Search

Begin New Search Topic International Law Content Type Journal Article Journal The Goettingen Journal of International Law

41. 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

42. "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

43. 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

44. 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

45. 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

46. 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

47. Editorial

Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Once more the Goettingen Journal of International Law was involved in organizing an international conference and publishing the contributions. On 9 and 10 March 2012 scholars from Germany, Israel and Norway assembled in the “Paulinerkirche” in Goettingen to present their research on “Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law”. The symposium was the final step of a research project organized by the Institute of International and European Law of the Georg-August University Goettingen and the Minerva Center for Human Rights, Hebrew University, Jerusalem. Its central idea is that international constitutionalism is not only a topic contemporarily much discussed, but finds its precursors in earlier “German” constitutional approaches.
Topic:
International Law
Political Geography:
Israel and Germany

48. Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law Introduction

Author:
Tomer Broude and Andreas L. Paulus
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Over the last decade, international constitutionalism has been the focal point of contemporary international legal debate and practice, as evidenced inter alia by the Kadi-Jurisprudence of the European Courts and the burgeoning literature that employs constitutional as well as fragmentation terms with respect to modern international law. The discourse deals with the pluralistic structure of modern international law, post-national law and constitutional diversity, as well as the quest for an international rule of law, the shifting allocation of authority in international law and the possible demise of general international law. This seemingly new discourse is all- pervasive, with implications in international politics, law, trade, human rights and, global environmental law.
Topic:
International Law
Political Geography:
Europe and Germany

49. German Federalist Thinking and International Law

Author:
Dirk Hanschel
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This paper examines the explanatory and the prescriptive value of German (and related) federalist ideas with regard to the constitutionalization of international law. The author contends that respective scholars have, on the one hand, developed federalist thought with regard to the national constitutional level which may help to explain or shape international processes of constitution-building. On the other hand, they have themselves promoted international federalism as a natural extension of their national constitutional doctrine, hence partially weakening the classical dichotomy between national and international law.
Topic:
International Law
Political Geography:
Germany

50. Alfred Verdross as a Founding Father of International Constitutionalism?

Author:
Thomas Kleinlein
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Alfred Verdross was one of the first scholars who transferred a meaningful concept of constitution to international law. Like international constitutionalists today, he aimed at establishing the autonomy of international law vis-à-vis State sovereignty and State consent. With his theory of moderate monism, Verdross refers to a further issue raised by today's multilevel constitutionalism, i.e. the relationship between international and domestic law. In contrast to some modern approaches, Verdross's use of the term 'constitution' in international law was only metaphorical. More ambitiously, international constitutionalism also serves as a kind of meta-theory for international law in the present debate.
Topic:
International Law
Political Geography:
United Nations

51. Making it Whole: Hersch Lauterpacht's Rabbinical Approach to International Law

Author:
Reut Yael Paz
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article seeks to contextualize the international legal contributions of Hersch (Zvi) Lauterpacht (1897-1960) against his specific historical conditions. It therefore begins with an overview of his biography. The intention is to emphasize his Jewish background in the context of the overlapping cultural and social influences of his time. The article then moves to deal with the three main pillars of Lauterpacht's theoretical approach to international law – his 'Kelsenian twist', the individual and nation State sovereignty. The purpose here is review them in light of his Jewish affinity and German-speaking legal education. The article is concluded with the argument that our understanding of Lauterpacht's international legal contributions could be infinitely richer when and if they are reread against a Babylonian Talmudic text, which is used below in an analogical fashion.
Topic:
International Law
Political Geography:
Germany

52. Legalization of International Politics: On the (Im)Possibility of a Constitutionalization of International Law from a Kantian Point of View

Author:
Phillip-Alexander Hirsch
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the debate on the constitutionalization of international law, Kant's work Toward Perpetual Peace is the most important point of reference when talking about the intellectual origin and philosophical background of the idea of constitutionalizing international law. But while it is undeniable that Kant called for a juridification of international relations, it is far less clear which form of juridification Kant aims at . In this essay, I want to show that Kant's ultimate ideal of international law is neither a State of States nor the peace federation (which seems to be commonly accepted), but the cosmopolitan republic , that is, a single homogenous world State. Only such a cosmopolitan republic, backed up by enforceable laws, can be called a constitution in the Kantian sense. Kant's proposal of a peace federation is nothing but a first step towards this ultimate end.
Topic:
International Law
Political Geography:
United Nations

53. Why Global Constitutionalism Does not Live up to its Promises

Author:
Christian Volk
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This paper argues that cosmopolitan constitutionalism suffers from a liberal bias when it comes to comprehend the challenges and conflicts of international politics. This liberal bias becomes obvious in the way cosmopolitan constitutionalism conceives the meaning and function of democracy in global governance. For the cosmopolitan constitutionalism, democracy is mainly thought of as a mechanism to guarantee a political process that brings about reasonable, sustainable and fair compromises between the diverging interests of states and individuals.
Topic:
International Law
Political Geography:
America

54. Editorial

Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
We are proud to present the Goettingen Journal of International Law's first issue of 2012. After the successful three issues of last year, GoJIL can now turn to its new and exciting projects of 2012! Since our last issue in January 2012, several events of global importance have filled the newspapers, confronting the global community with the need for new judicial and political solutions. The Arab Spring movement still continues, with the situation in Syria aggravating further, which has led to the UN Security Council to authorize the establishment of the United Nations Supervising Mission in Syria (UNSMIS).
Topic:
Security and International Law
Political Geography:
Arabia and Syria

55. The Status and Future of International Law after the Libya Intervention

Author:
Pierre Thielbörger
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article uses the case of the Libya intervention to address three general claims about international law. Firstly, it examines whether the reliance of the intervention on the mechanisms of collective security under the UN Charter suggests that international law relating to peace and security has finally overcome its post-9/11 crisis. It concludes that the resolution's vague wording – which makes the distinction between what is “legal” under the resolution, and what is not, hard to draw – undermines such an assumption. Secondly, it explores whether the Libya intervention has put new emphasis on what has been termed the “emerging right of democratic governance”. In spite of the underlying democracy-enhancing spirit of the execution of the intervention, Resolution 1973 was exclusively written in the language of human rights. It did little to indicate a changed attitude of States towards a norm of democratic governance. Finally, the article examines whether the case of Libya shows a renewed international attitude towards States which violate the most fundamental human rights of their citizens. The article concludes by suggesting that, in this third respect, a more muscular liberalism is indeed on the rise again in international law, challenging the formerly almighty concept of State sovereignty. In contributing to this subtle transformation, the Libyan case has made a genuine contribution to the development of the international legal order.
Topic:
Security, Human Rights, and International Law
Political Geography:
America, Libya, and United Nations

56. The Continuing Functions of Article 98 of the Rome Statute

Author:
Jens M. Iverson
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
According to the current jurisprudence of the International Criminal Court, Article 98 of the Rome Statute does not forbid the issuance of an arrest warrant for a sitting head of state. The African Union Commission vehemently objects to this reading of Article 98. Because it viewed the function of Article 98 as forbidding such arrest warrants, it views the current jurisprudence as effectively reading Article 98 out of the Statute, with no continuing function. This article demonstrates the continuing function of Article 98. This continuing function includes immunities resulting from agreements under Article 98(2), as well as customary immunities pertaining to property, persons, diplomatic immunity, and state immunity. Countering the rhetoric and providing a close analysis of the current state of Article 98 in ICC jurisprudence is useful, both with respect to understanding the current operation of Article 98 and to reflect on balancing multiple maximands of criminal law, human rights law, and the international law of immunity.
Topic:
Human Rights and International Law
Political Geography:
Africa and Rome

57. Sovereign Debt Crises as Threats to the Peace: Restructuring under Chapter VII of the UN Charter?

Author:
Matthias Goldmann
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Sovereign debt crises might significantly decrease the level of socioeconomic rights enjoyment for the population in the affected state. According to recent data, they even increase the risk of civil unrest. However, the resolution of sovereign debt crises is compromised by legal obstacles which result from the absence of a statutory, obligatory bankruptcy procedure for states. On the one hand, creditors might refuse to accept an exchange of their debt instrument in the frame of a workout and choose to litigate against the state. On the other hand, states might worsen their situation by unnecessarily delaying inevitable workouts. This article explores whether and to what extent the powers UN Security Council could be deployed in order to mitigate these problems. This requires a reconsideration of the concept of peace in Article 39 UN Charter. The article concludes that, at the request of the International Monetary Fund (IMF), the Security Council might put a stay on the enforcement of creditors' claims or order workout negotiations.
Topic:
Security, International Law, War, and International Monetary Fund
Political Geography:
Germany and United Nations

58. Human Rights and International Investment Law: Investment Protection as Human Right?

Author:
Nicolas Klein
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Legal research conceptualized the relationship between International Investment Law (IIL) and International Human Rights Law (IHRL) until recently rather as opposing fields of law with colliding policy interests as well as contradictory rules and regulations. However, lately a new approach is gaining increasing support in the academic community: Investment protection could be understood as being part of human rights law. Such a conclusion may be perceived as highly controversial, however, from a conceptual perspective IIL and IHRL share more common ground than differences. This article will argue, first, that certain material standards of IIL can be conceptualized to be human rights-like guarantees of a minimum standard of protection and second, that such an understanding does not lead to a neoliberal proliferation of economic rights but, to the contrary, may serve as an important conceptual tool to prevent overly extensive interpretations of investment treaties and to balance economic rights with other human rights in case of norm conflict. After all, IIL could prove to be not more, but also not less, than “One Out of a Crowd” of all other fundamental human rights.
Topic:
Economics, Human Rights, and International Law
Political Geography:
Pakistan, Germany, and Guinea

59. Re-thinking the Role of Indigenous Peoples in International Law: New Developments in International Environmental Law and Development Cooperation

Author:
Maria Victoria Cabrera Ormaza
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Indigenous Peoples have classically been defined in terms of their situation of vulnerability and discrimination traceable back to colonialism. The first international legal instruments addressing indigenous peoples are based on such an understanding, and emphasize special protection for indigenous peoples in order to preserve their cultural identity. This article describes this approach a human rights-based one, even though, at the national level, the label “indigenous” is sometimes also interpreted as a synonym of political power. Meanwhile, international environmental law has introduced what this author calls a “functional approach” recognizing the participatory role of indigenous communities in supporting environmental conservation and use of biodiversity. From a functional perspective, it is a logical consequence to include other local communities, albeit not “indigenous” in the classical sense. Thirdly, in the sector of development cooperation, international financial institutions (IFIs) have designed policies with the aim of assuring indigenous peoples the opportunity to be consulted when IFIfunded projects could entail a negative impact on indigenous communities. At first glance, it could be said that those policies were inspired by a human rights-based approach. However, from a holistic perspective, the role of indigenous peoples becomes a more functional one. This paper contributes a critical analysis of the role of indigenous peoples from these two approaches: the human rights-based approach and the functional approach. The author argues that a definition of indigenous peoples based on a humanrights approach should be understood as encompassing also other groups living in similarly vulnerable situations. Even though a functional approach to indigenous peoples responds better to the principle of equality, this approach should be more respectful to the cultural and social values of indigenous or local communities, from whom a particular behavior is expected in order to achieve certain goals.
Topic:
Human Rights and International Law
Political Geography:
North America

60. Kosovo's Chances of UN Membership: A Prognosis

Author:
David Ighojohwegba Efevwerhan
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The International Court of Justice has ruled that Kosovo.'s unilateral declaration of independence neither violated general rule of international law nor the lex specialis. As of the time of writing, 86 UN Member States have recognized Kosovo as a State. With the judicial pronouncement in their favour, the authorities in Kosovo are likely to apply for membership in the United Nations. This paper reviews the rules and practice of UN membership admission and assesses Kosovo.'s chances of success should it apply to the world body for admission. It argues that ordinarily, Kosovo meets the requirements for admission into the UN but political considerations of the permanent members of the Security Council would constitute a clog in Kosovo.'s ambition to become the 194th member of the United Nations. However, four options are proffered as ways out of the political logjam that is sure to surface if and when, Kosovo puts in an application for admission into the membership of the UN.
Topic:
Security and International Law
Political Geography:
Kosovo and United Nations