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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