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

61. The Politics of Deformalization in International Law

Author:
Jean d'Aspremont
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Confronted with the pluralization of the exercise of public authority at the international level and the retreat of international law as a regulatory instrument, international legal scholars have engaged in two survival strategies. On the one hand, there are international legal scholars who have tried to constitutionalize traditional international law with a view to enhancing its appeal and promoting its use by global actors. On the other hand, there are scholars who, considering any charm offensive to induce global actors to cast their norms under the aegis of classical international a lost battle, have embarked on a deformalization of international law that has led them to loosen the meshed fabric through which they make sense of reality. This deformalization of international law has sometimes materialized in a radical abandonment of theories of sources. The constitutionalist strategy has already been extensively discussed in the literature. The second approach has thrived almost unnoticed. It is this second scholarly strategy to the pluralization of the exercise of public authority that this article seeks to critically evaluate. After describing the most prominent manifestations of deformalization in the theory of international law and examining its agenda, the paper considers some of the hazards of deformalization. This paper simultaneously demonstrates that formalism has not entirely vanished, as it has continued to enjoy some support, albeit in different forms. These variations between deformalization and the persistence of formalism, this paper concludes, are the result of political choices which international legal scholars are not always fully aware of.
Topic:
International Law

62. The Legal Status of the Holy See

Author:
Cedric Ryngaert
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The Holy See enjoys rights under international law that few, if any, non-State actors (excluding intergovernmental organizations) enjoy: it has joined various intergovernmental organizations, it is a party to a substantial number of bilateral and multilateral treaties, it sends and receives diplomatic representatives, is said to enjoy immunity from jurisdiction, and has been granted permanent observer status at the United Nations. However, unlike the Vatican City State, the Holy See is not to be characterized as a State, given that it has a global spiritual remit and that it can act internationally without a territorial base. Instead, it is a sui generis non-State international legal person which borrows its personality from its 'spiritual sovereignty' as the center of the Catholic Church.
Topic:
International Law, Bilateral Relations, and Non State Actors
Political Geography:
United Nations

63. The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?

Author:
Sebastian Wuschka
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The regulation of the employment of combat drones in current conflicts is a central issue of recent discussions in international law. Contrary to misinterpretations in the media, this article claims that the legal framework regarding today's drone systems is settled. The author first provides an assessment of unmanned combat drones as a new technology from the perspective of international law. He then proceeds to the vital point of the legality of targeted killings with remotely operated drones. Further, he discusses the preconditions for applicability of humanitarian law and human rights law to such operations. In conclusion, the author holds the view that the legal evaluation of drone killings depends on the execution of each specific strike. Assuming that targeted killings with drones will generally only be legal under the law of armed conflict, states might be further tempted to label their struggle against terrorism as 'war'.
Topic:
International Law and Terrorism
Political Geography:
United States

64. Completing the ICTY Project Without Sacrificing its Main Goals. Security Council Resolution 1966 – A Good Decision?

Author:
Donald Riznik
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Almost two decades after having established the ad-hoc criminal tribunal for the former Yugoslavia, this institution is about to fulfill its mandate and will close its doors in the near future. Looking back on 20 years of legal and political struggle, the overall result of this institutional project is positive. This article analyses the way the Security Council and the ICTY have chosen to bring the tribunal to an end by implementing the Completion. The problematic aspect, the Security Council was faced with before its final Resolution 1966, adopted on 22 December 2010, has been outlined together with the chosen path to avoid commitments, especially with regard to its major goal to end impunity for serious breaches of international law, and to bring justice and peace to the people living on the territory of the former Yugoslavia. This (so far) last resolution, which implemented the International Residual Mechanism for Criminal Tribunals (IRMCT), was adopted at a time, when the last two remaining fugitives, Ratko Mladic and Goran Hadzic were still at large. Only a few months ago, the two were caught and transferred to the tribunal. The author argues that not shutting the institutional doors entirely until all remaining fugitives are arrested, was a complex situation in a legal and practical sense. Facing and solving this problem through Resolution 1966 was the best choice at that time. This article will give a brief description about the practical impact of the IRMCT on the ICTY's further work, and the relation between these two judicial institutions during their coexistence.
Topic:
Security and International Law
Political Geography:
Yugoslavia and United Nations

65. Defending the Emergence of the Superior Orders Defense in the Contemporary Context

Author:
Jessica Liang
Publication Date:
12-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The defense of superior orders is one of the most controversial defenses to be pleaded under criminal law. In effect, it condones ignorance of the law and allows a subordinate to escape criminal liability on a basis other than culpability. It may therefore come as a surprise that sixty years after the Nuremberg and Tokyo trials, the resort to superior orders has re-emerged as a complete defense for certain types of crimes. I argue that this defense is based on sound policy reasons of military necessity, and should be made available on the condition that the order is not 'manifestly illegal'. In contrast to blunt absolutist approaches, the manifest illegality doctrine presents the most workable test for distinguishing between the culpability of conduct committed by soldiers in circumstances of exigency. This 'middle-way' successfully balances the dichotomous ends of legality and military efficiency and should be the preferred test under international law.
Topic:
International Law
Political Geography:
Tokyo

66. The Post 9/11 Discourse Revisited - Self-Image on the International Legal Scietific Discipline

Author:
Ulf Linderfalk
Publication Date:
12-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
A few years ago, the legality of Operation Enduring Freedom (OEF) was a topic much discussed in the international legal literature. This article approaches the problem from a new angle. Rather than investigating the relevant issue of legal substance – whether or not OEF was ever consistent with international law – the article focuses attention on the general scholarly performance in dealing with this issue. Scrutinizing the literature published immediately following upon the events of 11 September 2001, the author suggests that overall, the scholarly debate on the legality of OEF did not live up to the standards normally applied in serious legal analysis, and that hence, the debate should be characterized as poor science. The article presents this criticism in further detail. With said criticism as a basis, in a concluding part of this article, the author takes the investigation one step further. As he suggests, when scholars engaged in the post-9/11 discourse, there was something about the whole situation that greatly constrained them. They were obviously hesitant to conclude that in circumstances like those of 9/11, there would still not be any right of self-defense to exercise. So much did they hesitate that they thought the opposite conclusion worth the prize of far-reaching infringements of the most basic of scientific quality standards. Why this hesitation, the article asks. What force or forces are compelling international legal scientists? As the author suggests, this question bears directly on the particular self-image of the legal scientific discipline and the role it envisages for itself in the international community. He concludes the article by initiating a discussion on this very delicate issue specifically, introducing for this purpose a description of the international legal scientist as archetype.
Topic:
International Law

67. Humanitarian Action – A Scope for the Responsibility to Protect: Part II: Responsibility to Protect – A Legal Device Ready for Use?

Author:
Marie-José Domestici-Met
Publication Date:
12-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Throughout three issues of the Goettingen Journal of International Law we are trying and answering the same question: with the recognition of responsibility to protect, is humanitarian action at last guaranteed? Will this concept avoid some avoidable deaths and lack of rescue? Our first issue was devoted to the long quest for a legal regime in favor of humanitarian action effective delivery. After a step by step review of the many solutions which have been tried, the paper ended with the “discovery” of physical protection. After mentioning the Kosovo (and Serbia) air strikes and the 3rd millennium UN field missions, the paper ended with a worrying assessment: no device over the past 150 years has succeeded in guarantying neither assistance' provision nor protection. And we raised the issue of responsibility to protect (R to P) as a possible help to solution. Our today's paper goes down this way.
Topic:
International Law
Political Geography:
Kosovo and Serbia