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Begin New Search Topic International Law Content Type Journal Article

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

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

102. Pandemic Declarations of the World Health Organization as an Exercise of International Public Authority: The Possible Legal Answers to Frictions Between Legitimacies

Author:
Pedro A. Villarreal
Publication Date:
06-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The institutional decisions regarding the 2009–2010 influenza A(H1N1) pandemic displayed how the World Health Organization’s (WHO) role as the international organization in charge of coordinating the pandemic response amounts to an exercise of authority. Notably, the 11 June, 2009 Pandemic Declaration was grounded in the WHO’s guidelines that do not have a binding nature according to international law. However, this is not an obstacle for considering them as an act of authority, since their effects can constrain the decision-making of States. If these non-binding acts have an authoritative nature, then it is necessary to address various legitimacy issues that may be present. This is where the concept of international public authority (IPA) can prove useful, since it enables to combine the non-binding nature of Pandemic Declarations and the respective guidelines with broad legally-oriented figures such as transparency and accountability. The controversies surrounding the 2009 Pandemic Declaration illustrate how the strictly technical-scientific elements that led to such a decision were not necessarily harmonious with other aspects more related to political decision making in general, such as transparency and accountability. This can be considered as an example of how so-called ‘technocratic legitimacy’ sometimes generates friction with lato sensu ‘political legitimacy’. As the 2009–2010 pandemic period unraveled, it became clear that expertise-based legitimacy is not sufficient in itself to consider the act as generally legitimate. On the contrary, the strongest criticisms directed at the decision-making process of the WHO during this event were leveled against deficits of transparency and accountability. This article purports to discuss the issue of how both types of legitimacies, technical-scientific and political, are necessary components for deeming Pandemic Declarations as legitimate enough, since they amount to an exercise of international public authority.
Topic:
International Law, World Health Organization, Public Health, and H1N1
Political Geography:
Global Focus

103. The UN Declaration on the Rule of Law and the Application of the Rule of Law to the UN: A Reconstruction From an International Public Authority Perspective

Author:
Clemens A. Feinaugle
Publication Date:
06-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The UN Declaration on the rule of law at the national and international levels seems to open new possibilities for listed terrorist suspects claiming legal protection or those seeking damages for harm caused by UN peacekeepers because the Declaration provides that the rule of law applies to the United Nations itself. However, the Declaration raises questions regarding the elements of the rule of law, its legal basis, and binding nature. This paper attempts a reconstruction of the UN Declaration and relevant UN practice under an international public authority perspective to explain and develop elements of the rule of law applicable to the UN, to determine its legal basis, and to investigate its binding nature. It argues, that since measures under Chapter VII must be effective if the UN wants to fulfil its purpose (Article 1 (1) UN Charter), the UN is bound by the rule of law insofar as “effective” measures require that related legitimacy concerns are addressed by rule of law safeguards.
Topic:
International Law, Terrorism, United Nations, Peacekeeping, and Legitimacy
Political Geography:
Global Focus

104. Towards a New International Law of the Atmosphere?

Author:
Peter H. Sand and Jonathan B. Wiener
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide range of different transnational institutions. Following several earlier attempts at identifying cross- cutting legal rules and principles in this field (by, inter alia, the International Law Association, the UN Environment Programme, and the Institut de Droit International), the ILC has now embarked on a new codification/restatement project led by Special Rapporteur Shinya Murase – albeit hamstrung by a highly restrictive ‘understanding’ imposed by the Commission in 2013. This article assesses the prospects and limitations of the initial ILC reports and debates in 2014 and 2015, and potential avenues for progress in the years to come.
Topic:
Climate Change, Environment, International Law, United Nations, and Space
Political Geography:
Global Focus

105. The EU Commission and the Fragmentation of International Law: Speaking European in a Foreign Land

Author:
Avidan Kent
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Abstract:
The debate on the fragmentation of International Law has been relatively dormant in recent years. However, recent events demonstrate not only that this debate should be re-awoken, but also that some key elements of this debate must be reconsidered. Notably, while the fragmentation of International Law has often been discussed from the perspective of courts and judges, this article examines the view and the impact of a different institutional actor – the Commission of the European Union. This contribution analyzes a series of amicus briefs that were submitted in a number of investment treaties-based cases. These briefs, which were recently disclosed to the author, reflect a certain radicalization of the European Court of Justice’s view concerning the place and the role of the EU’s legal system within the international legal order. This article discusses the problematic implications that the Commission’s approach may have on the international legal order, as well as possible future pathways.
Topic:
Environment, Human Rights, International Cooperation, International Law, European Union, and Trade
Political Geography:
Europe

106. The Use of Scholarship by the WTO Appellate Body

Author:
Sondre Torp Helmersen
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines the use of scholarship by the WTO Appellate Body. While it is not possible to say definitively how the Appellate Body views the legal status of scholarship in WTO dispute settlement, its use of scholarship will in practice determine its status. The article identifies three overall trends: the Appellate Body’s use of scholarship has declined, the Appellate Body uses scholarship mostly for matters of general international law (as opposed to WTO law), and the Appellate body has generally been careful in its use of scholarship. Possible explanations for these trends may include an increase in available precedents, the Appellate Body’s specialized role, criticism of the Appellate Body, and its members’ backgrounds.
Topic:
International Cooperation, International Law, International Trade and Finance, and World Trade Organization
Political Geography:
Global Focus

107. The Evolution of Arms Control Instruments and the Potential of the Arms Trade Treaty

Author:
Tom Coppen
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Although the Arms Trade Treaty (ATT) has the potential to create an effective international legal framework for controlling the international arms trade, much depends on the subsequent development of its legal framework. This article therefore analyzes how the ATT, as a multilateral arms control treaty, can develop its own legal framework in accordance with international law and what role the organs established by it can play in that process. It will be shown that in its current form the ATT has significant shortcomings that may prevent it from achieving this goal, but there certainly is room for the lawful development of its norms, which will depend on amassing political will and the establishment of practice.
Topic:
Arms Control and Proliferation, Diplomacy, International Law, Treaties and Agreements, and Military Affairs
Political Geography:
Global Focus

108. Combating Illegal Fishing in the Exclusive Economic Zone – Flag State Obligations in the Context of the Primary Responsibility of the Coastal State

Author:
Valentin J. Schatz
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Illegal fishing in the Exclusive Economic Zones [EEZs] of developing coastal States is an urgent problem for the marine environment, global food security, and local economies. While past academic debate has predominantly focused on obligations of flag States to tackle so called IUU-fishing in the High Seas, the recent request for an advisory opinion submitted by the Sub-Regional Fisheries Commission to the International Tribunal for the Law of the Sea (ITLOS, Case No. 21) has drawn attention to the fisheries regime of the EEZ. This article argues that the primary responsibility for fisheries management in the EEZ rests on the coastal State and that, so far, flag States have no obligation under customary international law to exercise their jurisdiction and control over vessels flying their flag which fish in the EEZ of other States. The article first gives an account of coastal State regulatory and enforcement jurisdiction. It outlines recent developments of the law by drawing on the jurisprudence of the ITLOS, particularly the recent M/V “Virginia G” Case. Further, the article undertakes to identify potential flag State obligations to combat illegal fishing in the EEZ. To that end, it provides an in-depth analysis of relevant binding and non-binding legal instruments such as the 1982 UN Convention on the Law of the Sea, other multilateral treaties, bilateral fisheries treaties, and relevant soft-law instruments of the Food and Agriculture Organization of the United Nations. The article also discusses the relevance of principles of international environmental law. Next, the article analyzes the nature and scope of potential flag State obligations, qualifying them as obligations of due diligence. Finally, the article concludes that, de lege lata, no persuasive evidence of established flag State obligations exists. The author suggests that the situation should be remedied by a new, fully binding legal instrument.
Topic:
International Law, United Nations, Maritime Commerce, and Fishing
Political Geography:
Global Focus

109. 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

110. 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

111. 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

112. 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

113. 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

114. 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

115. Asia's Ambivalence about International Law and Institutions: Past, Present and Futures

Author:
Simon Chesterman
Publication Date:
10-2016
Content Type:
Journal Article
Abstract:
Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international or ganizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.
Topic:
International Law, International Organization, History, Courts, and Colonialism
Political Geography:
Japan, China, Europe, India, and Asia

116. 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

117. A Scrap of Paper: Breaking and Making International Law during the Great War, Isabel V. Hull

Author:
Tanisha M. Fazal
Publication Date:
01-2015
Content Type:
Journal Article
Journal:
Political Science Quarterly
Institution:
Academy of Political Science
Abstract:
Isabel Hull's analysis of international law during World War I is a welcome and valuable contribution to an emerging body of scholarship on the laws of war. This is not to undercut its place in the historiography of World War I. Hull rightly points out that most histories of the war have tended to gloss over or even dismiss the role of international law in the war. Hull corrects this bias by delving into British, French, and particularly German archives to show that international law was very much on the minds of all parties to the conflict. Indeed, she argues that preserving the existing structure of international law was a major reason for the outbreak of war. - See more at: http://www.psqonline.org/article.cfm?IDArticle=19345#sthash.HizIRkHF.dpuf
Topic:
International Law and War
Political Geography:
France and Germany

118. Over-stating Palestine's UN Membership Bid?An Ethnographic Study on the Narratives of Statehood

Author:
Michelle Leanne Burgis-Kasthala
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
This study employs a select ethnography of Palestinian workers in the field of international law and human rights to explore how an epistemic community gives content and meaning to international law in its professional and personal life. Through a series of interviews conducted in the West Bank in the wake of the Palestinian attempt to gain full United Nations membership in September 2011, the article constructs a meta-narrative about the nature of international legal discourse as spoken on the Palestinian periphery. It shows how speakers of international law are required to restate or over-state the distinction between law and politics so as to sustain their hope and desire for Palestinian statehood in the face of despair about its protracted denial. The article then is an exploration about the politics of meaning making through international law and a call for methodological hybridity within the discipline of international law.
Topic:
Human Rights, International Law, Politics, and United Nations

119. Complexity Theory and the Horizontal and Vertical Dimensions of State Responsibility

Author:
Mark Chinen
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
This article argues that a gap that has always existed in the law of state responsibility is now becoming more apparent. That gap divides a state from its citizens, making it difficult to justify why state responsibility should be distributed to them. Purely legal approaches to the issue are not likely to resolve the problem, and although the literature of moral collective responsibility suggests some bases for having citizens share the costs of state responsibility, none are completely satisfying. Concepts from complexity theory show why this is so. If the theory is correct, the state is neither a legal abstraction nor reducible to the individuals who purportedly comprise it. Instead, it is an emergent phenomenon that arises from complex interactions among individuals, formal and informal subgroups, and the conceptual tools and structures that individuals and subgroups use to comprehend and respond to their physical and social environments. The theory is consistent with a basic premise of international law that the state as such is an appropriate bearer of responsibility. However, because in a complex system there is no linear connection between the emergent phenomenon and its underlying constituents, this suggests that the divide between a state and its citizens in the distribution of state responsibility may never be bridged.
Topic:
International Law

120. When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking

Author:
Jan Wouters, Joost Pauwelyn, and Ramses A. Wessel
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
Formal international law is stagnating in terms both of quantity and quality. It is increasingly superseded by 'informal international lawmaking' involving new actors, new processes, and new outputs, in fields ranging from finance and health to internet regulation and the environment. On many occasions, the traditional structures of formal lawmaking have become shackles. Drawing on a two-year research project involving over 40 scholars and 30 case studies, this article offers evidence in support of the stagnation hypothesis, evaluates the likely reasons for it in relation to a 'turn to informality', and weighs possible options in response. But informal structures can also become shackles and limit freedom. From practice, we deduce procedural meta-norms against which informal cooperation is increasingly checked ('thick stakeholder consensus'). Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law ('thin state consent').
Topic:
Environment, Health, and International Law

121. The Politics of Interest in International Law

Author:
Mónica García-Salmones Rovira
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
The article examines the substance and form of 20th century positivist international law; in particular the way in which each determines the other. The text describes the turn to interests in international law, which evolved slowly in scope and depth. By examining Lassa Oppenheim's focus on 'common interests' that united states and Hans Kelsen's focus on the 'struggle of interests' that constituted politics, the article studies two phenomena produced by the foundational role taken by interests during the 20th century. First, this role contributed to putting an end to the moral discussion about the treatment of native populations. Secondly, it curbed debate about a common political project for a global order, thus creating conformity characterized by abuse of power – all in the name of the neutrality of positivist law. This article suggests that the work of these two leading theoreticians in the field has contributed to the shaping of the legal theory of mainstream positivist international law, and seeks to foreground discussions about the different theories on the role of law in politics. In this manner it aims to help reconceptualize law in such a way as to bring about a situation in which discussions of a common political project for the international arena are more central.
Topic:
International Law and Politics
Political Geography:
United States

122. The Politics of Interest in International Law: A Reply to Mónica García-Salmones Rovira

Author:
Jörg Kammerhofer
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
In this response to Mónica García-Salmones Rovira's article 'The Politics of Interest in International Law', the argument is developed that an interpretation of Kelsen's legal theory as founded on 'interests' or 'conflicts of interests' is not adequately supported by the primary materials, if read in their context. 'Interests' do not play a major role in Kelsen's writings, and where they are discussed, they do not form part of his legal theory, i.e., the Pure Theory of Law. This response argues that this 'context insensibility' in reading Kelsen may have its roots in the unwitting adoption of one over-arching method of scholarly cognition. It thereby implicitly discards one of the crucial axioms of Kelsen's theory of scholarship: the avoidance of a syncretism of methods through a consistent separation of scholarly enterprises and methods. Not to adopt such a separation is a legitimate stance; to foist the non-separation on an author whose theory hinges upon it is not.
Topic:
International Law

123. The Politics of Interest in International Law: A Rejoinder to Jörg Kammerhofer

Author:
Mónica García-Salmones Rovira
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
I am very grateful to Jörg Kammerhofer for his engagement with my text. Not only does he know Kelsen's main writings on legal theory very well, but he is himself a Kelsenian scholar. One is led, therefore, to speculate on the extent to which his reply comes close to what Kelsen himself would have written in respect of my article, and more generally in respect of the book on which it is based.
Topic:
International Law

124. F.F. Martens and His Time: When Russia Was an Integral Part of the European Tradition of International Law

Author:
Lauri Mälksoo
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
This introductory article opens the symposium which examines the legacy of the Russian international lawyer Friedrich Fromhold von (or Fyodor Fyodorovich) Martens (1845–1909). In the first section, the article critically reviews previous research and literature on Martens and discusses the importance of the Martens diaries that are preserved in a Moscow archive. In the second section, the article offers an intellectual portrait of Martens and analyses the main elements in his international legal theory as expressed in his textbook. In particular, his claim that international law was applicable only between 'civilized states' is illuminated and discussed.
Topic:
International Law
Political Geography:
Russia and Europe

125. F.F. Martens – Man of the Enlightenment: Drawing Parallels between Martens' Times and Today's Problems

Author:
Rein Müllerson
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
This article concentrates on two controversial aspects of the writings of Friedrich Fromhold Martens – his treatment of the so-called mission civilisatrice of European nations and the potential clash of the two roles an international lawyer may have to perform: in the service of international law and representing national interests of his/her country or other clients. Both of these aspects in Martens' work have not lost their topicality; it is illuminating to draw parallels between his time and today's world.
Topic:
International Law
Political Geography:
Europe

126. A Study of Lawyers Appearing before the International Court of Justice, 1999–2012

Author:
Shashank P. Kumar and Cecily Rose
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
This article provides empirical support for what might strike some as a truism: oral proceedings before the International Court of Justice (the Court) are dominated by male international law professors from developed states. In order to test this claim, our study examines the composition of legal teams appearing on behalf of states before the Court in contentious proceedings between 1999 and 2012. We have focused, in particular, on counsels' gender, nationality, the development status and geographical region of their country of citizenship, and their professional status (as members of law firms, barristers or sole practitioners, professors, or other). The results of our study raise questions about the evident gender imbalance among counsel who have appeared before the Court during the timeframe of this study, as well as the apparent preference that states have shown for 'repeat players' and professors of public international law. By presenting data on the composition of legal teams, and discussing possible explanations for the patterns that we have observed, this study aims to contribute to the development of a body of scholarship on international law as a profession.
Topic:
International Law

127. The Judicialization of International Law: Reflections on the Empirical Turn

Author:
Gleider I. Hernández
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
The proliferation of international courts and tribunals in the last two decades has been an important new development in international law, and the three books under review are at the vanguard in substantiating the claim that the judicialization of international law reflects its deepened legalization. All three have adopted ambitious empirical frameworks through which to assess the impact of international courts, and present valuable insights with respect to the phenomenon. Whilst all seek to make intelligible the growing relevance of the various international courts, their empirical methodology and mapping exercise reflects a faith that the legalization/judicialization of international law is a positive development, one that might nevertheless be contested. With the Oxford Handbook's mapping exercise, Karen Alter's 'altered politics' model of effectiveness, and Yuval Shany's 'goal-based' method for assessing effectiveness, the three books represent the forefront of scholarly efforts to study the practice of international courts. One should be careful, however: because the empirical exercise attempted in these three books goes beyond mere description into an attempt to model future outcomes, it has the drawback of privileging certain modes of cognizing the phenomenon of the proliferation of international courts. Although an important contribution, a solely empirical approach would create the impression of a purely linear progression in the judicialization of international law, one which might not be borne out in reality.
Topic:
International Law

128. International Law for a Water-Scarce World. Fresh Water in International Law. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right

Author:
Sara De Vido
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
Water has been a challenging issue over the centuries. From questions of national boundaries and navigation, quite common in the past, to the development of a human right to water, this essential element for human life has always spurred debate among international lawyers, economists, political scientists, geographers, and anthropologists. The reason may be found in the scarcity of water, a phenomenon which affects both developed and developing countries. Much has been written on the topic, but the three books under review significantly contribute to a critical analysis of some pertinent legal issues related to water. The title of each monograph reflects the purpose of the respective study. Hence, International Law for a Water-Scarce World by Brown Weiss starts from the acknowledgement that 'the fresh water crisis is the new environmental crisis of the 21st century' (at 1) and provides an integrated analysis of water law, which considers climate implications, river basins, and the availability and quality of fresh water. Boisson De Chazournes' Fresh Water in International Law investigates the status of fresh water in international law. The choice of the titles of the chapters is particularly evocative. Thus, after a chapter on regulation of fresh water use, the book continues with chapters on the 'Economization' of the law applicable to fresh water, its 'Environmentalization', followed by its 'Humanization', and 'Institutionalization Trends in Fresh Water Governance', before focusing on dispute settlement mechanisms. The use of the ending '-zation' gives the immediate impression of the evolution of the law on fresh water resources, which now includes several separate but clearly interrelated aspects. The title of the third book, written by Thielbörger, deserves attention for two elements, the first being the letter 's' inside the parentheses and the second being the adjective 'unique' used for identifying the human right to water. The Right(s) to Water. The Multi-Level Governance of a Unique Human Right pursues a different purpose from the two other books under review which adopt a more comprehensive approach. Thielbörger's book (based on his doctoral dissertation) studies the human right to water from a comparative and international perspective, emphasizing the complexity of a right which is strictly linked to other rights but constitutes at the same time a right of its own.
Topic:
Development, Human Rights, and International Law

129. Emmanuelle Tourme-Jouannet. What is a Fair International Society? International Law Between Development and Recognition

Author:
Ruti Teitel
Publication Date:
02-2015
Content Type:
Journal Article
Abstract:
Does international law have an answer to the question: 'what is a fair international society'? In her insightful book, Emmanuelle Tourne-Jouannet interrogates in a systematic fashion diverse areas of international law that touch upon or address, directly or indirectly, fairness, equity, or redistribution: from the law of development to minority rights to international economic law. By taking positive law as the point of departure for an inquiry about global justice, Tourme- Jouannet departs, in a refreshing way, from attempts to extrapolate from mainstream legal theory an abstract conception of global justice. '[W]hat is to be addressed here are not contemporary theories of justice and the philosophical questions that the topic raises .... [I]t is the aim to address them here from a different angle: from within legal practice, as it were .... I have opted for an approach based on existing legal practice, with a view to conceptualizing and questioning it' (at 3). For Tourme-Jouannet, the question about the fairness of international legal practice leads to a number of other legal-historical questions regarding the contemporary evolution of international law. The project is 'simply to begin by identifying the principles and legal practices relating to development and recognition' ( ibid. ). In her view, adopting a historical perspective, these practices – notwithstanding their differences – reflect a joint concern with achieving global justice over the years.
Topic:
Economics and International Law

130. An Excerpt from the Upcoming Book - Borderless Wars: Civil-Military Disorder and Legal Uncertainty

Author:
Antonia Chayes
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
Fletcher Security Review
Institution:
The Fletcher School, Tufts University
Abstract:
Drones. Global data networks. The rise, and eventual primacy, of non-international armed conflict. All things the framers of the Geneva Conventions could have never fully conceived when doing their noble work in 1949; all things that rule warfare in the world today. So, how do we legally employ these new tools in these new circumstances? In her latest book, Antonia Chayes, former Under Secretary of the Air Force, explores the current legal underpinnings of counterinsurgency, counterterrorism, and cyber warfare, rooting out the ambiguities present within each realm, and telling the narrative of how these ambiguities have come to shape international security today. The grounded and creative solutions that she offers in terms of role definition and transparency will provide crucial guidance as the United States continues to navigate the murky modern military-legal landscape. This excerpt is a chapter from Borderless Wars: Civil-Military Disorder and Legal Uncertainty forthcoming in 2016 from Cambridge University Press.
Topic:
International Law, Counterinsurgency, Law, Military Affairs, Counter-terrorism, Drones, Conflict, Borders, and Law of Armed Conflict
Political Geography:
Afghanistan, Iraq, Global Focus, and United States of America

131. Full Issue: Emerging Domains of Security

Author:
Meg Guliford, Thomas McCarthy, Alison Russell, Michael M. Tsai, Po-Chang Huang, Feng-tai Hwang, Ian Easton, Matthew Testerman, Nikolas Ott, Anthony Gilgis, Todd Diamond, Michael Wackenreuter, Sebastian Bruns, Andrew Mark Spencer, Wendy A. Wayman, and Charles Cleveland
Publication Date:
09-2015
Content Type:
Journal Article
Journal:
Fletcher Security Review
Institution:
The Fletcher School, Tufts University
Abstract:
The theme of this special edition is “Emerging Domains of Security.” Coupled with previously unpublished work developed under a prior “Winning Without War” theme, the articles therein honor Professor Martel’s diverse, yet forward-leaning, research interests. This edition maintains the journal’s four traditional sections of policy, history, interviews, and current affairs. Our authors include established academics and practitioners as well as two Fletcher students, Nikolas Ott and Michael Wackenreuter. Each of the articles analyzes critical issues in the study and practice of international security, and our authors make salient arguments about an array of security-related issues. The articles are borne out of countless hours of work by FSR’s dedicated editorial staff. I deeply appreciate the time and effort they devoted to the publication of this volume. They are full-time graduate students who masterfully balanced a host of responsibilities.
Topic:
Security, Defense Policy, Intelligence, International Cooperation, International Law, History, Military Affairs, Counter-terrorism, Cybersecurity, Navy, Conflict, Space, Interview, Army, Baath Party, and Norms
Political Geography:
China, Iraq, Europe, Middle East, Taiwan, Germany, Asia-Pacific, Global Focus, and United States of America

132. Conflict in Cyberspace: How International Legal Norms Can Reduce Military Escalation in Cyberspace

Author:
Nikolas Ott
Publication Date:
09-2015
Content Type:
Journal Article
Journal:
Fletcher Security Review
Institution:
The Fletcher School, Tufts University
Abstract:
This paper examines the current technical and legal considerations around the development of international legal norms and confidence-building measures in cyberspace. With an emphasis on state-based armed attacks and the use of force in cyberspace, it summarizes the current status of international efforts within the United Nations and several regional organizations. The paper concludes with several suggestions on how policymakers can reduce the gap between technological and legal considerations.
Topic:
International Law, Military Affairs, and Cybersecurity
Political Geography:
United Nations, North America, and United States of America

133. The US Refugee Protection System on the 35th Anniversary of the Refugee Act of 1980

Author:
Donald Kerwin
Publication Date:
06-2015
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
In 2013, the Center for Migration Studies of New York (CMS) initiated a project to bring concentrated academic and policy attention to the US refugee protection system, broadly understood to encompass refugees, asylum seekers and refugeelike populations in need of protection. The initiative gave rise to a series of papers published in 2014 and 2015, which CMS is releasing as a special collection in its Journal on Migration and Human Security on the 35th anniversary of the Refugee Act of 1980. This introductory essay situates the papers in the collection within a broader discussion of state compliance with international law, impediments to protection, US protection programs, vulnerable populations, and due process concerns. The essay sets forth extensive policy recommendations to strengthen the system drawn from the papers, legislative proposals, and other sources.
Topic:
International Law, Refugee Issues, and Refugee Crisis
Political Geography:
Global Focus

134. Determining the Relationship Between International and Domestic Laws Within an Internationalized Court: An Example From the Cambodian Extraordinary Chambers’ Jurisdiction Over International and Domestic Crimes

Author:
Melanie Vianney-Liaud
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Internationalized criminal tribunals such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) differ from traditional international criminal tribunals by a lesser degree of internationality. The ECCC emerged through an international agreement but their mixed composition and operating rules are also defined in Cambodian Law. The relationship between the ECCC’s Agreement and Law has not been clearly stated, which generates questions since both texts are not always consistent. This paper proposes, through the study of the provisions of the ECCC Law relating to the ECCC’s subject-matter jurisdiction, to determine the impact of such discrepancies on the activity of the Chambers. The decisions of their judicial bodies on the application of Articles 3, 4 and 5 which provide for the ECCC’s jurisdiction over crimes against humanity, genocide and certain domestic crimes have allowed to cope with the uncertainty generated by those differences. However, a bigger issue remains which is due to the ECCC’s particular hybrid structure. Composed of national judges in the majority, ECCC’s decisions may only be taken if the required qualified majority is reached, which implies the need for an agreement with their international counterparts.
Topic:
International Law, Sovereignty, Legal Theory, and Jurisdiction
Political Geography:
Asia and Cambodia

135. The 21st-Century Belligerent's Trilemma

Author:
Janina Dill
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
This article introduces three ways in which a state at war can attempt to accommodate the often contradictory demands of military necessity and humanitarianism – three 'logics' of waging war. The logics of sufficiency, efficiency and moral liability differently distribute the harm and destruction that waging war inevitably causes. International law demands belligerents follow the logic of sufficiency. Contemporary strategic imperatives, to the contrary, put a premium on waging war efficiently. Cross-culturally shared expectations of proper state conduct, however, mean killing in war ought to fit the logic of moral liability. The latter proves entirely impracticable. Hence, a belligerent faces a choice: (i) renounce the right and capacity to use large-scale collective force in order to meet public expectations of morally appropriate state conduct (logic of liability); (ii) defy those expectations as well as international law and follow strategic imperatives (logic of efficiency) and (iii) follow international law (logic of sufficiency), which is inefficient and will be perceived as illegitimate. This is the 21st-century belligerent's trilemma.
Topic:
International Law

136. A Short History of International Humanitarian Law

Author:
Amanda Alexander
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
This article questions the conventional histories of international humanitarian law, which view international humanitarian law as the heir to a long continuum of codes of warfare. It demonstrates instead that the term international humanitarian law first appeared in the 1970s, as the product of work done by various actors pursuing different ends. The new idea of an international humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions. Nevertheless, many of the provisions of the Protocols remained vague and contested, and their status, together with the humanitarian vision of the law they outlined, was uncertain for some time. It was only at the end of the 20th century that international lawyers, following the lead of human rights organizations, declared Additional Protocol I to be authoritative and the law of war to be truly humanitarian. As such, this article concludes that international humanitarian law is not simply an ahistorical code, managed by states and promoted by the International Committee of the Red Cross. Rather, it is a relatively new and historically contingent field that has been created, shaped and dramatically reinterpreted by a variety of actors, both traditional and unconventional.
Topic:
International Law
Political Geography:
Geneva

137. Is Treaty Interpretation an Art or a Science? International Law and Rational Decision Making

Author:
Ulf Linderfalk
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
Although treaty interpretation is undoubtedly an activity governed by international law, and by Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties (VCLT) in particular, some commentators continue repeating the pre-Vienna adage that treaty interpretation is a matter of art and not science, the implication of which is that no understanding of a treaty provision can ever be explained rationally. As the present article argues, this idea of interpretation must be rejected. While, sometimes, an assumed meaning of a treaty cannot be justified based on international law simpliciter, many times it can still be explained based on the structural framework of Articles 31–33 of the VCLT. Consequently, any characterization of treaty interpretation in the abstract as either art or science is misplaced. Whether treaty interpretation is an art or a science remains a question of fact inextricably tied to the approach taken by each and every law-applying agent in particular cases.
Topic:
International Law

138. Shining Cities on the Hill? The Global City, Climate Change, and International Law

Author:
Helmut Philipp Aust
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
Cities are beginning to assert themselves as internationally relevant actors. This is particularly noticeable in the climate change context. This development has so far not been accorded a great deal of attention by international lawyers. The review essay discusses four new books by political scientists which offer us a closer look at the political dimension of 'global cities', a term originally coined by sociologist Saskia Sassen. The four books under review as well as this essay pay particular attention to the C40 association – a movement of self-styled city leaders in climate change governance. This group of cities has developed numerous ties with international organizations and private corporations. The review essay analyses how cooperative endeavours such as C40 challenge our understanding of the relationship between the city and the state and assesses how international law as a discipline could come to terms with these developments. It is argued that international law should fulfil two functions in this regard: recognition and contestation. Whereas cities may not yet be recognized subjects of international law, they are moving closer to this illustrious circle. In any case, their law-making processes are beginning to have a significant impact on processes of global governance.
Topic:
Climate Change, International Law, and Governance

139. International Law and Global Justice: On Recent Inquiries into the Dark Side of Economic Globalization

Author:
Jochen von Bernstorff
Publication Date:
05-2015
Content Type:
Journal Article
Abstract:
Global economic justice as a topic of moral philosophy and international law is back on the intellectual agenda and figures prominently in feuilletons, blogs and academic publications. A wave of recent studies by both international lawyers and moral philosophers on the dark side of economic globalization and the role of international law in this context is as such a remarkable phenomenon. The essay engages with diverging scholarly perspectives on global justice and international law as represented in the four volumes under review. Three substantive questions structure the non-comprehensive sketch of the global justice debate: (i) Is the current international economic order unjust? (ii) Can existing international legal rules and institutions be transformed or developed into a more just economic order? (iii) What is the potential role of international lawyers in this context?
Topic:
Economics, Globalization, and International Law

140. Settler-State Political Theory, 'CANZUS' and the UN Declaration on the Rights of Indigenous Peoples

Author:
Kirsty Gover
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
When the UN General Assembly voted in 2007 to adopt the Declaration on the Rights of Indigenous Peoples (UNDRIP), only Australia, Canada, New Zealand and the USA cast negative votes. This article argues that the embedding of indigenous jurisdictions in the constitutional orders of these states via negotiated political agreements limits their capacity to accept certain provisions of the UNDRIP. Once the agreement-making process is set in motion, rights that do not derive from those bargains threaten to undermine them. This is especially true of self-governance and collective property rights, which are corporate rights vested to historically continuous indigenous groups. Since these rights cannot easily be reconciled with the equality and non-discrimination principles that underpin mainstream human rights law, settler governments must navigate two modes of liberalism: the first directed to the conduct of prospective governance in accordance with human rights and the rule of law and the second directed to the reparative goal of properly constituting a settler body politic and completing the constitution of the settler state by acquiring indigenous consent. Agreements help to navigate this tension, by insulating indigenous and human rights regimes from one another, albeit in ways not always supported by the UNDRIP.
Topic:
Human Rights, International Law, United Nations, and Governance
Political Geography:
Europe, Canada, United Nations, Australia, New Zealand, and United States of America

141. Land Rights in Nineteenth-Century Ottoman State Succession Treaties

Author:
Ilias Bantekas
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
Ottoman state practice in the field of state succession in the 19th century displayed strict adherence to the European notions of international law. This is evident from the ratification of cession treaties, attention to reciprocity, the use of mediation and reliance on the existing laws of war principles, including the legal effects of occupation, conquest and the rights and duties of belligerents. This article focuses on state succession treaties with Greece since they represented the paradigm for all future treaties, and it examines the Islamic origin of Ottoman land regulation. The Ottomans succeeded in attaching a further condition to their cession arrangements with the new Greek state, namely the latter’s obligation to respect the property rights of Muslim citizens. This arrangement brought into play the application of Ottoman land law, to which Greece was under no obligation to succeed. This body of law, particularly the set of property rights bestowed under it, became a focal point in the ensuing state succession negotiations. It was the actual basis of Muslim property rights – a precursor to contemporary property rights – and a sine qua non element of Ottoman practice in the law of state succession. In this light, Ottoman land law and institutions should correctly be considered to be general principles of law – with origins from the Quran and the early caliphates – as well as regional custom, at least in the territories liberated from Ottoman rule, which continued to apply and enforce it not only among Muslims but also in the property relations of the indigenous ethnic communities.
Topic:
International Law, Islam, Treaties and Agreements, History, and Land Law
Political Geography:
Europe, Greece, and Ottoman Empire

142. The Hybrid Legal-Scientific Dynamic of Transnational Scientific Institutions

Author:
Oren Perez
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
The objective of the present article is to develop a better understanding of the institutional dynamic of transnational regulatory scientific institutions (RSIs). RSIs play a significant role in the transnational regulatory process by mediating between the scientific community and policy-making bodies. I argue that RSIs have a hybrid structure involving both political-legal and epistemic authority. The hybrid structure of RSIs – their capacity to exert both normative and epistemic authority – constitutes an innovative response to the demand of modern society for scientific certainty and to the scarcity of normative power in the international domain. This hybrid nature has a triple structure involving three complementary pairs: law~science, law~non-law and science~pseudoscience. I examine the way in which RSIs cope with the challenge of maintaining their epistemic and legal authority against the tensions generated by their hybrid structure. The discussion of hybrid authority is related to the problem of scientific uncertainty. I examine this theoretical argument drawing on an in-depth analysis of three RSIs that reflect the institutional diversity of the RSI network: the Intergovernmental Panel on Climate Change, the International Commission on Non-Ionizing Radiation Protection and the European Committee of Homeopaths. I conclude with a discussion of some of the policy issues associated with the institutional design of RSIs. The policy discussion refers, first, to the risk posed by RSIs’ hybrid structure to their internal stability and, second, to some potential adverse social impacts that need to be considered alongside RSIs’ projected benefits.
Topic:
International Law, Science and Technology, Law, and Regulation
Political Geography:
Europe and Italy

143. Determining Customary International Law: The ICJ's Methodology between Induction, Deduction and Assertion

Author:
Stefan Talmon
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
Methodology is probably not the strong point of the International Court of Justice or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the Court’s jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law, but the legal literature also has had little to say on this subject. In view of the fact that determining the law has also always meant developing, and ultimately creating, the law it is surprising that the question of the Court’s methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law. It starts by defining the terms ‘induction’ and ‘deduction’ and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom and demonstrates that the main method employed by the Court is neither induction nor deduction but, rather, assertion.
Topic:
International Law, Law, Legal Theory, and Courts
Political Geography:
Europe and The Hague

144. State Formation, Liberal Reform and the Growth of International Organizations

Author:
Guy Fiti Sinclair
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article argues that the growth of international organizations over the past century has been imagined and carried out in order to make modern states on a broadly Western model. The proliferation of international organizations and the expansion of their legal powers, through both formal and informal means, raise profound questions regarding the relationship between international law’s reforming promise and its imperialist perils. The article proposes a new analytic framework for understanding these phenomena, focusing on the rationalities of international organizations’ powers and the technologies through which they are made operable. It argues that both the growth of international organizations and the cultural processes of state formation are impelled by a dynamic of liberal reform that is at once internal and external to law. That dynamic and the analytic framework proposed here are both illustrated and exemplified through a critical account of the emergence of international organizations in the 19th century.
Topic:
Imperialism, International Law, International Organization, History, and State Formation
Political Geography:
Europe and United Nations

145. Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity

Author:
Ilias Plakokefalos
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article addresses the preliminary steps that must be taken in order to study the problems stemming from overdetermination in the law of state responsibility. Overdetermination, broadly defined, is the existence of multiple causes (multiple wrongdoers, external natural causes, contribution to the injury by the victim and so on) contributing towards a harmful outcome. As relationships among states become more and more complex, there is a corresponding increase in the complexity of the potentially harmful outcomes of these relationships. The fact that the harm caused may originate in diverse sources (overdetermination) poses challenges to the law of state responsibility. These challenges pertain to most aspects of state responsibility, yet their dimension regarding causality has not been studied in depth. The confusion surrounding causal analysis conducted by international adjudicatory bodies leads to decisions that are not convincing in their determination of responsibility in causal terms. The argument of the article is twofold. First, it holds that the concept of causation in international law is unclear, especially in relation to overdetermination, and it must be clarified. Second, it holds that a clearer concept of causation can provide useful guidance to the decision-making process of international courts and tribunals: the clear and principled application of causal tests will, in turn, lead to clearer reasoning. A clearer judicial reasoning will improve the foreseeability of the judicial outcome, will provide better guidance for the parties before a court and will lead to a fairer judicial process.
Topic:
International Relations, International Law, Legal Theory, and Courts
Political Geography:
Europe and The Hague

146. Internet Freedom and Human Rights

Author:
Daniel Joyce
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article considers whether the Internet has become so significant, for the provision of, and access to, information and in the formation of political community and associated questions of participation, that it requires further human rights protection beyond freedom of expression. In short, should Internet freedom be configured as a human right? The article begins by considering the ubiquity of the Internet and its significance. A wider historical view is then taken to understand Internet freedom in terms of its lineage and development from earlier debates over freedom of expression and the right to communicate, through to the recognition of the significance of an information society and the need for Internet regulation on the international plane. The current debate over Internet freedom is then analysed with particular focus given to Hillary Clinton’s speech on Internet freedom and its subsequent articulation by Special Rapporteur Frank La Rue. The concluding part introduces the critical work of Evgeny Morozov and Jaron Lanier to an international law audience in order to deepen the debate over Internet freedom and to point to the concept’s limitations and dangers. It is too early to say whether a ‘right to Internet freedom’ has achieved universal recognition, but this article makes the case that it is worth taking seriously and that Internet freedom may need its own category of protection beyond freedom of expression.
Topic:
Human Rights, International Law, History, Regulation, Internet, and Freedom of Expression
Political Geography:
Europe, Global Focus, and United States of America

147. Double Remedies in Double Courts

Author:
Sungjoon Cho and Thomas H. Lee
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article uses an ongoing trade controversy litigated in US courts and the World Trade Organization dispute resolution system as a vehicle for exploring different models to deal with parallel adjudications in different legal systems between the same or related parties on the same issue. In lieu of more traditional models of subordination or first-to-decide sequencing, the article proposes an engagement model as a solution to the double-courts, single-issue problem.
Topic:
International Law, International Trade and Finance, World Trade Organization, and Courts
Political Geography:
China, Europe, and United States of America

148. Faith, Ritual and Rebellion in 21st Century (Positivist) International Law

Author:
Mónica García-Salmones Rovira
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
In this review of three works (Jörg Kammerhofer’s Uncertainty in International Law: A Kelsenian Perspective; Jean d’Aspremont’s Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules ; and International Legal Positivism in a Post-Modern World, a collection of essays edited by Kammerhofer and d'Aspremont), Mónica García-Salmones Rovira argues that: Theological statements about morality and law to the effect that they ought to be autonomous or that they ought to coincide defy reality, history and common sense and suffer from intellectual inconsistency. On the contrary, from our long legal history appear at least two clear facts about the relationship between morality and law. First, they both conflate in the same acting individual. Second, in the legal sphere, the individual always acts in communication with other individuals. Whether one aims at investigating the normative principles of the first fact, of what makes a good lawyer, or of the second, of what makes good law and the related issue of responsibility, we are always thinking in terms of practical action. Probably, it is in that practical province where international law has its greater emancipatory potential in a post-modern world.
Topic:
Human Rights, International Law, Religion, and Legal Theory
Political Geography:
Europe and Italy

149. Reut Yael Paz. A Gateway between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law.

Author:
Robert Howse
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This rich and erudite work provides a valuable scholarly apparatus for understanding the writing and teaching of four important figures in international law and international relations. Three of them, Hans Kelsen, Hans Morgenthau and Hersch Lauterpacht, are well known; the fourth, Erich Kaufmann, much less so. The general thesis of the book is that to understand fully the personal and intellectual trajectories of all of these figures, one needs to appreciate the specific German–Jewish experience, from emancipation through the Shoah, the particular situation of the Jews in the legal profession and the academy in Germany, and the responses of these thinkers to experiences of persecution, discrimination and exile due to their Jewish family backgrounds as well as to the establishment of the State of Israel.
Topic:
International Relations, International Law, Judaism, History, Intellectual History, and Zionism
Political Geography:
Europe, Germany, and Israel

150. Tana Johnson. Organizational Progeny. Why Governments are Losing Control over the Proliferating Structures of Global Governance

Author:
Matthias Goldmann
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
According to mainstream functionalist theories of international law and relations, international organizations are vehicles of states, tied to their masters by meticulous legal instructions. As Jan Klabbers recently pointed out in this journal,1 functionalism was based on the idea of establishing peace by channelling international relations into the purportedly technical, a-political realm of international organizations. Research of the last couple of decades has profoundly rebutted the assumption that international organizations are a-political. They have been discovered, among others, to serve as platforms for the formation of epistemic communities, as agorae for political deliberation and contestation or to use their bureaucratic potential and the flexibility of their mandates to establish a degree of independence from their principals. The book by Tana Johnson, professor of political science at Duke University, adds another important perspective that has not been explored so far. She turns our attention to the fact that institutional design might matter for the international organization’s independence from member states. As chief witness for her thesis, she summons the Intergovernmental Panel on Climate Change (IPCC). Originally a brainchild of the US government, it is today a fairly independent institution fallen from grace with its master. Johnson argues that it owes its independence to the influence of international bureaucracies – that is, staff of other international organizations, upon the process that led to its establishment. The thesis puts the spotlight on the fact that a majority of new international organizations that saw the light of the day during the last decades was fostered by pre-existing international organizations.
Topic:
International Relations, Climate Change, International Law, International Organization, and Governance
Political Geography:
United States and Europe