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11. Is the International Law Commission Taking Regionalism Seriously (Enough)?

Author:
Janina Barkholdt
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Regionalism poses a challenge to the work of the International Law Commission (ILC). The Commission, entrusted by the United Nations General Assembly (UNGA) with the “progressive development of international law and its codification”, is tasked with identifying and elaborating universally accepted and acceptable rules of international law. The challenge posed by regionalism lies in its ambivalent role precisely in relation to the mandate of the ILC: on the one hand, a significant share of practice in international law is generated at the regional level. Since regional practice thus constitutes a substantial part of State practice, the ILC cannot avoid taking regional practice into account if it is to identify and develop common rules. On the other hand, regionalism often involves claims for special legal treatment based on the affiliation with a region; thus, deviations from precisely those general legal rules which the ILC seeks to codify and develop. The present contribution analyses how the Commission has approached regionalism in its previous work and identifies four approaches. It shows that each of these approaches suffers from shortcomings. At the same time, the current projects on General principles of law (GPL) and Sea-level rise in relation to international law possibly indicate the emergence of a more fruitful fifth approach. Based on this analysis, the present contribution shows that the practice of the ILC evinces two methodological challenges arising from regional plurality –, the challenge of equal regional representation and the challenge of regional exceptionalism, – and makes suggestions as to how to address these in the future.
Topic:
International Law, United Nations, and Regionalism
Political Geography:
Global Focus

12. Interpretation and Application of the ECHR: Between Universalism and Regionalism

Author:
Mattias Guyomar
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
 e protection of human rights guaranteed by the Council of Europe, in particular through the Convention for the Protection of Human Rights and Fundamental Freedoms and the supervision exercised by the European Court of Human Rights, has a dual dimension: its universal vocation goes hand in hand with the regional nature of its implementation. Tensions between universalism and regionalism play out in a fruitful and productive way.
Topic:
Human Rights, International Law, Regionalism, Universalism, and European Court of Human Rights (ECtHR)
Political Geography:
Europe

13. Military Intervention on Request in Jus Ad Bellum and Jus In Bello and the question of recognition of governments

Author:
Chiari Redealli
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Over the past decades, foreign interventions in internal conflicts upon the request of host governments have turned into a common practice. These instances have proved to be particularly challenging both from a jus ad bellum and a jus in bello point of view. On the one hand, it is often unclear whether the intervention is lawful; on the other hand, the classification of these armed conflicts is equally problematic. In both cases, the key to answer these questions is the identification of the organ capable of speaking on behalf of the state: who is the government? Considering the pivotal relevance of the identification of the government both in jus ad bellum and jus in bello, it is crucial to determine the criteria for identifying the authority capable of issuing a valid invitation. This article seeks to clarify these criteria. Ultimately, it will demonstrate that jus ad bellum and jus in bello reach different conclusions on the matter and it will argue that this should not be the case.
Topic:
International Law, Humanitarian Intervention, Military Intervention, Conflict, and International Humanitarian Law (IHL)
Political Geography:
Global Focus

14. Missed Communications and Miscommunications: International Courts, the Fragmentation of International Law and Judicial Dialogue

Author:
Francis Maxwell
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The increase in the number of international judicial bodies has led to different international courts deciding similar issues of international law. There is the real possibility that these international judicial bodies, not subject to the supervision of a common appeal court, may rule differently on similar questions before them. While this fragmentation of decision-making may undermine the coherency and certainty of the international legal system, it may in some cases be in the interests of the international community, including where divergences in decision-making are the result of specialized regimes or where there is progressive development of the law. So that fragmentation is limited to what is beneficial and necessary for the international community, it is essential that international judicial bodies are in open and structured dialogue with one another. This analysis considers three scenarios of overlapping decision-making, over the course of the lives of two sets of international courts: the International Court of Justice, and the international criminal courts and tribunals. It also considers the recent decision of the International Criminal Court with respect to Palestine and the Court’s refusal to weigh in on questions of general international law, in apparent departure from the previous three examples. It is submitted that these examples demonstrate that insufficient attention is given by these international judicial bodies to the issue of judicial dialogue and its importance. This may undermine the legitimacy of the system and introduce the risks of fragmentation without its benefits.
Topic:
International Law, International Court of Justice (ICJ), International Criminal Court (ICC), Dialogue, Fragmentation, and Customary International Law
Political Geography:
Global Focus

15. Of Dark Clouds and  eir Silver Linings: Crisis as Opportunity in the Economic and Social Rigths Jurisprundence of the European Court of Human Rights

Author:
Caroline Omari Lichuma
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
We live in a world in crisis. These crises are experienced globally, regionally, by individual States and mostly by individuals themselves. Despite our differences, we are all united by crisis. However, adopting a regional outlook, this paper focuses on Europe, which, like much of the rest of the world, has in recent times been buffeted by multiple crises ranging from the financial and economic crisis that begun in 2008, to the climate change crisis, to the migrant and refugee crisis, to the Brexit crisis, to the COVID-19 pandemic that has rocked the entire globe. In times of crisis, it is commonplace to turn to legal and institutional frameworks in the hopes of finding some reprieve. Within Europe, one such institution is the European Court of Human Rights (ECtHR). This Court, also known as the Strasbourg court, was established in 1959 under Article 19 of the European Convention on Human Rights (ECHR). Despite its primarily Civil and Political Rights (CPRs) mandate, the ECtHR has in numerous cases proven to be fertile ground for planting the seeds of Economic and Social Rights (ESRs) protection, which is/was inevitable, given the widely accepted indivisible, interdependent and interrelated nature of all human rights, whether CPRs or ESRs. The ECtHR explicates that “the Convention is a living instrument which […] must be interpreted in the light of present-day conditions.” In the present day conditions of numerous crises that have only exacerbated the already precarious conditions of numerous vulnerable rightsholders in the family of European States, the question then becomes what jurisprudential trends, prospects and pitfalls exist for the ECtHR in its dynamic interpretation of the ECHR to include ESRs. In seeking answers to this question, this paper analyzes the ESRs jurisprudence of the ECtHR with the intention of illuminating how the Court has, and ought to utilize its institutional role as an enforcer of human rights in general and ESRs in particular in the quest to mitigate the effects on rightsholders, of the crises being experienced within Europe. At the heart of this inquiry lies the assertion that in line with the ECtHR’s ESRs jurisprudence thus far, which evinces a willingness on the part of the Court to vindicate ESRs in order to bring these rights to life for the vulnerable rightsholders who need them the most, the myriad crises currently plaguing Europe continue to create opportunities for the ECtHR to craft a principled and consistent ESRs jurisprudence while simultaneously respecting the margin of appreciation enjoyed by the respective European States. This paper does not analyze State responses under Article 15 of the ECHR, which specifically allows the High Contracting Parties to derogate from their obligations under the Convention in times of war or other public emergency threatening the life of the nation. Rather, the analysis will be restricted to the ESRs jurisprudence of the ECtHR in times of the specific crises outlined below and where the States in question have not made an Article 15 derogation. The paper will proceed in three parts. Part A will give a brief overview of how the ECtHR has vindicated ESRs through its interpretation of the primarily CPRs found in the ECHR. Part B will thereafter briefly analyze three specific crises that have shaped the more recent ESRs jurisprudence of the Court: the financial and economic crisis, the migrant and refugee crisis and the COVID-19 pandemic. Finally, Part C will offer some tentative recommendations on the way forward, arguing that while some progress has been made by the ECtHR in centering ESRs as a very necessary part of its response to contemporary European and global crises, the battle is far from won.
Topic:
Crisis Management, Economic Rights, European Court of Human Rights (ECtHR), Jurisprudence, and Social Rights
Political Geography:
Europe