Search

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

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

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

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

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

63. Pascua Lama, Human Rights, and Indigenous Peoples: A Chilean Case Through the Lens of International Law

Author:
Gonzalo Aguilar Cavallo
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In recent decades, experience has shown that private corporations have been increasingly involved in environmental disasters and human rights abuses in all parts of the world. Many of these corporations belong to the energy, metallurgy, extraction, and mining sectors. Pascua Lama is the name of a major mining project on the border of Chile and Argentina. Since the onset of this mining project, civil society organizations have warned of the risk of serious threats to freshwater resources and indigenous rights. This Chilean case illustrates the difficulty of holding corporations accountable for environmental and indigenous rights abuses. The article suggests that interactions between three branches of public international law; namely, international human rights law, international law of indigenous peoples, and international environmental law can be helpful for individuals and communities affected to have access to an effective remedy.
Topic:
Environment
Political Geography:
America

64. "We Will Remain Idle No More": The Shortcomings of Canada's 'Duty to Consult' Indigenous Peoples

Author:
Derek Inman, Stefaan Smis, and Dorothée Cambou
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Bill C-38, Jobs, Growth and Long-term Prosperity Act, and Bill C-45, Jobs and Growth Act, both passed in 2012, contain numerous amendments that could affect established and potential Aboriginal rights across Canada. This unilateral action by the Government of Canada came as a great surprise to many Aboriginal people, who indicated that they were not consulted in advance of the legislation's introduction. However, this then begs the question: What is Canada's 'duty to consult'? What is the content of this 'duty'? Does this 'duty' even exist? If it does, is there a discrepancy between the established 'duty to consult' and the legislative amendments included in Bill C-38 and Bill C-45? The purpose of this article is to attempt to answer all of these questions. To do this, we will begin by examining contemporary Canadian jurisprudence on the issue, including reviewing the relevant case law in order to gain an insight into the procedural substance of the 'duty to consult'. Following this, in an attempt to enrich and deepen the discussion concerning the recent developments in Canada, we will outline the emergence of consultation norms at the international level, and highlight recent jurisprudence that takes into consideration consultation duties at the Inter-American Court of Human Rights. The article will conclude by juxtaposing the emergence of the international and regional norms regarding consultation duties with current events in Canada, in order to confirm the discrepancy between the recent legislative amendments and domestic jurisprudence, international law, international human rights law, and regional human rights law. Our hope is that this article will not only inform readers of current events in Canada but also enrich the current discourse on the participatory rights of indigenous peoples in the context of land and natural resource development.
Topic:
Environment
Political Geography:
America and Canada

65. Rights of Indigenous Peoples and the International Drug Control Regime: The Case of Traditional Coca Leaf Chewing

Author:
Sven Pfeiffer
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article discusses whether there is a normative conflict between the rights of indigenous peoples and the international drug control regime. Treaty obligations to abolish coca leaf chewing might clash with the indigenous peoples' right to practice their customs and traditions in States of the Andean region where indigenous peoples have practiced coca leaf chewing for centuries. Taking into account the manner with which States have addressed this issue, the article focuses on the case of Bolivia and its recent attempt to amend the 1961 Single Convention on Narcotic Drugs. It is argued that the normative conflict can be resolved or at least avoided by applying the methods of treaty interpretation, though only at the expense of indigenous rights. Options to change the international drug control regime to ensure indigenous rights are not only limited by the common interest in preserving its integrity, but also by the negative impact this could have on treaty relations.
Topic:
Government
Political Geography:
America

66. Editorial

Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The Crimean crisis represents one of diplomacy's greater challenges in recent history. The demeanor of the parties involved raises numerous questions of international law already extensively commented on in respective blogs. Furthermore, the superpowers' pursuit of evident political and geo-strategical interests exposes yet again what may be perceived as the powerlessness of public international law.

67. Non-Permanent Members of the United Nations Security Council and the Promotion of the International Rule of Law

Author:
Alejandro Rodiles
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Non-permanent members of the United Nations Security Council experience clear and well-known limits. Yet, there are certain tools at their disposal which, beyond lucky political constellations, allow them to exercise a more systemic influence on the Council's work and outcomes. These tools are of a juridical nature, often established and developed through the organ's practice, but their efficient use depends primarily on diplomatic expertise and imagination channeled through informal venues. The present article shows how said tools have been used in the case of the promotion of the 'international rule of law'. However contested the concept and restricted its practical consequences on the organ's functions, the evolution of its promotion within the Security Council is both a demonstration of and a further vehicle for non-permanent members' influence on this body. That this in turn serves to legitimate the Council under its current configuration can be seen critically. However, it seems important to underline that the UN Security Council's efficiency depends ever more on the legitimacy that non-permanent members can best imprint on it. In a non-polar world, this tendency can be expected to increase.
Political Geography:
United Nations

68. "All's Well That Ends Well" or "Much Ado About Nothing"?: A Commentary on the Arms Trade Treaty

Author:
Marlitt Brandes
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
To date no international treaty comprehensively regulates the international trade in conventional arms. In 2012 and 2013, two conferences were convened under the auspices of the United Nations to adopt an 'Arms Trade Treaty' putting an end to this state of affairs. Both failed to reach consensus on the final treaty draft before them. Nevertheless, on 2 April 2013, the UN General Assembly adopted the final draft submitted by the President of the second conference and the Arms Trade Treaty (ATT) is now open for signature and will enter into force after its fiftieth ratification. This article analyzes the legal value of the provisions enshrined in the ATT by concentrating on its scope, substantive obligations, and implementation. It concludes that while much criticism is in order with regard to ambiguous language and potential loopholes in the treaty, it still represents progress as it will provide for written obligations which States Parties must follow when deciding on arms transfer authorizations. Whether the treaty will actually help victims of violations of international human rights and humanitarian law on the ground, however, depends on its ratification by major supplier States and on how far States Parties will be willing to go when implementing and enforcing its provisions.

69. The Lubanga Case of the International Criminal Court: A Critical Analysis of the Trial Chamber's Findings on Issues of Active Use, Age, and Gravity

Author:
MIchael E. Kurth
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The author explores the International Criminal Court's (ICC) very first judgment in the case of Lubanga. He examines numerous contentious questions arising from the war crime of recruiting child soldiers, such as children's voluntariness of joining armed forces, the legal assessment of sexual slavery and 'active use', and the intricate task of proving the age of a child soldier. Notwithstanding certain blind spots, it is ultimately inferred that the ICC not only proved to be a functioning institution but also provided a ruling of precedential value, in respect of the issues of both child soldiering and general sentencing.

70. Americanization of the BIT Universe: The Influence of Friendship, Commerce and Navigation (FCN) Treaties on Modern Investment Treaty Law

Author:
Wolfgang Alschner
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Friendship, Commerce and Navigation (FCN) treaties are more than a historical precursor to international investment agreements (IIA) and continue to influence and inspire modern investment treaty design. Until the 1960s, FCN treaties were the American conceptual alternative to the European BIT Model. FCN treaties were comprehensive and complex agreements covering trade, intellectual property, and even human rights in addition to investment disciplines. BITs, in contrast, were short, simple, and focused on investment protection only. Furthermore, while FCN treaties were designed to govern symmetrical investment relations between like-minded developed countries, BITs targeted an asymmetrical relationship between developed capital exporting States and developing capital importers. Even after the U.S. shifted from FCN to BITs in the early 1980s, FCN treaties continued to impact investment policy-making. First, key FCN features such as pre-establishment commitments, non-conforming measures, and investor rights survived the U.S. policy-shift and have since found their way into IIAs around the world. Second, as a conceptual alternative to simple and specialized European BITs, FCN treaties have inspired a new generation of IIAs that are complex and comprehensive in nature, containing a fine-tuned mix of rights and obligations, and treating investment alongside other policy concerns. Third, the spread of FCN-inspired treaties coincides with the demise of European-style BITs. As policy-makers turn to the United States instead of Europe for investment policy innovation, we observe an Americanization of the IIA universe.
Political Geography:
United States and Europe

71. The Possible Future of Promoting and Protecting European Investments in Sub-Saharan Africa

Author:
Lars Schonwald
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Sub-Saharan Africa (SSA) represents an interesting target market for European investors. However, the level of investment protection in SSA is rather outdated. Considering that Article 207 of the Treaty on the Functioning of the European Union confers upon the European Union (EU) the exclusive competence to negotiate and conclude new investment treaties, the scope of this article is to determine what a possible future treaty aiming at protecting foreign investments concluded between the EU and SSA could look like. Following a brief introduction and after determining the potential parties of a new investment treaty between the EU and SSA, it will be examined whether the current standard clauses can be introduced into the new treaty as well, and to what extent new concepts can, should or even have to be included in a respective new agreement.
Political Geography:
Africa and Europe

72. Editorial

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

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

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

74. German Federalist Thinking and International Law

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

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

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

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

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

77. Francis Lieber on Public War

Author:
Rotem Giladi
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This paper examines Francis Lieber's concept of modern war as “public war” — in the Code he drafted for the 1863 Union Armies and in his earlier writings. Though Lieber was not the first to engage the distinction between private and public war, his treatment of modern war as exclusively public nevertheless deserves special attention. It became, in time, a foundational concept of the 19 th Century effort to modernize and humanize the laws of war. Today, it remains embedded, albeit implicit, in contemporary international humanitarian law and its paradigmatic interstate war outlook.
Topic:
War
Political Geography:
Germany

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

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

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

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

80. The Relationship Between Constitutionalism and Pluralism

Author:
Geir Ulfstein
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.