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82. Constitutionalism as a Cipher: On the Convergence of Constitutionalist and Pluralist Approaches to the Globalization of Law
- Author:
- Lars Viellechner
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Global constitutionalism still remains an essentially contested concept. While both its descriptive and normative usages remain unclear, the possibility and the desirability of framing the postnational constellation in constitutionalist terms meet equally strong objection. Yet, recently, even pluralist approaches to the globalization of law which call for a more radical departure from the statist legacy explicitly or implicitly refer to the notion of constitutionalism. Animated by democratic concerns for the inclusion of all those concerned by a rule as well as legal certainty and equality, they envisage a new kind of conflicts law that allows for a mutual recognition and reconciliation of the different legal orders and regimes emerging in world society. Hence, constitutionalism, when employed in a global context, appears but as a reminiscence of an historical achievement. It serves as a cipher under which the reconstruction of law under conditions of globalization has begun and will continue until more adequate concepts will be discovered.
83. The System Theory of Niklas Luhmann and the Constitutionalization of the World Society
- Author:
- Clemens Mattheis
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The article takes a critical look at the current 'constitutionalization vs. fragmentation' debate and examines it on a system theory-based outlook. The historical background deals with Niklas Luhmann's system theory and analyses whether his move 'from territoriality to functionality' is applicable to modern international law. The contribution analyses a possible constitutionalization in Luhmann's “world society” in form of structural couplings and beyond a societal constitutionalism or a postnational order. The essential argument is that there is a constitutional system-theoretical element in modern, state-centered international law: a value-based, 'structural coupling' between the political system and the law system in terms common values such as core human rights and basic principles.
84. The Constitutional Function of Contemporary International Tribunals, or Kelsen's Visions Vindicated
- Author:
- Tomer Broude
- Publication Date:
- 11-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- In this article the author makes two complementary arguments, one deceptively simple, the other deceptively esoteric. First, contemporary international courts and tribunals (most, though not necessarily all) are increasingly requested, or required (often, though not always), to adjudicate issues in ways that are tantamount to international constitutional judicial review of national acts and domestic measures, rather than traditional interstate dispute resolution. This is a point that seems to have so far evaded most of the contemporary literature on the continually enhanced judicialized system of international law, and its constitutionalization. Second, in order to understand the emergence of this current predilection towards constitutional judicial review at the international level, it is instructive to look back to Hans Kelsen's post-World War II visionary approach towards the (then) prospective constitutional role of the international judiciary. This approach is analogous to (and has its roots in) Kelsen's Weimar-era positions on the preferred role of courts as constitutional guardians in domestic legal systems. These arguments are demonstrated through analyses of recent jurisprudence of the ICJ, the WTO, and the ECtHR.
85. Editorial
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- We are proud to present the Goettingen Journal of International Law's first issue of 2012. After the successful three issues of last year, GoJIL can now turn to its new and exciting projects of 2012! Since our last issue in January 2012, several events of global importance have filled the newspapers, confronting the global community with the need for new judicial and political solutions. The Arab Spring movement still continues, with the situation in Syria aggravating further, which has led to the UN Security Council to authorize the establishment of the United Nations Supervising Mission in Syria (UNSMIS).
- Topic:
- Security and International Law
- Political Geography:
- Arabia and Syria
86. The Status and Future of International Law after the Libya Intervention
- Author:
- Pierre Thielbörger
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- This article uses the case of the Libya intervention to address three general claims about international law. Firstly, it examines whether the reliance of the intervention on the mechanisms of collective security under the UN Charter suggests that international law relating to peace and security has finally overcome its post-9/11 crisis. It concludes that the resolution's vague wording – which makes the distinction between what is “legal” under the resolution, and what is not, hard to draw – undermines such an assumption. Secondly, it explores whether the Libya intervention has put new emphasis on what has been termed the “emerging right of democratic governance”. In spite of the underlying democracy-enhancing spirit of the execution of the intervention, Resolution 1973 was exclusively written in the language of human rights. It did little to indicate a changed attitude of States towards a norm of democratic governance. Finally, the article examines whether the case of Libya shows a renewed international attitude towards States which violate the most fundamental human rights of their citizens. The article concludes by suggesting that, in this third respect, a more muscular liberalism is indeed on the rise again in international law, challenging the formerly almighty concept of State sovereignty. In contributing to this subtle transformation, the Libyan case has made a genuine contribution to the development of the international legal order.
- Topic:
- Security, Human Rights, and International Law
- Political Geography:
- America, Libya, and United Nations
87. The Responsibility to Protect and the Role of Regional Organizations: An Appraisal of the African Union's Interventions
- Author:
- Tom Kabau
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- This article examines the dilemmas and opportunities of the African Union, a regional organization, in implementing the responsibility to protect concepts in respect to forceful intervention to prevent or stop the occurrence of genocide, crimes against humanity and war crimes. Article 4(h) of the Constitutive Act of the African Union specifically mandates the Union to forcefully intervene in a Member State in such circumstances. Although the African Union has successfully resolved some situations where peaceful negotiations or consensual military intervention was sufficient, there has also been failure by the Union where such means fail or are inadequate. Such instances include the Darfur conflict where peacekeeping was insufficient, and recently in Libya where the African Union openly opposed enforcement of no fly zones to protect civilians. This article is of the view that the African Union's failure to implement Article 4(h) of the Constitutive Act, even in deserving situations, may have been aggravated by the failure to institutionalize the concept of responsible sovereignty within the Union's legal framework and processes. Despite the forceful intervention mandate, there are also provisions that affirm the principles of non-interference. The AU system therefore fails to resolve the dilemma between sovereignty and intervention. Sovereignty preservation remains as an effective legal and political justification for non-intervention by the AU. This has promoted a subsequent trend of greater sovereignty concerns by the Union. Institutionalization of the concepts postulated under the emerging norm of responsibility to protect within the AU framework and processes can contribute to the elimination of the legal and political dilemmas of forceful intervention by the Union.
- Topic:
- Crime and War
- Political Geography:
- Africa and Libya
88. The Continuing Functions of Article 98 of the Rome Statute
- Author:
- Jens M. Iverson
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- According to the current jurisprudence of the International Criminal Court, Article 98 of the Rome Statute does not forbid the issuance of an arrest warrant for a sitting head of state. The African Union Commission vehemently objects to this reading of Article 98. Because it viewed the function of Article 98 as forbidding such arrest warrants, it views the current jurisprudence as effectively reading Article 98 out of the Statute, with no continuing function. This article demonstrates the continuing function of Article 98. This continuing function includes immunities resulting from agreements under Article 98(2), as well as customary immunities pertaining to property, persons, diplomatic immunity, and state immunity. Countering the rhetoric and providing a close analysis of the current state of Article 98 in ICC jurisprudence is useful, both with respect to understanding the current operation of Article 98 and to reflect on balancing multiple maximands of criminal law, human rights law, and the international law of immunity.
- Topic:
- Human Rights and International Law
- Political Geography:
- Africa and Rome
89. Sovereign Debt Crises as Threats to the Peace: Restructuring under Chapter VII of the UN Charter?
- Author:
- Matthias Goldmann
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Sovereign debt crises might significantly decrease the level of socioeconomic rights enjoyment for the population in the affected state. According to recent data, they even increase the risk of civil unrest. However, the resolution of sovereign debt crises is compromised by legal obstacles which result from the absence of a statutory, obligatory bankruptcy procedure for states. On the one hand, creditors might refuse to accept an exchange of their debt instrument in the frame of a workout and choose to litigate against the state. On the other hand, states might worsen their situation by unnecessarily delaying inevitable workouts. This article explores whether and to what extent the powers UN Security Council could be deployed in order to mitigate these problems. This requires a reconsideration of the concept of peace in Article 39 UN Charter. The article concludes that, at the request of the International Monetary Fund (IMF), the Security Council might put a stay on the enforcement of creditors' claims or order workout negotiations.
- Topic:
- Security, International Law, War, and International Monetary Fund
- Political Geography:
- Germany and United Nations
90. Have Measures Adopted by States to Cope With the Global Financial Crisis Been in Accordance With Their Obligations Under International Investment Law?
- Author:
- Maximilian Hocke
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- International investment law guarantees broad protection. The following article examines how measures against the Global Financial Crisis, e.g. the acquisition of shares or the refusal to help particular financial institutions, affected those standards. However, the article argues that due to public policy reasons the measures have been in accordance with all protection standards.
- Topic:
- Financial Crisis
- Political Geography:
- China, Germany, and Switzerland
91. Human Rights and International Investment Law: Investment Protection as Human Right?
- Author:
- Nicolas Klein
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Legal research conceptualized the relationship between International Investment Law (IIL) and International Human Rights Law (IHRL) until recently rather as opposing fields of law with colliding policy interests as well as contradictory rules and regulations. However, lately a new approach is gaining increasing support in the academic community: Investment protection could be understood as being part of human rights law. Such a conclusion may be perceived as highly controversial, however, from a conceptual perspective IIL and IHRL share more common ground than differences. This article will argue, first, that certain material standards of IIL can be conceptualized to be human rights-like guarantees of a minimum standard of protection and second, that such an understanding does not lead to a neoliberal proliferation of economic rights but, to the contrary, may serve as an important conceptual tool to prevent overly extensive interpretations of investment treaties and to balance economic rights with other human rights in case of norm conflict. After all, IIL could prove to be not more, but also not less, than “One Out of a Crowd” of all other fundamental human rights.
- Topic:
- Economics, Human Rights, and International Law
- Political Geography:
- Pakistan, Germany, and Guinea
92. European Asylum Law and the ECHR: An Uneasy Coexistence
- Author:
- Laurens Lavrysen
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- During the last two decades the European Union has become a major actor in the field of asylum law. Meanwhile, human rights law, in particular the European Convention on Human Rights (ECHR), has become of paramount importance in this field. This paper highlights certain areas of concern in the European Asylum System from the viewpoint of the ECHR. It particularly focuses on the Dublin II Regulation, the reception conditions and the detention of asylum seekers.
- Topic:
- Human Rights and Law
- Political Geography:
- Europe and Dublin
93. Re-thinking the Role of Indigenous Peoples in International Law: New Developments in International Environmental Law and Development Cooperation
- Author:
- Maria Victoria Cabrera Ormaza
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Indigenous Peoples have classically been defined in terms of their situation of vulnerability and discrimination traceable back to colonialism. The first international legal instruments addressing indigenous peoples are based on such an understanding, and emphasize special protection for indigenous peoples in order to preserve their cultural identity. This article describes this approach a human rights-based one, even though, at the national level, the label “indigenous” is sometimes also interpreted as a synonym of political power. Meanwhile, international environmental law has introduced what this author calls a “functional approach” recognizing the participatory role of indigenous communities in supporting environmental conservation and use of biodiversity. From a functional perspective, it is a logical consequence to include other local communities, albeit not “indigenous” in the classical sense. Thirdly, in the sector of development cooperation, international financial institutions (IFIs) have designed policies with the aim of assuring indigenous peoples the opportunity to be consulted when IFIfunded projects could entail a negative impact on indigenous communities. At first glance, it could be said that those policies were inspired by a human rights-based approach. However, from a holistic perspective, the role of indigenous peoples becomes a more functional one. This paper contributes a critical analysis of the role of indigenous peoples from these two approaches: the human rights-based approach and the functional approach. The author argues that a definition of indigenous peoples based on a humanrights approach should be understood as encompassing also other groups living in similarly vulnerable situations. Even though a functional approach to indigenous peoples responds better to the principle of equality, this approach should be more respectful to the cultural and social values of indigenous or local communities, from whom a particular behavior is expected in order to achieve certain goals.
- Topic:
- Human Rights and International Law
- Political Geography:
- North America
94. They Entered without any Rumor. Human Rights in the Belgian Legal Periodicals
- Author:
- Sebastiaan Vandenbogaerde
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Legal periodicals offer an opportunity to gaze on the daily pursuits of legal practitioners. By measuring the attention on a certain topic, it is possible to retrace to what extent it was deemed to be important for Belgian jurists. In this particular paper, a closer look will be taken at human rights and their relevance for Belgian legal practice. Therefore, research will be done in one of the most influential periodicals in Flanders: the Rechtskundig Weekblad. The attention on human rights, and more specific the European Convention of Human Rights, can give an impression of the importance of these rights for Belgian, and more specific, Flemish legal practice. As this periodical was preoccupied with the Flemish movement, its 'ideology' also affected its reporting of human rights. Thus, legal periodicals can be found at the crossroads of all actors in the legal world.
- Topic:
- Human Rights
- Political Geography:
- Europe
95. The EU Charter of Fundamental Rights and its Impact on Labor Law: a Plea for a Proportionality-Test "Light"
- Author:
- Herman Voogsgeerd
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading 'solidarity'. In this article two basic questions will be addressed. The first question will address the 'old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test 'light' in order to limit the interference of EU law with the essence of fundamental rights.
- Topic:
- Economics, Human Rights, and Law
- Political Geography:
- Europe
96. Kosovo's Chances of UN Membership: A Prognosis
- Author:
- David Ighojohwegba Efevwerhan
- Publication Date:
- 06-2012
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The International Court of Justice has ruled that Kosovo.'s unilateral declaration of independence neither violated general rule of international law nor the lex specialis. As of the time of writing, 86 UN Member States have recognized Kosovo as a State. With the judicial pronouncement in their favour, the authorities in Kosovo are likely to apply for membership in the United Nations. This paper reviews the rules and practice of UN membership admission and assesses Kosovo.'s chances of success should it apply to the world body for admission. It argues that ordinarily, Kosovo meets the requirements for admission into the UN but political considerations of the permanent members of the Security Council would constitute a clog in Kosovo.'s ambition to become the 194th member of the United Nations. However, four options are proffered as ways out of the political logjam that is sure to surface if and when, Kosovo puts in an application for admission into the membership of the UN.
- Topic:
- Security and International Law
- Political Geography:
- Kosovo and United Nations
97. Editorial
- 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 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”.
98. Keynote Speech: 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 fore sight and your intellectual courage.
99. The Redistribution of Resources in Internationalised Intra-State Peace Processes by Comprehensive Peace Agreements and Security Council Resolutions
- Author:
- Cindy Daase
- Publication Date:
- 06-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The (illegal) exploitation and (bad) management of high value resources like timber, diamonds, gold, minerals and oil constitute key-factors for the inflammation, continuation and termination of numerous intra-state conflicts. Since the 1990s these conflicts have been increasingly settled by the conclusion of comprehensive peace agreements between the conflicted state and belligerent non-state parties. At the example of the Lomé, Accra and Ouagadougou Agreement, which were negotiated to terminate the conflicts in Sierra Leone, Liberia and Côte d'Ivoire , the paper describes and analyzes whether and how these agreements addressed the redistribution of conflict-resources during the peace process. In the course of this documentation, the paper finds a strong involvement of the UN Security Council when it comes to the redistribution of resources and the implementation of all three agreements that goes beyond addressing an immediate threat to peace and security. Focusing on this involvement of the Security Council to exert a strong pull towards the compliance of the parties with these agreements, the paper will discuss the legal nature of the example peace agreements and of the specific obligations concerning the redistribution of resources. The paper finds that, under certain circumstances, internationalized comprehensive peace agreements, with a strong endorsement and involvement of the Security Council, can create effective legal obligations for the parties with respect to the redistribution and treatment of resources during the transition from conflict to peace.
- Political Geography:
- Liberia and Sierra Leone
100. The Falkland Islands and the UK v. Argentina Oil Dispute: Which Legal Regime?
- Author:
- Alice Ruzza
- Publication Date:
- 06-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Following Argentina's withdrawal from the 1995 Joint Declaration concluded with the UK for the common exploration and exploitation of hydrocarbons in the Falklands, the sovereignty dispute over the Islands has recently re-emerged as an economic 'struggle' for access to the North Falklands Basin's oil deposits. The pa per analyzes the states' pending sovereignty dispute and their present claims, from the perspective of the exploitation of the Island s' natural resources. The lawfulness of uncoupling the treatment of title to territory and to natural resources, particularly in an area where sovereignty is disputed has been examined in the present paper. By considering the UN practice on the Falklands' case, it is argued that a separate treatment is not per se unlawful, provided that all the parties having a legitimate sovereign claim over the territory are involved. The Joint Declaration is employed as a model to provide evidence in this regard. In addition, the paper discusses the unilateral conduct of the parties as a possible alternative to a cooperative agreement. As the UK is currently acting unilaterally with regard to the access to the oil deposits in the Islands, the implications of its conduct are also reviewed.
- Topic:
- United Nations
- Political Geography:
- United Kingdom, Argentina, and Falkland Islands