Topic: International Law / Content Type: Journal Article

51. 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

52. 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

53. 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

54. 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

55. 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

56. 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

57. 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

58. 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

59. 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

60. 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

61. 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

62. 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

63. 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

64. 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

65. 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

66. 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

67. 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

68. 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

69. 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

70. 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

71. 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

72. ‘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

73. 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

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. 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

77. 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

78. 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

79. 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

80. 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

81. 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

82. 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

83. 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

84. 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

85. 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

86. 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

87. 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

88. 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

89. 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

90. 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

91. 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

92. 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

93. 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

94. 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

95. 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

96. 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

97. 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

98. 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

99. 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

100. 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

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COLUMBIA UNIVERSITY PRESS