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61. 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

62. 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

63. 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

64. 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

65. 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

66. 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

67. 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

68. 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

69. 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

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

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

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

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

72. International Investment Law and the Rule of Law

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

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

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

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

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

75. 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

76. 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

77. 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

78. 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

79. 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

80. 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