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Begin New Search Topic International Law Content Type Journal Article

91. 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

92. 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

93. 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

94. 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

95. Borders of the Central Asian countries under the international law

Author:
Michal Pietkiewicz
Publication Date:
12-2017
Content Type:
Journal Article
Journal:
Nowa Polityka Wschodnia
Institution:
Faculty of Political Science and International Studies, Nicolaus Copernicus University in Toruń
Abstract:
In the article the international legal status of the territory, and the territory of the state was ascertained, and the features of the legal status of a state border were identified. The main problem of the thesis is to show the causes of conflicts in determining the borders of the Central Asian states from the perspective of Russian scholars. The main issues of regulating international relations in the sphere of the delimitation of state borders under the international law in Central Asia are outlined.
Topic:
International Law, Borders, State, and Territory
Political Geography:
Russia and Central Asia

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