Content Type: Journal Article / Topic: International Law

1. Karabakh and Azerbaijani Statecraf

Author:: Michael M. Gunter
Publication Date:: 01-2024
Content Type:: Journal Article
Journal:: Baku Dialogues
Institution:: ADA University
Abstract:: This brief article seeks to make two important and related points. The first is that the international law principles of sovereignty and territorial integrity hold that Karabakh belongs to Azerbaijan, despite misleading arguments to the contrary about supposed Armenian rights of self-determination. The second provides a partial assessment of Heydar Aliyev’s legacy and how it relates to some of the policies pursued by his successor, Ilham Aliyev. Each will be examined in turn.
Topic:: International Law, Sovereignty, Territorial Disputes, and Self-Determination
Political Geography:: Armenia, Azerbaijan, South Caucasus, and Nagorno-Karabakh

2. The Advisory Function of the International Court of Justice: Are States Resorting to Advisory Proceedings as a “Soft” Litigation Strategy?

Author:: Myrto Stavridi
Publication Date:: 04-2024
Content Type:: Journal Article
Journal:: Journal of Public and International Affairs (JPIA)
Institution:: School of Public and International Affairs (SPIA), Princeton University
Abstract:: In the last decades, there has been an increase in advisory opinions of the International Court of Justice (ICJ) that relate to vital political interests directly affecting the sovereignty of states. Even though advisory opinions are not binding and do not require the consent of the states involved, advisory proceedings have been increasingly and strategically used by states and international actors as contentious proceedings in disguise. Exploring the history of the advisory function of the ICJ and its predecessor, this article argues that advisory proceedings constitute a “soft” litigation strategy and a particularly useful tool for small states or non-state entities, as it has the potential to counterbalance the inherent power disparities in the process of international bargaining by adding the authoritative voice of the ICJ to the debate. This paper connects this development to a modern tendency of states to judicialize international affairs.
Topic:: International Law, Sovereignty, International Affairs, International Court of Justice (ICJ), and Advisory Opinions
Political Geography:: Global Focus

3. Is There Hope for Gaza Under International Law?

Author:: Abigail Flynn
Publication Date:: 01-2024
Content Type:: Journal Article
Journal:: Cairo Review of Global Affairs
Institution:: School of Global Affairs and Public Policy, American University in Cairo
Abstract:: Why has international law failed to hold Israel responsible for its destruction of Gaza? It was built to enable the colonizer, not to protect the colonized, explains legal expert Jason Beckett.
Topic:: Genocide, International Law, United Nations, International Court of Justice (ICJ), Israeli–Palestinian Conflict, and 2023 Gaza War
Political Geography:: Middle East, Israel, Palestine, and Gaza

4. Genocide on the Docket at the Hague

Author:: Omar Auf
Publication Date:: 01-2024
Content Type:: Journal Article
Journal:: Cairo Review of Global Affairs
Institution:: School of Global Affairs and Public Policy, American University in Cairo
Abstract:: International law is a tool for both oppression and emancipation, says AUC law professor Thomas Skouteris in this Q&A as he breaks down the intricacies of the ICJ’s January 26 order for provisional measures in South Africa v. Israel, and elucidates the present and future of international law.
Topic:: Genocide, International Law, International Court of Justice (ICJ), and 2023 Gaza War
Political Geography:: Israel, South Africa, Palestine, Gaza, and The Hague

5. Resistance and Change in Form and Content of International Law: A Third World Perspective on Commodity Form Theory of International Law

Author:: Muhammad Azeem
Publication Date:: 06-2024
Content Type:: Journal Article
Journal:: Uluslararasi Iliskiler
Institution:: International Relations Council of Turkey (UİK-IRCT)
Abstract:: Can Marxists, especially in the Third World, use international law for progressive social change? Responding to the Soviet Union's context and its jurisprudential challenges in constructing socialism, Pashukanis's seminal work on commodity form theory is nihilistic, assuming the very nature of form of international law as bourgeois with limited possibilities of radical change as its new content. European Marxism, on the other hand, in its context of revolutionary defeat and consequent postmodernist pessimism of cultural Marxism, either relies on Pashukanis's nihilistic position or a pragmatist and realist posture, insisting on staying within the law's bourgeois form and being content with social democracy. As opposed to this, Third World Approaches to International Law (TWAIL) scholars, while exploring the imperialist nature of international law and representing one variant of Third World Marxism, have been more optimistic, wanting to use international law to restrain and shield against powerful Western states, i.e., they believe that the content of Third World resistance can change the form of international law. This article deconstructs this class “content” of international law in the understanding of TWAIL and shows the postcolonial Third World states, and even in the yet to be independent states, were dominated by their dependent local elite, which had compromised by the ex-colonizers and had started blocking radical structural changes in Third World. Soon, the target of imperialism and the Third World elite became radical movements in the Third World, and this struggle of the marginalized shaped international law. Therefore, relying on the radical tradition of Third World Marxism and taking the right of self-determination as an example, this article argues that both the content and form of international law were simultaneously used, subverted, and changed in a dialectical and dynamic way by the resistance of the people of the Third World.
Topic:: International Relations, International Law, Socialism/Marxism, Resistance, Self-Determination, Third World Marxism, Western Marxism, and Soviet Official Marxism
Political Geography:: Global Focus

6. Examining the Gap Between EU Fundamental Values in Theory and Practice: A Case Study of Macedonia’s Journey Toward EU Accession

Author:: Larisa Vasileska
Publication Date:: 04-2024
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: The objective of this paper is to assess the gap between the EU’s commitment to its values and the fairness of its accession process, in particular the Macedonian journey to the EU, which is not only contradictory to the EU’s core values but also contradictory to the principle of equal rights and self-determination. For this purpose, the methodology consists of conducting qualitative analysis based on two bilateral agreements and analyzing the evolution of EU requirements and their implications. The paper argues that rather than enforcing the Copenhagen criteria and making the country’s pre-accession progress contingent on the strengthening of the rule of law, the EU has expended enormous effort in what was essentially a political bilateral dispute between states, with the resolution of the dispute to be replaced as a pre-accession criterion. The paper concludes that the EU should return to its fundamental values and prioritize merit-based criteria in the enlargement process, not a politically based decision.
Topic:: International Law, Bilateral Relations, European Union, Rule of Law, Values, Disputes, and Enlargement
Political Geography:: Europe and Macedonia

7. The Challenges of Normalizing Relations Between Belgrade and Pristina: Implications of the “Agreement on the Path to Normalization”

Author:: Mihajlo Vucic and Dragan Djukanovic
Publication Date:: 04-2024
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: The article analyzes the process of normalizing relations between Belgrade and Pristina after adopting the Agreement on the Path to Normalization. The analytical framework of neorealism was used to explain that the normalization process was accelerated due to the war crisis in Eastern Europe. The international legal aspects of the agreement were scrutinized, based on the method of content analysis and comparative studies, to argue that the agreement is a legally binding treaty between two sides that respect each other’s international legal personality. The authors concluded that the European Union and the United States attempted to create new momentum in the decade-long and rather unsuccessful process by adopting the Agreement and the Annex on implementation. Thus, these documents were put in the context of relations between Belgrade and Pristina and broader European and regional levels of complex relations. In addition, the analysis concluded that the documents serve as new impulses in normalization as a continuous legal formalization of relations between the two sides based on international legal rules.
Topic:: International Law, Bilateral Relations, European Union, and Normalization
Political Geography:: Europe, Kosovo, Serbia, and Balkans

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

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

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

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

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

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

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

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

12. Prosecuting Russia’s Crime of Aggression: A critical reflection

Author:: Sonia Boulos
Publication Date:: 06-2024
Content Type:: Journal Article
Journal:: Journal on International Security Studies (RESI)
Institution:: International Security Studies Group (GESI) at the University of Granada
Abstract:: Since the beginning of Russia’s war of aggression against Ukraine, international law has become a center piecein Ukraine’s war efforts. The Hyper response of legal and other international institutions have prompted some to call these developmentsas the “Ukraine moment”. Theterm suggeststhat the legal response to the war represents,potentially,atransformative moment for international law in its pursuit of justice. Focusing on the crime of aggression, the aim of this article is to answer the question whether the international response to the Russian war of aggression against Ukraine symbolizesgenuinelya transformativeinternational law moment
Topic:: International Law, Russia-Ukraine War, Aggression, and Double Standards
Political Geography:: Russia, Europe, and Ukraine

13. Taiwan’s International Legal Standing: Navigating the Fragile Status Quo

Author:: Mahir Al Banna
Publication Date:: 04-2024
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: This study aimed to discuss the legal limbo of Taiwan, whose political situation lies in a grey area of international law. Its legal status is ambiguous: while meeting the characteristics of a State, it is not recognized by other States so long as China claims it as a Chinese territory. The methodology developed in this study adopted the descriptive analytical approach to the different principles of international law, in addition to quantitative methods, which involved gathering data on cases, courts, and resolutions of international organizations, followed by thorough analysis. This research provided an in-depth investigation to critically assess Taiwan’s fragile status quo, threatened by a potential Chinese military intervention. The study found that the idea that Taiwan is deprived of legal status points out the shortcomings of international law. This study concluded that to overcome this tricky situation, Taiwan should take bold moves, such as making constitutional reforms to facilitate its independence.
Topic:: International Law, Status Quo, Recognition, and Use of Force
Political Geography:: China, Taiwan, and Asia

14. The Trajectory of International Relations Dissertations in Turkish Academia Between 2000 and 2020

Author:: Özge Özkoç and Çağlayan. Pınar
Publication Date:: 01-2023
Content Type:: Journal Article
Journal:: All Azimuth: A Journal of Foreign Policy and Peace
Institution:: Center for Foreign Policy and Peace Research
Abstract:: Dissertations are among the most important elements of academic production, along with scientific research articles and books. They not only reveal an academic’s field of research, but also provide clues as to what research methods and tools scholars will employ in postdoctoral studies. Moreover, and crucial to this paper, they are important indicators of the trajectory of research fields, as well as their general roles in the academic world. This study aims to reveal general trends/indicators in Turkish International Relations (hereafter IR) dissertations through an analysis of IR dissertations written in various Turkish universities between 2000 and 2020. There is a rather widespread claim among IR academics in Turkey that this particular community largely contributes to the Western-oriented discipline of IR as local or regional experts, dealing mainly with Turkish foreign policy and regional problems rather than with theoretical concerns in IR. A further aim of this study is to test whether this claim remains valid with the analysis of recent IR dissertations produced in Turkish universities.
Topic:: International Relations, Diplomacy, International Law, Academia, and Dissertations
Political Geography:: Turkey and Middle East

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

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

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

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

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

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

18. Customary International Law Requiring States to Grant Nationality to Stateless Children Born in Their Territory

Author:: William Thomas Worster
Publication Date:: 07-2022
Content Type:: Journal Article
Journal:: Statelessness & Citizenship Review
Institution:: Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:: In the most recent few years, state practice and opinio juris are increasingly converging to affirm that states must grant nationality to children born in their territory if they would otherwise be stateless. In prior scholarship, this author has argued that there is a customary international law norm requiring states to grant nationality in such cases. Certainly, UNHCR’s #IBelong campaign is a significant part of this development, placing statelessness back on the international agenda, as well as encouraging states to adhere to the statelessness conventions, adopt birth registration and statelessness determination procedures and revise domestic law. Partly due to this campaign, states are increasingly adopting practice and domestic law that provides for nationality from birth for stateless children but are also increasingly stating their opinion that such an approach is desirable, necessary and morally compelling. In fact, it is effectively impossible to identify any state that claims it has the unfettered right to refuse to grant nationality to a stateless child born in its territory. This article will complete a brief survey of recent practice and expressions of opinion, mostly as documented by UNHCR as a part of the #IBelong Campaign to End Statelessness, to confirm that this norm continues to strengthen under customary international law.
Topic:: International Law, Law, Children, Citizenship, and Nationality
Political Geography:: Global Focus

19. Scylla and Charybdis: The Self-Determination of Peoples Versus the Territorial Integrity of States

Author:: A. Kagramanov
Publication Date:: 01-2022
Content Type:: Journal Article
Journal:: International Affairs: A Russian Journal of World Politics, Diplomacy and International Relations
Institution:: East View Information Services
Abstract:: LIKE Odysseus, who fell into the clutches of Scylla after escaping the whirlpool Charybdis, countries that have escaped the threat of losing territory as a result of foreign invasion are facing the threat of disintegration from within. The ancient epic by the great Homer about the adventures of the hero Odysseus, who finds himself between a rock and a hard place, involuntarily comes to mind when considering the perennial international legal dilemma about the relationship between the principle of the territorial integrity of states and the right of peoples and nations to self-determination. As Yekaterina Narochnitskaya rightly notes, self-determination, like freedom, has “its limits and its paradox.” “Just as unlimited freedom destroys itself, so the right to self-determination, elevated to an absolute, risks depriving everyone and everything of self-determination, the inevitable outcome being a chain reaction of countless conflicting expressions of will leading to a general collapse.”1 Experience shows that the principle of self-determination is subject to double standards and often politically exploited by certain groups to achieve their economic, social, ethnocratic, religious, and other narrow, sometimes purely selfish goals that contradict the original purpose of this vital international legal and (in most cases) constitutional provision. And it is for these untoward purposes that the artificial “collision” of this principle with the principle of territorial integrity is often used.
Topic:: International Law, Law, Self Determination, Conflict, Peace, and Territory
Political Geography:: Global Focus

20. Extradition in the Criminal Procedural Legislation of Ukraine:" Compliance With The European Standards

Author:: Victoriia Rohalska, Oksana Bronevytska, and Gediminas Buciunas
Publication Date:: 02-2022
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: The importance of legal regulation of extradition in the system of legal aid in criminal proceedings is determined both by the national interests of states and the interests of international cooperation in combating transnational and international crimes. The objective of this paper was to get the answer to the main question of this research - Did the provisions of the law on extradition in Ukraine meet international standards? A set of general and special scientific, and philosophical methods of scientific research were used while preparing this article, to clarify the approaches to the extradition procedure of different countries and in practice. The results of the research suggested that the current criminal procedure legislation of Ukraine in the sphere of extradition generally meets European standards. Although, there are some gaps in the national legal regulation of extradition that may adversely affect the observance of the rights and freedoms of persons to whom it is applied.
Topic:: Human Rights, International Cooperation, International Law, European Union, and Extradition
Political Geography:: Europe and Ukraine

21. Radical Islamism: Trajectories of Human Rights Violations and Abuses in Africa

Author:: Peter O.O. Ottuh and Felix O. Erhabor
Publication Date:: 02-2022
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: In Africa, radical and extremist Muslims are striving to transform society through violent change, claiming that African rulers are dictatorial and anti-Islamic; as a result, many African countries are experiencing serious human rights violations and abuses. Therefore, this paper examined radical Islamism and its trajectories of human rights violations and abuses in Africa and proffered workable solutions to the dilemma. To achieve the above aim, the paper employed historical and evaluative methods. The historical method was used to critically review the scholarly literature on radical Islamism and its human rights violations and abuses antecedents in Africa. At the evaluative level, the paper critically discussed the impact of human rights violations and abuses on the African nations and their citizens. The paper revealed that radical Islamism in Africa is driven by bad political leadership, poverty, poor education, unemployment, and religious exclusivism among others. The paper concluded that good governance, economic enhancement, and religious inclusiveness are key tools in discouraging and curbing radical Islamists in African countries.
Topic:: International Law, Violent Extremism, Radicalization, and Human Rights Violations
Political Geography:: Africa

22. Towards Sustainable Peace and Cooperation

Author:: Farid Shafiyev
Publication Date:: 06-2022
Content Type:: Journal Article
Journal:: Caucasus Strategic Perspectives
Institution:: Center of Analysis of International Relations (AIR Center)
Abstract:: The current issue of the Caucasus Strategic Perspectives (CSP) journal entitled “Towards Sustainable Peace and Cooperation” is dedicated to the challenges and opportunities emerging in the South Caucasus region 2 years after the end of the 44-day war between Armenia and Azerbaijan in 2020 with focus on security and political matters.
Topic:: International Relations, Security, Foreign Policy, International Cooperation, International Law, Treaties and Agreements, Peacekeeping, Military Affairs, Conflict, Vladimir Putin, Landmines, and Russia-Ukraine War
Political Geography:: Russia, Turkey, Caucasus, Armenia, and Azerbaijan

23. International Law and Order Enforcement: Police Assistance Programs and Politics in US-Brazil Relations

Author:: Priscila Villela
Publication Date:: 09-2022
Content Type:: Journal Article
Journal:: Revista Brasileira de Política Internacional (RBPI)
Institution:: Instituto Brasileiro de Relações Internacionais (IBRI)
Abstract:: Police Assistance programs have been a permanent part of US foreign policy towards Latin America, with Brazil being one of the most important beneficiaries. Throughout their history, they have been oriented according to changing agendas, from anticommunism to the war on drugs. Based on documentary sources and specialized literature, we analyze the politics of US policing in Brazil, reconstituting agendas and interests that motivated police assistance programs through the lens of critical police studies in IR. In doing so, we demonstrate that police cooperation is historically a crucial part of US-Brazil bilateral relations, despite the unfrequent prominence in the literature.
Topic:: International Cooperation, International Law, Bilateral Relations, and Police
Political Geography:: Brazil, South America, North America, and United States of America

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

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

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

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

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

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

27. Interpretation and Application of the ECHR: Between Universalism and Regionalism

Author:: Mattias Guyomar
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract::  e protection of human rights guaranteed by the Council of Europe, in particular through the Convention for the Protection of Human Rights and Fundamental Freedoms and the supervision exercised by the European Court of Human Rights, has a dual dimension: its universal vocation goes hand in hand with the regional nature of its implementation. Tensions between universalism and regionalism play out in a fruitful and productive way.
Topic:: Human Rights, International Law, Regionalism, Universalism, and European Court of Human Rights (ECtHR)
Political Geography:: Europe

28. Military Intervention on Request in Jus Ad Bellum and Jus In Bello and the question of recognition of governments

Author:: Chiari Redealli
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Over the past decades, foreign interventions in internal conflicts upon the request of host governments have turned into a common practice. These instances have proved to be particularly challenging both from a jus ad bellum and a jus in bello point of view. On the one hand, it is often unclear whether the intervention is lawful; on the other hand, the classification of these armed conflicts is equally problematic. In both cases, the key to answer these questions is the identification of the organ capable of speaking on behalf of the state: who is the government? Considering the pivotal relevance of the identification of the government both in jus ad bellum and jus in bello, it is crucial to determine the criteria for identifying the authority capable of issuing a valid invitation. This article seeks to clarify these criteria. Ultimately, it will demonstrate that jus ad bellum and jus in bello reach different conclusions on the matter and it will argue that this should not be the case.
Topic:: International Law, Humanitarian Intervention, Military Intervention, Conflict, and International Humanitarian Law (IHL)
Political Geography:: Global Focus

29. Missed Communications and Miscommunications: International Courts, the Fragmentation of International Law and Judicial Dialogue

Author:: Francis Maxwell
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The increase in the number of international judicial bodies has led to different international courts deciding similar issues of international law. There is the real possibility that these international judicial bodies, not subject to the supervision of a common appeal court, may rule differently on similar questions before them. While this fragmentation of decision-making may undermine the coherency and certainty of the international legal system, it may in some cases be in the interests of the international community, including where divergences in decision-making are the result of specialized regimes or where there is progressive development of the law. So that fragmentation is limited to what is beneficial and necessary for the international community, it is essential that international judicial bodies are in open and structured dialogue with one another. This analysis considers three scenarios of overlapping decision-making, over the course of the lives of two sets of international courts: the International Court of Justice, and the international criminal courts and tribunals. It also considers the recent decision of the International Criminal Court with respect to Palestine and the Court’s refusal to weigh in on questions of general international law, in apparent departure from the previous three examples. It is submitted that these examples demonstrate that insufficient attention is given by these international judicial bodies to the issue of judicial dialogue and its importance. This may undermine the legitimacy of the system and introduce the risks of fragmentation without its benefits.
Topic:: International Law, International Court of Justice (ICJ), International Criminal Court (ICC), Dialogue, Fragmentation, and Customary International Law
Political Geography:: Global Focus

30. Great Expectations and a Missed Opportunity. The Special Tribunal For Lebanon and the Objectives of the United Nations Security Council. A Critical Perspective/Grandes expectativas y una oportunidad perdida. El tribunal especial para el Líbano y los objetivos del Consejo de Seguridad de Naciones Unidas. Una mirada crítica

Author:: María Torres Pérez
Publication Date:: 10-2021
Content Type:: Journal Article
Journal:: Revista UNISCI/UNISCI Journal
Institution:: Unidad de investigación sobre seguridad y cooperación (UNISCI)
Abstract:: Among the various ad hoc international criminal tribunals that have been established since the end of the twentieth century, the Special Tribunal for Lebanon stands out for its singularity, both at the jurisdictional level and for its contribution to the treatment of victims. The work of the Special Tribunal for Lebanon began in 2009, delivering its first sentence on 18 August 2020. Through its constitution, the United Nations Security Council sought not to abandon the path initiated in 1993 with the creation of the Yugoslavia and Rwanda tribunals; however, the result has not been as expected. This article aims to analyze the peculiarities of the Tribunal and its work, making a critical analysis of it, considering it as a lost opportunity for the reconstruction process in Lebanon./Entre los diversos tribunales penales internacionales ad hoc que se han creado desde finales del siglo XX, el Tribunal Especial para el Líbano destaca por su particularidad, tanto a nivel jurisdiccional como por su contribución al tratamiento de las víctimas. La labor del Tribunal Especial para el Líbano comenzó en 2009, dictando su primera sentencia de instancia el 18 de agosto de 2020. Mediante su constitución, el Consejo de Seguridad de Naciones Unidas apostó por no abandonar el camino iniciado en 1993 con la creación de los tribunales de Yugoslavia y Ruanda; sin embargo, el resultado no ha sido el esperado. Este trabajo pretende analizar las peculiaridades del Tribunal y su trabajo, realizando un análisis crítico del mismo como oportunidad perdida para el proceso de reconstrucción del Líbano.
Topic:: International Law, United Nations, History, Impunity, and UN Security Council
Political Geography:: Yugoslavia, Lebanon, and Rwanda

31. The Emotional Backdrop of Legal Discourses in South China Sea Disputes

Author:: Eric Pomes and Jean-Marc Coicaud
Publication Date:: 01-2021
Content Type:: Journal Article
Journal:: Polish Political Science Yearbook
Institution:: Polish Political Science Association (PPSA)
Abstract:: The China Sea connects as many coastal states as it divides due to the economic and strategic challenges it represents. It also embodies an area of confrontations between the Great American and Chinese strategies. Identifying with precision the differences that arise requires an interest in the symbolic dimensions that surround them. This angle of analysis provides an opportunity to observe the functioning of international law and inevitably leads to a discussion of the emerging international order. The literature on the situation in the China Sea abounds. The paper’s singularity is to approach it under the prism of international law as revealing the psychology of an actor. To carry out this research, the authors use a pragmatic and critical approach to international law. The thesis defended shows that, contrary to a positivist and judicial approach to international law, elements exogenous to the law, the history, and the psychology of an actor, influence the interpretation of existing norms.
Topic:: International Law, Territorial Disputes, Maritime, and Conflict
Political Geography:: Asia and South China Sea

32. Integrated Space Situational Awareness Systems: SDA and SSA – Advantages and Limitations

Author:: Malgorzata Polkowska
Publication Date:: 01-2021
Content Type:: Journal Article
Journal:: Polish Political Science Yearbook
Institution:: Polish Political Science Association (PPSA)
Abstract:: SDA (Space Domain Awareness) and SSA (Space Situational Awareness – SSA) have been defined as comprehensive knowledge of space objects and the ability to track, understand, and predict their future location. The purpose of the article is to present SSA initiatives to protect space systems, which are now recognized as fundamental assets of the sustainable development of each country. The destruction of even a part of the space infrastructure can have severe consequences for the security of citizens and economic activity. These systems assume the combination of all data obtained by various entities operating in space and Earth to create a common database. The SSA system was created based on the US military programme SDA (Space Domain Awareness); SSA and SDA are almost similar, but SDA is a new term replacing SSA, which existed previously. SDA is a better and improved SSA. Increasingly, the SSA programme is part of national and EU space strategies, but it is not yet possible to include it in international space law.
Topic:: International Cooperation, International Law, European Union, and Space
Political Geography:: Europe

33. The ICC and Palestine: Breakthrough and End of the Road?

Author:: Pearce Clancy and Richard Falk
Publication Date:: 09-2021
Content Type:: Journal Article
Journal:: Journal of Palestine Studies
Institution:: Institute for Palestine Studies
Abstract:: The recent ruling of the International Criminal Court (ICC) affirming territorial jurisdiction over the West Bank, including East Jerusalem, and the Gaza Strip may at first appear to be a mere procedural decision outlining the court’s authority to investigate Israeli criminality. Upon closer scrutiny, however, it is clearly much more: an indirect, yet far-reaching vindication of Palestinian resistance and struggle in the ongoing “legitimacy war” with Israel. These legal proceedings have momentous potential implications for broader accountability efforts, which could be significant over time, even if attempts to prosecute Israeli perpetrators are ultimately frustrated. This legal event already sheds light on both the limitations of the court and the legal and geopolitical challenges it faces in cases where suspected perpetrators wield significant influence in international political arenas. As of now, the ICC has gained credibility precisely because it has the institutional courage to take on the architects of Israeli criminality.
Topic:: Human Rights, International Law, Geopolitics, Accountability, International Criminal Court (ICC), and Oslo Accords
Political Geography:: Middle East, Israel, and Palestine

34. International Society and Its Institutions in Refugee Protection during the COVID-19 Pandemic: Revisiting the Solidarism/Pluralism Debate in English School

Author:: Nihal Eminoglu, K. Onur Unutulmaz, and M. Gokay Ozerim
Publication Date:: 01-2021
Content Type:: Journal Article
Journal:: Uluslararasi Iliskiler
Institution:: International Relations Council of Turkey (UİK-IRCT)
Abstract:: This study aims at discussing the vulnerability of the Global Refugee Protection Regime (GRPR) during crises by applying the ‘international society’ concept within the English School of International Relations theory to the COVID-19 pandemic. We analyze the efficiency of the international society institutions on GRPR through the policies and practices of states as well as organizations such as the United Nations, European Union and Council of Europe. The GRPR has been selected because the ‘vulnerability’ of this regime has become a matter of academic and political debate as much as the vulnerability of those persons in need of international protection, specifically during times of crisis. Our analysis reveals that GRPR-centric practices and policies by the institutions of international society during the first four months afte
Topic:: Diplomacy, International Law, Pandemic, COVID-19, and Health Crisis
Political Geography:: Global Focus

35. Refouling Rohingyas: The Supreme Court of India's Uneasy Engagement with International Law

Author:: Malcolm Katrak and Shardool Kulkarni
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: The complex relationship between international and municipal law has been the bone of significant scholarly contention. In the Indian context, despite a formal commitment to dualism, courts have effected an interpretive shift towards monism by espousing incorporation of international law. The case of Mohammad Salimullah v. Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India’s obligations under the principle of non-refoulement. The paper uses the Supreme Court’s recent interim order in the said case as a case study to examine India’s engagement with international law. It argues that the order inadequately examines the role of international law in constitutional interpretation and has the unfortunate effect of ‘refouling’ Rohingyas by sending them back to a state where they face imminent persecution.
Topic:: Human Rights, International Law, Law, Minorities, Constitution, and Discrimination
Political Geography:: India and Asia

36. The Role of the Judiciary in Recognizing and Implementing International Law: A Comparative Analysis with Special Reference to Sri Lanka

Author:: K.A.A.N. Thilakarathna
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: International law had had a profound impact and influence on the domestic legal system in the contemporary world. However, the status of international law within the domestic legal system is not properly defined in many of the jurisdictions including Sri Lanka. In the absence of such a constitutional provision, the judiciary as the last bastion of hope has a responsibility of interpreting domestic law in light of the international standards that have been agreed upon by the country through ratification of international treaties and those principles of customary international law that has become binding on the country. However, too much judicial activism could jeopardize the constitutional fundamentals of separation of powers and the rule of law. Therefore, this study argues that the best way to resolve this issue is by providing a constitutional provision for the role of the judiciary in the recognition and implementation of international law in a domestic context. Using a qualitative methodology with a comparative analysis of the constitutional provisions of the selected jurisdictions of India and South Africa a proposal is made for a constitutional provision for the judicial role in the recognition and implementation of international law in Sri Lanka. The results have revealed that a constitutional provision would help to advance the separation of powers and the rule of law and to well define the role of the judiciary in absorbing international treaty law to the domestic sphere, making the law more certain and predictable and upholding the rights and duties of individuals in a domestic context while fulfilling international obligations of a country under the domestic legal system.
Topic:: International Law, Rule of Law, Judiciary, and Jurisdiction
Political Geography:: Asia and Sri Lanka

37. The Leadership Requirement of the Crime of Aggression Under the Rome Statue of the International Criminal Court

Author:: Faruk H. Avdic
Publication Date:: 09-2021
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: The subject of this analysis was the provisions of the Rome Statute of the International Criminal Court devoted to the leadership requirement of the crime of aggression. The crime in question is the successor of crimes against peace. This paper employed normative and formal dogmatic legal methods in analyzing the particulars of the leadership clause. Besides, this analysis also took into consideration the case-law of certain judicial bodies. This paper aimed to examine whether the leadership requirement of the crime of aggression has been properly constructed for the Statute. The main focus was on the meaning of the conditions stemming from the leadership clause that each perpetrator ought to fulfill to incur criminal responsibility for the crime of aggression. Additionally, this research addressed the criminal responsibility of public and private actors and the modes of participation in the crime in question. The article established that the leadership requirement concerning the crime of aggression has been aptly incorporated in the Statute since this requirement, at the same time, embraces the post World War Two standards concerning crimes against peace and the contemporary notion of aggression as one of the core crimes under international law.
Topic:: International Cooperation, International Law, Leadership, and International Criminal Court (ICC)
Political Geography:: Global Focus

38. Enforcement of the European Union Law Before the Albanian Constitutional Court and the High Court

Author:: Gentjan Skara and Bojana Hajdini
Publication Date:: 09-2021
Content Type:: Journal Article
Journal:: Journal of Liberty and International Affairs
Institution:: Institute for Research and European Studies (IRES)
Abstract:: With the entry into force of the Interim Agreement in 2005 between the EU and Albania, Albanian judges had the obligation to partly apply several provisions of the agreement (the EU law) even in the pre-accession stage. This position was reinforced in 2009, with the ratification of the Stabilisation and Association Agreement, which laid down the obligation of the Albanian government to approximate its existing and future legislation in line with EU acquis and ensure proper implementation. Consequently, as of 2009, Albanian courts had to apply the EU law. The application of the EU law by Albanian courts entails the duty of judges with a twofold task: firstly, to construe their arguments in line with EU law or as close as possible, and secondly, to set aside the domestic law which is found to be incompatible with the EU law. This paper outlines some Albanian courts' decisions concerning applying the EU Law before accession to the European Union. The paper argues that Albanian judges have adopted a ‘Euro-friendly’ approach by referring to the EU Law and SAA agreement even in the pre-accession period. Nevertheless, looking closely at court decisions, the EU law is applied as a persuasive source of law to support the court’s decision and not to explain the importance of relying on EU law or CJEU case law.
Topic:: International Cooperation, International Law, European Union, and Constitution
Political Geography:: Europe and Albania

39. The Evolution of the Prohibition of Genocide: From Natural Law Enthusiasm to Lackadaisical Judicial Perfunctoriness – And Back Again?

Author:: Julia Klaus
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: International legal scholarship and practice have reached a point where it is undisputed that the prohibition of genocide has the status of jus cogens and entails erga omnes obligations. It is, however, astonishing how little academic focus has been dedicated to the normative development leading to this extraordinary rank. In a legal regime with as little hierarchical structure as public international law, examining the birth process of such a norm promises considerable insights into normative formation in general and may inform jurisprudential theories on the nature of international law. This article illustrates the evolution of the prohibition of genocide by outlining the way to the 1948 UN Genocide Convention and the later interpretations of the norm. It traces the origin of the genocide prohibition to naturalistic ideas of overarching laws of humanity in international law and follows its development into the early 21st century. An analysis of international jurisprudence reveals that, after the jus cogens status of the prohibition of genocide and its erga omnes dimension had been settled, international judges handled the norm in a surprisingly lackadaisical and perfunctory manner. The very recent ICJ order on provisional measures in the Myanmar Genocide case potentially marks a return towards a deeper focus on moral facts determining the prohibition that point to naturalistic theories persisting, notwithstanding the positivistic mainstream approaches to international law. The article contributes to a more accurate picture of and greater academic interest in these naturalistic undercurrents.
Topic:: Genocide, International Cooperation, International Law, International Court of Justice (ICJ), and Humanitarian Crisis
Political Geography:: Global Focus

40. Perspectives for a New International Crime Against the Environment: International Criminal Responsibility for Environmental Degradation under the Rome Statute

Author:: Ammar Bustami and Marie-Christine Hecken
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article draws attention to the need of a reform of the environmental protection by means of international criminal law as enshrined in the Rome Statute of the International Criminal Court. After giving a short overview of the contemporary environmental protection in war- and peacetime offered by international criminal law, it becomes clear that international criminal law fails to succeed at offering sufficient environmental protection. This paper outlines that there is no convincing reason for a differentiated approach in international criminal law to environmental damage in wartime and in peacetime, and that a shift from an anthropocentric to an ecocentric approach would positively contribute to a more effective protection of the environment. It is therefore argued for the introduction of a new integral and ecocentric international crime against the environment in the Rome Statute. The paper then elaborates on existing proposals on such a new crime against the environment before some proper observations on the exact contours of the crime are made. A focus lies on the new crime’s threshold of seriousness as well as on the necessary mens rea requirements. The insufficiency of the contemporary legal framework and the merits of a new crime against the environment are exemplified by an archetype example of peacetime environmental damage, the Chevron/Texaco oil spill scenario in Ecuador.
Topic:: Climate Change, Environment, International Cooperation, and International Law
Political Geography:: Global Focus

41. Moral Imperatives and Legal Realities: The Perennial Conundrum of Humanitarian Intervention

Author:: Chris O'Meara
Publication Date:: 09-2021
Content Type:: Journal Article
Journal:: Brown Journal of World Affairs
Institution:: Brown Journal of World Affairs
Abstract:: Article 1 of the UN Charter embodies a well-known tension that exists in international law. On the one hand, it sets out perhaps the most fundamental purpose of the UN: the maintenance of international peace and security. This principle underpins the operation of the post-World War II rules-based inter- national order. It is reflected in Article 2(4) of the UN Charter, which prohibits the “threat or use of force against the territorial integrity or political indepen- dence of any state.”1 Such prohibition, while routinely flouted by states, stands as an intransgressible rule of international law.2 On the other hand, Article 1 establishes what appears to be an equally foundational principle: promoting and encouraging respect for human rights and fundamental freedoms. Indeed, the burgeoning body of international human rights law that has arisen since the signing of the Charter has increasingly placed human rights and human security at the center of international concern.
Topic:: Human Rights, International Law, Humanitarian Intervention, and International Humanitarian Law (IHL)
Political Geography:: Global Focus

42. Annexation of Crimea from the Perspective of Offensive Realism | Ofansif Realizm Bağlamında Kırım’ın İlhakı

Author:: Oğuzhan Çakır and Ayça Eminoğlu
Publication Date:: 09-2020
Content Type:: Journal Article
Journal:: Novus Orbis: Journal of Politics & International Relations
Institution:: Department of International Relations, Karadeniz Technical University
Abstract:: The main purpose of this study is to understand what motives the Russian Federation, a regional power, uses military force against its neighbor, Ukraine, and annexes Crimea. As a result of the literature review conducted for this purpose, this approach of Russia was generally interpreted from two different theoretical perspectives. Some of the critics evaluated Russia's attitude during the crisis process under the name of defensive realism, while the other group, on the contrary, evaluated Russia's attitude under the name of offensive realism. The work is addressed in the context of these two theories, with a deductive approach. The great powers do not refrain from using hard power when it comes to their security. The answer has been searched to the arguments that the Revisionist movement that Russia displayed in this crisis was caused by international developments rather than domestic political developments and that there is no sanctioning power against the great powers that have become a chronic problem of international law. When the relevant study concluded, and the previous crisis experiences of Russia taking in the consideration, it is observed that Russia has similar characteristic features in this crisis as well. It has been concluded that Russia has not been able to get rid of the sense of the siege it experienced during the Cold War and has pursued aggressive policies when it feels such a threat in its nearby geography. On the other hand, what happened in Crimea has clearly shown that the great powers do not refrain from using force and ignoring international law when it comes to their benefits and security. | Bu çalışmanın temel amacı, bölgesel bir güç olan Rusya Federasyonu’nun, komşusu olan Ukrayna’ya karşı hangi saiklerle askeri güç kullandığı ve Kırım’ı ilhak ettiğidir. Bu amaç doğrultusunda yapılan literatür çalışması sonucunda, Rusya’nın bu yaklaşımı genel olarak iki farklı teorik perspektiften yorumlanmıştır. Düşünürlerin bir kısmı Rusya’nın kriz sürecindeki tutumunu defansif realizm bağlamında değerlendirmekteyken diğer grup ise tam aksine Rusya’nın tutumunu ofansif realizm bağlamında ele almışladır. Çalışma, bu iki teori bağlamında, tümdengelimci bir yaklaşımla ele alınmıştır. Büyük güçler, güvenlikleri söz konusu olduğunda sert güç kullanmaktan kaçınmamaktadırlar. Rusya’nın bu krizde sergilemiş olduğu revizyonist hareketin, iç politik gelişmelerden ziyade uluslararası gelişmelerden kaynaklandığı ve uluslararası hukukun kronik sorunu haline gelen büyük güçlere karşı bir yaptırım gücünün olmadığı argümanlarına cevap aranmıştır. İlgili çalışma sonuçlandığında, Rusya’nın geçmişte yaşadığı krizler de ele alındığında, bu krizle benzer karakteristik özelliklere sahip olduğu gözlemlenmiştir. Rusya’nın, Soğuk Savaş dönemi yaşadığı kuşatılma algısından kurtulamadığı ve yakın coğrafyasında bu şekilde bir tehdit hissettiği zaman saldırgan politikalar izlediği sonucu varılmıştır. Öte yandan Kırım’da yaşananlar, büyük güçlerin kendi menfaatleri ve güvenlikleri söz konusu olduğunda güç kullanmaktan ve uluslararası hukuku hiçe saymaktan kaçınmadıklarının açıkça göstermiştir.
Topic:: International Law, Territorial Disputes, Realism, and Annexation
Political Geography:: Russia, Ukraine, and Crimea

43. South China Sea Dispute: China’s Role and Proposed Solutions

Author:: Mubeen Adnan and Fakhara Shahid
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: Journal of Political Studies
Institution:: Department of Political Science, University of the Punjab
Abstract:: South China Sea (SCS) is a part of Pacific Ocean and is the most strategic and important waterway in the world containing large deposits of hydrocarbons and fossil oil. Due to its unquestioned importance it has become bone of contention among many East Asian nations and China regarding its sovereignty and control of the territory. Two Islands Parcel and Spratly in the SCS are the flashpoints of the dispute because countries like, Philippine, China, Vietnam, Brunei and Malaysia are claiming their rights over some parts or sovereignty over all the above mentioned Islands. Primary concern of the dispute lies in U shaped nine- dashed demarcation line by China in the SCS. A decision of international court of Arbitration in “Philippines v. china arbitration case” showed that China U-shaped nine dash line demarcation is uneven with UNCLOS 1982. This verdict has been rejected by China on the grounds that it has no binding forces because China controls 90% area of the SCS through nine dashed line by having historical claim of the sea and this line was drawn in 1946 by the help of USA prior to the 1982 UNCLOS. China wants to solve the dispute bilaterally without any third party interference while due to the importance of the region many other actors are getting involved in to the dispute. A permanent and lasting solution of the dispute is a dire need of the time to solve the complex issue.
Topic:: Foreign Policy, International Law, and Territorial Disputes
Political Geography:: China, Asia-Pacific, and South China Sea

44. Gas Finds for the People?

Author:: Jason Beckett
Publication Date:: 06-2020
Content Type:: Journal Article
Journal:: Cairo Review of Global Affairs
Institution:: School of Global Affairs and Public Policy, American University in Cairo
Abstract:: Public international law—tied as it is to existent western-centric neo-colonial structures—will likely block the natural gas finds in the Eastern Mediterranean from benefiting regional states.
Topic:: Energy Policy, International Cooperation, International Law, Natural Resources, and Gas
Political Geography:: Africa, Europe, Middle East, and Mediterranean

45. ‘Legal Identity for All’ and Statelessness Opportunity and Threat at the Junction of Public and Private International Law

Author:: Bronwen Manby
Publication Date:: 12-2020
Content Type:: Journal Article
Journal:: Statelessness & Citizenship Review
Institution:: Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:: This article considers the impact of Target 16.9 of the Sustainable Development Goals (‘SDGs’), ‘to provide legal identity for all, including birth registration’ on the objective of eradicating statelessness. This SDG Target has given a significant boost to initiatives for the strengthening of civil registration and identification systems, supported by the United Nations and World Bank. Yet its impact on the resolution of statelessness is not clear, because of the immense complexity of the definition of ‘legal identity’. Proposed definitions, adopted after the target was established, fail to take on board the challenges involved in cross-border recognition of civil status documents and the determination of nationality of a child for parents who hold no documents. The article concludes that SDG Target 16.9 is both an opportunity and a threat. If the objective of providing universal ‘legal identity’ is to have a positive impact for stateless persons there is a need for new engagement with the regulation of civil status in private international law, and new insistence in public international law on legal frameworks that facilitate recognition and registration of the different elements of a person’s identity, including nationality, even and especially where they are officially in doubt. Short cuts in this process risk long delays.
Topic:: International Law, Law, Identity, and Stateless Population
Political Geography:: Global Focus

46. Tracking the Implementation Gap Empirically Assessing the Translation of International Antislavery Commitments in Domestic Legislation Globally

Author:: Katarina Schwarz and Jean Allain
Publication Date:: 06-2020
Content Type:: Journal Article
Journal:: Statelessness & Citizenship Review
Institution:: Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:: The prohibition against slavery in international law is unique in several significant ways. First, it has been recognised by the International Court of Justice as a jus cogens norm carrying obligations erga omnes.1 That is to say, it is a norm of international law binding on all states, from which no derogation is permissible and violation of which attracts the legal interest of the international community as a whole entailing an obligation to cooperate to bring such a breach to an end.2Second, it represents the first universal effort enshrined in international law to influence the domestic legislation of all states on a normative question.3 Third, it is often seen as the first global human rights movement and the root of international human rights law, centring the concept of individual human dignity within the traditionally statist constructs of international law.4 And finally, given its importance at the international level, it is often presumed that its prohibition at the domestic level is already complete everywhere
Topic:: International Law, Slavery, Courts, Justice, and Stateless Population
Political Geography:: Global Focus

47. Enhancing the Protection of the Environment in Relation to Armed Conflicts – the Draft Principles of the International Law Commission and Beyond

Author:: Britta Sjostedt and Anne Dienelt
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: n 2011, the UN International Law Commission (ILC) took up the topic Protection of the Environment in Relation to Armed Conflicts.1 The decision was triggered by a joint report issued by the UN Environment Programme and the Environmental Law Institute in 2009 recommending the ILC to “[...] examine the existing international law for protecting the environment during armed conflicts [...] [including] how it can be clarified, codified and expanded [...]”.2 Since the inclusion of the item on the ILC’s agenda, the Commission has published five reports3 by the two special rapporteurs, Dr. Marie Jacobsson (2011-2016) and Dr. Marja Lehto (2017-). In 2019, the plenary adopted 28 Draft Principles on first reading.4 The ILC has touched on highly controversial issues such as reprisals,5 corporate liability,6 indigenous peoples’ rights,7 among others. Nevertheless, it was clear from the beginning that the ILC would not be able to exhaustively deal with the topic for two main reasons. First, the Commission has a limited mandate that is restricted to “[...] initiate studies and make recommendations for the purpose of [...] encouraging the progressive development of international law and its codification [...]”.8 Enhanced legal protection of the environment, as one of the purposes of the Draft Principles,9 must therefore be based on existing customary international law and its progressive development. The Commission decided to also include recommendations to account for the uncertain legal status of some of the Draft Principles.10 Second, some related issues touch upon controversial and political matters, as mentioned earlier. Consequently, the ILC has been reluctant to include some of these issues in its workflow.11 Therefore, the adoption of the Draft Principles should be regarded as a starting point for shaping and developing the legal framework for environmental protection in relation to armed conflicts. As a part of that process, Hamburg University and Lund University organized an international workshop in March 2019 in Hamburg. Several members of the ILC, including two special rapporteurs, academic legal experts, and practitioners, attended the workshop to discuss the Draft Principles. The discussion also focused on some issues not covered by the ILC, such as the implications for gender and climate security. The engaging dialogue in Hamburg has inspired the publication of this Special Issue of the Goettingen Journal of International Law (GoJIL) to ensure that the outcomes and ideas of the workshop reach a wider audience. It has also contributed to maintaining the momentum of this topical area of international law by inviting contributions from researchers not present during the workshop in Hamburg.12
Topic:: Environment, International Law, and Non State Actors
Political Geography:: Global Focus

48. Reflections on the Legality of Attacks Against the Natural Environment by Way of Reprisals

Author:: Stavros-Evdokimos Pantazopoulos
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The paper examines the concept of belligerent reprisals and assesses the legality of attacking the environment by way of reprisals. The law of belligerent reprisals, which is linked to the principle of reciprocity, allows one belligerent State unlawfully injured by another to react by means of what under normal circumstances would constitute a violation of the jus in bello, so as to induce the violating State to comply with the law. The instances of lawful recourse to reprisals have been considerably limited, since their application is either explicitly prohibited against certain protected persons and objects, including against the natural environment, or is subject to stringent conditions according to customary International Humanitarian Law (IHL). Despite its narrowing scope, the doctrine of reprisals remains a valid concept under the existing legal framework. For one, the state of affairs under customary international law with respect to reprisals directed at civilian objects (including against parts of the environment), subject to certain rigorous conditions, remains unclear. To complicate matters even further, any proposition on the status of reprisals in the context of a non-international armed conflict (NIAC) is shrouded in controversy, as there is no relevant treaty provision. In this regard, the present author endorses the approach espoused in the International Committee of the Red Cross (ICRC) Study on Customary IHL, namely to altogether prohibit resort to reprisals in the context of a NIAC. Turning to the status of reprisals against the natural environment under customary IHL, it is argued that a prohibition of attacks against the natural environment by way of reprisals is in the process of formation with respect to the use of weapons other than nuclear ones. All things considered, the International Law Commission (ILC) was confronted with an uncomfortable situation in the context of its work on the ‘Protection of the Environment in Relation to Armed Conflicts’. By sticking to the verbatim reproduction of Article 55(2) of Additional Protocol I, the ILC chose the proper course of action, since any other formulation would not only undercut a significant treaty provision, but might also result in the normative standard of conduct being lowered.
Topic:: Environment, International Law, Humanitarian Intervention, and Red Cross
Political Geography:: Global Focus

49. Through the Looking Glass: Corporate Actors and Environmental Harm Beyond the ILC

Author:: Daniella Dam-de Jong and Saskia Wolters
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Corporate activities take place in a variety of social contexts, including in countries affected by armed conflict. Whether corporations are physically present in these regions or merely do business with partners from conflict zones, there is an increased risk that their activities contribute to egregious human rights abuses or serious environmental harm. This is especially so for corporations active in or relying on the extractives sector. It is against this background that the ILC included two principles addressing corporate responsibility for environmental harm in its Draft Principles on the protection of the environment in relation to armed conflict. Both principles explicitly call on the home States of these corporations to give effect to their complementary role in regulating and enforcing corporate social responsibility. Draft Principle 10 addresses the responsibility of home States to regulate multinational corporations under the heading of “corporate due diligence”, while Draft Principle 11 addresses the responsibility of home States to hold multinational corporations liable for environmental damage caused in conflict zones. The current contribution engages with the potential normative foundations underpinning extraterritorial responsibilities for the home States of multinational corporations with respect to the prevention and remediation of environmental harm in conflict zones, focusing on international humanitarian law and international human rights law. It concludes that the Draft Principles are certainly indicative of the direction in which the law is evolving, but that no firm obligations beyond treaty law can be discerned as of yet. It was therefore a wise decision to phrase the respective Draft Principles as recommendations instead of obligations. At the same time, there are sufficient indications to conclude that it seems a matter of time before it is accepted that States have distinct obligations under customary international law for which their responsibility may be engaged. It is argued that the ILC Draft Principles provide an important impetus to these developments, not in the least because they provide a reference to States regarding the state-of-the-art and guidance for future action.
Topic:: International Law, Conflict, and Multinational Corporations
Political Geography:: Global Focus

50. Business, Armed Conflict, and Protection of the Environment: What Avenues for Corporate Accountability?

Author:: Marie Davoise
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In July 2019, the International Law Commission (ILC) provisionally adopted, on first reading, a series of draft principles on the protection of the environment in relation to armed conflict (the Draft Principles). The role of businesses in armed conflict is addressed in Draft Principle 10 and Draft Principle 11. The latter, in particular, requires States to implement appropriate measures to ensure that corporations operating in or from their territories can be held accountable for environmental harm in the context of armed conflict. The inclusion of those two Draft Principles reflects increasingly vocal calls for corporate accountability, which has been the focus of the growing field of Business and Human Rights (BHR), an umbrella term encompassing a variety of legal regimes from tort law to criminal law. This contribution will look at the link between businesses, the environment, and armed conflict. Using the newly adopted Draft Principle 11 as a starting point, it explores three major liability regimes through which businesses could be held accountable for damage to the environment in armed conflict: State responsibility, international criminal law, and transnational tort litigation. Using case studies, the article discusses some of the challenges associated with each of those regimes, before concluding that the cross-fertilization phenomenon observed in this article (between public/private law, domestic/international level, and across various jurisdictions) is making BHR an increasingly salient discipline and useful tool in the fight against impunity for corporate environmental harm in armed conflict.
Topic:: Human Rights, International Law, Business, and Conflict
Political Geography:: Global Focus

51. The Martens Clause and Environmental Protection in Relation to Armed Conflicts

Author:: Dieter Fleck
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The existing treaty law on the protection of the natural environment during armed conflicts is less than adequate. Treaty provisions relating to international armed conflicts are limited to the prohibition of damage of an extreme kind and scale that has not occurred so far and may hardly be expected from the conduct of hostilities unless nuclear weapons would be used. Even in such a scenario, States possessing nuclear weapons have explicitly objected to the applicability of that treaty law. For internal wars, no pertinent treaty provisions exist in the law of armed conflict. Yet multilateral environmental agreements concluded in peacetime stand as an alternative approach to enhance environmental protection during war. As a civilian object, the environment may not be targeted nor attacked in an armed conflict, but this does not exclude collateral damage, nor does this principle as such offer specific standards for proportionality in attacks. In an effort to close these apparent gaps of treaty law, the present contribution looks into other sources of international law that could be used. In this context, the author revisits the role of the famous Martens Clause in the interplay of international humanitarian law, international environmental law, and human rights law. The role of the Clause in closing gaps caused by the indeterminacy of treaty law is reviewed and customary rules, general principles, and best practices are considered to this effect. For the protection of the natural environment during armed conflicts, the Martens Clause may, indeed, be used as a door opener to facilitate the creation and application of uncodified principles and rules. Particular standards for proportionality in attacks can be derived from the Martens Clause. Pertinent soft law instruments need to be developed in international practical cooperation and by academia. Yet it deserves further study to explore whether, and to what extent, the Martens Clause, which was adopted in the law of armed conflict, may also apply in post-conflict peacebuilding as a case of interaction between the jus in bello and the jus post bellum, at least as far as the protection of the natural environment is concerned.
Topic:: International Law, Treaties and Agreements, Humanitarian Intervention, and Conflict
Political Geography:: Global Focus

52. Precaution in International Environmental Law and Precautions in the Law of Armed Conflict

Author:: Michael Bothe
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The protection of the environment in relation to armed conflict, in particular during armed conflict is a complex problem as it involves at least two different fields of international law, the law of armed conflict (international humanitarian law) and international environmental law. Their mutual relationship is a delicate issue. International humanitarian law is not necessarily lex specialis. Three principles deserve particular attention in this connection: as to general international environmental law, the principle of prevention and the precautionary principle, as to international humanitarian law the duty to take precautions. The terms prevention and precaution are used in different contexts in environmental law (both national and international) and in the law of armed conflict. The duty, imposed by international humanitarian law, to take precautions has much in common with, but must be distinguished from, the precautionary approach of general environmental law. This paper shows what these principles mean and how they relate to each other. It answers the question to what extent the rules based on these concepts are effective in restraining environmental damage being caused by military activities. The application of these principles in peace and war serves intergenerational equity and is thus an important element of sustainable development.
Topic:: Environment, International Law, Humanitarian Intervention, and Conflict
Political Geography:: Global Focus

53. Reconsidering the Classification of Perpetrators in instances of Genocide and Mass Atrocity: A focus on the Khmer Rouge Era

Author:: Sabah Carrim
Publication Date:: 12-2020
Content Type:: Journal Article
Journal:: Review of Human Rights
Institution:: Society of Social Science Academics (SSSA)
Abstract:: The terms “primary”, “mid-level” and “lower level” are employed to qualify perpetrators of mass atrocities, based on the magnitude of guilt and criminal responsibility. Could this classification be a misnomer? Could the relationship among perpetrators, or the roles they assume be more intricate, warranting a reassessment of the existing hierarchy? This paper explores the need to be more circumspect in penning perpetrators in categories, especially in complex scenarios of mass atrocity. To do so, the Non-Solitarist View of Human Identity and Framing Theory are used to explore the matter, with a focus on perpetrators of the Khmer Rouge era.
Topic:: Genocide, International Law, Atrocities, and Khmer Rouge
Political Geography:: Cambodia, Southeast Asia, and Global Focus

54. The Political and Legal Landscape of the Alaska Phenomenon

Author:: Ye. Zinkov
Publication Date:: 01-2020
Content Type:: Journal Article
Journal:: International Affairs: A Russian Journal of World Politics, Diplomacy and International Relations
Institution:: East View Information Services
Abstract:: ThE PROBLEM of the acquisition and sale of Alaska, and to whom it belongs, excites the minds of researchers to this day. There are supposi- tions that once the first Russians had traversed Siberia, they settled in Alaska during the second half of the 16th century.1 The next period, in which Alaska gets mentioned by Russian people, dates to 1648, in connection with the names of the Cossack Semyon Dezhnev and his associate Fedot Popov, who circumvented the Asian continent, then passed from the Arctic Ocean to the Pacific Ocean basin.2 Later on, an official expedition was organized; its commander, Vitus Bering, announced in 1728 his discovery that Asia and America did not have a land bridge between them.3 The first legal documentation of Alaska’s coastline took place on August 21, 1732, when the crew of the St. Gabriel, under the leadership of surveyor Mikhail Gvozdev and navigator Ivan Fyodorov (or K. Moshkov, according to other sources), recorded its contours without going ashore. From this date began the jurisdictional affiliation of Alaska with the Russian Empire. however, the territory for a long time contin- ued to be developed on the basis of civil law. The bureaucrats of the Russian Empire did not duly administer the land in Alaska. This situation contributed to the consolidation of legal relations within civil society on the territory along the lines of the Novgorod Republic.
Topic:: International Law, Law, Land, and Jurisdiction
Political Geography:: Russia, Europe, North America, Alaska, and United States of America

55. Uluslararasi Hukukun Eksi̇k Uygulanişina Bi̇r Örnek: Bosna-hersek’te Uluslararasi Toplumun Müdahaleleri̇

Author:: Burak Çakirca
Publication Date:: 10-2020
Content Type:: Journal Article
Journal:: Journal of Academic Inquiries
Institution:: Sakarya University (SAU)
Abstract:: Balkanlardaki birçok farklı unsuru bünyesinde barındıran Bosna Hersek, bu karmaşık yapı nedeniyle bazı sıkıntılı süreçler geçirmiştir. Yirminci yüzyılın son döneminde en büyük trajediler arasında sayılan Sırplar ile Boşnaklar arasındaki savaş bölgede birçok yıkım ve tahribata sebep olmuştur. Bosna’da Uluslararası hukukun diplomatik yöntemler, uluslararası örgütlerin ve uluslararası yargının müdahalesi vasıtasıyla tüm imkanlarının kullanıldığı görülmektedir. Ancak bu imkanların çatışmaları engellemedeki başarısı tartışmalı olmuştur. Bu çalışma, söz konusu methotların hangi düzeyde etkide bulunduğu sorunsallaştırmaktadır. Uluslararası hukukun eksik uygulanışının meydana getirdiği büyük sorunların gösterilmesi çalışmanın amacını oluşturmaktadır.
Topic:: International Law, Military Intervention, and Conflict
Political Geography:: Turkey, Middle East, Eastern Europe, and Bosnia and Herzegovina

56. The Role of International Seabed Authority with Respect to the Administration of Mineral Resources

Author:: Şûle Anlar Güneş
Publication Date:: 03-2020
Content Type:: Journal Article
Journal:: Uluslararasi Iliskiler
Institution:: International Relations Council of Turkey (UİK-IRCT)
Abstract:: Deep ocean floor called as Area is considered as Common Heritage of Mankind (CHM) and the mining activities are managed by International Seabed Authority (ISA). In this article, firstly, the significance of the CHM concept with respect to decolonised states and its impact on law of the sea is elaborated. Secondly, the mandate of ISA which assumed responsibility for the translation of the CHM concept into practice is examined. Every state can take part in mining activities in the Area as a ‘sponsor state’ but the lack of precision with respect to responsibility limits have a deterrent effect over the states that are disadvantaged technically and financially. Considering the negative impact of this issue over the CHM concept the Advisory Opinion of the International Tribunal for Law of the Sea that was given in 2011 is examined.
Topic:: International Law, United Nations, Natural Resources, Law of the Sea, Maritime, and Mining
Political Geography:: Turkey, Middle East, and Global Focus

57. Cyber Space and International Law as a 21st Century Paradox | 21. Yüzyıl Paradoksu Olarak Siber Uzay ve Uluslararası Hukuk

Author:: Vahit Güntay
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: Novus Orbis: Journal of Politics & International Relations
Institution:: Department of International Relations, Karadeniz Technical University
Abstract:: The studies in the base of international relations and security have revealed a different research subject with the developments of technology. Cybersecurity that is in the focus of the technical area has also been argued in the political base. The cyber dimension of security with discussing concepts like cyber politics, cyber deterrence or cyberwar has succeeded to remain on the agenda of states. As a central actor of the international system, states’ interest in cybersecurity has carried this subject to the international law research area. In this study, the historical process and theoretical approach have been evaluated in the base of international relations discipline and it is practised to detail problems about international law. Different data have also supported the approach to the core of this study. | Uluslararası ilişkiler ve güvenlik temelindeki çalışmalar teknolojik gelişmelerle birlikte farklı bir araştırma konusunu karşımıza çıkarmıştır. Teknik bir alanın ilgi odağında olan siber güvenlik politik bir temelde de tartışılmaya başlanmıştır. Siber politikalar, siber caydırıcılık ya da siber savaş gibi isimlerle tartışılmaya başlanan güvenliğin siber boyutu devletlerin de siyasi ajandalarına girmeyi başarmıştır. Uluslararası aktörlerin merkezinde olan devletlerin ilgisi siber güvenliği uluslararası hukukun inceleme alanına taşımıştır. Bu çalışma dahilinde siber güvenliğe ilişkin tarihsel süreç ve teorik yaklaşım uluslararası ilişkiler disiplini temelinde ele alınmış ve uluslararası hukuka dair sorunlar detaylandırılmaya çalışılmıştır. Çalışmanın özüne dair yaklaşım farklı verilerle de desteklenmiştir.
Topic:: International Relations, Crime, International Law, and Cybersecurity
Political Geography:: Global Focus

58. Constraining U.S. foreign policy by enforcing current law: a series on Congress’s options to limit arms sales and aid to Saudi Arabia, part 3

Author:: Jacques Singer-Emery
Publication Date:: 01-2019
Content Type:: Journal Article
Journal:: Harvard Journal of Middle Eastern Politics and Policy
Institution:: The John F. Kennedy School of Government at Harvard University
Abstract:: This is the third of a three-part essay series on the different paths the U.S. Congress might take to limit Washington’s support for the Saudi-led coalition in Yemen. Credible allegations of Saudi war crimes and human rights abuses in Yemen should trigger the FAA and Leahy Laws to prevent U.S. aid from reaching the Saudi-led coalition, as discussed in part 2 of this series. However, the U.S. Constitution forbids Congress from unilaterally issuing orders to any executive agency, including the Defense and State Departments. Accordingly, both the Foreign Assistance Control Act (FAA) and the Leahy laws place the onus on the executive to identify and respond to gross violations of human rights. Thus far, the executive has turned a blind eye to the Saudi coalition’s actions. Congress could independently find that Saudi Arabia has engaged in a “consistent pattern of gross violations of internationally recognized human rights” by commissioning its own investigations. But if the executive remains unconvinced, Congress only has two options to enforce the FAA and the Leahy laws: impeach the President, or obtain a court order requiring the executive withhold aid and arms pursuant to these laws. The first action is unlikely to occur here, but the second is a viable option. To secure a court order, Congress must show that the executive’s refusal to follow the FAA and the Leahy laws uniquely injures the legislative branch in a way that only the courts can remedy.
Topic:: Government, International Law, Law, War Crimes, Weapons, Courts, and Legislation
Political Geography:: Yemen, Saudi Arabia, North America, United States of America, and Gulf Nations

59. Terrorism: Agreeing on the Basics

Author:: Ophir Falk
Publication Date:: 05-2019
Content Type:: Journal Article
Journal:: American Diplomacy
Institution:: American Diplomacy
Abstract:: Today, after years of modern terrorism and counterterrorism, the international community still does not agree on a single definition of terrorism. Despite the daily threats posed to many states, the definition conundrum prevents an agreed classification that could better facilitate the fight against terrorism and thwart the public legitimacy that most terrorist organizations seek. When a problem is accurately and acceptably defined, it should be easier to solve. Terrorism is an overly used term often heard in different discourses and contexts. It is used by the general public and in the course of academic, political, and legal debates, not to mention constantly referenced in the media. It may not be feasible to verse one universal definition for all discourses, but the term’s key criteria can and should be agreed upon.
Topic:: International Law, Politics, Terrorism, Military Affairs, Violence, Hezbollah, and White Supremacy
Political Geography:: Middle East, Israel, North America, and United States of America

60. Advancing the Rule of Law Through Executive Measures: The Case of MINUSCA

Author:: Edith Vanspranghe
Publication Date:: 08-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) has been mandated to implement “urgent temporary measures” in the form of arrests and detentions of individuals. This rather innovative mandate brings about several legal and conceptual consequences that the article addresses, focusing on the compatibility of these measures with UN peacekeeping norms and principles and with past UN practice. In addition, the measures are said to contribute to law and order, public safety, the fight against impunity, and to the rule of law. This sheds light on the UN’s interesting conception of the rule of law in the Central African Republic and in conflict and post-conflict settings in general.
Topic:: International Law, United Nations, Conflict, and Rule of Law
Political Geography:: Africa and Central African Republic

61. Reconciling the Irreconcilable? – The Extraterritorial Application of the ECHR and its Interaction With IHL

Author:: Severin Meier
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article examines the extraterritorial application of the European Convention on Human Rights (ECHR) during international armed conflict. After a brief discussion of the different historic origins of international human rights law and international humanitarian law (IHL), the article examines the test for establishing jurisdiction under Article 1 of the ECHR. A critical analysis of some contentious legal issues regarding derogations completes the picture of when jurisdiction is established. Subsequently, the article considers the interaction between the ECHR and IHL in international armed conflicts and concludes by arguing that a balance must be found between protecting human rights in international armed conflicts while not interfering unduly with IHL.
Topic:: Human Rights, International Law, and Conflict
Political Geography:: Europe

62. The Perils of Judicial Restraint: How Judicial Activism Can Help Evolve the International Court of Justice

Author:: Deepak Mawar
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The article analyzes the International Court of Justice and its approach to judicial decision-making. By investigating the Court’s jurisprudence over its seventy years of activity, the article seeks to outline, that if given the choice, the ICJ tends to prioritize judicial restraint over judicial activism. In fact, the Court maintains a strict adherence to judicial restraint, which stems from a fear of losing its legitimacy when facing the issue of consent-based jurisdiction. The article purports that although judicial restraint is an important facet of sound judicial decision-making, the ICJ should not be so reluctant to adopt judicial activism when it is suitable to utilize such an approach. Such a position is strengthened when analyzing the criticisms made of judgments delivered by the Court, which fail to serve the international community beneficially.
Topic:: International Law and International Court of Justice (ICJ)
Political Geography:: Global Focus

63. Secessionist Conflict: A Happy Marriage between Norms and Interests?

Author:: Rafael Biermann
Publication Date:: 03-2019
Content Type:: Journal Article
Abstract:: This roundtable debates how norms, values, and interests are balanced and harmonized in a world of conflict. My contribution focuses on one specific policy field: secessionist conflict. Like Megan Bradley’s contribution on the international refugee regime,1 this essay takes a metaperspective and does not investigate any one specific case or actor.2 I assume a political science perspective, paying attention first to social norms (as standards of appropriate behavior), which encompass but go beyond legally codified norms of international law;3 and second to interests, whether they be national, group, personal, or other. My perspective here is a critical social constructivist one, investigating the dialectic relationship of norms, interests, and power. I introduce the concept of “norm selection” in a policy field, which offers choice within a cluster of competing norms. Finally, following Bernd Bucher’s call to bring back agency into what he terms international “norm politics,” this contribution prioritizes agency, arguing that it is actors with diverging interests who do the balancing of norms, values, and interests.4 This was one of the major insights we gained from the workshop preceding this roundtable.5 The central argument of my contribution is that the policy field of secessionist conflict is structured around a set of five rival norms, of which territorial integrity and self-determination form the core. This normative structure permits the parties involved in a secessionist conflict to select from a menu of norms those that best suit their interests. The selection displays remarkable regularities, indicating default positions for each type of actor. However, significant outlier cases signal that interests do not simply trump norms but that actors accord different values to those norms. This attribution is influenced by the dynamics of a normative environment in which norms rise and fall. In particular, since the Cold War ended, discourse as well as state practice have shifted away from the traditional taboo on secession toward more revisionist concepts, such as remedial secession or earned sovereignty, providing an opening for the secessionist wave that started with the breakup of the Soviet Union and of Yugoslavia. I present my argument in three steps. First, I introduce the above-mentioned cluster of norms that shape discourse and policies on secession, distinguishing the two core norms and the three circumjacent ones of noninterference, human rights, and democratic good governance. Second, I identify five major types of actors in secessionist conflicts and investigate how each balances those norms. Since this balancing is actor-specific and conforms to the interests that each pursues, I arrive at distinct default positions for each actor type. Whereas this analysis suggests that norms serve primarily as legitimation devices to advance the diverging interests of various actors, the last section discusses outlier cases where norms and interests do not match as presumed.
Topic:: International Law, Self Determination, Norms, and Secession
Political Geography:: Global Focus

64. Fighting for the Disability Rights through Vernacularization in Bangkok

Author:: Swe Zin Linn Phyu
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: Review of Human Rights
Institution:: Society of Social Science Academics (SSSA)
Abstract:: In many non-Western societies there are still challenges to the legibility, and hence applicability, of international human rights law. This is partly due to the gap between Western legal regime and local cultural contexts. However, with the process of vernacularization some of this gap has been bridged, especially in issues of relating to women rights. This paper explores how NGOs and Human Rights defenders in Bangkok have adopted the process of vernacularization to enhance disability rights.
Topic:: Human Rights, International Law, Disability, and NGOs
Political Geography:: Asia, Thailand, Southeast Asia, and Bangkok

65. Pakistan’s Commitment to Human Rights: A Probe into the Question of Ratification of the Rome Statute of International Criminal Court

Author:: Mazhar Ali Khan
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: Review of Human Rights
Institution:: Society of Social Science Academics (SSSA)
Abstract:: The question of ratification of the Rome Statute of International Criminal Court is one of the most debated questions in public international law. Because it involves strict commitment to human rights many states often see it as a hurdle to their national interests. Nevertheless a number of states have ratified the statute except a few. Pakistan is one of those states that have not ratified the Rome Statute even though it has been a party to various other treaties on human rights. This article focuses on the question why Pakistan did not ratify the statute? The article also provides recommendations how the ratification can be made possible.
Topic:: Human Rights, International Law, Islamic State, International Community, International Criminal Court (ICC), Rome Statute, and Universal Jurisdiction
Political Geography:: Pakistan, South Asia, and Global Focus

66. U.S. Complicity in the 2014 Coup in Kiev as a Violation of International Law

Author:: A. Vyleghanin and K. Kritsky
Publication Date:: 01-2019
Content Type:: Journal Article
Journal:: International Affairs: A Russian Journal of World Politics, Diplomacy and International Relations
Institution:: East View Information Services
Abstract:: FIVE YEARS AGO, a coup d’état took place in Kiev. Following demon- strations and arson attacks, a mob seized several government institutions, including the administration building and residence of the constitutional- ly elected president of Ukraine, Viktor Yanukovich. Some members of the Ukrainian president’s security detail who were protecting his residence from illegal seizure were wounded and killed.1 Alexander Turchinov, one of the coup leaders, began serving as the president of Ukraine even though no Ukrainian presidential election had been held. The coup in Kiev led primarily to the U.S. assuming a leading role in Ukraine’s governance – something it had neither during the period of the Russian Empire nor the Soviet era. The February 2014 overthrow of the president in Kiev that took place without elections and in violation of the Ukrainian Constitution de facto divided the country into regions that recognized the new authorities in Kiev and those that opposed the coup (primarily the southern and eastern regions of Ukraine). This occurred not only because the Ukrainian presi- dent was unconstitutionally removed from power but primarily because the “installation” of the putschist government was accompanied by vio- lence, and ethnic and linguistic persecution. In March 2014, the Autonomous Republic of Crimea left the new, “post-coup” Ukraine in accordance with the provision of the UN Charter on the right of peoples to self-determination. Subsequently, following a referendum in Crimea, a treaty on Crimea’s reunification with Russia was signed. A confrontation between the new regime in Kiev* and residents of Donetsk and Lugansk Regions turned into a protracted armed conflict. The forcible replacement in Kiev of a constitutionally elected head of state (Yanukovich) with an unconstitutional leader (Turchinov) directly impacted Russia’s national interests. Russians and Ukrainians lived together within a single state, the Russian Empire, from the 17th century until 1917. During the Soviet period, the border between the Russian Soviet Federative Socialist Republic and the Ukrainian Soviet Socialist Republic did not have international legal significance. It was an administrative bor- der. After the collapse of the Soviet Union, the independent UN member states (Russia and Ukraine) that replaced them continued to maintain close economic and other ties. Their continued integration, including through joint participation in the Customs Union, objectively met the strategic interests of Ukraine and Russia. A friendly Ukraine is also important to Russia from a national securi- ty standpoint, considering NATO’s expansion toward Russia’s borders that began in the early 1990s – i.e., NATO’s absorption of all former member states of the Warsaw Pact, including Poland and even the former Soviet republics of Latvia, Lithuania and Estonia. Russia’s leadership has repeatedly stressed the inadmissibility of dragging Ukraine into NATO. Words about “fraternal” relations between the peoples of Russia and Ukraine are no exaggeration: Millions of family members (both Russians and Ukrainians) live on opposite sides of the Russian-Ukrainian border,2 and at least one-third of Ukraine’s population speaks Russian as a native language. In this context, it is not surprising that Moscow considered the U.S.- orchestrated seizure of power from the head of state in Kiev an event affecting its vital interests. Something else is remarkable: The U.S. administration said that the events in Ukraine, far away from the American mainland, “constitute an unusual and extraordinary threat to the national security and foreign policy of the United States.”4 Westerners promulgated a very different assessment of the forced ouster of Ukrainian President Viktor Yanukovich in 2014. The U.S. called it a “people’s rev- olution” and said that the mob action organized in part by the U.S. ambas- sador in Kiev (including the killing of Berkut fighters, the state guard of the Ukrainian president) was a legitimate way of expressing the will of the “Ukrainian people.”
Topic:: International Cooperation, International Law, Military Strategy, and Conflict
Political Geography:: Russia, Europe, Ukraine, Middle East, South America, Syria, Venezuela, North America, and United States of America

67. Reassessment of Turkey’s Objections to the Exclusion of Terrorism from the Rome Statute

Author:: Kurtuluş
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: Uluslararasi Iliskiler
Institution:: International Relations Council of Turkey (UİK-IRCT)
Abstract:: Criminal justice response to terrorism and to the support for terrorism is still a hot topic in Turkey due to ongoing American military support for the PYD, which is Syrian wing of the internationally designated terrorist organization PKK whose indiscriminate attacks in Turkey has claimed lives of thousands of civilians. This article first discusses, in light of recent developments, whether exclusion of a separate crime of terrorism from the Rome Statute of the International Criminal Court can be a valid argument against Turkey’s accession to it. After discovering some of the possible contributions of Turkey’s Rome Statute accession to its decades-long struggle against terrorism, this study concludes that Turkey’s all other concerns regarding the accession should be periodically reevaluated.
Topic:: International Law, Terrorism, International Criminal Court (ICC), and Rome Statute
Political Geography:: Turkey, Middle East, and Mediterranean

68. Periodisation of International Law: Positivist Discourse and Beyond

Author:: Aynur Demirli and Ali Murat Özdemir
Publication Date:: 09-2019
Content Type:: Journal Article
Journal:: Uluslararasi Iliskiler
Institution:: International Relations Council of Turkey (UİK-IRCT)
Abstract:: Although the international law itself has changed over time, the definition of international law by the positivist discourse used as a means to understand it remains constant. From this paradigm, which conceptualizes itself historically rootless in one sense and detaches itself from its current periodic ties, it is very difficult to construct an explanatory narrative about the forms of international law. For this purpose the study firstly investigates the elements of the classical definition of international law in a socio-historical context. Secondly, it will propose a starting date and a periodicization style for the work area defined as international law. Lastly in this study the periodization of international law in its modern history will be evaluated.
Topic:: Imperialism, International Law, and Political Economy
Political Geography:: Turkey and Global Focus

69. The Regime for Protecting Cultural Property during Armed Conflicts: An Analysis of the Historical Development

Author:: Elvan Çokişler
Publication Date:: 08-2019
Content Type:: Journal Article
Journal:: Uluslararasi Iliskiler
Institution:: International Relations Council of Turkey (UİK-IRCT)
Abstract:: This research deals with the historical development of the regime for protecting cultural properties during armed conflicts. The historical development is addressed in three sections: The first section explains the process from antiquity through the 18th century in light of the views that form the philosophical background of the regime. The second section discusses the initial tangible efforts which appeared in the 19th century with regard to the establishment of customary law, while the third section handles the 20th century endeavors in terms of the codification of the regime. The research has shown that, throughout history cultural property has been open for strategic use, efforts for protecting it accelerated particularly after great wars and codification efforts improved as a reaction to big damages stemming from changing nature of armed conflicts. These findings may be interpreted as indicating that today’s protection efforts are bound to be insufficient for the future strategic uses of cultural property that are unpredictable from today’s vantage point.
Topic:: International Law, Treaties and Agreements, Culture, and Conflict
Political Geography:: Global Focus

70. Scrutinizing Possible Procedures by which States Withdraw from the United Nations

Author:: Mehmet Halil Mustafa Bektaş
Publication Date:: 08-2019
Content Type:: Journal Article
Journal:: Uluslararasi Iliskiler
Institution:: International Relations Council of Turkey (UİK-IRCT)
Abstract:: A state rarely considers leaving an international organization when negotiating the conditions of its entry. Among such organizations is the United Nations (UN), an institution of obvious global importance. The issue of withdrawal, neglected though it often is (whether deliberately or unintentionally), could however be equally as significant as that of entry. By contrast with the Covenant of the League of Nations, the UN Charter makes no provision for withdrawal. The procedure to be followed should a state request to withdraw is therefore left uncertain. The current study therefore examines three primary instruments: the proposal of the Committee of the San Francisco Conference, the Indonesian example and the inclusion of the relevant provisions of the Vienna Convention on the Law of Treaties. The study aims to determine whether these instruments provide an explicit procedure for withdrawal from the UN. The current study contributes to the Turkish literature by providing insight into this largely ignored topic.
Topic:: International Law, Treaties and Agreements, and United Nations
Political Geography:: Global Focus

71. From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal

Author:: Hannah Woolaver
Publication Date:: 01-2019
Content Type:: Journal Article
Abstract:: If a state withdraws from a treaty in a manner that violates its own domestic law, will this withdrawal take effect in international law? The decisions to join and withdraw from treaties are both aspects of the state’s treaty-making capacity. Logically, international law must therefore consider the relationship between domestic and international rules on states’ treaty consent both in relation to treaty entry and exit. However, while international law provides a role for domestic legal requirements in the international validity of a state’s consent when joining a treaty, it is silent on this question in relation to treaty withdrawal. Further, there has been little scholarly or judicial consideration of this question. This contribution addresses this gap. Given recent controversies concerning treaty withdrawal – including the United Kingdom’s exit from the European Union, South Africa’s possible withdrawal from the International Criminal Court, and the threatened US denunciation of the Paris Agreement – and the principles underlying this body of law, it is proposed that the law of treaties should be interpreted so as to develop international legal recognition for domestic rules on treaty withdrawal equivalent to that when states join treaties, such that a manifest violation of domestic law may invalidate a state’s treaty withdrawal in international law.
Topic:: International Law, Treaties and Agreements, European Union, Courts, and State Actors
Political Geography:: United Kingdom, Europe, South Africa, and United States of America

72. Ocean Floor Grab: International Law and the Making of an Extractive Imaginary

Author:: Surabhi Ranganathan
Publication Date:: 04-2019
Content Type:: Journal Article
Abstract:: In this article, I argue for a critical recognition of the law of the sea, as it developed from the post-war period, as fostering a ‘grab’ of the ocean floor via national jurisdiction and international administration. I discuss why we should view what might be discussed otherwise as an ‘enclosure’ or ‘incorporation’ of the ocean floor within the state system as its grab. I then trace the grounds on which the ocean was brought within national and international regimes: the ocean floor’s geography and economic value. Both were asserted as givens – that is, as purely factual, but they were, in fact, reified through law. The article thus calls attention to the law’s constitutive effects. I examine the making of this law, showing that law-making by governments was influenced by acts of representation and narrative creation by many non-state actors. It was informed by both economic and non-economic influences, including political solidarity and suspicion, and parochial as well as cosmopolitan urges. Moreover, the law did not develop gradually or consistently. In exploring its development, I bring into focus the role played by one influential group of actors – international lawyers themselves.
Topic:: Economics, International Law, History, Law of the Sea, and Maritime
Political Geography:: Europe and Oceans

73. The European Union and the Law of Treaties: A Fruitful Relationship

Author:: Paz Andrés Sáenz De Santa María
Publication Date:: 07-2019
Content Type:: Journal Article
Abstract:: This article examines the European Union’s (EU) treaty practice from the perspective of the international law of treaties, focusing on its most significant examples. The starting point is the EU’s attitude towards the codification of treaty law involving states and international organizations. The article discusses certain terminological specificities and a few remarkable aspects, such as the frequent use of provisional application mechanisms as opposed to much less use of reservations, the contributions regarding treaty interpretation, the wide variety of clauses and the difficulties in determining the legal nature of certain texts. The study underlines that treaty law is a useful instrument for the Union and is further enriched with creative contributions; the outcome is a fruitful relationship.
Topic:: International Law, Treaties and Agreements, European Union, and Courts
Political Geography:: Europe and European Union

74. Taking Care of Business: Industrial Espionage and International Law

Author:: Russell Buchan
Publication Date:: 09-2019
Content Type:: Journal Article
Journal:: Brown Journal of World Affairs
Institution:: Brown Journal of World Affairs
Abstract:: The essence of espionage is the non-consensual collection of confidential information. Espionage takes different forms depending upon the identity of the perpetrator and the nature of the confidential information targeted. Political espionage describes the state-sponsored theft of confidential information, and its purpose is to shed light on the capabilities and intentions of other state and non- state actors. Economic espionage is also state-sponsored, and it involves states stealing trade secrets from companies located in foreign jurisdictions, usually with the intention of passing this information to domestic companies so that they possess a competitive advantage. In contrast, industrial espionage is perpetrated by non-state actors insofar as it entails companies stealing foreign competitors’ confidential information without the support or assistance of a state. Espionage usually implies a transboundary dimension to its operations, thereby raising the question of whether international law can be invoked to regulate this practice. In recent years, considerable academic attention has been dedicated to the status of political and economic espionage under international law.2 Less attention, however, has been directed toward the application of inter- national law to industrial espionage. While this omission is understandable given that international law is a state-based system, it is not inevitable: the activities of non-state actors fall within the purview of international law on the basis that they operate under the jurisdiction of the state.3 As such, international law imposes an obligation upon states to regulate the conduct of non-state actors within their jurisdictions or, to be exact, to streamline non-state actors’ conduct such that their activities do not contravene the rights of other states. The objective of this article is to examine whether and to what extent the obligation to prevent transboundary harm applies to those situations in which a company commits industrial espionage against a company located in a foreign jurisdiction.4
Topic:: International Law, Business, Espionage, and Industry
Political Geography:: Global Focus

75. The Extraordinary Gamble: How the Yugoslav Tribunal’s Indictment of Slobodan Milošević During the Kosovo War Affected Peace Efforts

Author:: Jacqueline R. McAllister
Publication Date:: 09-2019
Content Type:: Journal Article
Journal:: Brown Journal of World Affairs
Institution:: Brown Journal of World Affairs
Abstract:: On 24 May 1994, the International Criminal Tribunal for the former Yugoslavia (ICTY or Yugoslav Tribunal) made history by becoming the first international court to indict a sitting head of state: Yugoslav President Slobodan Milošević. Since Milošević’s rise to power roughly a decade before, forces either directly or indirectly under his control had unleashed a reign of terror first in Croatia, then in Bosnia and Herzegovina, and finally in Kosovo. Indicting Milošević was no small feat: he did everything in his power to cover his tracks. Moreover, in order to secure crucial evidence (e.g., intelligence and satellite imagery linking Serb forces to crime sites) and the support necessary to actually put Milošević on trial, the ICTY required the backing of Western powers, which—until the Kosovo War in 1999—viewed Milošević as a vital, yet unsavory guarantor of peace in the region. Reactions to the indictment were mixed. While the Yugoslav Tribunal’s supporters heralded the indictment as a legal triumph that brought Milošević to his knees, its critics emphasized that, at best, the indictment was irrelevant and, at worst, an extraordinary gamble that had the potential to thwart an end to hostilities.1
Topic:: NATO, Ethnic Conflict, International Law, Peace, and Slobodan Milosevic
Political Geography:: Kosovo, Yugoslavia, Serbia, and Balkans

76. Melting Arctic: Implications for the Twenty-First Century

Author:: Ziad Al Achkar
Publication Date:: 09-2018
Content Type:: Journal Article
Journal:: The Journal of Diplomacy and International Relations
Institution:: School of Diplomacy and International Relations, Seton Hall University
Abstract:: The Arctic region has not traditionally been the focus of international politics and world economics; however, recently environmental scientists have flooded the news with the effects of global warming in the region concerning the significant melting ice caps, dramatic ecological degradation, and potential irreversible loss of many species. Climate change is manifesting around the world through floods, ecological degradation, and potentially driving violence and conflict; in the Arctic, all these risks are compounded. The nature of the Arctic pole means that what will happen in the region is guaranteed to have an impact elsewhere. While environmentalists have sounded the alarm about the risks to the environment in the region, there is an ever-growing security danger that faces the Arctic. With ice caps melting and retreating to unprecedented levels, the arctic seabed is now open for nations to explore its reported vast amount of natural resources. This article will identify issues that will shape the twenty-first century of the Arctic. The scope of the article is not meant to be exhaustive of the problems and challenges but offer a thematic overview of the problems. There are three broad categories covered in this article. First, an overview of the changing climate, its ecological and environmental impact, and the challenges of operating in the Arctic. Second, an overview of the economics and international law implications that are a result of climate change and of increased activity in the region. Third, the geopolitics of the Arctic region.
Topic:: Climate Change, Environment, International Law, and Treaties and Agreements
Political Geography:: Russia, Canada, Norway, Denmark, Greenland, Arctic, and United States of America

77. Constitutionalism and the Mechanics of Global Law Transfers

Author:: Andreas L. Paulus and Johann Ruben Leiss
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article explores rule of law transfers from an international perspective. Based on the observation that the proposal of an emerging international constitutional order seems to have lost momentum this article emphasizes a global legal reality that is characterized by a complex and rather non-hierarchical interplay between various (fragmented) international legal orders and suborders as well as national legal orders. This article discusses four legal mechanisms that are of pivotal relevance with respect to global rule of law transfers. These mechanisms include, first, so-called “hinge provisions” as doorways between different legal orders, second, harmonious interpretation as a legal tool of integration, third the sources of international law enabling transmission of norms and providing a framework for judicial interaction and, fourth, judicial dialogue as an informal means of rule of law transfer.
Topic:: International Cooperation, International Law, Sovereignty, and Rule of Law
Political Geography:: Global Focus

78. The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy: EU Treaty Imperatives and Rule of Law Conditionality in the Foreign Trade and Development Nexus

Author:: Till Patrik Holterhus
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article demonstrates that Arts. 21 and 3 (5) of the Treaty on European Union (TEU) as well as Arts. 205, 207 (1), 208 (1), 209 (2) of the Treaty on the Functioning of the European Union (TFEU), legally oblige the European Union (EU) to promote the rule of law in its foreign trade and development policy. Furthermore, it is shown that, in the context of such promotion, the EU applies not a rudimentary but a sophisticated concept of the rule of law – quite similar to the concept of the rule of law that has developed within the Union. To fulfill the legal obligation to promote the rule of law abroad, the EU employs, as a key instrument, the legal mechanism of conditionality, not only through autonomous instruments but also in its contractual international relationships (carrot-and-stick policy). The EU’s foreign policy in the trade and development nexus, in particular when it comes to the promotion of the rule of law, can, therefore, be considered a process, to a large extent, determined and organized the of law.
Topic:: International Law, International Trade and Finance, Sovereignty, and European Union
Political Geography:: Europe

79. The Dawn of Article 18 ECHR: A Safeguard Against European Rule of Law Backsliding?

Author:: Floris Tan
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article examines an underexplored avenue for the protection of the rule of law in Europe: Article 18 of the European Convention on Human Rights. This provision prohibits States from restricting the rights enshrined in the European Convention for any other purpose than provided for in the Convention. In this contribution, the author argues, based on a combination of textual, systematic and purposive interpretations of Article 18, that the provision is meant to safeguard against rule of law backsliding, in particular because governmental restrictions of human rights under false pretenses present a clear danger to the principles of legality and the supremacy of law. Such limitations of rights under the guise of legitimate purposes go against the assumption of good faith underlying the Convention, which presupposes that all States share a common goal of reinforcing human rights and the rule of law. Article 18 could therefore function as an early warning that European States are at risk of becoming an illiberal democracy or even of reverting to totalitarianism and the destruction of the rule of law. The article then goes on to assess the extent to which the European Court’s case-law reflects and realizes this aim of rule of law protection, and finds that whereas the Court’s earlier case-law left very little room for an effective application of Article 18, the November 2017 Grand Chamber judgment in Merabishvili v. Georgia has made large strides in effectuating the provision’s raison d’être. As the article shows, however, even under this new interpretation, challenges remain.
Topic:: Human Rights, International Law, and Rule of Law
Political Geography:: Europe

80. The Law Behind Rule of Law Promotion in Fragile States: The Case of Afghanistan

Author:: Astrid Wiik and Frauke Lachenmann
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Rule of law (RoL) promotion has become a go-to-tool in the complex process of stabilizing and rebuilding (post-)conflict States. The process is driven by a heterogeneous group of national, foreign, and international actors who define and prescribe RoL norms and standards, who programme, finance, implement, and eventually monitor RoL reforms. While the legitimacy and effectiveness of RoL promotion has undergone scrutiny, particularly within the overall context of international development assistance, an aspect that has so far received little attention is the legality of RoL promotion. This concerns both the mandate of the various actors and the execution of RoL activities on the ground. Since 2001, the international community has intensely supported the RoL in Afghanistan rendering it a veritable testing ground for RoL promotion. The article explores the legal framework for actors in RoL promotion in Afghanistan from 2001 up to the present day, with a focus on the German Government, its development cooperation agencies, and private non-governmental organizations (NGOs). The article shows that while detailed rules bind the monitoring and evaluation of RoL activities in line with the existing international frameworks for development assistance, few laws and principles guide the programming and implementation of RoL promotion. The existing standards are generally too abstract to guide specific RoL promotion activities. Further concretization and harmonization is necessary in the interest of the sustainability of RoL promotion in Afghanistan – and elsewhere.
Topic:: International Law, Non State Actors, Governance, and Rule of Law
Political Geography:: Afghanistan and Middle East

81. International Investment Law and the Rule of Law

Author:: Peter-Tobias Stoll
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: International investment law appeals to a lawyer’s appetite for the rule of law by disciplining the exercise of power between States and foreign investors through legalization and judicialization. Originally supposed to serve as a fix to promote foreign investments in developing countries in times of legal uncertainties, now, thousands of bilateral investment agreements exist, and the number of cases in investment arbitration has exploded in the last decade. Further, there is a tendency of generalization, as investment protection now features as a standard element of international trade agreements, far beyond the original focus on developing countries. A number of flaws and shortcomings of the rules and procedures became apparent in the course of the more frequent use of the system and resulted in much discussion within the expert community, which resulted in some changes. Furthermore, the long neglected possibility became apparent, that investment claims could be directed against industrialized countries and that the conduct of their authorities could be subjected to review by international arbitration tribunals. This sparked heated public debates, particularly so in the EU. These two developments have in common, that they implicitly as well as explicitly raised the issue of the rule of law. This paper will assess the system of international investment law as it stands, its critique and its reform, through the lens of the rule of law. It will also make a highly idealistic proposal on the further development of international investment protection. In concluding, it will reflect on the proper use of the rule of law in legal analysis, by setting out the different perspectives in which the term may be employed, and the methodological consequences.
Topic:: International Law, International Trade and Finance, Rule of Law, and Investment
Political Geography:: Global Focus

82. European Union Eastern Neighbourhood and the Post-Soviet Conflicts / Vecindario oriental de la Unión Europea y los conflictos post-soviéticos

Author:: José Ángel López Jiménez
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: Journal on International Security Studies (RESI)
Institution:: International Security Studies Group (GESI) at the University of Granada
Abstract:: The abrupt Soviet Union´s dissolution came accompanied by a whole of different typology of conflicts causing high complexity in the convulsed independent statehood construction process. Secessionism in cascade of territorial and administrative entities have been a useful tool in Kremlin´s hand in order to enhance their interests in the post-soviet space. Russian Foreign Policy in shared neighborhood with Eastern European Union borders has an absolute priority in their interests-defined in strategic documents- infringing the main Contemporary International Law principles. Russian interventionism in the independent republics acquires different modalities since the 2008 summer- with Russian armed forces penetrating in Georgia and supporting Abjasia and South Ossetia secessionist movements- are even increasing these actions. In 2014, with Crimea´s annexation and the conflict in Ukraine -Eastern districts-, Russian expansionism seems to be reached a road without return. Specially due to international community inaction and Russia´s return to a protagonist role in a multipolar order in construction.
Topic:: Foreign Policy, International Law, Territorial Disputes, and Conflict
Political Geography:: Russia and Eurasia

83. The death of Jamal Kashoggi: Issues of Human Rights Violations and International Law

Author:: Jumoke Adegbonmire
Publication Date:: 12-2018
Content Type:: Journal Article
Journal:: Review of Human Rights
Institution:: Society of Social Science Academics (SSSA)
Abstract:: State responsibility is a cardinal principle of international law. The doctrine of State sovereignty under international law accords States’ legal personality and requires that they fulfill international obligations. International law imposes obligations on States to perform their duties in ensuring that a breach of international law does not go unpunished. Consequences for such actions means that States need to adhere to procedural and substantive law in addition to offering reparation for the violation of an international obligation. In the past, violation of an international obligation was only attributed to States as they were considered to be the only entity that could possess rights and duties within the international sphere. Therefore States were considered to be the only ones that could be criminally liable for acts that could be attributed to them. But the development in human rights law and the advent of rules governing personal criminal responsibility has extended the scope of international obligations under international law to include States and individuals as being liable for international crimes. The international law disallows immunity from prosecution in foreign domestic courts for the most serious crimes: Re-Pinochet case. This means State responsibility and individual responsibility for wrongful acts are not mutually exclusive.
Topic:: Crime, Human Rights, International Law, Torture, and Extradition
Political Geography:: Turkey and Saudi Arabia

84. TWAIL and the Responsibility to Protect (R2P) as a New Instrument of Domination: the Case of Libya

Author:: Tuğçe Kelleci and Marella Bodur Ün
Publication Date:: 01-2018
Content Type:: Journal Article
Journal:: Uluslararasi Iliskiler
Institution:: International Relations Council of Turkey (UİK-IRCT)
Abstract:: Third World Approaches to International Law (TWAIL) points to the interactions between international law and colonial legacy and problematizes the concepts of humanitarian intervention and the Responsibility to Protect (R2P) within this framework. Humanitarian intervention is usually discussed in relation to its legitimacy in international law and the United Nations Security Council (UNSC) resolutions. TWAIL, however, analyzes those interventions that are constructed through discourses of human rights and democracy, highlighting the importance of issues other than legality and legitimacy. A historical reading of the Libyan case through the prism of TWAIL not only provides us with an opportunity to assess TWAIL’s assumptions in relation to international law, humanitarian intervention and R2P but also reveals how international law and R2P are used to legitimize interventions of the West into the Third World.
Topic:: International Law, Humanitarian Intervention, Responsibility to Protect (R2P), and UN Security Council
Political Geography:: Libya and North Africa

85. The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?

Author:: Alan Desmond
Publication Date:: 01-2018
Content Type:: Journal Article
Abstract:: This article critically examines the evolving practice of the European Court of Human Rights (ECtHR) towards the definition and use of the concepts of family life and private life in cases involving migrants who seek to resist deportation by invoking Article 8 of the European Convention on Human Rights. The examination reveals an approach on the part of the Court that has the effect of shrinking the protection potential of Article 8 for migrant applicants, allowing state interest in expulsion to carry the day. This is symptomatic of Strasbourg’s deference to state sovereignty in the realm of migration. While the ECtHR has issued a number of landmark rulings roundly vindicating migrants’ rights, these are the exception to the rule of Strasbourg’s deference to state powers of immigration control. This approach has far-reaching implications for migrants in the member states of the Council of Europe. The article concludes by highlighting the tools at the Court’s disposal that could be employed to construct a more human rights-consistent approach in this strand of jurisprudence, which is an issue all the more relevant in light of the growing number of migrants seeking to establish a life in Europe.
Topic:: Human Rights, International Law, Migration, Sovereignty, and Courts
Political Geography:: Europe and France

86. Maritime Legal Black Holes: Migration and Rightlessness in International Law

Author:: Itamar Mann
Publication Date:: 04-2018
Content Type:: Journal Article
Abstract:: This article explores the trope of the ‘legal black hole’ to reveal questions of legal theory arising from contemporary migrant drownings. The theme was popularized during what was then called the ‘war on terror’, but its trajectory is longer and more complex. Its material history, as well as its intellectual history within legal scholarship, suggest three distinct ‘legacies’ of legal black holes: the counterterrorism legacy; the migrant-detention legacy; and the legacy of the maritime legal black hole. The tripartite division provides a conceptual typology of instances where persons are rendered rightless. While the two former types are characterized by de facto rightlessness due to a violation of international law, the latter exposes a seldom acknowledged, yet crucial, characteristic of international law; the age-old doctrine on the division of responsibilities between states and individuals at land and at sea is now creating the conditions in which some people are rendered de jure rightless. Moreover, the typology sheds light on the specifically legal reasons for the seeming failure to end mass drowning of migrants and refugees in the Mediterranean Sea. Tracing the ways in which people become de jure rightless is ultimately suggested as a broader research agenda for scholars of international law.
Topic:: Human Rights, International Law, Migration, and Maritime
Political Geography:: Europe and Mediterranean

87. The Return of Cultural Genocide?

Author:: Leora Bilsky and Rachel Klagsbrun
Publication Date:: 04-2018
Content Type:: Journal Article
Abstract:: Cultural genocide, despite contemporary thinking, is not a new problem in need of normative solution, rather it is as old as the concept of genocide itself. The lens of law and history allows us to see that the original conceptualization of the crime of genocide – as presented by Raphael Lemkin – gave cultural genocide centre stage. As Nazi crime was a methodical attempt to destroy a group and as what makes up a group’s identity is its culture, for Lemkin, the essence of genocide was cultural. Yet the final text of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) does not prohibit cultural genocide as such, and it is limited to its physical and biological aspects. What led to this exclusion? In this article, we examine the various junctures of law, politics and history in which the concept was shaped: the original conceptualization by Lemkin; litigation in national and international criminal courts and the drafting process of the Genocide Convention. In the last part, we return to the mostly forgotten struggle for cultural restitution (books, archives and works of art) fought by Jewish organizations after the Holocaust as a countermeasure to cultural genocide. Read together, these various struggles uncover a robust understanding of cultural genocide, which was once repressed by international law and now returns to haunt us by the demands of groups for recognition and protection.
Topic:: Genocide, International Law, History, Culture, Courts, and Holocaust
Political Geography:: Europe and Germany

88. The Legacy of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and Their Contribution to the Crime of Rape

Author:: Alexandra Adams
Publication Date:: 07-2018
Content Type:: Journal Article
Abstract:: The article analyses the over 20 years’ jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda with respect to the crime of rape. It discusses how the attitude towards the prosecution of sexual crimes has changed since the Tribunals work began and what impact its jurisprudence has had on other attempts to define rape (elements of crime [EOC]). The article explores in depth the various definitions of rape given by the different chambers of both Tribunals. Consequently, it examines if the ultimate definition of the Kunarac chamber will prevail in international law. Not only are the weaknesses of the Kunarac definition that followed a pure consent approach revealed but the EOC of rape that opted for a combination of the coercion approach with one aspect of the lack-of-consent doctrine (incapacity) also face criticism. This leaves only one response – namely, that the elements of rape in international criminal law today can only be based upon a newly conducted comparison of national laws, thereby reflecting the general principles of the major legal systems of the world. The strongest accomplishment of both Tribunals concerning the crime of rape therefore lies not in the clarification of the elements of rape but, rather, in the revelation of a law-finding method, which is indispensable to the rudimentary field of international criminal law.
Topic:: International Law, War Crimes, Gender Based Violence, Courts, and Rape
Political Geography:: Europe, Yugoslavia, and Rwanda

89. Changing State Behaviour: Damages before the European Court of Human Rights

Author:: Veronika Fikfak
Publication Date:: 10-2018
Content Type:: Journal Article
Abstract:: Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.
Topic:: Human Rights, International Law, Reform, and Courts
Political Geography:: Europe and France

90. Where Fools Rush In: Why Armed Intervention Failed to Create Political Reconciliation in Somalia

Author:: Joseph P. Alessi
Publication Date:: 03-2018
Content Type:: Journal Article
Journal:: Studies of Changing Societies Journal (SCS)
Institution:: Studies of Changing Societies Journal (SCS)
Abstract:: To be successful in today's world, leaders must understand the idea of culture. When the word culture is associated with leadership, many might first think of the culture that leadership creates within the framework of an organization. But for leaders who must operate in a tumultuous world connected by modern media, the word literally refers to the understanding of the people and places where they intend to inject themselves. Where Fools Rush In is a study of the failed U.N. and U.S. interventions to create stability and political reconciliation in Somalia from 1992 to 1995, due to the cultural misunderstanding of U.N. and U.S. leaders that created flawed mission objectives. World leaders must make difficult decisions when intervening in the political and social strife of nations when faced with the reality of human catastrophe and genocide. The questions will always remain as to if, how much, and what kind of intervention must occur. The choices are simple: standby, do nothing and watch, or intervene. What international leaders must understand is that, regardless of the boundaries and governmental systems implanted in former colonial and Cold War territories, the people developed their own systems of social organization and governance that predated European or U.S intrusion. When chaos erupts in these areas and the vestiges of these former systems collapse, the indigenous people more often than not return to their deeply entrenched cultural systems to create stability in these regions. Therefore, it is paramount for intervening parties to fully understand these cultural systems and implications if they hope to achieve any level of success. Ultimately, U.N. and U.S. leaders failed in Somalia because they failed to understand the people and their culture. Rather, they ignored it and viewed the situation from purely an ethnocentric western political perspective.
Topic:: International Law, United Nations, Humanitarian Intervention, Conflict, and Violence
Political Geography:: Africa, Europe, North America, Somalia, and United States of America

91. The Rise of Transnational Democracy and Its Effect on the International Legal Order

Author:: Mehmet Halil Mustafa Bektaş
Publication Date:: 10-2018
Content Type:: Journal Article
Journal:: Journal of Academic Inquiries
Institution:: Sakarya University (SAU)
Abstract:: It has been acknowledged that the international legal order faces the prospect of significant change through developments such as the Internet, the increase in the influence of NGOs, and also – controversially – the waning of Westphalian dominance by states together with the development of transnational democracy. This paper first examines the transformation that the international legal order has experienced, particularly since the end of the Cold War, underlining the rise of NGOs in the international realm. It then discusses the relationship between this development and both the degeneration of the state-centric system and the issue of democracy that is of growing concern in international law. It concludes that the developments the international legal order has been witnessing are interdependent, having led to the rise of NGOs, resulting in the extension of democracy beyond national borders and increasing pressure on state-centric systems.
Topic:: International Law, Democracy, NGOs, and transnationalism
Political Geography:: Global Focus

92. Challenges in Common European Defense Policy: Russia’s Involvement in Ukraine

Author:: Monica M. Ruiz
Publication Date:: 07-2017
Content Type:: Journal Article
Journal:: Fletcher Security Review
Institution:: The Fletcher School, Tufts University
Abstract:: There are often misunderstandings among member states in international organizations (IO) regarding the legal nature of certain acts. Issues of privileges and immunities based on the principle of functional necessity, both inherent and implied powers, and the principle of good faith under common law are continuously criticized and debated by both member states and IOs alike. For this reason, international legal order can be a process of continuous transition and constant evolution. This essay analyzes the development and changes of legal norms in the European Union’s (EU) Common Foreign and Security Policy (CFSP). On that basis, it will unfold by looking at the EU’s legal structure to create a solid framework for understanding the current challenges for common European defense policy in relation to Russia’s involvement in Ukraine. Although there have been substantial legal improvements introduced by the Treaty of Amsterdam (effective 1999) and by the Treaty of Nice (effective 2003) to help clarify the ambiguous nature of the CFSP, its objectives remain wide and abstract. This further precludes the EU from formulating a joint and coherent stance on issues related to defense...
Topic:: Security, Defense Policy, International Law, International Organization, and Treaties and Agreements
Political Geography:: Russia, Ukraine, and European Union

93. Universal Jurisdiction in Absentia Before Domestic Courts Prosecuting International Crimes: A Suitable Weapon to Fight Impunity?

Author:: Tim Kluwen
Publication Date:: 12-2017
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article addresses the legality and desirability of States asserting universal jurisdiction without the suspect being present on their territory when prosecuting international crimes before domestic courts. First the legality under international law of States asserting universal jurisdiction in absentia (or absolute universal jurisdiction) will be discussed. No comprehensive regulation in this regard appears to exist in codified international law. Based on State practice, it would seem that no customary law either fully permits or entirely prohibits States asserting absolute universal jurisdiction. Applying the Lotus paradigm, it could arguably be concluded that the lack of a prohibition under international law results in States being allowed to assert universal jurisdiction in absentia when prosecuting certain international crimes. Having established its legality, this article will consequently approach absolute universal jurisdiction from a normative point of view, i.e. whether States should assert it. Although a tool in ending impunity of perpetrators of international crimes, it will be concluded that it is undesirable for States to assert absolute universal jurisdiction. Its use is likely to compromise fundamental rights of the accused and has a destabilizing effect on international relations while only suboptimally serving the goals of criminal prosecution.
Topic:: International Law, Territorial Disputes, Courts, and Jurisdiction
Political Geography:: Global Focus

94. The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules

Author:: Ezequiel Heffes and Brian E. Frenkel
Publication Date:: 12-2017
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In the last few decades, the role of non-state armed groups has become an essential topic of analysis and discussion to better understand international humanitarian law dynamics. While their increasing importance is uncontroversial, their place and regulation in specific areas of international law still remains unclear or insufficiently explored. Chief among these is the possible non-state armed groups’ international responsibility. Although it is undisputed that some of these entities breach their international law obligations, others seemingly engage with certain rules on the topic. This article addresses some legal consequences of such scenarios. Taking into account the principle of equality of belligerents in non- international armed conflicts, two issues are dealt with: i) the existence of “non- state” organs that could trigger the attribution of violations of international rules to non-state armed groups; ii) possible reparations owed by these non-state entities for their breaches during armed conflicts.
Topic:: International Law, Non State Actors, and Armed Conflict
Political Geography:: Global Focus

95. Modification of Renewable Energy Support Schemes Under the Energy Charter Treaty: Eiser and Charanne in the Context of Climate Change

Author:: Tomas Restrepo
Publication Date:: 12-2017
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Nearly half of the claims brought under the Energy Charter Treaty1 raise issues related to the modification of the Renewable Energy Support Schemes (RESs), but only two decisions have been published: Charanne and Eiser. This paper evaluates these decisions in light of the existing general practice on expropriation and Fair and Equitable Treatment, as well as from a pragmatic perspective in the context of climate change. The article concludes that tribunals should recognize reinforced stability to RESs under the ECT.
Topic:: Climate Change, Energy Policy, Environment, International Cooperation, International Law, and Renewable Energy
Political Geography:: Global Focus

96. The ad bellum Challenge of Drones: Recalibrating Permissible Use of Force

Author:: Alejandro Chehtman
Publication Date:: 01-2017
Content Type:: Journal Article
Abstract:: Drones constitute an incremental advance in weapons systems. They are able to significantly reduce overall, as well as collateral, damage. These features seem to have important implications for the permissibility of resorting to military force. In short, drones would seem to expand the right to resort to military force compared to alternative weapons systems by making resorting to force proportionate in a wider set of circumstances. This line of reasoning has significant relevance in many contemporary conflicts. This article challenges this conclusion. It argues that resorting to military force through drones in contemporary asymmetrical conflicts would usually be disproportionate. The reason for this is twofold. First, under conditions of radical asymmetry, drones may not be discriminatory enough, and, thereby, collateral damage would still be disproportionate. Second, their perceived advantages in terms of greater discrimination are counteracted by the lesser chance of success in achieving the just cause for war. As a result, resorting to military force through drones in contemporary asymmetrical conflicts would generally be disproportionate not because of the harm they would expectedly cause but, rather, because of the limited harm they are ultimately able to prevent. On the basis of normative argument and empirical data, this article ultimately shows that we need to revise our understanding of proportionality not only at the level of moral argument but also in international law.
Topic:: International Law, War, Military Affairs, Weapons, and Drones
Political Geography:: Afghanistan, United States, and Europe

97. Does and Should International Law Prohibit the Prosecution of Children for War Crimes?

Author:: Noëlle Quénivet
Publication Date:: 04-2017
Content Type:: Journal Article
Abstract:: This article investigates whether international law prohibits the prosecution of children for war crimes and, if it does not, whether it should do so. In particular, the interplay between restorative and retributive post-conflict justice mechanisms, on the one hand, and juvenile rehabilitative justice mechanisms, on the other, is discussed in detail. The article suggests that in certain, narrow, circumstances children having committed war crimes should be prosecuted.
Topic:: Conflict Resolution, Human Rights, International Law, Children, War Crimes, and Transitional Justice
Political Geography:: Afghanistan, Europe, and Democratic Republic of Congo

98. The Value of the European Court of Human Rights to the United Kingdom

Author:: Merris Amos
Publication Date:: 07-2017
Content Type:: Journal Article
Abstract:: National debates concerning the appropriate role of the European Court of Human Rights (ECtHR) in the United Kingdom (UK) recently intensified with the suggestion by the government that the UK might leave the European Convention on Human Rights system. It has been argued that a British Bill of Rights, to replace the current system of national human rights protection provided by the Human Rights Act 1998, would provide better protection than the ECtHR, making its role in the national system redundant. Claiming that the ECtHR is legitimate and has an impact that is usually illustrated by the transformative power of judgments more than 10 years’ old, have not provided a convincing answer to this claim. In this article, rather than legitimacy or impact, the value of the ECtHR to the objective of protecting human rights through law is assessed. Three different levels of value are identified from the relevant literature and then applied to the judgments of the Court concerning the UK from 2011 to 2015 to determine what has happened in practice. It is concluded that given that the UK government’s objective remains to protect human rights through law, although some types of value are now more relevant than others, overall the potential value of the Court to the UK in achieving this objective is still clearly evident.
Topic:: Human Rights, International Law, and Courts
Political Geography:: United Kingdom and Europe

99. The Responsibility to Protect beyond Borders in the Law of Nature and Nations

Author:: Luke Glanville
Publication Date:: 10-2017
Content Type:: Journal Article
Abstract:: While histories of human rights have proliferated in recent decades, little attention has been given to the history of thinking about duties to protect these rights beyond sovereign borders. We have a good understanding of the history of duties of sovereign states to ensure the safety and well-being of their own citizens and of the right of other states to forcefully intervene when these duties are violated. But the story of the development of thinking about duties to assist and protect the vulnerable beyond borders remains to be told. This article defends the importance of excavating and examining past thinking about these duties. It then sketches key aspects of Western natural law thinking about such duties, from Francisco de Vitoria through to Immanuel Kant, claiming that such study holds the promise of exposing from where ideas that prevail in international law and politics have come and retrieving alternative ideas that have been long forgotten but that may reward renewed consideration. It concludes by briefly outlining how three such retrieved ideas might be of particular use for those seeking to push international law and politics in a more just direction today.
Topic:: Human Rights, International Law, Sovereignty, History, Humanitarian Intervention, and Philosophy
Political Geography:: Europe and Global Focus

100. Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions

Author:: Catherine O'Rourke
Publication Date:: 10-2017
Content Type:: Journal Article
Abstract:: While international law has typically waxed and waned in feminist favours, contemporary feminist engagements reveal a strongly critical, reflective thrust about the costs of engaging international law and the quality of ostensible gains. To inform this reflection, this article draws on feminist scholarship in international law – and a specific feminist campaign for the implementation of United Nations Security Council Resolution 1325 (2000) on Women, Peace and Security in Northern Ireland – to distil three distinct feminist understandings of international law that underpin both theory and advocacy. International law is understood, first, as a system of rules to which states are bound; second, as an avenue for the articulation of shared feminist values; and, third, as a political tool to advance feminist demands. The study finds that feminist doctrinalists, and those working within the institutions of international law, share concerns about the resolution’s legal deficiencies and the broader place of the Security Council within international law-making. These concerns, however, are largely remote for local feminist activists, who recognize in the resolution important political resources to support their mobilization, their alliances with others and, ultimately, it is hoped, their engagement with state actors. The article concludes that critical reflection on feminist strategy in international law is usefully informed by more deliberate consideration of its legal, political and normative dimensions as well as by an awareness that these dimensions will be differently weighted by differently situated feminist actors.
Topic:: International Law, United Nations, Women, and Feminism
Political Geography:: Europe and Northern Ireland

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COLUMBIA UNIVERSITY PRESS