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1. The Evolution of the Prohibition of Genocide: From Natural Law Enthusiasm to Lackadaisical Judicial Perfunctoriness – And Back Again?

Author:
Julia Klaus
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
International legal scholarship and practice have reached a point where it is undisputed that the prohibition of genocide has the status of jus cogens and entails erga omnes obligations. It is, however, astonishing how little academic focus has been dedicated to the normative development leading to this extraordinary rank. In a legal regime with as little hierarchical structure as public international law, examining the birth process of such a norm promises considerable insights into normative formation in general and may inform jurisprudential theories on the nature of international law. This article illustrates the evolution of the prohibition of genocide by outlining the way to the 1948 UN Genocide Convention and the later interpretations of the norm. It traces the origin of the genocide prohibition to naturalistic ideas of overarching laws of humanity in international law and follows its development into the early 21st century. An analysis of international jurisprudence reveals that, after the jus cogens status of the prohibition of genocide and its erga omnes dimension had been settled, international judges handled the norm in a surprisingly lackadaisical and perfunctory manner. The very recent ICJ order on provisional measures in the Myanmar Genocide case potentially marks a return towards a deeper focus on moral facts determining the prohibition that point to naturalistic theories persisting, notwithstanding the positivistic mainstream approaches to international law. The article contributes to a more accurate picture of and greater academic interest in these naturalistic undercurrents.
Topic:
Genocide, International Cooperation, International Law, International Court of Justice (ICJ), and Humanitarian Crisis
Political Geography:
Global Focus

2. Perspectives for a New International Crime Against the Environment: International Criminal Responsibility for Environmental Degradation under the Rome Statute

Author:
Ammar Bustami and Marie-Christine Hecken
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article draws attention to the need of a reform of the environmental protection by means of international criminal law as enshrined in the Rome Statute of the International Criminal Court. After giving a short overview of the contemporary environmental protection in war- and peacetime offered by international criminal law, it becomes clear that international criminal law fails to succeed at offering sufficient environmental protection. This paper outlines that there is no convincing reason for a differentiated approach in international criminal law to environmental damage in wartime and in peacetime, and that a shift from an anthropocentric to an ecocentric approach would positively contribute to a more effective protection of the environment. It is therefore argued for the introduction of a new integral and ecocentric international crime against the environment in the Rome Statute. The paper then elaborates on existing proposals on such a new crime against the environment before some proper observations on the exact contours of the crime are made. A focus lies on the new crime’s threshold of seriousness as well as on the necessary mens rea requirements. The insufficiency of the contemporary legal framework and the merits of a new crime against the environment are exemplified by an archetype example of peacetime environmental damage, the Chevron/Texaco oil spill scenario in Ecuador.
Topic:
Climate Change, Environment, International Cooperation, and International Law
Political Geography:
Global Focus

3. Enhancing the Protection of the Environment in Relation to Armed Conflicts – the Draft Principles of the International Law Commission and Beyond

Author:
Britta Sjostedt and 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, and Non State Actors
Political Geography:
Global Focus

4. Reflections on the Legality of Attacks Against the Natural Environment by Way of Reprisals

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, and Red Cross
Political Geography:
Global Focus

5. Through the Looking Glass: Corporate Actors and Environmental Harm Beyond the ILC

Author:
Daniella Dam-de Jong and 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, and Multinational Corporations
Political Geography:
Global Focus

6. Business, Armed Conflict, and Protection of the Environment: What Avenues for Corporate Accountability?

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, and Conflict
Political Geography:
Global Focus

7. The Martens Clause and Environmental Protection in Relation to Armed Conflicts

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, and Conflict
Political Geography:
Global Focus

8. Precaution in International Environmental Law and Precautions in the Law of Armed Conflict

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, and Conflict
Political Geography:
Global Focus

9. Advancing the Rule of Law Through Executive Measures: The Case of MINUSCA

Author:
Edith Vanspranghe
Publication Date:
08-2019
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) has been mandated to implement “urgent temporary measures” in the form of arrests and detentions of individuals. This rather innovative mandate brings about several legal and conceptual consequences that the article addresses, focusing on the compatibility of these measures with UN peacekeeping norms and principles and with past UN practice. In addition, the measures are said to contribute to law and order, public safety, the fight against impunity, and to the rule of law. This sheds light on the UN’s interesting conception of the rule of law in the Central African Republic and in conflict and post-conflict settings in general.
Topic:
International Law, United Nations, Conflict, and Rule of Law
Political Geography:
Africa and Central African Republic

10. Reconciling the Irreconcilable? – The Extraterritorial Application of the ECHR and its Interaction With IHL

Author:
Severin Meier
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines the extraterritorial application of the European Convention on Human Rights (ECHR) during international armed conflict. After a brief discussion of the different historic origins of international human rights law and international humanitarian law (IHL), the article examines the test for establishing jurisdiction under Article 1 of the ECHR. A critical analysis of some contentious legal issues regarding derogations completes the picture of when jurisdiction is established. Subsequently, the article considers the interaction between the ECHR and IHL in international armed conflicts and concludes by arguing that a balance must be found between protecting human rights in international armed conflicts while not interfering unduly with IHL.
Topic:
Human Rights, International Law, and Conflict
Political Geography:
Europe

11. The Perils of Judicial Restraint: How Judicial Activism Can Help Evolve the International Court of Justice

Author:
Deepak Mawar
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The article analyzes the International Court of Justice and its approach to judicial decision-making. By investigating the Court’s jurisprudence over its seventy years of activity, the article seeks to outline, that if given the choice, the ICJ tends to prioritize judicial restraint over judicial activism. In fact, the Court maintains a strict adherence to judicial restraint, which stems from a fear of losing its legitimacy when facing the issue of consent-based jurisdiction. The article purports that although judicial restraint is an important facet of sound judicial decision-making, the ICJ should not be so reluctant to adopt judicial activism when it is suitable to utilize such an approach. Such a position is strengthened when analyzing the criticisms made of judgments delivered by the Court, which fail to serve the international community beneficially.
Topic:
International Law and International Court of Justice (ICJ)
Political Geography:
Global Focus

12. Constitutionalism and the Mechanics of Global Law Transfers

Author:
Andreas L. Paulus and Johann Ruben Leiss
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article explores rule of law transfers from an international perspective. Based on the observation that the proposal of an emerging international constitutional order seems to have lost momentum this article emphasizes a global legal reality that is characterized by a complex and rather non-hierarchical interplay between various (fragmented) international legal orders and suborders as well as national legal orders. This article discusses four legal mechanisms that are of pivotal relevance with respect to global rule of law transfers. These mechanisms include, first, so-called “hinge provisions” as doorways between different legal orders, second, harmonious interpretation as a legal tool of integration, third the sources of international law enabling transmission of norms and providing a framework for judicial interaction and, fourth, judicial dialogue as an informal means of rule of law transfer.
Topic:
International Cooperation, International Law, Sovereignty, and Rule of Law
Political Geography:
Global Focus

13. The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy: EU Treaty Imperatives and Rule of Law Conditionality in the Foreign Trade and Development Nexus

Author:
Till Patrik Holterhus
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article demonstrates that Arts. 21 and 3 (5) of the Treaty on European Union (TEU) as well as Arts. 205, 207 (1), 208 (1), 209 (2) of the Treaty on the Functioning of the European Union (TFEU), legally oblige the European Union (EU) to promote the rule of law in its foreign trade and development policy. Furthermore, it is shown that, in the context of such promotion, the EU applies not a rudimentary but a sophisticated concept of the rule of law – quite similar to the concept of the rule of law that has developed within the Union. To fulfill the legal obligation to promote the rule of law abroad, the EU employs, as a key instrument, the legal mechanism of conditionality, not only through autonomous instruments but also in its contractual international relationships (carrot-and-stick policy). The EU’s foreign policy in the trade and development nexus, in particular when it comes to the promotion of the rule of law, can, therefore, be considered a process, to a large extent, determined and organized the of law.
Topic:
International Law, International Trade and Finance, Sovereignty, and European Union
Political Geography:
Europe

14. The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?

Author:
Floris Tan
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain.
Topic:
Human Rights, International Law, and Rule of Law
Political Geography:
Europe

15. The Law Behind Rule of Law Promotion in Fragile States: The Case of Afghanistan

Author:
Astrid Wiik and Frauke Lachenmann
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Rule of law (RoL) promotion has become a go-to-tool in the complex process of stabilizing and rebuilding (post-)conflict States. The process is driven by a heterogeneous group of national, foreign, and international actors who define and prescribe RoL norms and standards, who programme, finance, implement, and eventually monitor RoL reforms. While the legitimacy and effectiveness of RoL promotion has undergone scrutiny, particularly within the overall context of international development assistance, an aspect that has so far received little attention is the legality of RoL promotion. This concerns both the mandate of the various actors and the execution of RoL activities on the ground. Since 2001, the international community has intensely supported the RoL in Afghanistan rendering it a veritable testing ground for RoL promotion. The article explores the legal framework for actors in RoL promotion in Afghanistan from 2001 up to the present day, with a focus on the German Government, its development cooperation agencies, and private non-governmental organizations (NGOs). The article shows that while detailed rules bind the monitoring and evaluation of RoL activities in line with the existing international frameworks for development assistance, few laws and principles guide the programming and implementation of RoL promotion. The existing standards are generally too abstract to guide specific RoL promotion activities. Further concretization and harmonization is necessary in the interest of the sustainability of RoL promotion in Afghanistan – and elsewhere.
Topic:
International Law, Non State Actors, Governance, and Rule of Law
Political Geography:
Afghanistan and Middle East

16. International Investment Law and the Rule of Law

Author:
Peter-Tobias Stoll
Publication Date:
12-2018
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
International investment law appeals to a lawyer’s appetite for the rule of law by disciplining the exercise of power between States and foreign investors through legalization and judicialization. Originally supposed to serve as a fix to promote foreign investments in developing countries in times of legal uncertainties, now, thousands of bilateral investment agreements exist, and the number of cases in investment arbitration has exploded in the last decade. Further, there is a tendency of generalization, as investment protection now features as a standard element of international trade agreements, far beyond the original focus on developing countries. A number of flaws and shortcomings of the rules and procedures became apparent in the course of the more frequent use of the system and resulted in much discussion within the expert community, which resulted in some changes. Furthermore, the long neglected possibility became apparent, that investment claims could be directed against industrialized countries and that the conduct of their authorities could be subjected to review by international arbitration tribunals. This sparked heated public debates, particularly so in the EU. These two developments have in common, that they implicitly as well as explicitly raised the issue of the rule of law. This paper will assess the system of international investment law as it stands, its critique and its reform, through the lens of the rule of law. It will also make a highly idealistic proposal on the further development of international investment protection. In concluding, it will reflect on the proper use of the rule of law in legal analysis, by setting out the different perspectives in which the term may be employed, and the methodological consequences.
Topic:
International Law, International Trade and Finance, Rule of Law, and Investment
Political Geography:
Global Focus

17. Universal Jurisdiction in Absentia Before Domestic Courts Prosecuting International Crimes: A Suitable Weapon to Fight Impunity?

Author:
Tim Kluwen
Publication Date:
12-2017
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article addresses the legality and desirability of States asserting universal jurisdiction without the suspect being present on their territory when prosecuting international crimes before domestic courts. First the legality under international law of States asserting universal jurisdiction in absentia (or absolute universal jurisdiction) will be discussed. No comprehensive regulation in this regard appears to exist in codified international law. Based on State practice, it would seem that no customary law either fully permits or entirely prohibits States asserting absolute universal jurisdiction. Applying the Lotus paradigm, it could arguably be concluded that the lack of a prohibition under international law results in States being allowed to assert universal jurisdiction in absentia when prosecuting certain international crimes. Having established its legality, this article will consequently approach absolute universal jurisdiction from a normative point of view, i.e. whether States should assert it. Although a tool in ending impunity of perpetrators of international crimes, it will be concluded that it is undesirable for States to assert absolute universal jurisdiction. Its use is likely to compromise fundamental rights of the accused and has a destabilizing effect on international relations while only suboptimally serving the goals of criminal prosecution.
Topic:
International Law, Territorial Disputes, Courts, and Jurisdiction
Political Geography:
Global Focus

18. The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules

Author:
Ezequiel Heffes and Brian E. Frenkel
Publication Date:
12-2017
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the last few decades, the role of non-state armed groups has become an essential topic of analysis and discussion to better understand international humanitarian law dynamics. While their increasing importance is uncontroversial, their place and regulation in specific areas of international law still remains unclear or insufficiently explored. Chief among these is the possible non-state armed groups’ international responsibility. Although it is undisputed that some of these entities breach their international law obligations, others seemingly engage with certain rules on the topic. This article addresses some legal consequences of such scenarios. Taking into account the principle of equality of belligerents in non- international armed conflicts, two issues are dealt with: i) the existence of “non- state” organs that could trigger the attribution of violations of international rules to non-state armed groups; ii) possible reparations owed by these non-state entities for their breaches during armed conflicts.
Topic:
International Law, Non State Actors, and Armed Conflict
Political Geography:
Global Focus

19. Modification of Renewable Energy Support Schemes Under the Energy Charter Treaty: Eiser and Charanne in the Context of Climate Change

Author:
Tomas Restrepo
Publication Date:
12-2017
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Nearly half of the claims brought under the Energy Charter Treaty1 raise issues related to the modification of the Renewable Energy Support Schemes (RESs), but only two decisions have been published: Charanne and Eiser. This paper evaluates these decisions in light of the existing general practice on expropriation and Fair and Equitable Treatment, as well as from a pragmatic perspective in the context of climate change. The article concludes that tribunals should recognize reinforced stability to RESs under the ECT.
Topic:
Climate Change, Energy Policy, Environment, International Cooperation, International Law, and Renewable Energy
Political Geography:
Global Focus

20. Pandemic Declarations of the World Health Organization as an Exercise of International Public Authority: The Possible Legal Answers to Frictions Between Legitimacies

Author:
Pedro A. Villarreal
Publication Date:
06-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The institutional decisions regarding the 2009–2010 influenza A(H1N1) pandemic displayed how the World Health Organization’s (WHO) role as the international organization in charge of coordinating the pandemic response amounts to an exercise of authority. Notably, the 11 June, 2009 Pandemic Declaration was grounded in the WHO’s guidelines that do not have a binding nature according to international law. However, this is not an obstacle for considering them as an act of authority, since their effects can constrain the decision-making of States. If these non-binding acts have an authoritative nature, then it is necessary to address various legitimacy issues that may be present. This is where the concept of international public authority (IPA) can prove useful, since it enables to combine the non-binding nature of Pandemic Declarations and the respective guidelines with broad legally-oriented figures such as transparency and accountability. The controversies surrounding the 2009 Pandemic Declaration illustrate how the strictly technical-scientific elements that led to such a decision were not necessarily harmonious with other aspects more related to political decision making in general, such as transparency and accountability. This can be considered as an example of how so-called ‘technocratic legitimacy’ sometimes generates friction with lato sensu ‘political legitimacy’. As the 2009–2010 pandemic period unraveled, it became clear that expertise-based legitimacy is not sufficient in itself to consider the act as generally legitimate. On the contrary, the strongest criticisms directed at the decision-making process of the WHO during this event were leveled against deficits of transparency and accountability. This article purports to discuss the issue of how both types of legitimacies, technical-scientific and political, are necessary components for deeming Pandemic Declarations as legitimate enough, since they amount to an exercise of international public authority.
Topic:
International Law, World Health Organization, Public Health, and H1N1
Political Geography:
Global Focus

21. The UN Declaration on the Rule of Law and the Application of the Rule of Law to the UN: A Reconstruction From an International Public Authority Perspective

Author:
Clemens A. Feinaugle
Publication Date:
06-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The UN Declaration on the rule of law at the national and international levels seems to open new possibilities for listed terrorist suspects claiming legal protection or those seeking damages for harm caused by UN peacekeepers because the Declaration provides that the rule of law applies to the United Nations itself. However, the Declaration raises questions regarding the elements of the rule of law, its legal basis, and binding nature. This paper attempts a reconstruction of the UN Declaration and relevant UN practice under an international public authority perspective to explain and develop elements of the rule of law applicable to the UN, to determine its legal basis, and to investigate its binding nature. It argues, that since measures under Chapter VII must be effective if the UN wants to fulfil its purpose (Article 1 (1) UN Charter), the UN is bound by the rule of law insofar as “effective” measures require that related legitimacy concerns are addressed by rule of law safeguards.
Topic:
International Law, Terrorism, United Nations, Peacekeeping, and Legitimacy
Political Geography:
Global Focus

22. Towards a New International Law of the Atmosphere?

Author:
Peter H. Sand and Jonathan B. Wiener
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide range of different transnational institutions. Following several earlier attempts at identifying cross- cutting legal rules and principles in this field (by, inter alia, the International Law Association, the UN Environment Programme, and the Institut de Droit International), the ILC has now embarked on a new codification/restatement project led by Special Rapporteur Shinya Murase – albeit hamstrung by a highly restrictive ‘understanding’ imposed by the Commission in 2013. This article assesses the prospects and limitations of the initial ILC reports and debates in 2014 and 2015, and potential avenues for progress in the years to come.
Topic:
Climate Change, Environment, International Law, United Nations, and Space
Political Geography:
Global Focus

23. The EU Commission and the Fragmentation of International Law: Speaking European in a Foreign Land

Author:
Avidan Kent
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Abstract:
The debate on the fragmentation of International Law has been relatively dormant in recent years. However, recent events demonstrate not only that this debate should be re-awoken, but also that some key elements of this debate must be reconsidered. Notably, while the fragmentation of International Law has often been discussed from the perspective of courts and judges, this article examines the view and the impact of a different institutional actor – the Commission of the European Union. This contribution analyzes a series of amicus briefs that were submitted in a number of investment treaties-based cases. These briefs, which were recently disclosed to the author, reflect a certain radicalization of the European Court of Justice’s view concerning the place and the role of the EU’s legal system within the international legal order. This article discusses the problematic implications that the Commission’s approach may have on the international legal order, as well as possible future pathways.
Topic:
Environment, Human Rights, International Cooperation, International Law, European Union, and Trade
Political Geography:
Europe

24. The Use of Scholarship by the WTO Appellate Body

Author:
Sondre Torp Helmersen
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines the use of scholarship by the WTO Appellate Body. While it is not possible to say definitively how the Appellate Body views the legal status of scholarship in WTO dispute settlement, its use of scholarship will in practice determine its status. The article identifies three overall trends: the Appellate Body’s use of scholarship has declined, the Appellate Body uses scholarship mostly for matters of general international law (as opposed to WTO law), and the Appellate body has generally been careful in its use of scholarship. Possible explanations for these trends may include an increase in available precedents, the Appellate Body’s specialized role, criticism of the Appellate Body, and its members’ backgrounds.
Topic:
International Cooperation, International Law, International Trade and Finance, and World Trade Organization
Political Geography:
Global Focus

25. The Evolution of Arms Control Instruments and the Potential of the Arms Trade Treaty

Author:
Tom Coppen
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Although the Arms Trade Treaty (ATT) has the potential to create an effective international legal framework for controlling the international arms trade, much depends on the subsequent development of its legal framework. This article therefore analyzes how the ATT, as a multilateral arms control treaty, can develop its own legal framework in accordance with international law and what role the organs established by it can play in that process. It will be shown that in its current form the ATT has significant shortcomings that may prevent it from achieving this goal, but there certainly is room for the lawful development of its norms, which will depend on amassing political will and the establishment of practice.
Topic:
Arms Control and Proliferation, Diplomacy, International Law, Treaties and Agreements, and Military Affairs
Political Geography:
Global Focus

26. Combating Illegal Fishing in the Exclusive Economic Zone – Flag State Obligations in the Context of the Primary Responsibility of the Coastal State

Author:
Valentin J. Schatz
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Illegal fishing in the Exclusive Economic Zones [EEZs] of developing coastal States is an urgent problem for the marine environment, global food security, and local economies. While past academic debate has predominantly focused on obligations of flag States to tackle so called IUU-fishing in the High Seas, the recent request for an advisory opinion submitted by the Sub-Regional Fisheries Commission to the International Tribunal for the Law of the Sea (ITLOS, Case No. 21) has drawn attention to the fisheries regime of the EEZ. This article argues that the primary responsibility for fisheries management in the EEZ rests on the coastal State and that, so far, flag States have no obligation under customary international law to exercise their jurisdiction and control over vessels flying their flag which fish in the EEZ of other States. The article first gives an account of coastal State regulatory and enforcement jurisdiction. It outlines recent developments of the law by drawing on the jurisprudence of the ITLOS, particularly the recent M/V “Virginia G” Case. Further, the article undertakes to identify potential flag State obligations to combat illegal fishing in the EEZ. To that end, it provides an in-depth analysis of relevant binding and non-binding legal instruments such as the 1982 UN Convention on the Law of the Sea, other multilateral treaties, bilateral fisheries treaties, and relevant soft-law instruments of the Food and Agriculture Organization of the United Nations. The article also discusses the relevance of principles of international environmental law. Next, the article analyzes the nature and scope of potential flag State obligations, qualifying them as obligations of due diligence. Finally, the article concludes that, de lege lata, no persuasive evidence of established flag State obligations exists. The author suggests that the situation should be remedied by a new, fully binding legal instrument.
Topic:
International Law, United Nations, Maritime Commerce, and Fishing
Political Geography:
Global Focus

27. Determining the Relationship Between International and Domestic Laws Within an Internationalized Court: An Example From the Cambodian Extraordinary Chambers’ Jurisdiction Over International and Domestic Crimes

Author:
Melanie Vianney-Liaud
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Internationalized criminal tribunals such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) differ from traditional international criminal tribunals by a lesser degree of internationality. The ECCC emerged through an international agreement but their mixed composition and operating rules are also defined in Cambodian Law. The relationship between the ECCC’s Agreement and Law has not been clearly stated, which generates questions since both texts are not always consistent. This paper proposes, through the study of the provisions of the ECCC Law relating to the ECCC’s subject-matter jurisdiction, to determine the impact of such discrepancies on the activity of the Chambers. The decisions of their judicial bodies on the application of Articles 3, 4 and 5 which provide for the ECCC’s jurisdiction over crimes against humanity, genocide and certain domestic crimes have allowed to cope with the uncertainty generated by those differences. However, a bigger issue remains which is due to the ECCC’s particular hybrid structure. Composed of national judges in the majority, ECCC’s decisions may only be taken if the required qualified majority is reached, which implies the need for an agreement with their international counterparts.
Topic:
International Law, Sovereignty, Legal Theory, and Jurisdiction
Political Geography:
Asia and Cambodia

28. Editorial

Author:
The Editors
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Dear Readers, this issue marks the beginning of the Goettingen Journal of International Law\'s fifth volume. Since its foundation in December 2008, various persons and institutions have supported the journal in various manners. Such precious support enabled GoJIL to constantly improve its quality as well as to broaden its readership. Therefore many students, primarily from the Faculty of Law, have hitherto been engaged in the project.
Topic:
International Law
Political Geography:
Australia

29. "By What Right?": The Contributions of the Peninsular School for Peace to the Basis of the International Law of Indigenous Peoples

Author:
Silvia Maria da Silveira Loureiro
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This paper aims to investigate the Peninsular School for Peace's contributions in the sixteenth and seventeenth centuries to the establishment of international law for indigenous peoples within a proper collective dimension. The recognition of collective rights of indigenous peoples is part of a phenomenon which occurred in the transition to the twenty-first century and is known as the collectivization of the international law of human rights. The first section of this article will discuss the inadequacy of modern human rights sources to recognize indigenous peoples as subjects of collective rights. This inadequacy stems from the lack of legal mechanisms that are able to reach the collective dimension of claimed international human rights in the context of contemporary indigenous movements. Thus, the second section will defend a pre-Westphalian conception of international law and support the return to its historic origins – in the Jus Gentium condition in an earlier view of the consolidation of the Modern NationState – in order to understand how the theorists from the Peninsular School for Peace faced questions of conscience generated by the collision between the Luso-Spanish kingdoms and indigenous sovereignty in the New World. For this purpose, the works of theologians Francisco de Vitória (1492-1546), Luis de Molina (1531-1600), and Francisco Suárez (1548-1617) provide insight. In this context, this paper endeavors to redeem the democratic peninsular doctrine towards a new reasoning for the international law of indigenous peoples.
Topic:
International Law
Political Geography:
Europe

30. Romanticization Versus Integration?: Indigenous Justice in Rule of Law Reconstruction and Transitional Justice Discourse

Author:
Padraig McAuliffe
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
There is great optimism in transitional justice literature that indigenous legal processes can capture the meaning of conflict in ways that more remote, state- or international-based processes cannot. However, if the innovations in terms of inclusiveness, gender, and fairness that transitional justice invariably promote when employing indigenous justice processes are to make a long-term, sustainable impact beyond the transitional moment, greater attention must be given to how their employment as a form of transitional justice might interact with the usually simultaneous process of rule of law reconstruction. If transitional justice actors are to interact productively with justice sector reformers and national governments to establish traditional dispute resolution mechanisms in post-conflict States, they will have to abandon some of their more romantic notions evident in the literature and policy documents of indigenous justice as something inherently restorative, as an antidote to the shortcomings of legal formalism or as a site of resistance to the State Leviathan. Enthusiasts for the employment of indigenous mechanisms in transitional justice can learn lessons from the processes of de-romanticization that legal pluralism went through and the experiences of peace building missions in recent decades.
Topic:
International Law
Political Geography:
Europe

31. Protection and Realization of Indigenous Peoples' Land Rights at the National and International Level

Author:
Katja Göcke
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Today, it is generally recognized that the relationship to land forms the basis of an indigenous people's identity, and that indigenous peoples' cultures cannot be preserved without a certain degree of control over land and natural resources. In the course of colonization, however, indigenous peoples lost ownership and control over most of their ancestral lands, and from the end of the 19th century onwards the existence of inherent indigenous land rights, i.e. rights not derived from the colonial powers but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial, had been completely denied. This began to change in the 1960s. Due to increased pressure by national courts and international institutions, state governments started to recognize the continued existence of inherent indigenous land rights and to develop different policies to protect them. This paper looks at how indigenous peoples' land rights are nowadays recognized and protected in the United States of America, Canada, Australia, and New Zealand, and whether the different national approaches are in accordance with international legal standards. It will be shown that none of the States subject to this study acts completely in accordance with its obligations under international law, but that nevertheless all States have some strong points regarding the realization and protection of indigenous land rights and can learn from each other's experiences.
Topic:
International Law
Political Geography:
United States, America, Canada, and Australia

32. A Step Further on Traditional Peoples Human Rights: Unveiling the Key-Factor for the Protection of Communal Property

Author:
Giovana F. Teodoro and Ana Paula N.L. Garcia
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The purpose of this article is to provide a new perspective in relation to the protection of property rights of indigenous and non-indigenous peoples. Through an analysis based on the jurisprudence of the Inter-American Human Rights System, it is possible to identify the core elements that justify the special protection concerning traditional territories, leading to a rationality that revolves around the unique bond that traditional peoples establish with their land. By studying the recent evolution of the debate within the Inter-American Court of Human Rights, the article intends to shift the focus from formal and constricted ethnic classifications to the underlying cultural identity aspects of the relationship between a certain people and its own land. This change of perspective allows the consolidation of a singular idea of property rights towards traditional territories. Aimed not only at indigenous peoples, but also to any community that shows a distinguished and deep cultural tie to its land, this particular property right notion leads to a more comprehensive and consistent protection of indigenous and non-indigenous peoples' fundamental rights.
Topic:
International Law
Political Geography:
United States and America

33. Indigenous Peoples' Rights and the Extractive Industry: Jurisprudence From the Inter-American System of Human Rights

Author:
Efrén C. Olivares Alanis
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The right of indigenous peoples over their lands, territories, and natural resources has been developed in recent years by the Inter-American Court of Human Rights. When this right is in apparent or real conflict with the rights or interests of the extractive industry over these lands or natural resources, resolving the conflict presents complex legal and practical problems. The Inter-American Court has established standards that must be met in order to restrict indigenous peoples' rights over their lands and natural resources, as well as the requirement to conduct transparent consultations in good faith and, when applicable, obtain the free, prior, and informed consent of the affected indigenous peoples before a project can be approved in their territories. This article explores these standards and requirements, and analyzes their application by the Inter-American Court and the Inter-American Commission on Human Rights.
Topic:
International Law
Political Geography:
America