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

1. When the Exception Overtakes the Rule: COVID-19, Security Exemption Clauses, and International Investment Agreements

Author:
Kayla Maria Rolland
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the trade and investment law regimes built in the post-war period, “security exemption clauses” were included within trade and investment agreements as a safety valve, permitting States to deviate from their commitments in the event that their security interests were implicated. Initially, these clauses were understood to be narrowly limited to instances of war and interstate conflict. With the rise of the national security state in the decades since, however, the concept of security interests has ballooned to encompass an ever-growing set of issues, with some fearing that the rules may become irrelevant. This has been particularly facilitated through “third generation” security exemption clauses and their inclusion of self-judging language. The COVID-19 pandemic in particular adds a new dimension to this phenomenon. As a case study analysis of the text of the Chile-Hong Kong, China SAR bilateral investment treaty (BIT) will demonstrate, it may be feasible for States to invoke security exemption clauses to justify measures taken in response to the COVID-19 pandemic in some contexts, particularly with third generation, self-judging security exemption clauses. The expanding notions of security exemption clauses have significant implications for the investor-State dispute system as a whole.
Topic:
Security, International Law, International Trade and Finance, Treaties and Agreements, COVID-19, and International Investment Agreements
Political Geography:
China and Global Focus

2. A Right to Come Within State Jurisdiction Under Non-Refoulement? Interpreting Article 1 of the European Convention on Human Rights in Good Faith Within the Context of Extraterritorial Migration Control

Author:
Laura Goller
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Externalizing borders for the purpose of shifting and avoiding responsibilities under human rights law is not a new phenomenon in the context of migration control. In the Mediterranean, European States have increasingly sought new measures of extraterritorial migration control to avoid being held responsible under cornerstones of international refugee law such as non-refoulement. In the precedent Hirsi Jamaa and Others v. Italy, the European Court of Human Rights (ECtHR) established that the exercise of effective control over persons on the high seas amounts to the exercise of jurisdiction within the meaning of Art. 1 of the European Convention on Human Rights (ECHR). As a result, European States began to find new ways of controlling their borders. The focus on physically controlled ‘push-backs’ shifted to administratively controlled ‘pull-backs’. Cooperation with third States by equipping and training their coast guards has become a way for European States to avoid any direct contact with migrants, thereby avoiding triggering jurisdiction as defined by the current case law of the ECtHR. This paper focuses, first, on how ECtHR jurisprudence responds to new forms of extraterritorial migration control and, second, on how this concept of jurisdiction relates to the obligation of States to fulfill their international obligations in good faith. How can the object and purpose of an obligation be undermined if that obligation does not apply in the first place? While the realization of Hannah Arendt’s concept of ‘the right to have rights’ seems to depend in practice on the geographical location of the individual, this paper addresses the question of whether there might be a right to come within the jurisdiction of a State, in the sense of gaining access to a legal system, applying a good faith reading to non-refoulement.
Topic:
International Law, Migration, Borders, Jurisdiction, Non-refoulement, European Court of Human Rights (ECtHR), and European Convention on Human Rights (ECHR)
Political Geography:
Europe

3. Containing the Containment: Using Art. 16 ASR to Overcome Accountability Gaps in Delegated Migration Control

Author:
Almut Möller
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
When the European Court of Human Rights found Italy responsible for push-backs on the high seas in Hirsi Jamaa based on Italy’s effective control over the individuals, it simultaneously solidified the concept of jurisdiction as a prerequisite of human rights obligations and provided States with deeper knowledge on how to avoid responsibility. Since then, instead of pushing the migrants back themselves, destination States increasingly delegate the task of migration control to third States. Under the guise of “capacity building”, they fund, train, and equip third States to exercise containment measures and carry out pull-backs. By way of bilateral agreements, destination States remain in control of the migration flow while avoiding any direct contact with the migrants that would trigger their human rights obligations. One example for this is the Italian-Libyan cooperation under the 2017 Memorandum of Understanding, which was renewed in 2020. Migrants intercepted by Libya are systematically detained in prisons under horrific conditions, which is in clear violation of their human rights. The present article explores ways to allocate responsibility on destination States for their involvement in those human rights violations notwithstanding the lack of jurisdiction. In particular, the article deals with the question whether the general international law of State responsibility is applicable alongside international human rights law. Responsibility for complicity, as lined out in Art. 16 of the Articles on State Responsibility for Internationally Wrongful Acts, is compared to the concept of due diligence obligations in international human rights law, dismissing the claim that the latter poses lex specialis. Subsequently, Art. 16 ASR’s substantive requirements are applied to the case study in order to test the provision’s capability to overcome the accountability gap.
Topic:
Human Rights, International Law, Migration, Accountability, and European Court of Human Rights (ECtHR)
Political Geography:
Europe, Libya, and Italy

4. Nigerien Law 2015-36: How a New Narrative in the Fight Against Smugglers Affects the Right to Leave a Country

Author:
Sarah Isabel Pfeiffer
Publication Date:
02-2024
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In 2015, the Republic of the Niger adopted an anti-migrant smuggling law (Law 2015-36) with direct involvement of the European Union (EU). Since then, concerns have been raised that this law constitutes a de facto travel ban for anyone moving northwards from Niger. Rather than addressing the involvement of the EU, this article will focus on the direct obligations of Niger, including those set by regional human rights agreements, as the country where the so-called cooperative migration control takes place. People on the move towards Libya will be a special focus as the most affected by the Nigerien law. First, the Nigerien law and its provisions will be described, in order to then assess whether the law and its application infringe the human right to leave any country including one’s own. Drawing from the findings of non-governmental organizations and the United Nations Special Rapporteur on the Human Rights of Migrants, this article argues that Law 2015- 36 renders it impossible for non-Nigerien nationals to leave the country without risking their life and safety. Thus, Law 2015-36 infringes the right to leave. The third part explores possible justifications for the law with a focus on the interests of people on the move, the interests of bordering States, and national interests. It finds that Law 2015-36 is disproportionate and, in fact, impairs the essence of the right to leave, resulting in an unjustified interference. The concluding fourth part contains recommendations for possible amendments to the law.
Topic:
Human Rights, International Law, Migration, European Union, Smuggling, and Irregular Migration
Political Geography:
Africa, Europe, and Nigeria

5. Dogmatik and International Criminal Law: Approximations in the Realm of ‘Language’ and ‘Grammar’

Author:
Morten Boe
Publication Date:
08-2023
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Starting from the assertion of George Fletcher that there could never be an effective International Criminal Law (ICL) without a corresponding ICL Dogmatik – understood as a supporting culture of ideas and general principles – the article attempts to retrace and critically assess the connection made between the domestic concept and the international realm; to give a first approximation of what ‘ICL Dogmatik’ is supposed to mean. While not being definable in a conclusive way, Dogmatik – as understood in the German legal system – represents a specific habitus and mindset when approaching law, providing for an autonomous legal discourse fueled by the aspiration of a coherent normative system based on argumentative rationality and close cooperation of legal scholarship and legal practice. The article argues that, while the term Dogmatik is a specific cultural expression, the substance of the concept more generally refers to and echoes universal challenges of law and legal scholarship. The urge for an ICL Dogmatik should therefore not be (mis-)understood to argue for an authoritative rule of scholars or the adoption of German legal theories on the international level. Instead, the statement enunciates the necessity to establish ICL as an autonomous normative framework of concepts and terms. Dogmatik merely stands for an abstract vision, which may help to organize legal thinking in ICL, to structure and systemize the field, and most importantly to raise awareness for the necessity to develop a shared and coherent (legal) language, which enables productive discourse between all legal families.
Topic:
International Law and International Criminal Law (ICL)
Political Geography:
Global Focus

6. The Settlement of EEZ Fisheries Access Disputes under UNCLOS: Limitations to Jurisdiction and Compulsory Conciliation

Author:
Valentin J. Schatz
Publication Date:
08-2023
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article revisits the scope of the limitation to jurisdiction ratione materiae under Article 297(3) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in the context of Exclusive Economic Zone (EEZ) fisheries access disputes in the light of recent jurisprudence of UNCLOS tribunals. It first provides an overview over general aspects of Article 297(3) of UNCLOS in the compulsory dispute settlement mechanism of Section 2 of Part XV of UNCLOS. Next, it briefly considers the relationship between Article 297(3) and Article 297(1) of UNCLOS in order to clarify the former limitation’s role in the complex internal logic of Article 297 of UNCLOS. Thereafter, this article addresses the sometimes-overlooked function of Article 297(3) of UNCLOS as a confirmation of jurisdiction with respect to fisheries disputes that are not related to the EEZ. It then analyzes the scope of the limitation to jurisdiction ratione materiae of Article 297(3) of UNCLOS in the context of fisheries access disputes. Next, this article examines the potential and limits of the compulsory conciliation procedure under Article 297(3)(b) and Annex V of UNCLOS with a focus on the scope of the procedural mandate and subject-matter competence of such conciliation commissions.
Topic:
Economics, International Law, and Fishing
Political Geography:
Global Focus

7. Compulsory Settlement of EEZ Fisheries Enforcement Disputes under UNCLOS: “Swallowing the Rule” or “Balancing the Equation”?

Author:
Camille Goodman
Publication Date:
08-2023
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
While there is a widely held view that disputes concerning fisheries in the exclusive economic zone (EEZ) are largely exempt from the compulsory jurisdiction of courts and tribunals as a result of far-reaching exceptions in Part XV of the 1982 United Nations Convention on the Law of the Sea (LOSC), this is not the case for all EEZ fisheries disputes. This article examines the specific question of disputes concerning the enforcement of fisheries laws and regulations in the EEZ, and considers how the Part XV framework has been – or could be – used and interpreted for the compulsory settlement of EEZ fisheries enforcement disputes. It examines the obligation of prompt release established in Article 292, the option to exclude compulsory jurisdiction with respect to law enforcement activities concerning EEZ fisheries by written declaration under Article 298(1)(b), and the opportunity to bring disputes concerning EEZ fisheries enforcement within the scope of compulsory jurisdiction under Article 297(1) by characterising them as relating to the freedom of navigation or the protection and preservation of the marine environment. Framing its enquiry by reference to the question posed in this special issue, the article argues that, rather than “swallowing the rule” of compulsory jurisdiction, the jurisdictional scheme established for EEZ fisheries enforcement disputes helps to “balance the equation” and support the effectiveness of Part XV in protecting the compromises that are embodied in the LOSC.
Topic:
International Law, Territorial Disputes, Fishing, and Jurisdiction
Political Geography:
Global Focus

8. An Unlikely Duo? Regionalism and Jus Cogens in International Law

Author:
Carlos Lima Lima and Loris Marotti
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Recent years have witnessed a renewed interest in peremptory norms of international law (jus cogens) in the international legal discourse.  e ongoing works of the International Law Commission (ILC or Commission) on the topic1 , also prompted by the increasing relevance such norms have gained in the case law of national and international courts, is refreshing the long-standing debate about the scope, nature and content of peremptory norms2 . Against this background, less attention is being paid to the possible relations between jus cogens and regionalism, as well as to the legal and political implications such relations may have in the international realm.
Topic:
International Law, Law, and Regionalism
Political Geography:
Global Focus

9. Dynamic Belt and Road Initiative and the Global South’s Approach to Sustainability

Author:
Dan Yao and Mingzhe Zhu
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
When discussing China’s Belt and Road Initiative (BRI), mainstream scholarship adopts the narrative of grand strategy, which assumes the existence of a predetermined and top-down plan as well as China’s determination to implement it according to its interests and vision. This article, with its focus on sustainability, challenges this narrative and draws attention to the indeterminate features of the BRI. It proposes an alternative interpretation that considers the BRI as a dynamic field that facilitates the emergence of the Global South’s approach to international law. It argues that the countries of the Global South can be regrouped as a symbolic region by their proximity in the global distribution of economic and environmental goods, with its identity defined by common history with international law, and necessary solidarity in the pursuit of the cause of liberation. This article then compares the BRI with the previous projects of the Global South and identifies a vagueness of commitment, lack of coordination mechanism, and flexibility as their key features. Further substantialized by two case studies, it contends that the formulation of rules is determined by strategic interactions between States and different non-State actors in a given location according to local realities.
Topic:
International Law, Belt and Road Initiative (BRI), and Sustainability
Political Geography:
Global South

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

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