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  • Author: Yascha Mounk
  • Publication Date: 01-2020
  • Content Type: Journal Article
  • Journal: Journal of Democracy
  • Institution: National Endowment for Democracy
  • Abstract: Until a few years ago, many argued that liberal democracy was the most just and attractive political regime. The most prominent manifestation of this optimism was Francis Fukuyama’s thesis of the “end of history.” Ironically, many of the same social scientists who dismissed Fukuyama’s work out of hand at the time were themselves committed to equally far-reaching assumptions. Now, as the tides of history are rapidly turning, the hypotheses of theory are being reversed. Indeed, some authors today predict that as the conditions that made liberal democracy possible fade away, it is likely to be supplanted by illiberal democracy, competitive authoritarianism, or outright dictatorship. Such conclusions risk being just as rash as the more optimistic ones that preceded them.
  • Topic: Democracy, Populism, Illiberal Democracy
  • Political Geography: Global Focus
  • Author: Francis Fukuyama
  • Publication Date: 01-2020
  • Content Type: Journal Article
  • Journal: Journal of Democracy
  • Institution: National Endowment for Democracy
  • Abstract: Since the publication of the Journal of Democracy began in 1990, the political climate has shifted from one of democratic gains and optimism to what Larry Diamond labels a “democratic recession.” Underlying these changes has been a reorientation of the major axis of political polarization, from a left-right divide defined largely in economic terms toward a politics based on identity. In a second major shift, technological development has had unexpected effects—including that of facilitating the rise of identity-based social fragmentation. The environment for democracy has been further transformed by other slow-moving changes, among them the shift toward neoliberal economic policies, the legacy of the wars in Iraq and Afghanistan, and lowered expectations regarding democratic transitions. Sustaining democracy will require rebuilding the legitimate authority of the institutions of liberal democracy, while resisting those powers that aspire to make nondemocratic institutions central.
  • Topic: Authoritarianism, Democracy, Legitimacy, Democratic Decline
  • Political Geography: Global Focus
  • Author: Britta Sjostedt, Anne Dienelt
  • Publication Date: 07-2020
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: n 2011, the UN International Law Commission (ILC) took up the topic Protection of the Environment in Relation to Armed Conflicts.1 The decision was triggered by a joint report issued by the UN Environment Programme and the Environmental Law Institute in 2009 recommending the ILC to “[...] examine the existing international law for protecting the environment during armed conflicts [...] [including] how it can be clarified, codified and expanded [...]”.2 Since the inclusion of the item on the ILC’s agenda, the Commission has published five reports3 by the two special rapporteurs, Dr. Marie Jacobsson (2011-2016) and Dr. Marja Lehto (2017-). In 2019, the plenary adopted 28 Draft Principles on first reading.4 The ILC has touched on highly controversial issues such as reprisals,5 corporate liability,6 indigenous peoples’ rights,7 among others. Nevertheless, it was clear from the beginning that the ILC would not be able to exhaustively deal with the topic for two main reasons. First, the Commission has a limited mandate that is restricted to “[...] initiate studies and make recommendations for the purpose of [...] encouraging the progressive development of international law and its codification [...]”.8 Enhanced legal protection of the environment, as one of the purposes of the Draft Principles,9 must therefore be based on existing customary international law and its progressive development. The Commission decided to also include recommendations to account for the uncertain legal status of some of the Draft Principles.10 Second, some related issues touch upon controversial and political matters, as mentioned earlier. Consequently, the ILC has been reluctant to include some of these issues in its workflow.11 Therefore, the adoption of the Draft Principles should be regarded as a starting point for shaping and developing the legal framework for environmental protection in relation to armed conflicts. As a part of that process, Hamburg University and Lund University organized an international workshop in March 2019 in Hamburg. Several members of the ILC, including two special rapporteurs, academic legal experts, and practitioners, attended the workshop to discuss the Draft Principles. The discussion also focused on some issues not covered by the ILC, such as the implications for gender and climate security. The engaging dialogue in Hamburg has inspired the publication of this Special Issue of the Goettingen Journal of International Law (GoJIL) to ensure that the outcomes and ideas of the workshop reach a wider audience. It has also contributed to maintaining the momentum of this topical area of international law by inviting contributions from researchers not present during the workshop in Hamburg.12
  • Topic: Environment, International Law, Non State Actors
  • Political Geography: Global Focus
  • Author: Stavros-Evdokimos Pantazopoulos
  • Publication Date: 07-2020
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The paper examines the concept of belligerent reprisals and assesses the legality of attacking the environment by way of reprisals. The law of belligerent reprisals, which is linked to the principle of reciprocity, allows one belligerent State unlawfully injured by another to react by means of what under normal circumstances would constitute a violation of the jus in bello, so as to induce the violating State to comply with the law. The instances of lawful recourse to reprisals have been considerably limited, since their application is either explicitly prohibited against certain protected persons and objects, including against the natural environment, or is subject to stringent conditions according to customary International Humanitarian Law (IHL). Despite its narrowing scope, the doctrine of reprisals remains a valid concept under the existing legal framework. For one, the state of affairs under customary international law with respect to reprisals directed at civilian objects (including against parts of the environment), subject to certain rigorous conditions, remains unclear. To complicate matters even further, any proposition on the status of reprisals in the context of a non-international armed conflict (NIAC) is shrouded in controversy, as there is no relevant treaty provision. In this regard, the present author endorses the approach espoused in the International Committee of the Red Cross (ICRC) Study on Customary IHL, namely to altogether prohibit resort to reprisals in the context of a NIAC. Turning to the status of reprisals against the natural environment under customary IHL, it is argued that a prohibition of attacks against the natural environment by way of reprisals is in the process of formation with respect to the use of weapons other than nuclear ones. All things considered, the International Law Commission (ILC) was confronted with an uncomfortable situation in the context of its work on the ‘Protection of the Environment in Relation to Armed Conflicts’. By sticking to the verbatim reproduction of Article 55(2) of Additional Protocol I, the ILC chose the proper course of action, since any other formulation would not only undercut a significant treaty provision, but might also result in the normative standard of conduct being lowered.
  • Topic: Environment, International Law, Humanitarian Intervention, Red Cross
  • Political Geography: Global Focus
  • Author: Daniella Dam-de Jong, Saskia Wolters
  • Publication Date: 07-2020
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Corporate activities take place in a variety of social contexts, including in countries affected by armed conflict. Whether corporations are physically present in these regions or merely do business with partners from conflict zones, there is an increased risk that their activities contribute to egregious human rights abuses or serious environmental harm. This is especially so for corporations active in or relying on the extractives sector. It is against this background that the ILC included two principles addressing corporate responsibility for environmental harm in its Draft Principles on the protection of the environment in relation to armed conflict. Both principles explicitly call on the home States of these corporations to give effect to their complementary role in regulating and enforcing corporate social responsibility. Draft Principle 10 addresses the responsibility of home States to regulate multinational corporations under the heading of “corporate due diligence”, while Draft Principle 11 addresses the responsibility of home States to hold multinational corporations liable for environmental damage caused in conflict zones. The current contribution engages with the potential normative foundations underpinning extraterritorial responsibilities for the home States of multinational corporations with respect to the prevention and remediation of environmental harm in conflict zones, focusing on international humanitarian law and international human rights law. It concludes that the Draft Principles are certainly indicative of the direction in which the law is evolving, but that no firm obligations beyond treaty law can be discerned as of yet. It was therefore a wise decision to phrase the respective Draft Principles as recommendations instead of obligations. At the same time, there are sufficient indications to conclude that it seems a matter of time before it is accepted that States have distinct obligations under customary international law for which their responsibility may be engaged. It is argued that the ILC Draft Principles provide an important impetus to these developments, not in the least because they provide a reference to States regarding the state-of-the-art and guidance for future action.
  • Topic: International Law, Conflict, Multinational Corporations
  • Political Geography: Global Focus
  • Author: Marie Davoise
  • Publication Date: 07-2020
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: In July 2019, the International Law Commission (ILC) provisionally adopted, on first reading, a series of draft principles on the protection of the environment in relation to armed conflict (the Draft Principles). The role of businesses in armed conflict is addressed in Draft Principle 10 and Draft Principle 11. The latter, in particular, requires States to implement appropriate measures to ensure that corporations operating in or from their territories can be held accountable for environmental harm in the context of armed conflict. The inclusion of those two Draft Principles reflects increasingly vocal calls for corporate accountability, which has been the focus of the growing field of Business and Human Rights (BHR), an umbrella term encompassing a variety of legal regimes from tort law to criminal law. This contribution will look at the link between businesses, the environment, and armed conflict. Using the newly adopted Draft Principle 11 as a starting point, it explores three major liability regimes through which businesses could be held accountable for damage to the environment in armed conflict: State responsibility, international criminal law, and transnational tort litigation. Using case studies, the article discusses some of the challenges associated with each of those regimes, before concluding that the cross-fertilization phenomenon observed in this article (between public/private law, domestic/international level, and across various jurisdictions) is making BHR an increasingly salient discipline and useful tool in the fight against impunity for corporate environmental harm in armed conflict.
  • Topic: Human Rights, International Law, Business , Conflict
  • Political Geography: Global Focus
  • Author: Karen Hulme
  • Publication Date: 07-2020
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Environmental protection is not specifically included in treaty law relating to State obligations during situations of occupation. While clearly not of the same scale as damage caused to the environment during armed conflict, damage caused during occupation is often similar in nature – largely due to those who seek to exploit any governance vacuum and a failure to restore damaged environments. What can human rights offer in helping to protect the environment during occupations? What protection can be offered by an analysis of environmental human rights law?
  • Topic: Environment, Human Rights, Governance, Conflict
  • Political Geography: Global Focus
  • Author: Dieter Fleck
  • Publication Date: 07-2020
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The existing treaty law on the protection of the natural environment during armed conflicts is less than adequate. Treaty provisions relating to international armed conflicts are limited to the prohibition of damage of an extreme kind and scale that has not occurred so far and may hardly be expected from the conduct of hostilities unless nuclear weapons would be used. Even in such a scenario, States possessing nuclear weapons have explicitly objected to the applicability of that treaty law. For internal wars, no pertinent treaty provisions exist in the law of armed conflict. Yet multilateral environmental agreements concluded in peacetime stand as an alternative approach to enhance environmental protection during war. As a civilian object, the environment may not be targeted nor attacked in an armed conflict, but this does not exclude collateral damage, nor does this principle as such offer specific standards for proportionality in attacks. In an effort to close these apparent gaps of treaty law, the present contribution looks into other sources of international law that could be used. In this context, the author revisits the role of the famous Martens Clause in the interplay of international humanitarian law, international environmental law, and human rights law. The role of the Clause in closing gaps caused by the indeterminacy of treaty law is reviewed and customary rules, general principles, and best practices are considered to this effect. For the protection of the natural environment during armed conflicts, the Martens Clause may, indeed, be used as a door opener to facilitate the creation and application of uncodified principles and rules. Particular standards for proportionality in attacks can be derived from the Martens Clause. Pertinent soft law instruments need to be developed in international practical cooperation and by academia. Yet it deserves further study to explore whether, and to what extent, the Martens Clause, which was adopted in the law of armed conflict, may also apply in post-conflict peacebuilding as a case of interaction between the jus in bello and the jus post bellum, at least as far as the protection of the natural environment is concerned.
  • Topic: International Law, Treaties and Agreements, Humanitarian Intervention, Conflict
  • Political Geography: Global Focus
  • Author: Michael Bothe
  • Publication Date: 07-2020
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The protection of the environment in relation to armed conflict, in particular during armed conflict is a complex problem as it involves at least two different fields of international law, the law of armed conflict (international humanitarian law) and international environmental law. Their mutual relationship is a delicate issue. International humanitarian law is not necessarily lex specialis. Three principles deserve particular attention in this connection: as to general international environmental law, the principle of prevention and the precautionary principle, as to international humanitarian law the duty to take precautions. The terms prevention and precaution are used in different contexts in environmental law (both national and international) and in the law of armed conflict. The duty, imposed by international humanitarian law, to take precautions has much in common with, but must be distinguished from, the precautionary approach of general environmental law. This paper shows what these principles mean and how they relate to each other. It answers the question to what extent the rules based on these concepts are effective in restraining environmental damage being caused by military activities. The application of these principles in peace and war serves intergenerational equity and is thus an important element of sustainable development.
  • Topic: Environment, International Law, Humanitarian Intervention, Conflict
  • Political Geography: Global Focus
  • Author: Esat Pinarbaşi
  • Publication Date: 06-2020
  • Content Type: Journal Article
  • Journal: Bilgi
  • Institution: Sakarya University (SAU)
  • Abstract: Özet Bu çalışmada “kirli eller” kavramı siyaset felsefesinin en çok tartışılan konularından biri olan siyaset-ahlak ilişkisi çerçevesinde ele alınacaktır. Bu amaçla öncelikle deontolojik ve teleolojik ahlak anlayışlarına değinilecek daha sonra kirli eller kavramı örnekler üzerinden analiz edilecektir. Weber’in sorumluluk ahlakı dediği şeyin kirli eller kavramına benzerliği gösterilecek; kirli ellerin siyaset ahlak geriliminde bir orta yol olduğu Walzer’ın görüşleri bağlamında temellendirilecektir. Sonuç olarak Kavramın siyaset ve ahlak arasındaki gerilimi azaltan bir yönünün olduğu; ne deontolojik ne de teleolojik bakış açısı içinde değerlendirilemeyeceği gösterilecektir.
  • Topic: Politics, Morality
  • Political Geography: Turkey, Global Focus