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  • Author: Murat Tumay
  • Publication Date: 01-2010
  • Content Type: Journal Article
  • Journal: Journal of Global Analysis
  • Institution: Centre for Strategic Research and Analysis
  • Abstract: After the atrocities of World War II the International community achieved the immense development in the protection of Fundamental Freedoms and Rights of Man which we today call Human Rights Law. The prohibition of torture is guaranteed by all Global and Regional Human Rights Instruments. Furthermore, the prohibition of torture and ill-treatment is absolute and has even non-derogable status in human rights law. The states can not set aside or restrict this obligation, in any circumstances, even in times of war or other emergency threatening the life of the nation. According to the International Law there is no justification for torture in any circumstances, against any individual, by any authority, anywhere in the world. However, because of the widespread terrorist activities, particularly after the 11 September 2001 events some state agents and academics reopened the question of torturing in 'ticking bomb situation (TBS)' to extract information about the 'ticking bomb' and save the lives of many other civilians. This has resulted in a lively debate in political and academic circles.
7562. Editorial
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: After our last issue “Strategies for Solving Global Crises – The Financial Crisis and Beyond” in March we are delighted to present this issue to our esteemed readers.
  • Author: Stephan Hobe, Jörn Griebel
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The global financial crisis has not only instigated states to enact a wide range of protectionist measures, by which they seek to protect their economic interests, but it also forms the background against which possible justifications regarding protectionist measures have to be discussed and measured. The present article examines recent examples of protectionist measures and discusses, to what extent such measures may be justified by rules stemming from the WTO legal regime or international investment law in general. The authors focus on the concept of “economic necessity”, which is enshrined in Art. 25 of the ILC Articles on State Responsibility and which has taken on even greater importance due to the Argentina investement law cases. They furthermore explore, whether this concept has been recognized by the WTO legal regime and/or bilateral investment treaties (BITs) and what criteria would have to be met so that a state could successfully rely on necessity to justify its actions in times of an economic crisis.
  • Political Geography: Argentina
  • Author: Johanna Fournier
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Already since the first United Nations (UN) human rights treaties have been signed in 1966, it has been contested whether signatory states should be allowed to make reservations to different articles of the treaties. Many argue that reservation undermine the treaties and are not compatible with the universal application of human rights. One might hence ask whether reservations are compatible with human rights at all. Without disagreeing with these demurs, this essay will reverse the question: Is an effective protection of human rights possible without reservations? To answer this question, this essay will outline the current legal and practical framework on making reservations to UN human rights treaties in Part A. and will present a possible modification to this framework. In Part B. it will then demonstrate how reservations can be used to actually advance the effective protection of human rights. By being used as a starting point for the dialogue between the treaty bodies and the signatory state, reservations do not undermine human rights treaties, but support their purpose: the effective protection of human rights.
  • Topic: United Nations
  • Author: Charles Riziki Majinge
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: While it has been the responsibility of the United Nations to conduct peacekeeping operations on the continent, the trend is gradually changing. African Union and its regional organizations (RECs) are increasingly assuming responsibility of securing peace and stability on the continent. Many reasons militate in favour of this trend. Chiefly the unwillingness of the United Nations Security Council and of the developed countries to intervene timely and adequately to avert humanitarian catastrophes as happened in Rwanda, Southern Sudan and Angola. Furthermore, the desire of Africa to take steps to address its own problems without heavily relying on assistance from the international community whose availability is neither assured nor sufficient. This contribution argues that Africa can no longer expect the international community to shoulder the burden of peacekeeping in some of the most intractable conflicts on the continent without taking steps to participate actively in the process itself. While Africa has expressed its desire to address its own problems through the vision of “African solutions for African Problems”, African leaders must show greater willingness to fund and strengthen institutions they establish to carry out this vision. Lastly, the paper contends that the international community, especially the developed states, should take genuine and adequate measures to assist Africa realize its vision. A strong African Union capable of securing peace and stability on the continent is in the best interests not only of Africa but also of the international community as a whole.
  • Political Geography: Africa, Sudan, Rwanda, Angola
  • Author: Bernhard Kuschnik
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Due to its vagueness, the notion of humanity has created some discomfort within the system of international criminal law ever since it was codified as a legally binding concept in the mid 1940's. In Prosecutor v. Kantanga/Chui the Pre-Trial Chamber I of the International Criminal Court (ICC) has given its own interpretation of the term. The Chamber claimed that the related provision of 'other inhumane acts' is more strictly construed in the ICC Statute than in previous Statutes of the ICTY and ICTR, and cannot be regarded as a catch all provision, and should predominantly be interpreted from the wording of the ICC Statute. The author argues in this article that a broad interpretation of 'other inhumane acts' pursuant to Article 7(1) (k) of the ICC Statute is required. The notions of humanity and 'other inhumane acts' should be concretized by relying closely on the legal historical and linguistic roots of the provision. Coming from this analysis, it is suggested that a serious injury to human dignity should count as an 'other inhumane act' and thus, as a crime against humanity.
  • Author: Ioana Cismas
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Since 17 February 2008 - the day of Kosovo's declaration of independence from Serbia - it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. This article carves out the place of secession in international law by appeal to fundamental principles and legal doctrine. It also explores major sociopolitical aspects in Kosovo's history, from the battle of Kosovo Polje in 1389 to Security Council resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). By following these two analytical paths Kosovo is exposed as a case of remedial secession and thus as a potential legal precedent. While the elements of remedial secession are gathered, it is argued that states deprived this instance of practice of its precedential value and made it a legally insignificant act. In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism.
  • Topic: United Nations
  • Political Geography: Kosovo, Serbia
  • Author: Bill Bowring
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: With a focus on the Russian Federation, this article examines the adoption by the Council of Europe of Protocol No.14 to the European Convention on Human Rights (ECHR), and its long-delayed coming into force. The author starts with the question of the original object and purpose of the Council, and how they have now changed. This leads to an analysis of the nature of the crisis – a crisis of success – now faced by the ECHR system, and the reform process which started, on the 50th anniversary of the ECHR, in 2000. After describing Protocol No.14 itself, and the discussion which has surrounded it, the article turns to the central issue. This is not the question of procedural reform, or even admissibility criteria, but what lies behind – the “soul” of the ECHR system. Should the Strasbourg Court remain a court which renders “individual justice”, albeit only for a handful of applicants and with long delays; or should it make become a court which renders “constitutional justice”? The article focuses on the specific problems faced by Russia in its relations with the Council of Europe; and an analysis of the lengthy refusal by the Russian State Duma to ratify Protocol No. 14. The author concludes with an attempted prognosis.
  • Political Geography: Russia, Europe
  • Author: Mindia Vashakmadze, Matthias Lippold
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: On 22 July the International Court of Justice (ICJ) delivered its Advisory Opinion on Accordance with international law of the unilateral declaration of independence (UDI) in respect of Kosovo. There is a wide range of legal questions related to Kosovo's UDI. However, the ICJ decided by way of a narrow interpretation of the General Assembly's request to focus only on prohibitive rules. The Court came to the conclusion that the UDI did not violate international law. While this result is defendable, the way the Court got there is problematic. The Court missed its opportunity to provide legal guidance in fields of secession and self-determination. This article shall give a first overview of the Court's reasoning.
  • Political Geography: Kosovo
  • Author: Hans-Peter Kaul
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: In the years and months before the ICC Review Conference, which took place in Kampala, Uganda from 31 May to 11 June 2010, there were, from the perspective of the International Criminal Court (ICC), quite a number of important if not crucial questions: What would be the course and what would be the outcome of the Review Conference? How would it affect the Review Conference that it would be held not only in Africa, but in an African situation country? Would there be only a narrow, maybe inappropriately narrow, examination of the institution of the Court? Or would there be a review of the entire ICC system as established by the Rome Statute? What about the stocktaking with regard to the four critical themes chosen for this Review Conference, namely cooperation, complementarity, impact on victims and affected communities, and the important question of the relationship between peace and justice? Which amendments to the Statute would be considered or adopted? Above all, would there be any progress or maybe even a breakthrough with regard to the very difficult, unresolved issues concerning the crime of aggression as referred to in Article 5(1)(d) of the Statute? It is against this background of questions, hopes and expectations that this contribution tries to briefly assess the Review Conference. The first part of this introductory comment (A) reflects the author's hopes and expectations prior to the Review Conference. It is based on a speech delivered by the author in May 2010.1 The second part of this comment (B), is a first analysis and review of the course and outcome of the Review Conference. The author hopes that this comparative approach may be an informative and interesting manner to provide in this Article a first summary of what was expected, what happened and what was actually achieved in Kampala. A.
  • Political Geography: Uganda, Africa, Kampala