Search

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

101. Conflicts over Protection of Marine Living Resources: The 'Volga Case' Revisited

Author:
Saiful Karim
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Non-traditional maritime security concerns have become more important than ever in the post-Cold War era. Naval forces of most developed countries are more concerned about these threats than conventional war. One of the main maritime security issues for many countries in the world is illegal, unreported and unregulated (IUU) fishing in the marine area. With these burgeoning issues comes the potential for a large number of disputes involving international law. In early 2002, a long-line fishing vessel under a Russian flag – the Volga, was detained by Australian authorities a few hundred meters outside the Exclusive Economic Zone of Australia's Heard and McDonald Islands in the Southern Ocean. The vessel was reportedly engaged in illegal fishing. This incident gave birth to litigation in international and Australian courts. Apart from these cases, Russia also announced separate litigation against Australia for violation of Articles 111 and 87 of the United Nations Convention on the Law of the Sea (UNCLOS). Considering the outcome of these cases, this article critically examines the characteristics of litigation as a strategy for pacific settlement of disputes over marine living resources. Using the Volga Case as an example, this article explores some issues related to the judicial settlement of disputes over marine living resources. This article demonstrates that the legal certainty of winning a case may not be the only factor influencing the strategy for settlement of an international dispute.
Topic:
United Nations
Political Geography:
Russia and Australia

102. Regulating Information Flows, Regulating Conflict: An Analysis of United States Conflict Minerals Legislation

Author:
Christiana Ochoa and Patrick J. Keenan
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The focus of this paper is the connection between conflict and commercial activity. In particular, it focuses on the ongoing conflict in the Eastern Democratic Republic of Congo (DRC) that is funded, in large part, by the sale of conflict commodities – minerals, metals, and petroleum – that fund violent groups at their source and then enter legitimate markets and products around the world. Recently, attention has turned to how to regulate conflict commerce as a tool for divesting from violent conflict. In the United States, for example, the recently adopted Dodd-Frank Wall Street Reform and Consumer Protection Act include a provision addressing conflict minerals originating from this region. The violent and secretive nature of conflict minerals transactions makes crafting effective regulation and policing strategies challenging. As a result the Dodd-Frank Act, like other domestic and international efforts, is designed in large part to discover, gather and disseminate information about the nature and scale of conflict commodities emanating from the DRC. This paper analyzes this legislation while also discussing a number of other current conflict commerce governance efforts. It observes the difficulty of regulating in the context of conflict and corruption and analyses the use of regulation as a tool for information- xtraction, information-forcing and information-dissemination as opposed to its use as a tool for directly proscribing undesirable behavior.
Political Geography:
United States and Democratic Republic of the Congo

103. Incentives and Survival in Violent Conflicts

Author:
Moshik Lavie and Christophe Muller
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This paper analytically investigates the incentive scheme of perpetrators of violent conflicts. It provides a rational equilibrium framework to elicit how monetary incentives and survival considerations shape a combatant‟s decision to participate in a conflict. In the model, a leader decides to award soldiers monetary incentives. Civilians finance the militia via donations and soldiers decide on the actual fighting and indulge in looting. We explore the scheduled decision-making that takes place on the path toward a violent conflict and study the principal-agent relationship that exists between the leader and the militia. In addition, we analyze the effect of several internal factors (productivity and survival risk) and external factors (relative economic resources, opponents‟ military strength) on the intensity of the conflict.
Topic:
Economics

104. Enhancing Compliance with International Law by Armed Non-State Actors

Author:
Annyssa Bellal and Stuart Casey-Maslen
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Enhancing compliance with international norms by armed non-state actors is central to efforts to improve the protection of civilians in armed conflict. Limited engagement with such actors, as well as lack of clarity as to the precise nature and extent of the international legal regimes that are applicable to them, constitute significant barriers to achieving better compliance. In this article the authors argue for international human rights law to be more widely seen as imposing direct obligations upon armed nonstate actors and for counter-terrorism legislation not to be interpreted so as to preclude engagement on positive respect for humanitarian norms. What is needed is greater engagement with armed non-State actors, not less.

105. Regulation of Private Military Companies

Author:
Alexander Kees
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The increasing use of private military companies by states in armed conflict raises questions regarding the regulation of those non-state actors. However, even though the privatization of core state functions might be an emerging phenomenon with respect to its extent and quality, there is no legal vacuum for the activities of private military contractors. According to international humanitarian law, states must ensure respect for the ius in bello and enforce applicable international law also with respect to private contractor personnel if they are charged with functions governed by international law. Against this background, the challenge for future regulation is on the national and administrative level. States must intensify their efforts to implement existing standards.

106. Armed Forces as Carrying both the Stick and the Carrot? Humanitarian Aid in U.S. Counterinsurgency Operations in Afghanistan and Iraq

Author:
Alice Gadler
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The fight against insurgents in Afghanistan and Iraq has led the U.S. and its allies to devote growing attention and resources to counterinsurgency strategies, stability operations and civil-military operations. Humanitarian and development assistance have acquired an important role in military strategies. However, the activities carried out by armed forces in the field of humanitarian assistance in Afghanistan and Iraq have been criticized for blurring the distinction between civilian and military actors and thus increasing the risk of being targeted for humanitarians and civilians. The article analyzes the conduct of U.S. armed forces in Afghanistan and Iraq and the challenges it has posed to humanitarian actors. It then examines U.S. military doctrines and manuals and argues that their most recent versions have increasingly taken into account the needs of humanitarian actors and the principles of humanitarian action, but reasons for concern remain. The engagement of the military in humanitarian assistance has not been definitely limited. In addition, humanitarians should be careful in their relationships with the armed forces in the field of information-sharing.
Political Geography:
Afghanistan, United States, and Iraq

107. Settling Trade Disputes over Natural Resources: Limitations of International Trade Law to Tackle Export Restrictions

Author:
Stormy-Annika Mildner and Gitta Lauster
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the light of rising competition, scarce natural resources are increasingly perceived as a potential national security risk. Hence, governments are increasingly intervening in primary commodity markets to secure domestic supply at lower prices, for instance, by restricting exports through tariffs and quotas. While limiting exports may be justified in certain cases such as temporary shortages of food supply, they are often a second-best policy tool to address domestic market failures, risking international trade distortions. Some import-dependent countries have therefore lobbied for an update of WTO regulations to curtail the use of export restrictions; others have turned to preferential trade agreements (PTAs) to achieve stricter disciplines. In this paper, the following questions are addressed: What are the current WTO rules regulating export restrictions on natural resources, and what are their limitations? Are PTAs better equipped to prevent trade distortions through export restrictions? To answer these questions, we confine our analysis mostly to Free Trade Agreements (FTAs), not considering the multitude of one-sided preferential agreements.

108. Resource Conflicts over Arable Land in Food Insecure States: Creating an United Nations Ombudsman Institution to Review Foreign Agricultural Land Leases

Author:
Anastasia Telesetsky
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the last decade of globalization, States in the Middle East, East Asia, Europe, and North America have looked towards Africa and Southeast Asia for opportunities to lease for 30-50 years large tracts of arable land for production of commodity crops and biofuels in order to meet the needs of home markets. Facing their own governance challenges, States in Africa and Southeast Asia have leased land to private foreign investors without requiring any environmental review or mitigation of the proposed land leases. This paper argues that in food insecure states the recent flurry of land leasing activity to foreign agribusiness is likely to lead to unintended long term consequences for the ecology in land-leasing States by depleting the already fragile environment through monocropping, chemical pesticide and fertilizer applications, and large scale irrigation. This paper argues that international investment law may provide foreign investors with legal protection if land leasing States in the future decide to regulate the leases in a manner that discriminates against large agribusiness. The current proposals for self-regulatory voluntary codes of conduct do not provide sufficient oversight over the leasing process to protect the public's interest in a healthy and productive environment against foreign investors who have under the current lease structure no incentive to improve the land that they are leasing. The creation of an United Nations based ombudsman to provide legal and technical oversight and support for States making long-term leases has greater potential than a voluntary code for ensuring a balanced negotiation among the interests of host State governments for investment, investors for arable land, and the public for long-term sustainability.
Topic:
United Nations
Political Geography:
Africa, Europe, Middle East, East Asia, North America, and Southeast Asia

109. Overcoming State-Centrism in International Water Law: 'Regional Common Concern' as the Normative Foundation of Water Security

Author:
Bjørn-Oliver Magsig
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The peaceful management of the world's freshwater resources is one of the most challenging tasks the international community is facing. While 'water war' is a catchphrase mainly used by the media, one cannot overstate the disruptive force water disputes have on all aspects of socio-economic development and the environment. Furthermore, the accelerating global water crisis draws a dark picture in which the future may look nothing like the present. With rising demand and declining availability of key natural resources, the world might soon face a 'perfect storm' of food, energy and water shortages. A simultaneous occurrence of these crises would seriously threaten global stability, and thus endanger the very foundation of international security.

110. Between the Scylla of Water Security and Charybdis of Benefit Sharing: The Nile Basin Cooperative Framework Agreement – Failed or Just Teetering on the Brink?

Author:
Dereje Zeleke Mekonnen
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The threat of water-related conflicts is comparatively more real and serious in the Middle East and North Africa hydrographic region where the Nile is found. Ominous predictions about water being the next casus belli in the region abound. There are many conflict determinants in the Nile basin which lend much credence to the predictions and the basin's proneness to conflict is quite evident. The unprecedented positive rapport brought about by the launching of the Nile Basin Initiative (NBI) and the enormous hope and optimism evoked by its lofty Shared Vision explain the unprecedented serenity and cooperative atmosphere the basin has witnessed over the past decade. The decade-long effort to work out and agree on an inclusive legal and institutional framework for the basin has, due to the cunning interpolation of the treacherous, non-legal concept of 'water security', ended up in failure., The subsequent shift to and endorsement of benefit sharing as an alternative, simple and cure-all solution to the Nile waters question has further dimmed the prospect for the realization of the Shared Vision which now sounds more like a pipe dream than a realizable vision. Whether these adverse developments would finally pave the way for the ominous predictions to come to pass is as much unlikely as it is perplexing. It will be argued, in this paper, that the likelihood of violent conflicts over the Nile waters is an unlikely scenario, the more likely turn of events being further continuation of the iniquitous status quo.
Political Geography:
Africa, Middle East, and North Africa

111. Information Warfare and Civilian Populations: How the Law of War Addresses a Fear of the Unknown

Author:
Lucian Dervan
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Imagine a civilian communications system is being temporarily relied upon by an opposing military force for vital operations. If one launches a computer network attack against the communications system, the operation may disable the opposing force's ability to function adequately and, as a result, prompt their surrender. The alternative course of action is to launch a traditional kinetic weapons attack in the hopes of inflicting enough casualties on the troops to induce surrender. Given these options, the law of war would encourage the utilization of the computer network attack because it would result in less unnecessary suffering. But is the same true if we are unsure of the collateral consequences of the computer network attack on a large civilian population that also relies on this communications system? For instance, because civilians use the same communications system to gather critical information, disabling the system might result in rioting, civil disorder, serious injuries, and deaths. Further, civilians may be unable to call for help, seek out medical assistance, or locate emergency response centers. Given these unknown yet potentially severe collateral consequences to civilians, it becomes less clear that a proportionality analysis under the law of war would favor the computer network attack over the traditional kinetic operation. In this article, Professor Lucian E. Dervan examines the application of the law of war to information operations and analyses the role of the Geneva Convention's utilitarian goals in determining the validity of computer network attacks against dual-use civilian objectives.
Political Geography:
Geneva

112. Limits of the Impact of the International Criminal Tribunal for the Former Yugoslavia on the Domestic Legal System of Bosnia and Herzegovina

Author:
Eszter Kirs
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Information is a fundamental resource in post-conflict societies. However, information-sharing may lead to both advantages and disadvantages. The main focus of the present paper is the flow of information and knowledge from the International Criminal Tribunal for the Former Yugoslavia (ICTY) to the domestic judicial system of Bosnia and Herzegovina. Following a brief introduction of the dynamics of the changing relationship of the Tribunal and the Bosnian judiciary, the paper aims to outline the positive achievements and the practical barriers of the international intervention into the management of war crime cases in Bosnia and Herzegovina. The paper introduces the practical problems that came forth with the introduction of the adversarial procedure in the domestic judicial system, by which measure international intervention might have gone too far resulting also in negative consequences with regard to the management of domestic war crime trials.
Political Geography:
Bosnia, Herzegovina, and Yugoslavia

113. The Abyei Arbitration: A Model Procedure for Intra-State Dispute Settlement in Resource-Rich Conflict Areas?

Author:
Freya Baetens and Rumiana Yotova
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In 2009, the Permanent Court of Arbitration administered a unique case: the Abyei Arbitration between the Government of Sudan and the Sudan People's Liberation Movement/Army. This case is unique in several aspects: first, it is an example of intra-state dispute settlement in a conflict zone rich in natural resources, second, it was conducted under a fast-track procedure, and third, it was fully transparent, with all documents and full webcast of the proceedings still available on the PCA website. Currently there is a large number of outstanding intra-state disputes, not limited to Africa, so this paper assesses why the Parties in the Abyei Arbitration chose arbitration in the first place and whether this model could be successfully applied to other similar disputes.
Topic:
Government
Political Geography:
Africa and Sudan

114. Adjudicating Conflicts Over Resources: The ICJ's Treatment of Technical Evidence in the Pulp Mills Case

Author:
Juan Guillermo Sandoval Coustasse and Emily Sweeney-Samuelson
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Conflicts over resources and the consequences of utilizing those resources can ignite social and political demonstrations, especially when the conflict is over a shared resource. Solving those conflicts requires both an institution and a procedure that are not just binding but also legitimate in the eyes of the constituencies An important aspect of a legitimate procedure is that it correctly establishes the facts.

115. From Riches to Rags – the Paradox of Plenty and its Linkage to Violent Conflict

Author:
Pelin Ekmen
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The article addresses the economic phenomenon of the so called Dutch Disease, also known as the Paradox of Plenty, as faced by countries rich in natural resources. Rendering a rough definition of this occurrence, the article continues to dwell on the link age between violent conflict and illicit resource trade in the Democratic Republic of Congo (DRC).
Political Geography:
Democratic Republic of the Congo

116. Resources of Conflict - Conflicts over Resources

Author:
Marie-Claire Cordonier Segger
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
I am honored, esteemed colleagues and scholars, to assist you in opening this conference. We are gathered here to consider a crucial and timely problem, the linkages between two impossible challenges facing over a billion people in our world today. Conflicts over resources have been responsible for disputes and even wars both among, and within, many countries. They cause suffering for millions today, and continue to hold back important progress for many, many more. This conference doesn't just accept these terrible facts. It actively considers how the law can help to break the vicious cycle, bringing resolution and sustainable development to those who most need it. I congratulate the organizers, and also all of you as speakers and participants, for your foresight and your intellectual courage.

117. 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

118. The Myth of 'International Crimes': Dialectics and International Criminal Law

Author:
Mayeul Hiéramente
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The label of 'international crime' for genocide, crimes against humanity and war crimes appears to be universally or at least widely accepted and casting doubt regarding this determination is considered a near transgression for an international (criminal) lawyer. The way international (criminal) lawyers label a crime influences the way they present it, their readers perceive it and the academic community reproduces it. Ultimately, repeated references to the presupposed 'international nature' influence the evolution of international (customary) law, blur the line between the 'international' and the 'national' and create an amalgam of wishful thinking, political aspirations, prosecutorial necessities and the evolution of substantive (criminal) law. This article scrutinizes why the current doctrine singles out a certain category of criminalized human rights abuses as 'international' and questions if genocide, crimes against humanity and war crimes should really be viewed as 'international crimes', while murder, theft or sexual abuse are largely being considered as 'national crimes' or 'ordinary crimes'. It concludes that there is no substantive reason for classifying these crimes as 'international': they are per se no threat to peace; they don't share a contextual element; war crimes and genocide are not per se determined by the scale of the abuses; implication of the state or state-like entities is typical for human rights abuses in general and not only the so-called 'international crimes'. However, common to all three crimes is the (perceived) need and wish for an international response to the commission of the crimes in question. If the state is implicated in the commission and the cover-up of some of atrocities, the 'international community' has reason to fear that accountability for and punishment of these crimes cannot be achieved on the national level. 'International prosecutions' of 'national crimes' can therefore be considered legal and legitimate under limited circumstances.
Topic:
Human Rights

119. Does International Criminal Law Still Require a 'Crime of Crimes'? A Comparative Review of Genocide and Crimes against Humanity

Author:
Alexander R. J. Murray
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article argues that the crime of genocide is now a redundant crime in international law given the advances that have been made in the case law and application of crimes against humanity. It does this by providing an historical analysis of the two crimes before going on to consider four separate crimes against humanity and corresponding acts of genocide. The primary argument leveled against genocide is the difficulties that stem from proving the intent in the mind of the perpetrator to destroy a particular group in contrast to the less demanding category of crimes against humanity. It argues for a pragmatic rather than philosophical approach to international justice for the benefit of the victims and the prevention of criminal acts in the future.
Topic:
Law

120. Subsequent Practice and Established Practice of International Organizations: Two Sides of the Same Coin?

Author:
Christopher Peters
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The present Article considers and compares the subsequent practice of the parties according to Art. 31 (3) (b) VCLT and established practice amounting to rules of an international organization (Art. 5 VCLT). The significance of these concepts lies in their potential to contribute to the adaptation of constituent instruments of international organizations to changing factual and normative circumstances. Established practice can serve as a hinge between the general law of treaties and the law of international organizations. The paper argues that both concepts are not two sides of the same coin, but that they have to be distinguished. Whereas subsequent practice primarily serves in interpretation, established practice amounting to a rule of the organization is quasi-customary law specific to the respective organization. It can even influence the preconditions for and significance of subsequent practice in the application of constituent instruments. Thus, the requirements for the agreement of the parties in accordance with Art. 31 (3) (b) VCLT can be relaxed and tacit consent can be recognized more easily. In some cases even organ practice which is independent from (all) Member States can create subsequent practice. However, these informal mechanisms of change raise problems of legitimacy.
Topic:
International Organization

121. Normative Heterogeneity and International Responsibility: Another View on the World Trade Organization and its System of Countermeasures

Author:
Ranieri Lima Resende
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
As legal subjects, international organizations are seen as apt for both active and passive participation in the international judicial area and, in this regard, are regulated according to a specific responsibility regime, as established by the United Nations International Law Commission, in its latest reports on this matter. The challenge here lies on testing this regime as to its applicability in relation to the World Trade Organization, in view of the fact that this organization's conduct may potentially produce internationally illicit acts. After asserting the WTO's juridical nature, normative parameters to which the entity is submitted are established in the general international law based on the acknowledgement of its horizontal and vertical relations with the so-called WTO Law. From this point onwards, it is possible to assert that international illicitness in the World Trade Organization's practice becomes legally verifiable through an institutional performance capacity analysis of its organs and agents, with special focus on its countermeasures system.
Topic:
International Organization, United Nations, and World Trade Organization

122. A System of Collective Defense of Democracy: the Case of the Inter-American Democratic Charter

Author:
Vasiliki Saranti
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the years that followed the end of the Cold War, the international community showed a growing interest in the democratic legitimacy of governments. With regard to the Western Hemisphere, the Organization of American States has been particularly pioneering in this respect, since it initiated a mechanism of intervention by peaceful means, once the democratic stability in a state was threatened, a process which culminated with the approval of the Inter-American Democratic Charter.
Topic:
Cold War
Political Geography:
America

123. Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem

Author:
Killian S. O'Brien
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Following in the aftermath of the Arab Spring, Europe's southern marine borders have been the showplace of human tragedies previously unseen on this scale and the issue of refugees on the high seas has assumed a newfound importance. This article examines the flawed system provided by the 'Constitution of the Oceans', the UN Convention on the Law of the Sea for the protection of the lives of migrants at sea. It submits that international refugee law is well-equipped to assume a greater responsibility in ensuring the protection of those involved. Although the concept of non-refoulement cannot be stretched ad absurdum, it may still be reasonably interpreted as providing a temporary right to disembark for the purpose of processing possible asylum applications. In the long-term, a system of burden-sharing and permanent, yet flexible, reception agreements remain the only sustainable solution.
Topic:
United Nations and Law
Political Geography:
Europe and Arabia

124. Rights at the Frontier: Border Control and Human Rights Protection of Irregular International Migrants

Author:
Julian M. Lehmann
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In light of recent events causing people's movement into Europe, continued misuse of the term “migrant” in policy making and public discourse, and at the occasion of events celebrating the international regime of refugee protection, the human rights protection of irregular migrants is explored in relation to irregular migrants' entry/admission and expulsion/deportation. The term “migrant” has, in contrast to the term “refugee”, no bearing on whether or not an international migrant has a need for international protection. While many irregular migrants have no such need, other migrants may be refugees or be in need of international protection “outside” the framework of the 1951 Convention relating to the Status of Refugees. The paper analyses the international human rights law framework applying to individuals with and without need for international protection, when their claims have a socio-economic dimension. The principle of non-refoulement remains the most important source of protection for irregular migrants; it is not concerned with the irregular status of a migrant and also has a bearing on procedural rights in status determination. Socio-economic motivations for flight are not a bar to being a refugee within the meaning of the 1951 Convention, if their underlying cause is persecution, or if motives are mixed. Refugee law can accommodate such claims and overcome a strict dichotomy but is currently only rarely and restrictively applied in this regard. In expulsion cases, virtually only the prohibition of torture, inhuman or degrading treatment is relevant. For individuals that have no need for international protection there are mitigating individual circumstances which a state has to take into account. All pertinent norms of international human rights law apply without distinction and irregular migrants may have, just as refugees may have, humanitarian needs that states should meet.
Topic:
Human Rights
Political Geography:
Europe

125. Complementary Protection for Victims of Human Trafficking under the European Convention on Human Rights

Author:
Vladislava Stoyanova
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The international legal framework regulating the problem of human trafficking contains the presumption that the return of victims of human trafficking to their countries of origin is the standard resolution for their cases. However, victims might have legitimate reasons for not wanting to go back. For those victims, resort to the legal framework of the European Convention on Human Rights could be a solution. I elaborate on the protection capacity of Article 3 when upon return victims face dangers of re-trafficking, retaliation, rejection by family and/or community and when upon return to the country of origin victims could be subjected to degrading treatment due to unavailability of social and medical assistance. In light of the Rantsev v. Cyprus and Russia case, I develop an argument under Article 4 that states cannot send victims to those countries which do not meet the positive obligations standard as established in the case. Article 8 could be relevant: first, when the level of feared harm in the country of origin does not reach the severity of Article 3 but is sufficiently grave to be in breach of the right to private life and engage the non-refoulement principle, and second, when the victim has developed social ties within the receiving state and the removal will lead to their disruption.
Topic:
Human Rights
Political Geography:
Russia and Europe

126. Editorial

Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Since our last issue in May 2011 several events with global impact have filled the newspapers and confronted us with the need for new judicial and political solutions. In the meantime, Hosni Mubarak's trial has begun and it raises again important questions on how to handle trials of ex- dictators. The trial may foreshadow the future stance to the rule of law of Egypt's new politic system. The events in Libya and also Syria sparked a new discussion about the concept of responsibility to protect.
Political Geography:
Syria and Egypt

127. 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

128. Protecting in Libya on Behalf of the International Community

Author:
Marie-José Domestici-Met
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Here is the third issue of a series of three, under the global title "Humanitarian Action – A Scope for the Responsibility to Protect?". The first issue dealt with "Humanitarian Assistance Looking for a Legal Regime Allowing its Delivery to Those in Need under any Circumstances" and ended with the conclusion that humanitarian action protagonist had hitherto failed to find the adequate regime. The second issue questioned whether R2P was a legal tool ready to use; it ended with the conclusion that it was not yet really the case.
Political Geography:
Libya, Arabia, and United Nations

129. 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

130. 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

131. The International Residual Mechanism and the Legacy of the International Criminal Tribunals for the former Yugoslavia and Rwanda

Author:
Gabrielle Bardall
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
By Security Council Resolution 1966 (2010), the Security Council established the International Residual Mechanism for Criminal Tribunals as the legal successor to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In the creation of the Residual Mechanism, the Security Council appears to have intended to ensure the continuation of the work of the Tribunals and thereby safeguard their legacies. Accordingly, the Statute of the Residual Mechanism continues the jurisdiction of the Tribunals, mirrors in many respects the structures of the Tribunals, and ensures that the Residual Mechanism's Rules of Procedure and Evidence are based on those of the Tribunals. However, the Statute of the Residual Mechanism is silent with regard to the weight the Judges of the Residual Mechanism must accord to ICTY and ICTR judicial decisions. While there is no doctrine of precedent in international law or hierarchy between international courts, this omission by the Security Council does have the potential to negatively impact the legacies of the Tribunal by allowing for departures by the Residual Mechanism from the jurisprudence of the Tribunals, which lead to similarly situated persons being dissimilarly treated. Nevertheless, even if the Residual Mechanism does adopt the jurisprudence of the Tribunals as its own, as a separate legal body it will still have to answer constitutional questions regarding the legitimacy of its establishment by the Security Council. While it can be anticipated that the Residual Mechanism will find itself validly constituted, the wisdom of the Security Council's decision to artificially end the work of the Tribunals by the establishment of the Residual Mechanisms will ultimately turn upon the question of whether any inherent unfairness could be occasioned to persons whose proceedings are before the Residual Mechanism. It will be suggested that the Security Council has provided the Residual Mechanism with sufficient tools to ensure that its proceedings are conducted in para passu with those of the Tribunals and that the responsibility of ensuring the highest standards of international due process and fairness falls to the Judges of the Residual Mechanism.
Topic:
Security
Political Geography:
Yugoslavia and Rwanda

132. Tadic Revisited: Some Critical Comments on the Legacy and the Legitimacy of the ICTY

Author:
Mia Swart
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article will return to questions raised during the establishment of the ICTY and particularly the Tadic case. It will be argued here that the aspect of Tadic that remains unresolved is the fundamental question of whether the ICTY has been established legitimately. The legitimacy argument forms an important part of the legacy debate of the ICTY. Although the Tadic Appeals Chamber has formally answered the question of the legitimacy of the ICTY it will be argued that the reasoning of the Appeals Chamber was not sufficiently strong or persuasive. The legitimacy debate reflects the wider influence of the ICTY's jurisprudence since some of the arguments made by the Tadic Appeals Chamber have been replicated or repeated in the trials of Saddam Hussein and Charles Taylor. The legitimacy question is crucial since it affects the very foundations of the ICTY. If the legitimacy of the ICTY is not established satisfactorily, it affects how one considers the achievements mentioned above. In a sense the substantive and procedural achievements of the ICTY are dependent on the legitimacy of the ICTY. This article will consider the difference between the ICTY's self-perception and the way the work of the Tribunal over the last sixteen years has been perceived from the outside. The focus of the article will be on the lingering question of the legitimacy of the Tribunal. It has argued that legitimacy can also be acquired after the initial establishment. The article will consider whether the ICTY's initial defect in legitimacy could subsequently be remedied by the fairness of the proceedings and the moral power of the ICTY.
Topic:
Security
Political Geography:
Yugoslavia

133. The Legacy of the ICTY as Seen Through Some of its Actors and Observers

Author:
Frédéric Mégret
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article proposes an exploration of the 'legacy' of the ICTY through the experience of some of its actors and observers. It is based on material provided by a dozen interviews and written in the spirit of understanding the tribunal's legacy as a collection of complex individual narratives of what the tribunal stands for, what it did well, and what it might have done better. The legacy of the ICTY as an international criminal tribunal on the one hand, and as a device for transitional justice on the other hand are considered. Although a tension is found to exist between a more 'forensic' and a more 'transitional' view of its role which is particularly manifest in determining the tribunal's constituencies and policies, the two are also linked. There is broad consensus about the tribunal's importance, but on the eve of its closing, also a sense of the limits of what international criminal justice can aspire to achieve.
Political Geography:
Yugoslavia

134. The ICTY Legacy: A Defense Counsel's Perspective

Author:
Michael G. Karnavas
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The ICTY's achievements are as impressive as they are irrefutable. Less impressive is the uneven quality of procedural and substantive justice that the Tribunal has rendered. The author highlights several shortcomings at the Tribunal, including the appointment of unqualified judges, excessive judicial activism, its disparate application of law, procedure, and prosecutorial resources to different ethnic groups, and its tinkering with the rules of procedure to promote efficiency at the cost of eroding the fundamental rights of the Accused. Drawing on specific examples, from the approach adopted concerning the admissibility of testimonial evidence to specific areas of substantive law where judicial activism has been pronounced – the development of joint criminal enterprise and the requirements for provisional release at a late stage of the proceedings – this article is one defense counsel's perspective of some of the most unfortunate shortcomings of the ICTY, which regrettably form part and parcel of the Tribunal's legacy.
Topic:
Security and Law
Political Geography:
Yugoslavia and United Nations

135. The Winding Down of the ICTY: The Impact of the Completion Strategy and the Residual Mechanism on Victims

Author:
Giovanna M. Frisso
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Even though not clearly spelled out in its constitutive instrument, one characteristic of the International Criminal Tribunal for the Former Yugoslavia (ICTY) is its temporary character. This characteristic presents the ICTY with a significant challenge, the complexity of which is increased by the fact that the tribunal has a multi-faceted mandate. This article examines the effects of the completion strategy of the ICTY on the victims of the crimes under its jurisdiction. Initially, it considers the impact of the completion strategy on the victims who participated, as witnesses, in the proceedings before the ICTY. It argues that the pressure to comply with the timeframe established by the Security Council has resulted in the reduction of the victims to their forensic usefulness. The victims were considered primarily in light of their instrumental relevance to the proceedings. Then, the article suggests, through the analysis of the referral of cases to domestic courts and the value of the archives of the ICTY, that the completion strategy can or might have a positive effect on the implementation of the rights of the victims who have not had direct contact with the ICTY. In this context, this article argues that the termination of the ICTY does not necessarily mean that the struggle for the implementation of the rights of the victims has finished.
Topic:
Security
Political Geography:
Yugoslavia

136. Editorial

Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
After our last issue “Strategies for Solving Global Crises – The Financial Crisis and Beyond” in March we are delighted to present this issue to our esteemed readers.

137. New Protectionism – How Binding are International Economic Legal Obligations During a Global Economic Crisis?

Author:
Stephan Hobe and Jörn Griebel
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The global financial crisis has not only instigated states to enact a wide range of protectionist measures, by which they seek to protect their economic interests, but it also forms the background against which possible justifications regarding protectionist measures have to be discussed and measured. The present article examines recent examples of protectionist measures and discusses, to what extent such measures may be justified by rules stemming from the WTO legal regime or international investment law in general. The authors focus on the concept of “economic necessity”, which is enshrined in Art. 25 of the ILC Articles on State Responsibility and which has taken on even greater importance due to the Argentina investement law cases. They furthermore explore, whether this concept has been recognized by the WTO legal regime and/or bilateral investment treaties (BITs) and what criteria would have to be met so that a state could successfully rely on necessity to justify its actions in times of an economic crisis.
Political Geography:
Argentina

138. Reservations and the Effective Protection of Human Rights

Author:
Johanna Fournier
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Already since the first United Nations (UN) human rights treaties have been signed in 1966, it has been contested whether signatory states should be allowed to make reservations to different articles of the treaties. Many argue that reservation undermine the treaties and are not compatible with the universal application of human rights. One might hence ask whether reservations are compatible with human rights at all. Without disagreeing with these demurs, this essay will reverse the question: Is an effective protection of human rights possible without reservations? To answer this question, this essay will outline the current legal and practical framework on making reservations to UN human rights treaties in Part A. and will present a possible modification to this framework. In Part B. it will then demonstrate how reservations can be used to actually advance the effective protection of human rights. By being used as a starting point for the dialogue between the treaty bodies and the signatory state, reservations do not undermine human rights treaties, but support their purpose: the effective protection of human rights.
Topic:
United Nations

139. The Future of Peacekeeping in Africa and the Normative Role of the African Union

Author:
Charles Riziki Majinge
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
While it has been the responsibility of the United Nations to conduct peacekeeping operations on the continent, the trend is gradually changing. African Union and its regional organizations (RECs) are increasingly assuming responsibility of securing peace and stability on the continent. Many reasons militate in favour of this trend. Chiefly the unwillingness of the United Nations Security Council and of the developed countries to intervene timely and adequately to avert humanitarian catastrophes as happened in Rwanda, Southern Sudan and Angola. Furthermore, the desire of Africa to take steps to address its own problems without heavily relying on assistance from the international community whose availability is neither assured nor sufficient. This contribution argues that Africa can no longer expect the international community to shoulder the burden of peacekeeping in some of the most intractable conflicts on the continent without taking steps to participate actively in the process itself. While Africa has expressed its desire to address its own problems through the vision of “African solutions for African Problems”, African leaders must show greater willingness to fund and strengthen institutions they establish to carry out this vision. Lastly, the paper contends that the international community, especially the developed states, should take genuine and adequate measures to assist Africa realize its vision. A strong African Union capable of securing peace and stability on the continent is in the best interests not only of Africa but also of the international community as a whole.
Political Geography:
Africa, Sudan, Rwanda, and Angola

140. Humaneness, Humankind and Crimes against Humanity

Author:
Bernhard Kuschnik
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Due to its vagueness, the notion of humanity has created some discomfort within the system of international criminal law ever since it was codified as a legally binding concept in the mid 1940's. In Prosecutor v. Kantanga/Chui the Pre-Trial Chamber I of the International Criminal Court (ICC) has given its own interpretation of the term. The Chamber claimed that the related provision of 'other inhumane acts' is more strictly construed in the ICC Statute than in previous Statutes of the ICTY and ICTR, and cannot be regarded as a catch all provision, and should predominantly be interpreted from the wording of the ICC Statute. The author argues in this article that a broad interpretation of 'other inhumane acts' pursuant to Article 7(1) (k) of the ICC Statute is required. The notions of humanity and 'other inhumane acts' should be concretized by relying closely on the legal historical and linguistic roots of the provision. Coming from this analysis, it is suggested that a serious injury to human dignity should count as an 'other inhumane act' and thus, as a crime against humanity.

141. Secession in Theory and Practice: the Case of Kosovo and Beyond

Author:
Ioana Cismas
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Since 17 February 2008 - the day of Kosovo's declaration of independence from Serbia - it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. This article carves out the place of secession in international law by appeal to fundamental principles and legal doctrine. It also explores major sociopolitical aspects in Kosovo's history, from the battle of Kosovo Polje in 1389 to Security Council resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). By following these two analytical paths Kosovo is exposed as a case of remedial secession and thus as a potential legal precedent. While the elements of remedial secession are gathered, it is argued that states deprived this instance of practice of its precedential value and made it a legally insignificant act. In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism.
Topic:
United Nations
Political Geography:
Kosovo and Serbia

142. The Russian Federation, Protocol No. 14 (and 14 bis), and the Battle for the Soul of the ECHR

Author:
Bill Bowring
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
With a focus on the Russian Federation, this article examines the adoption by the Council of Europe of Protocol No.14 to the European Convention on Human Rights (ECHR), and its long-delayed coming into force. The author starts with the question of the original object and purpose of the Council, and how they have now changed. This leads to an analysis of the nature of the crisis – a crisis of success – now faced by the ECHR system, and the reform process which started, on the 50th anniversary of the ECHR, in 2000. After describing Protocol No.14 itself, and the discussion which has surrounded it, the article turns to the central issue. This is not the question of procedural reform, or even admissibility criteria, but what lies behind – the “soul” of the ECHR system. Should the Strasbourg Court remain a court which renders “individual justice”, albeit only for a handful of applicants and with long delays; or should it make become a court which renders “constitutional justice”? The article focuses on the specific problems faced by Russia in its relations with the Council of Europe; and an analysis of the lengthy refusal by the Russian State Duma to ratify Protocol No. 14. The author concludes with an attempted prognosis.
Political Geography:
Russia and Europe

143. “Nothing but a road towards secession“?- The International Court of Justice's Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

Author:
Mindia Vashakmadze and Matthias Lippold
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
On 22 July the International Court of Justice (ICJ) delivered its Advisory Opinion on Accordance with international law of the unilateral declaration of independence (UDI) in respect of Kosovo. There is a wide range of legal questions related to Kosovo's UDI. However, the ICJ decided by way of a narrow interpretation of the General Assembly's request to focus only on prohibitive rules. The Court came to the conclusion that the UDI did not violate international law. While this result is defendable, the way the Court got there is problematic. The Court missed its opportunity to provide legal guidance in fields of secession and self-determination. This article shall give a first overview of the Court's reasoning.
Political Geography:
Kosovo

144. Kampala June 2010 – A First Review of the ICC Review Conference

Author:
Hans-Peter Kaul
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the years and months before the ICC Review Conference, which took place in Kampala, Uganda from 31 May to 11 June 2010, there were, from the perspective of the International Criminal Court (ICC), quite a number of important if not crucial questions: What would be the course and what would be the outcome of the Review Conference? How would it affect the Review Conference that it would be held not only in Africa, but in an African situation country? Would there be only a narrow, maybe inappropriately narrow, examination of the institution of the Court? Or would there be a review of the entire ICC system as established by the Rome Statute? What about the stocktaking with regard to the four critical themes chosen for this Review Conference, namely cooperation, complementarity, impact on victims and affected communities, and the important question of the relationship between peace and justice? Which amendments to the Statute would be considered or adopted? Above all, would there be any progress or maybe even a breakthrough with regard to the very difficult, unresolved issues concerning the crime of aggression as referred to in Article 5(1)(d) of the Statute? It is against this background of questions, hopes and expectations that this contribution tries to briefly assess the Review Conference. The first part of this introductory comment (A) reflects the author's hopes and expectations prior to the Review Conference. It is based on a speech delivered by the author in May 2010.1 The second part of this comment (B), is a first analysis and review of the course and outcome of the Review Conference. The author hopes that this comparative approach may be an informative and interesting manner to provide in this Article a first summary of what was expected, what happened and what was actually achieved in Kampala. A.
Political Geography:
Uganda, Africa, and Kampala

145. Uganda and the International Criminal Court Review Conference: Some Observations of the Conference's Impact in the 'Situation Country' Uganda

Author:
Sabine Klein
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The International Criminal Court Review Conference took place in a 'situation country' of the International Criminal Court (ICC), meaning in a Country the ICC is currently investigating. Therefore, the Conference had a dimension, which arose besides the factual conference and its outcomes. This article pictures observations of developments in Uganda due to the Conference and shows how issues of International Criminal Law have been increasingly recognized and discussed within the regional society. The meaning of the Conference's venue in a 'situation country' in the Rome Statute system is to be assessed, whereby reference is made to the ICC's outreach and (positive) complementarity.
Political Geography:
Uganda

146. Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala, 31 May-11 June 2010

Author:
Roger S. Clark
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The first Review Conference on the International Criminal Court had three items on its agenda proposing amendments to the Rome Statute. The proposal to delete Article 124 of the Statute (which permits States to opt out of the war crimes provisions of the Statute for seven years) failed. Proposals for a comprehensive set of provisions facilitating the Court's exercise of its jurisdiction over the crime of aggression were adopted. The existing provisions on weapons that are banned in international armed conflict were incorporated also into the part of the Statute dealing with non-international armed conflicts.
Political Geography:
Rome and Kampala

147. The Crime of Aggression After Kampala: Success or Burden for the Future?

Author:
Robert Heinsch
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The article provides a first evaluation of the results achieved in Kampala. The author focuses on the resolution dealing with the crime of aggression which was adopted by consensus. Apart from providing a detailed analysis of the new Article 8bis of the Rome Statute which defines the crime of aggression, he also gives an overview of the provisions foreseen for the exercise of jurisdiction over this crime contained in Articles 15bis and 15ter. This includes also the difficult relationship between the ICC and the Security Council with regard to the exercise of jurisdiction. In the author's view the resolution must already be characterized as yet another remarkable achievement in the field of international criminal law, even though there are some hurdles to cross before the respective amendment will enter into force.
Political Geography:
Kampala

148. The International Criminal Court's Exercise of Jurisdiction Over the Crime of Aggression – at Last … in Reach … Over Some

Author:
Astrid Reisinger Coracini
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The first review conference to the Rome Statute of the International Criminal Court, held in June 2010 in Kampala successfully concluded decades of negotiations over a statutory definition of the crime of aggression and its prosecution by a permanent international criminal court. The main unresolved issues to be addressed by the review conference concerned the determination of an act of aggression as a (procedural) prerequisite for the exercise of jurisdiction over the crime of aggression and the appropriate activation procedure for a provision on aggression. Most importantly, the compromise of Kampala could safeguard an independent and effective criminal prosecution of the crime of aggression by not subjugating the Court's exercise of jurisdiction to decisions of outside organs. However, in case of a referral of a situation by a State Party or the initiation of a proprio motu investigation, the Court's reach over perpetrators is significantly narrowed with a view to crimes of aggression involving a non-state party or a state-party that does not accept the Court's exercise of jurisdiction. These concessions, built on state consent to the exercise of criminal prosecution over individuals and elements of reciprocity, concepts that are alien to the Rome Statute, form part of a political compromise that enabled the activation of the Court's jurisdiction over the crime of aggression.
Political Geography:
Rome and Kampala

149. Special Issue: Strategies for Solving Global Crises – The Financial Crisis and Beyond

Publication Date:
01-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Our contribution evaluates the recent financial crisis in light of the ongoing global governance debate. We contextualize the insights from the interdisciplinary workshop on strategies for solving and preventing global crises and put them within the broader frame of global governance. We analyze solution and prevention mechanisms for global crises phenomena by investigating the reactions to the financial crisis of 2007-9. We provide particular insights into the modes of multi-level-, G20-related, and regional governance mechanisms. Our findings indicate that the dominance of transnational networks and the inherent particularistic interests prevail as regards the reactions to the financial crisis. We discuss whether this outcome can be generalized with regard to the potential implications for other global crises.

150. Complementarity After Kampala: Capacity Building and the ICC's Legal Tools

Author:
Morten Bergsmo, Olympia Bekou, and Annika Jones
Publication Date:
08-2010
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Twelve years after the creation of the first permanent International Criminal Court and eight years since the entry into force of its Statute, the first ever Review Conference took place in Kampala, Uganda. Besides successfully introducing aggression as one of the crimes under the Court's jurisdiction and expanding the coverage for war crimes, the Review Conference provided a timely opportunity to reflect on some of the key aspects of the Court's regime. An integral part of the Review Conference was the “stocktaking exercise”. The exercise provided a platform for the participants at the Review Conference to reflect on the successes and the failings of the ICC following the first few years of its operation and to consider measures that could be taken to enhance and strengthen the Court's functions in the years to come. The stocktaking exercise focused on four themes: complementarity, cooperation, victims and affected communities and peace and justice. These themes represent major aspects of the ICC's operation which will continue to warrant consideration as the Court matures as an institution. The theme of complementarity is of particular importance because of its uniqueness to the ICC. The ICC's complementarity regime places a primary obligation on States to investigate and prosecute international crimes. It does so by limiting the jurisdiction of the ICC to situations where States are shown to be unwilling or unable genuinely to investigate and prosecute, in respect of cases of sufficient gravity to justify action by the Court. The principle of complementarity was an innovation, specifically tailored for the ICC. The Review Conference therefore provided an important opportunity to reflect on the effectiveness of the principle and steps that could be taken to strengthen it. This piece will consider the tenor of the debate concerning complementarity during the Review Conference and the emphasis that was placed on strengthening national capacity for the investigation and prosecution of core international crimes. In particular, it will highlight a significant shift in the use of the term “positive complementarity”. The term, which had originally been used to refer to the ICC's role in the construction of national capacity, was used throughout the Review Conference to refer to the involvement of States, international organisations and civil society in strengthening justice at the national level. It will also draw attention to the efforts that were made during the Conference to identify means to put positive complementarity into practice with the hope of overcoming some of the problems that States had faced in the investigation and prosecution of serious international crimes within their national systems. The article will go on to discuss the relevance of the ICC Legal Tools Project, a unique collection of legal databases, digests and applications designed to facilitate the application of international criminal law, to the discussions that took place in Kampala. It will be concluded that the ICC's Legal Tools provide an important means of supporting the principle of complementarity, positive or otherwise.
Political Geography:
Uganda and Kampala