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Begin New Search Topic International Law Content Type Journal Article

101. 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

102. 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

103. 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

104. Gender and the Right to Non-Discrimination in International Human Rights Law

Author:
Bistra Netkova
Publication Date:
01-2016
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
Discrimination against women based on the fact that they are women is a deeply rooted practice in all societies. However, the level of discrimination varies greatly with the level of development of the given society and strongly influences and vice versa it is influenced by the status of women in a given society. Addressing this gender-based discrimination is a difficult task because it is closely linked to the concept of equality, and the state's action and inactions. The article establishes that the state parties' obligation is to ensure that there is no direct or indirect discrimination against women in their laws, sanctions, and other remedies, and those women are protected against discrimination in the public, as well as, in the private spheres.
Topic:
Gender Issues, Human Rights, International Law, Discrimination, and Affirmative Action
Political Geography:
Global Focus

105. Transitional Justice Models and Analytic Philosophy: Towards Theory

Author:
Michał Krotoszyński
Publication Date:
06-2016
Content Type:
Journal Article
Journal:
Polish Political Science Yearbook
Institution:
Polish Political Science Association (PPSA)
Abstract:
As an interdisciplinary field of scholarship, transitional justice is still in its pre-theoretical stage, focusing mainly on the case and comparative studies, supported by general considerations concerning justice in the times of transition. To entrench the field as a distinct area of studies, a theory of transitional justice needs to be formulated. The article explores the possibility of making a step towards such a theoretical basis with the use of the tools of analytical philosophy, methodology and legal theory. First, drawing on Leszek Nowak’s procedure of idealisation, three basic models of responses to a painful past are formulated. Then, distinct transitional justice values are attributed to each of the models. Finally, with the use of Jerzy Kmita’s concept of humanistic interpretation, the article seeks to conceptualize the way in which these values – among other factors, such as the need to uphold the rule of law or to preserve the stability of a democratic system – influence the choice of a model of transitional justice response. Thus, the aim of the presented models – which I described in more detail elsewhere (Krotoszyński 2017) – is to provide a sound theoretical basis for some of the fundamental claims formulated in the field of transitional justice.
Topic:
International Law
Political Geography:
Global Focus

106. Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe

Author:
Charles Leben
Publication Date:
01-2016
Content Type:
Journal Article
Abstract:
This article sets out to re-examine Hebrew sources in the doctrine of the law of nations of the 17th century, from Gentili’s De Jure Belli Libri Tres (although it strictly belongs to the 16th century since it was first published in 1598) to Pufendorf’s De Jure Naturae et Gentium (1672). It incontrovertibly confirms the importance of Jewish sources in the general intellectual education of the founding fathers of international law and in their general political philosophy while limiting their role with respect to the construction of international law in the strict and contemporaneous sense of the term.
Topic:
International Law, Religion, Political Theory, History, Law, and Judaism
Political Geography:
Europe and Mediterranean

107. Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation

Author:
Timothy Meyer
Publication Date:
01-2016
Content Type:
Journal Article
Abstract:
This article argues that the form of international agreements – binding hard law agreements versus non-binding soft law agreements – can be partially explained by states’ interests in promoting renegotiation in the presence of uncertainty and shifting power. I make this argument in three steps. First, I explain that states regularly use unilateral non-compliance as a renegotiation strategy. Second, I argue that making an agreement soft facilitates this use of unilateral non-compliance. Third, I analyse the conditions – uncertainty characterized by common interests (but not uncertainty characterized by distributive concerns) and shifting power – under which facilitating renegotiation through soft law will appeal to states. In particular, I argue that in the presence of these conditions preventing renegotiation creates long-term costs for states that can inhibit short-term cooperation. In effect, under these conditions the shadow of the future can inhibit cooperation rather than support it, as is conventionally thought. These conditions are common to many major contemporary subjects of international cooperation in a way they were not during the latter half of the 20th century, partially explaining the increased importance of soft law to contemporary international governance.
Topic:
International Relations, International Law, International Trade and Finance, Treaties and Agreements, and United Nations
Political Geography:
Europe, United Nations, and Global Focus

108. Backlash against International Courts in West, East and Southern Africa: Causes and Consequences

Author:
Karen J. Alter, James T. Gathii, and Laurence R. Helfer
Publication Date:
01-2016
Content Type:
Journal Article
Abstract:
This article discusses three credible attempts by African governments to restrict the jurisdiction of three similarly situated sub-regional courts in response to politically controversial rulings. In West Africa, when the Court of the Economic Community of West African States (ECOWAS) upheld allegations of torture by opposition journalists in Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the East African Court of Justice (EACJ) and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to restructure the EACJ in ways that have significantly affected the Court’s subsequent trajectory. In Southern Africa, after the Southern African Development Community (SADC) Tribunal ruled in favour of white farmers in disputes over land seizures, Zimbabwe prevailed upon SADC member states to suspend the Tribunal and strip its power to review complaints from private litigants. Variations in the mobilization efforts of community secretariats, civil society groups and sub-regional parliaments explain why efforts to eliminate the three courts or narrow their jurisdiction were defeated in ECOWAS, scaled back in the EACJ and largely succeeded in the SADC.
Topic:
Civil Society, Human Rights, International Law, and Courts
Political Geography:
Kenya, Africa, Europe, South Africa, Zimbabwe, and Gambia

109. Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation

Author:
Timothy Meyer
Publication Date:
01-2016
Content Type:
Journal Article
Abstract:
This article argues that the form of international agreements – binding hard law agreements versus non-binding soft law agreements – can be partially explained by states’ interests in promoting renegotiation in the presence of uncertainty and shifting power. I make this argument in three steps. First, I explain that states regularly use unilateral non-compliance as a renegotiation strategy. Second, I argue that making an agreement soft facilitates this use of unilateral non-compliance. Third, I analyse the conditions – uncertainty characterized by common interests (but not uncertainty characterized by distributive concerns) and shifting power – under which facilitating renegotiation through soft law will appeal to states. In particular, I argue that in the presence of these conditions preventing renegotiation creates long-term costs for states that can inhibit short-term cooperation. In effect, under these conditions the shadow of the future can inhibit cooperation rather than support it, as is conventionally thought. These conditions are common to many major contemporary subjects of international cooperation in a way they were not during the latter half of the 20th century, partially explaining the increased importance of soft law to contemporary international governance.
Topic:
International Law, International Trade and Finance, Treaties and Agreements, and United Nations
Political Geography:
Europe, United Nations, and Global Focus

110. The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries

Author:
Nora Markard
Publication Date:
07-2016
Content Type:
Journal Article
Abstract:
The EU and its member states are progressively involving third countries in their border control measures at sea. Relevant instruments of cooperative migration control range from capacity building measures to joint patrols in third-country territorial waters and shared surveillance intelligence on ship movements. So far, the discussion on migration control at sea has mainly focused on the illegality of ‘push-backs’ of migrant boats by EU member states to their point of departure. By contrast, the increasing incidence of departure prevention or ‘pull-backs’ by third countries in the service of EU member states has been largely neglected. In particular, such measures raise grave concerns with respect to the right to leave any country, including one’s own. Of central importance during the Cold War, this human right is of no lesser relevance at Europe’s outer borders. This paper explores to what extent departure prevention and pull-back measures are compatible with the right to leave and the law of the sea and discusses the responsibility of EU member states for internationally wrongful acts committed by third countries in such cooperative migration control scenarios.
Topic:
Human Rights, International Law, Migration, Border Control, and Maritime
Political Geography:
Europe and European Union