it examines whether the reliance of the intervention on the mechanisms of collective security under the UN Charter suggests that international law relating to peace and security has finally overcome its post-9/11 crisis. It concludes that the resolution's vague wording – which makes the distinction between what is “legal” under the resolution, and what is not, hard to draw – undermines such an assumption. Secondly, it explores whether the Libya intervention has put new emphasis on what has been termed the “emerging right of democratic governance”. In spite of the underlying democracy-enhancing spirit of the execution of the intervention, Resolution 1973 was exclusively written in the language of human rights. It did little to indicate a changed attitude of States towards a norm of democratic governance. Finally, the article examines whether the case of Libya shows a renewed international attitude towards States which violate the most fundamental human rights of their citizens. The article concludes by suggesting that, in this third respect, a more muscular liberalism is indeed on the rise again in international law, challenging the formerly almighty concept of State sovereignty. In contributing to this subtle transformation, the Libyan case has made a genuine contribution to the development of the international legal order.
  • Topic: Security, Human Rights, International Law
  • Political Geography: America, Libya, United Nations
  • Author: Matthias Goldmann
  • Publication Date: 06-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Sovereign debt crises might significantly decrease the level of socioeconomic rights enjoyment for the population in the affected state. According to recent data, they even increase the risk of civil unrest. However, the resolution of sovereign debt crises is compromised by legal obstacles which result from the absence of a statutory, obligatory bankruptcy procedure for states. On the one hand, creditors might refuse to accept an exchange of their debt instrument in the frame of a workout and choose to litigate against the state. On the other hand, states might worsen their situation by unnecessarily delaying inevitable workouts. This article explores whether and to what extent the powers UN Security Council could be deployed in order to mitigate these problems. This requires a reconsideration of the concept of peace in Article 39 UN Charter. The article concludes that, at the request of the International Monetary Fund (IMF), the Security Council might put a stay on the enforcement of creditors' claims or order workout negotiations.
  • Topic: Security, International Law, War, International Monetary Fund
  • Political Geography: Germany, United Nations
  • Author: David Ighojohwegba Efevwerhan
  • Publication Date: 06-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The International Court of Justice has ruled that Kosovo.'s unilateral declaration of independence neither violated general rule of international law nor the lex specialis. As of the time of writing, 86 UN Member States have recognized Kosovo as a State. With the judicial pronouncement in their favour, the authorities in Kosovo are likely to apply for membership in the United Nations. This paper reviews the rules and practice of UN membership admission and assesses Kosovo.'s chances of success should it apply to the world body for admission. It argues that ordinarily, Kosovo meets the requirements for admission into the UN but political considerations of the permanent members of the Security Council would constitute a clog in Kosovo.'s ambition to become the 194th member of the United Nations. However, four options are proffered as ways out of the political logjam that is sure to surface if and when, Kosovo puts in an application for admission into the membership of the UN.
  • Topic: Security, International Law
  • Political Geography: Kosovo, United Nations
  • Author: Thomas Kleinlein
  • Publication Date: 11-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Alfred Verdross was one of the first scholars who transferred a meaningful concept of constitution to international law. Like international constitutionalists today, he aimed at establishing the autonomy of international law vis-à-vis State sovereignty and State consent. With his theory of moderate monism, Verdross refers to a further issue raised by today's multilevel constitutionalism, i.e. the relationship between international and domestic law. In contrast to some modern approaches, Verdross's use of the term 'constitution' in international law was only metaphorical. More ambitiously, international constitutionalism also serves as a kind of meta-theory for international law in the present debate.
  • Topic: International Law
  • Political Geography: United Nations
  • Author: Phillip-Alexander Hirsch
  • Publication Date: 11-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: In the debate on the constitutionalization of international law, Kant's work Toward Perpetual Peace is the most important point of reference when talking about the intellectual origin and philosophical background of the idea of constitutionalizing international law. But while it is undeniable that Kant called for a juridification of international relations, it is far less clear which form of juridification Kant aims at . In this essay, I want to show that Kant's ultimate ideal of international law is neither a State of States nor the peace federation (which seems to be commonly accepted), but the cosmopolitan republic , that is, a single homogenous world State. Only such a cosmopolitan republic, backed up by enforceable laws, can be called a constitution in the Kantian sense. Kant's proposal of a peace federation is nothing but a first step towards this ultimate end.
  • Topic: International Law
  • Political Geography: United Nations
  • Author: Cedric Ryngaert
  • Publication Date: 12-2011
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The Holy See enjoys rights under international law that few, if any, non-State actors (excluding intergovernmental organizations) enjoy: it has joined various intergovernmental organizations, it is a party to a substantial number of bilateral and multilateral treaties, it sends and receives diplomatic representatives, is said to enjoy immunity from jurisdiction, and has been granted permanent observer status at the United Nations. However, unlike the Vatican City State, the Holy See is not to be characterized as a State, given that it has a global spiritual remit and that it can act internationally without a territorial base. Instead, it is a sui generis non-State international legal person which borrows its personality from its 'spiritual sovereignty' as the center of the Catholic Church.
  • Topic: International Law, Bilateral Relations, Non State Actors
  • Political Geography: United Nations
  • Author: Marie-José Domestici-Met
  • Publication Date: 12-2011
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Here is the third issue of a series of three, under the global title "Humanitarian Action – A Scope for the Responsibility to Protect?". The first issue dealt with "Humanitarian Assistance Looking for a Legal Regime Allowing its Delivery to Those in Need under any Circumstances" and ended with the conclusion that humanitarian action protagonist had hitherto failed to find the adequate regime. The second issue questioned whether R2P was a legal tool ready to use; it ended with the conclusion that it was not yet really the case.
  • Political Geography: Libya, Arabia, United Nations
  • Author: Donald Riznik
  • Publication Date: 12-2011
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Almost two decades after having established the ad-hoc criminal tribunal for the former Yugoslavia, this institution is about to fulfill its mandate and will close its doors in the near future. Looking back on 20 years of legal and political struggle, the overall result of this institutional project is positive. This article analyses the way the Security Council and the ICTY have chosen to bring the tribunal to an end by implementing the Completion. The problematic aspect, the Security Council was faced with before its final Resolution 1966, adopted on 22 December 2010, has been outlined together with the chosen path to avoid commitments, especially with regard to its major goal to end impunity for serious breaches of international law, and to bring justice and peace to the people living on the territory of the former Yugoslavia. This (so far) last resolution, which implemented the International Residual Mechanism for Criminal Tribunals (IRMCT), was adopted at a time, when the last two remaining fugitives, Ratko Mladic and Goran Hadzic were still at large. Only a few months ago, the two were caught and transferred to the tribunal. The author argues that not shutting the institutional doors entirely until all remaining fugitives are arrested, was a complex situation in a legal and practical sense. Facing and solving this problem through Resolution 1966 was the best choice at that time. This article will give a brief description about the practical impact of the IRMCT on the ICTY's further work, and the relation between these two judicial institutions during their coexistence.
  • Topic: Security, International Law
  • Political Geography: Yugoslavia, United Nations
  • Author: Michael G. Karnavas
  • Publication Date: 12-2011
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The ICTY's achievements are as impressive as they are irrefutable. Less impressive is the uneven quality of procedural and substantive justice that the Tribunal has rendered. The author highlights several shortcomings at the Tribunal, including the appointment of unqualified judges, excessive judicial activism, its disparate application of law, procedure, and prosecutorial resources to different ethnic groups, and its tinkering with the rules of procedure to promote efficiency at the cost of eroding the fundamental rights of the Accused. Drawing on specific examples, from the approach adopted concerning the admissibility of testimonial evidence to specific areas of substantive law where judicial activism has been pronounced – the development of joint criminal enterprise and the requirements for provisional release at a late stage of the proceedings – this article is one defense counsel's perspective of some of the most unfortunate shortcomings of the ICTY, which regrettably form part and parcel of the Tribunal's legacy.
  • Topic: Security, Law
  • Political Geography: Yugoslavia, United Nations