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Begin New Search Topic International Law Content Type Journal Article

201. A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours

Author:
Maria Artistodemou
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
This article is a radical rethinking of public international law through the use of Lacanian psychoanalysis. Its central thesis is that while contemporary scholarship addresses what Lacan calls the symbolic and imaginary registers including law, politics, and ideology, it continues to ignore and repress the dimension of the real. The article illustrates this with a clinical example examined by Kris and discussed by Lacan. Imagining public international law as an indefatigable neurotic in search of 'fresh brains', the article shows why meeting her in the domains of law and politics is not enough to satiate her appetite. What continues to resist is the 'extimate', the inhuman element within the human that the subject hides so well from herself that it is excluded in the interior. A major instance of the extimate is the 'caffeinated neighbour', that is, the neighbour who is not in our image because her disturbing core has not been subtracted. The article argues that unless international law comes to terms with this inevitably ugly and obscene core, in oneself as well as in the neighbour, it cannot hope to achieve any meaningful changes. That the need to recognize the extimate is the ethical demand facing international law now; unless we address it, our symptoms will continue to grow and we will continue to crave fresh brains.
Topic:
International Law
Political Geography:
New York

202. The Beneficiaries of TRIPs: Some Questions of Rights, Ressortissants and International Locus Standi

Author:
Christopher Wadlow
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
The rights and remedies of private parties under the three principal global treaties for the protection of intellectual property are restricted to persons having the status of ressortissants under the relevant treaty, and by the general law of diplomatic protection. Two largely neglected issues arise in relation to ressortissants, which the treaties do not expressly resolve. The first concerns whether the obligations which state A assumes towards the nationals of state B can be enforced by states other than B. The second is whether the obligations assumed by a state under one of these treaties extend to that state's own nationals. It is suggested that the Bananas III and Havana Club decisions have effectively resulted in unlimited locus standi for WTO members to complain of breaches of TRIPs, including the incorporated provisions of the Paris and Berne conventions. The answer to the second question is more tentative, but it is suggested that there may be greater opportunities for arguing that the provisions of TRIPs are binding on states in relation to their own nationals, including incorporated Paris and Berne Articles, than there were under either of those earlier treaties on their own.
Topic:
International Law
Political Geography:
Europe and Paris

203. The Duality of Direct Effect of International Law

Author:
André Nollkaemper
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
This article assesses how, 50 years after the ECJ delivered its judgment in Van Gend en Loos (VGL), the doctrine of direct effect of international law has fared outside the European Union. While obviously the core of VGL (that is, that it is EU law, not national law, which requires direct effect) is not replicated anywhere else in the world, the courts of a considerable number of states have been able to give direct effect to international law. Against the background of an exceedingly heterogeneous practice, this article argues that the concept of direct effect is characterized by a fundamental duality. Direct effect may function as a powerful sword that courts can use to pierce the boundary of the national legal order and protect individual rights where national law falls short. But more often than not, the conditions of direct effect legitimize the non-application of international law and shield the national legal order from international law. International law provides support for both functions. But above all, it defers the choice between these functions to national courts. The practice of direct effect of international law exposes how national courts play a critical political function at the intersection of legal orders.
Topic:
International Law
Political Geography:
Europe

204. Direct Effect of International Agreements of the European Union

Author:
Francesca Martines
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
The Van Gend en Loos (VGL) decision established the conceptual premises of a crucial issue to shape the relationships between the European Union and international law: the function of direct effect as a powerful instrument to guarantee that the rules of one system are complied with in another legal order. However, if compared with direct effect of EU legal rules, the issue of the effects of EU international agreements is made more complicated by the combination of the more traditional question of the self-executing character of international agreement provisions and the narrow meaning of direct effect. The former issue, strongly affected by the technique of incorporation and the rank of international law obligations within the incorporating legal order, goes to the heart of the constitutional architecture of the EU legal order where a balance is to be found between the obligation to comply with international law and the integrity of the EU legal order. The latter notion concerns instead the relationship between the private person and the legal rule and defines the special character of the EU which distinguishes it from international law. Since such a quality of EU rules cannot be automatically applied to international law rules incorporated in the EU legal order it must be verified case by case. This is the reason why, for the present author, the double test approach, first applied by the ECJ in VGL, is the right test to determine direct effect of EU international agreements, but cannot be applied to verify the self-executing effect of international law in the traditional (broader) meaning.
Topic:
International Law
Political Geography:
Europe

205. Is There a Case – Legally and Politically – for Direct Effect of WTO Obligations?

Author:
Hélène Ruiz Fabri
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
WTO law does not require its direct effect in domestic legal orders. Whilst the stances taken in these are diverse, showing that direct effect is not denied on the whole to WTO law, all the major trading members of the WTO deny it. The fact that, in a case where a WTO member does not comply and is targeted by trade sanctions, the economic actors who in practice bear the burden of these sanctions are deprived of any recourse, may be considered unfair enough to question again the denial of direct effect. The analysis focuses notably on the EU where the debate has expanded more than anywhere else and concludes that direct effect should, even in the name of fairness or justice, be handled with caution.
Topic:
International Law
Political Geography:
Europe

206. Is Global Constitutionalism Meaningful or Desirable?

Author:
Michel Rosenfeld
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Upon conceiving constitutionalism on the scale of the nation-state as transparent and unproblematic, one may think global constitutionalism to be a mere utopia. On closer analysis, however, legitimation of nation-state constitutionalism turns out to be much more complex and contested than initially apparent, as becomes evident based on the contrast between liberal and illiberal constitutionalism. Upon the realization that nation-state liberal constitutionalism can only be legitimated counterfactually, the social contract metaphor emerges as a privileged heuristic tool in the quest for a proper balance between identity and difference. Four different theories offer plausible social contract justifications of nation-state liberal constitutionalism: a deontological theory, such as those of Rawls and Habermas, which privileges identity above difference; a critical theory that leads to relativism; a thick national identity based one that makes legitimacy purely contingent; and a dialectical one that portrays the social contract as permanently in the making without any definitive resolution. Endorsing this last theory, I argue that differences between national and transnational constitutionalism are of degree rather than of kind. Accordingly, it may be best to cast certain transnational regimes as constitutional rather than as administrative or international ones.
Topic:
International Law
Political Geography:
France and Netherlands

207. Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter

Author:
Alina Mungiu-Pippidi and Dia Anagnostou
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Over the past couple of years, international law and international relations scholarship has shifted its focus from the question of whether human rights treaties bring any state-level improvements at all to investigations in the domestic context of the factors and dynamics influencing state compliance. In this direction, and focusing on the European Court of Human Rights, this study inquires into the factors that account for variable patterns of state compliance with its judgments. Why do national authorities in some states adopt a more prompt and responsive attitude in implementing these judgments, in contrast to other states that procrastinate or respond reluctantly? On the basis of a large-N study of the Strasbourg Court's judgments and a comparison across nine states, this article argues that variation in state implementation performance is closely linked to the overall legal infrastructure capacity and government effectiveness of a state. When such capacity and effectiveness are high and diffused, the adverse judgments of the Strasbourg Court are unlikely to be obstructed or ignored, even when the government, political elites, or other actors are reluctant and not in favour of substantive remedies.
Topic:
International Relations and International Law
Political Geography:
Europe

208. An International Lawyer in Democracy and Dictatorship – Re-Introducing Herbert Kraus

Author:
Heiko Meiertöns
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Herbert Kraus (1884–1965) is among the forgotten international lawyers of the 20th century. Kraus took part in a number of developments of great importance for the shaping of modern international law: he participated in the drafting process of the Versailles Peace Treaty and the Treaty on the European Coal and Steel Community and acted as defence counsel at Nuremberg. The founding director of the Institute for International Law at the University of Göttingen was forced to retire between 1937 and 1945 due to his criticism of National Socialism. The post-war perception of his work was coined by his forced retirement. However, his work between 1933 and 1937 sheds light on the dilemma of choosing between opposition and adjustment that Kraus was faced with during that period. This article re-introduces Kraus – a complex German character of international law – and the main features of his work.
Topic:
International Law
Political Geography:
New York

209. Towards a Global History of International Law? Editor's Note

Author:
Alexandra Kemmerer
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
As usual, international law comes in late. It was already in the golden years of new world orders and geopolitical shifts after the end of the Cold War that historiography began its global turn. Of course, there had been pioneers and path-breakers before, but it was only in the 1990s that an ambiance of globalization and trans-nationalization triggered new approaches on a larger scale. An actual experience of political, economic and cultural interconnectedness put historiographical emphasis on transfers, networks, connections and cooperation, on transformation and translation.Historical analysis was called to overcome not only the boundaries of the nation-state, but also the limitations of material and epistemic Eurocentrism in its various forms. During the past decade, there has been a growing interest in global histories in many parts of the world.
Topic:
International Law
Political Geography:
Africa and Europe

210. The Spectre of Sources

Author:
Rose Parfitt
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
The editors of this impressive and timely volume, Anne Peters and Bardo Fassbender, begin their Introduction (at 2) with the following statement of purpose: [W]e, the editors and authors, [have] tried to depart from ... the 'well-worn paths' of how the history of international law has been written so far — that is, as a history of rules developed in the European state system since the 16th century which then spread to other continents and eventually the entire globe.
Topic:
International Law
Political Geography:
Europe

211. Sleepy Side Alleys, Dead Ends, and the Perpetuation of Eurocentrism

Author:
Stefan B. Kirmse
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
My reading of The Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters, has undoubtedly been framed by my own field of research. This field is not international law, but the historical anthropology of Russia and Eurasia and includes changing legal practice in a context of increasing global connectedness. My review is therefore not intended to relate the Oxford Handbook to the wider historiography of international law, which I leave to other contributions in this symposium; it is meant to offer an external perspective on the question of Eurocentric analysis. The editors of the Handbook have identified Eurocentrism as one of the key challenges to overcome in the study of international law.
Topic:
International Law
Political Geography:
Russia and Persia

212. Is there a Role for Islamic International Law in the History of International Law?

Author:
Nahed Samour
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Overcoming Eurocentrism is one of the self-proclaimed aims of the editors of The Oxford Handbook of the History of International Law. In the following, I shall offer a critique of the Handbook from a largely Islamic international law perspective as (but) one example of a supranational non-European legal system. The depth of the volume covering a variety of times, spaces, and themes provides us with a much awaited tool against the 'gaps' and the 'forgetfulness' of how today's doctrines and practices of international law came about, not shying away from the voices that question the narrative of international law serving peace and justice. The Handbook is therefore laudable for a number of things.
Topic:
International Law and Islam
Political Geography:
Europe

213. Statelessness: An Invisible Theme in the History of International Law

Author:
Will Hanley
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
The Oxford Handbook is a welcome and necessary intervention in the history of international law. In the introduction, the editors signal their reformist programme: out with the progressive, triumphalist narrative; in with the dark side of international law and its side tracks outside the European experience. In addition to this programme, the project displays two further signs of its serious intent to change the field. First, the authors embarked on a truly collective project, including a week of face-to-face consultation, in a rare effort to define a reasonably unified agenda. Scholarly redirection is a social as well as an intellectual undertaking, and the community built around this volume marks its purposefulness. Secondly, the book's scope is massive: more than five dozen chapters, more than three dozen authors, and more than 1,000 pages of text provide the bulk necessary to accomplish the paradigm shift that the editors intend. The extensive range of the book, especially in its 'Regions' section, does what is necessary to transform globalizing intent into actuality. It is a foundational volume, and any scholarly edifice building upon it will have a broader footprint than was previously possible.
Topic:
International Law
Political Geography:
Europe

214. Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law

Author:
Anne-Charlotte Martineau
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Last Spring, the Rechtskulturen programme, an initiative of the Wissenschaftskolleg zu Berlin at the Transregionale Studien Forum, invited me to participate in a symposium on the Oxford Handbook of the History of International Law – a robust book of 1250 pages. I was asked to 'critically assess' the Handbook's 'global history' approach, that is, to assess whether it was a successful step in 'overcoming Eurocentrism' in the history of international law. The symposium turned out to be a wonderful event, a gathering of historians, anthropologists, political scientists, and lawyers, where I became very conscious of my own professional language but where I also experienced a willingnesss to transcend disciplinary boundaries and biases. The following remarks should be interpreted as a continuation of that discussion. Before looking at some of the contributions in the Handbook that did depart from 'well-worn paths' (to use the editors' expression) (3), I would like to say few words about the 'global history' approach (1) and the unfortunate resilience of Eurocentric voices in the Handbook (2).
Topic:
International Law
Political Geography:
Europe

215. Prospects and Limits of a Global History of International Law: A Brief Rejoinder

Author:
Anne Peters and Bardo Fassbender
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
As we remarked in the Introduction to our Handbook, it is exciting but also risky to leave a well-worn path (at 2). It means meeting unforeseen obstacles. We were quite aware of the fact that if we wanted to shed light on historical developments in international law which so far had remained in darkness or obscurity, we had to be prepared to encounter the unexpected and not so readily understood – that is, accounts and narratives which call into question conventional wisdom and which, at least initially, pose additional problems rather than providing easy answers. We knew that new research on issues which had rarely been examined before would not be perfect or 'complete'. In other words, we expected, and in fact expressly invited, criticism of a work which tried to break new ground.
Topic:
International Law
Political Geography:
Europe

216. Michael Byers. International Law and the Arctic

Author:
Timo Kolvurova
Publication Date:
02-2014
Content Type:
Journal Article
Abstract:
Those who follow the newspapers and media in general are led to believe that the stakes are getting higher in the Arctic. Climate change is melting the sea ice and opening up new economic opportunities: oil, gas, moving fish stocks, and shorter navigational routes are among the benefits to be had by those who are bold enough to make a move. According to the media, China and other emerging economies are claiming their own piece of the Arctic. In the scramble among states for the riches of the Arctic, we sense a scenario that may even drive states to the point of military conflict. Yet, this scramble does not take place in a legal vacuum – there are plenty of legal rules that govern the behaviour of states and other actors in the region. Indeed, this is one of the salient points that Michael Byers makes in his book.
Topic:
Environment, International Law, and Oil
Political Geography:
China

217. Principles of Islamic International Criminal Law: A Comparative Search Farhad Malekian

Author:
Aysegul Cimen
Publication Date:
04-2014
Content Type:
Journal Article
Journal:
Insight Turkey
Institution:
SETA Foundation for Political, Economic and Social Research
Abstract:
Principles of Islamic International Criminal Law: A Comparative Search As one of the major components of the Islamic state, Islamic law has drawn considerable attention from different scholars both in the East and West. Particularly, comparative studies on the historical evolution of Islamic law and its application in modern legal systems are some of the major topics in the last two decades. Peters' Crime and Punishment in Islamic Law: Theory and Practice from Sixteenth to Twenty-First Century, Millers' Legislating Authority: Sin to Crime in the Ottoman Empire and Turkey, Hallaq's Shari'a: Theory, Practice, Transformations, and Naim's Islam and the Secular State: Negotiating the Future of Shari'a are some of the prominent books in the field.
Topic:
International Relations, International Law, Islam, and Law
Political Geography:
Turkey

218. Contradiction in International Law

Author:
Angela Bunch
Publication Date:
04-2014
Content Type:
Journal Article
Journal:
Americas Quarterly
Institution:
Council of the Americas
Abstract:
Indigenous peoples' control over natural resources continues to be one of the most controversial issues in international law. Numerous international human rights treaties recognize Indigenous communities' right to be consulted over the use of resources on or beneath their communal lands. But international law tends to consider third parties' exploitation of natural resources on Indigenous land to be legal—as long as Indigenous rights to consultation, participation and redress, among other rights, are met.
Topic:
International Law
Political Geography:
United Nations

219. Table of Contents, Volume 28.2 (Summer 2014)

Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
This issue features essays by Roger Berkowitz on "Drones and the Question of 'The Human'" and Alan Sussman on the philosophical foundations of human rights; a special centennial roundtable on "The Future of Human Rights," featuring Beth A. Simmons, Philip Alston, James W. Nickel, Jack Donnelly, and Andrew Gilmour; a review essay by Jens Bartelson on empire and sovereignty; and book reviews by Dale Jamieson, Tom Bailey, and Simon Cotton.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs

220. Why Human Rights Are Called Human Rights

Author:
Alan Sussman
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
The title of this essay is rather ambitious and the space available is hardly sufficient to examine two words of almost limitless expanse—“human rights”—whether standing alone or in tandem. This requires that I begin with (and remained disciplined by) what a teacher of mine, Leo Strauss, called “low facts.” My low facts are these: We call ourselves humans because we have certain characteristics that define our nature. We are social and political animals, as Aristotle noted, and possess attributes not shared by other animals. The ancients noted this, of course, when they defined our principal behavioral and cognitive distinction from the rest of the natural world as the faculty of speech. The Greek word for this, logos, means much more than speech, as it connotes word and reason and, in the more common understanding, talking and writing, praising and criticizing, persuading and reading. While other animals communicate by making sounds of attraction or warning, leaving smells, and so on, none read newspapers, make speeches, publish their memoirs, or write poetry.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs

221. "Climate Matters: Ethics in a Warming World"

Author:
Dale Jamieson
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
This is the inaugural volume in the Amnesty International Global Ethics Series, edited by Kwame Anthony Appiah. John Broome, the author of this volume, is a trained economist, distinguished philosopher, and a lead author of the 2014 Intergovernmental Panel on Climate Change report. He is very well suited to fulfill the mandate of the series, which is to "broaden the set of issues taken up by the human rights community." It is thus surprising that the book does not discuss human rights (or rights at all), nor locate itself in relation to much of the relevant literature. Nevertheless, this is an excellent book, displaying the author's characteristic virtues of clarity, concision, precision, and intellectual honesty.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs

222. "Global Justice and Avant-Garde Political Agency"

Author:
Tom Bailey
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
In Global Justice and Avant-Garde Political Agency , Lea Ypi proposes a novel approach to political theory in relation to the issue of global equality. She fiercely criticizes the tendency to abstract from the realities of political agency in "ideal" theorizing, since, she insists, such abstraction renders the conclusions drawn practically irrelevant and indeterminate. But she also refuses to treat current political practices and norms as given constraints in the manner of "nonideal" theorizing, on the grounds that the selection of relevant practices and norms is always morally loaded and their analysis inevitably conservative. Instead, Ypi proposes that theory begin with a specific political conflict, diagnose the failure of existing practices and norms to resolve it, and, in this light, develop better practices and norms. She calls this approach "dialectical" insofar as it considers political practices and norms to develop progressively in resolving emerging political problems, and "activist" or "avant-garde" in its responding and contributing to political change through appropriate political agents.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs

223. "Fairness in Practice: A Social Contract for a Global Economy"

Author:
Simon Cotton
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
We are all familiar with the claim that the rules of the World Trade Organization (WTO) are unjust or otherwise objectionable. Yet this claim faces substantial hurdles in motivating corrective action. Most significantly, wealthy states face political pressures against moderating their bargaining positions. But this is not the only problem. First, there remains the suspicion that these rules are not, in fact, objectionable, or that they are only mildly so—perhaps "bad" but not "unjust." After all, no country is forced to be subject to them; the WTO is a voluntary institution. Second, we still have to determine what rules would be just. Is it really the job of the WTO to compensate for inherent inequalities between countries? In this book, the first philosophical work devoted exclusively to "fair trade," Aaron James seeks to combat the second of these challenges directly. In doing so, he also combats the first.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs

224. Drones and the Question of "The Human"

Author:
Roger Berkowitz
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
Domino's Pizza is testing "Domicopter" drones to deliver pizzas, which will compete with Taco Bell's "Tacocopter" drones. Not to be outdone, Amazon is working on an army of delivery drones that will cut out the postal service. In Denmark, farmers use drones to inspect fields for the appearance of harmful weeds, which reduces herbicide use as the drones directly apply pesticides only where it is needed. Environmentalists send drones into glacial caves or into deep waters, gathering data that would be too dangerous or expensive for human scientists to procure. Federal Express dreams of pilotless aerial and terrestrial drones that will transport goods more cheaply, reliably, and safely than vehicles operated by humans. Human rights activists deploy drones over conflict zones, intelligently searching for and documenting abuses for both rhetorical and legal purposes. Aid agencies send unmanned drones to villages deep in jungles or behind enemy lines, maneuvering hazardous terrain to bring food and supplies to endangered populations. Medical researchers are experimenting with injecting drone blood cells into humans that can mimic good cholesterol carriers or identify and neutralize cancerous cells. Parents in Vermont are using flying drones to accompany children to school, giving a whole new meaning to helicopter parenting. And Pilobolus, a New York dance company, has choreographed a dance in which drones and humans engage each other in the most human of acts: the creation of art.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
Political Geography:
Denmark

225. The Future of the Human Rights Movement

Author:
Beth A. Simmons
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
The modern human rights movement is at a critical juncture in its history. It has been nearly seventy years since the creation of the Universal Declaration of Human Rights, and some of the oldest and most active human rights organizations have been operating around the world for about forty years. More than twenty years have passed since the end of the cold war, and the time when people spoke in triumphal terms of the global success of Western values is now a fading memory. International human rights are ensconced as firmly as ever in international law and institutions, but what about the future of the "human rights movement"?
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs

226. Against a World Court for Human Rights

Author:
Philip Alston
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
Too much of the debate about how respect for human rights can be advanced on a global basis currently revolves around crisis situations involving so-called mass atrocity crimes and the possibility of addressing abuse through the use of military force. This preoccupation, as understandable as it is, serves to mask much harder questions of how to deal with what might be termed silent and continuous atrocities, such as gross forms of gender or ethnic discrimination or systemic police violence, in ways that are achievable, effective, and sustainable. This more prosaic but ultimately more important quest is often left to, or perhaps expropriated by, international lawyers. Where the politician often finds solace in the deployment of military force, the international lawyer turns instinctively to the creation of a new mechanism of some sort. Those of modest inclination might opt for a committee or perhaps an inquiry procedure. The more ambitious, however, might advocate the establishment of a whole new court. And surely the most "visionary" of such proposals is one calling for the creation of a World Court of Human Rights. A version of this idea was put forward in the 1940s, but garnered no support. The idea has now been revived, in great detail, and with untrammeled ambition, under the auspices of an eminent group of international human rights law specialists.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs

227. What Future for Human Rights?

Author:
James W. Nickel
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
Like people born shortly after World War II, the international human rights movement recently had its sixty-fifth birthday. This could mean that retirement is at hand and that death will come in a few decades. After all, the formulations of human rights that activists, lawyers, and politicians use today mostly derive from the UN Universal Declaration of Human Rights, and the world in 1948 was very different from our world today: the cold war was about to break out, communism was a strong and optimistic political force in an expansionist phase, and Western Europe was still recovering from the war. The struggle against entrenched racism and sexism had only just begun, decolonization was in its early stages, and Asia was still poor (Japan was under military reconstruction, and Mao's heavy-handed revolution in China was still in the future). Labor unions were strong in the industrialized world, and the movement of women into work outside the home and farm was in its early stages. Farming was less technological and usually on a smaller scale, the environmental movement had not yet flowered, and human-caused climate change was present but unrecognized. Personal computers and social networking were decades away, and Earth's human population was well under three billion.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
Political Geography:
United States, Japan, China, Europe, Asia, and United Nations

228. State Sovereignty and International Human Rights

Author:
Jack Donnelly
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
I am skeptical of our ability to predict, or even forecast, the future—of human rights or any other important social practice. Nonetheless, an understanding of the paths that have brought us to where we are today can facilitate thinking about the future. Thus, I approach the topic by examining the reshaping of international ideas and practices of state sovereignty and human rights since the end of World War II. I argue that in the initial decades after the war, international society constructed an absolutist conception of exclusive territorial jurisdiction that was fundamentally antagonistic to international human rights. At the same time, though, human rights were for the first time included among the fundamental norms of international society. And over the past two decades, dominant understandings of sovereignty have become less absolutist and more human rights–friendly, a trend that I suggest is likely to continue to develop, modestly, in the coming years.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs

229. The Future of Human Rights: A View from the United Nations

Author:
Andrew Gilmour
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
Ever since the Charter of the United Nations was signed in 1945, human rights have constituted one of its three pillars, along with peace and development. As noted in a dictum coined during the World Summit of 2005: "There can be no peace without development, no development without peace, and neither without respect for human rights." But while progress has been made in all three domains, it is with respect to human rights that the organization's performance has experienced some of its greatest shortcomings. Not coincidentally, the human rights pillar receives only a fraction of the resources enjoyed by the other two—a mere 3 percent of the general budget.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
Political Geography:
Europe and United Nations

230. From Empire to Sovereignty — and Back?

Author:
Jens Bartelson
Publication Date:
08-2014
Content Type:
Journal Article
Abstract:
Sovereignty apparently never ceases to attract scholarly attention. Long gone are the days when its meaning was uncontested and its essential attributes could be safely taken for granted by international theorists. During the past decades international relations scholars have increasingly emphasized the historical contingency of sovereignty and the mutability of its corresponding institutions and practices, yet these accounts have been limited to the changing meaning and function of sovereignty within the international system. This focus has served to reinforce some of the most persistent myths about the origin of sovereignty, and has obscured questions about the diffusion of sovereignty outside the European context.
Topic:
Climate Change, Human Rights, Human Welfare, International Law, International Political Economy, Sovereignty, and International Affairs
Political Geography:
Europe

231. Challenging 'evil': Continuity and change in the drug prohibition regime

Author:
Christopher Hobson
Publication Date:
07-2014
Content Type:
Journal Article
Journal:
International Politics
Institution:
Palgrave Macmillan
Abstract:
The 1961 Single Convention on Narcotic Drugs is unique among UN conventions for the appearance of the term 'evil' in the document. Among all the possible wrongdoing and bad things that exist in the world, it is slightly counterintuitive that drugs are the only one to be labelled as 'evil' in international law. Adopting a 'conceptual politics' approach, the article will examine how drugs came to be identified in this manner, with a specific focus on the drafting of the 1961 Single Convention. The latter part of the article focuses on the contemporary relevance of this framing, considering how it contributes towards a much more restrictive environment in which serious change to the drug prohibition regime has proven to be a very difficult task. For those seeking reform it is not enough to demonstrate that the system does not work, they also must successfully challenge the idea of drugs as something evil and a threat to humanity. In concluding it is suggested that by returning to the Single Convention, one finds not only the language of 'evil', but also a more flexible position that allowed for revising the way drugs are dealt with. To bring about change in drugs prohibition regime, reformers will need to recover this more open and balanced approach to understanding drugs.
Topic:
Environment, International Law, Politics, and United Nations

232. Scientific Reason and the Discipline of International Law

Author:
Anne Orford
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today's highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.
Topic:
International Law
Political Geography:
Europe

233. How is Progress Constructed in International Legal Scholarship?

Author:
Tilmann Altwicker and Oliver Diggelman
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
There is a tendency in international legal discourse to tell the story of international law as a story of progress. 'Progress' is a concept which is tied to the process of secularization and Western 18th and 19th century philosophy. It still inspires the debate on international law – despite all setbacks in 'real history'. This article argues that progress narratives in the inter-national legal discourse are constructed by – more or less subtle – argumentative techniques. It highlights four such techniques – four 'bundles of arguments' – which play a key role: ascending periodization, proving increasing value-orientation of international law, detection of positive trends, and paradigm shift-talk. The article offers an explanation of why the pro-gress argument often succeeds in international legal discourse.
Topic:
International Law and Weapons of Mass Destruction

234. Petitioning the International: A 'Pre-history' of Self-determination

Author:
Arnulf Becker Lorca
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
Conventionally, self-determination is understood to have evolved in a linear progression from a political principle during World War I into an international right after World War II. The history of the right to self-determination before 1945 is thus part of 'pre-history'. This article explores that 'pre-history' and finds the conventional linear narrative unconvincing. During the first three decades of the 20th century and in particular during the interwar period, non-Western lawyers, politicians, and activists articulated international law claims to support the demand for self-government. In this process, they appropriated and transformed the international law discourse. Removing the legal obstacles that prevented self-government beyond the West – that is, by eliminating the standard of civilization – interwar semi-peripherals made possible the emergence of a right to self-determination later, when the international political context changed after the second post-war reconstruction of international law.
Topic:
International Law and War

235. Conceptual Confusion and Methodological Deficiencies: Some Ways that Theories on Customary International Law Fail

Author:
Laszlo Blutman
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
Andrew Guzman declares that customary international law is in trouble. I disagree. It is those who seek to explain it who are in trouble. Theoretical efforts are plagued with descriptive insufficiencies (for example, the formation of various customary norms takes place within a heterogeneous, opaque process that resists any general and meaningful description in specific cases), systemic uncertainties (for example, locating the source of rules that govern the formation of customary norms), semantic problems (such as what exactly is general practice) and the divergence of conceptions articulated within international practice. These difficulties, which hamper a better understanding of international law itself, originate from the conceptual level. This article will therefore focus on certain symptomatic conceptual and methodological problems. Nine of them are outlined, and three will be analysed in greater detail, namely the relationship between opinio juris and acceptance, the characteristics of the concept 'general practice' and the failure of attempts to describe customary international law by dichotomies. As a conclusion, the author identifies seven requirements of, and assumptions about, a possible, workable theory of customary international law.
Topic:
International Law

236. Mónica García-Salmones Rovira. The Project of Positivism in International Law.

Author:
David Roth-Isigkeit
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
That positivism is not the promised land of legal methods has become a truism among critical international lawyers. All too often the proclaimed objectivity, neutrality and science has turned out to be intertwined with ideology and domination. In line with the historical-economic turn of the Helsinki school, Monica García-Salmones Rovira's book The Project of Positivism in International Law finds the historical roots of positivism deeply embedded in the development of a global neo-liberal economy. The economic foundations of the method are unearthed with two intellectual biographies of its founding fathers, Lassa Oppenheim and Hans Kelsen, whose life projects have so far escaped critical scrutiny. The book weaves into these two biographical studies the story of international law as a pragmatist and scientific project that freed the discipline from the tradition of natural law to become a servant of global economic interests.
Topic:
International Law and War

237. Philipp Dann. The Law of Development Cooperation: A Comparative Analysis of the World Bank, the EU and Germany

Author:
Giedre Jokubauskaite
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
Philipp Dann has long been committed to the legal issues of international development cooperation, and now his monograph on this subject, originally written in German, has been published in English. The comprehensive monograph entitled The Law of Development Cooperation skilfully builds upon the knowledge that already exists on this topic and systematizes an enormous amount of relevant literature. The reader is presented with a stimulating text that is dense in terms of its arguments and yet easy to engage with.
Topic:
International Law

238. Morten Bergsmo and Ling Yan (eds). State Sovereignty and International Criminal Law

Author:
Alexandre Skander Galand
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
State Sovereignty and International Criminal Law, edited by Morten Bergsmo and Ling Yan, brings together two recent issues of international law: the rise of international criminal law as a building block in the nascent constitution of the international legal order and the increasingly active participation of China in international law. Even though China is a permanent member of the United Nations Security Council (UNSC), it has until recently been de facto absent from the debates over norms of international law. Likewise, international criminal justice is a field of law that stagnated for more than 40 years. The last two decades have witnessed a revival of both phoenixes.
Topic:
International Law
Political Geography:
China

239. Kevin Jon Heller and Gerry Simpson (eds). The Hidden Histories of War Crimes Trials

Author:
Milan Kuhli
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
The book The Hidden Histories of War Crimes Trials – edited by Kevin Jon Heller and Gerry Simpson – is a compilation of 21 contributions to a conference convened in Melbourne at the end of 2010. The project aims at a scholarly recovery of accounts of war crimes trials that were ‘either neglected or under-rehearsed’ (at 1) in the discipline of international criminal law. Accordingly, the contributions tell ‘stories about familiar but under-explored and misunderstood landmarks in the conventional history of international criminal law’ as well as about trials that have been less analysed in this field (at 1). Gregory S. Gordon’s illustrative chapter on the trial of Peter von Hagenbach (chapter 2) is a story of the first kind, whereas Benjamin E. Brockman-Hawe’s comprehensive account of the Franco-Siamese tribunal for the Colonial Era (chapter 3) exemplifies the latter type.
Topic:
International Law and War
Political Geography:
Europe

240. Prospects for an International Legal Regime in the Arctic

Author:
P. Gudev
Publication Date:
04-2014
Content Type:
Journal Article
Journal:
International Affairs: A Russian Journal of World Politics, Diplomacy and International Relations
Institution:
East View Information Services
Abstract:
In light of the ongoing discussion on the expert and scholarly level regarding the kind of regulatory regime for international relations that should be formed in the arctic – national (sectoral), regional or international, broad to the maximum degree possible – it is important to revisit the text of what is known as the Ilulissat Declaration, signed by the five arctic states in May 2008. It is of primary importance that the Declaration records the provision that an “extensive international legal framework” should be applied to the arctic ocean. The Declaration defines this “framework” as the law of the sea, which provides for important rights and obligations concerning the use and exploitation of the resources and spaces of this marine region. The law of the sea is regarded as a solid foundation for “responsible management” in the arctic. What is the significance of these formulations, what meaning did the authors of the Declaration assign to them, and what interpretations are possible here – these matters are considered in the present analytical overview.
Topic:
International Relations, Energy Policy, International Law, Natural Resources, and Governance
Political Geography:
Arctic

241. New Great Powers and International Law in the 21st Century

Author:
Congyan Cai
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
Great Powers (GPs) have always been prominent in international relations. Their rise and fall often lead to structural transformations of international relations. In the past decade, the world has witnessed the rise of some New GPs (NGPs), which primarily consist of Brazil, Russia, India, China, and South Africa (BRICS). While the effect of the supremacy of the United States, an Old GP (OGPs), on international law has been examined extensively since 2000, international lawyers have hardly discussed how the rise of NGPs may shape and reshape international law. This article endeavours to examine the implications for such rise that stem from the rise of NGPs. In particular, as an 'insider' from an NGP, the author reviews the latest development in China's international legal policy and practice.
Topic:
International Relations and International Law
Political Geography:
Russia, United States, China, India, South Africa, and Brazil

242. Apartheid, International Law, and the Occupied Palestinian Territory

Author:
John Dugard and John Reynolds
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
Apartheid is a loaded term; saturated with history and emotion. It conjures up images and memories of discrimination, oppression, and brutality; indulgence, privilege, and pretension; racism, resistance, and, ultimately, emancipation. All of which come to us through the history of apartheid in South Africa. Although prohibited and criminalized by international law in response to the situation in southern Africa, the concept of apartheid was never given enormous attention by international lawyers. Following an awakening of interest in the international legal prohibition of apartheid as a potentially appropriate lens through which to view the situation of the Palestinians, this article examines the merits of such a claim in the context of Israeli law and practice in the occupied Palestinian territory.
Topic:
International Law
Political Geography:
Israel, South Africa, and Palestine

243. Apartheid, International Law, and the Occupied Palestinian Territory: A Reply to John Dugard and John Reynolds

Author:
Yaffa Zilbershats
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
I accept the authors' premise in their article entitled 'Apartheid, International Law, and the Occupied Palestinian Territory' that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The obligation of a state and its officials to refrain from practising any policy of apartheid is considered a jus cogens norm under international law. Whoever practises apartheid bears international criminal responsibility and may be put on trial for committing that crime, either in any state in the world based on universal jurisdiction or before the International Criminal Court. However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. In this article I expand on two of these errors - the failure to differentiate between the norms governing occupied and sovereign territory, and the authors' complete failure to address Israel's policies in the context of an armed conflict characterized by the Palestinians' use of terror. As I show, once the authors' errors are exposed and considered, it is clear that Israel's actions cannot be considered a basis for the crime of apartheid.
Topic:
International Law
Political Geography:
Israel, South Africa, and Palestine

244. Climate Change and International Law in the Grim Days

Author:
Benoît Mayer
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
The 2009 Copenhagen Conference of the Parties to the UNFCCC epitomizes the stalling of international negotiations on climate change mitigation and adaptation. In the grim days of climate change governance, the literature tends to neglect ethical arguments on the responsibility of polluting states. Rather, it turns to a desperate quest for 'whatever works'. This article addresses the development of a discipline round an emerging regime. It reviews in particular the principled approaches of climate governance, doctrinal analyses on mitigation, the shift from 'enforcement' to 'facilitation' and to 'liability', the fragmented governance of adaptation in the human rights, development and migration regimes, and innovative scholarship on the transnational regime complex concerning climate change.
Topic:
Climate Change, Human Rights, and International Law

245. Jeffrey L. Dunoff and Mark A. Pollack (eds). Interdisciplinary Perspectives on International Law and International Relations: The State of the Art

Author:
Monika Zalnieriute
Publication Date:
11-2013
Content Type:
Journal Article
Abstract:
While international law and political science disciplines were quite distant from one another for most of the past century, they have come closer to 'rediscovering' each other numerous times during the last two decades. The growing intersection between the two has been scrutinized, analysed, and promoted by many international law and international relations pioneers. The present collection brings together the leading scholars writing at the crossroads between the two disciplines to consider and reflect on the current state of interdisciplinary international law and international relations scholarship. The result is a book of high calibre that is not only essential, but also very delightful and enriching reading for scholars and students of international law and international relations.
Topic:
International Law

246. Editorial

Author:
The Editors
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Dear Readers, this issue marks the beginning of the Goettingen Journal of International Law\'s fifth volume. Since its foundation in December 2008, various persons and institutions have supported the journal in various manners. Such precious support enabled GoJIL to constantly improve its quality as well as to broaden its readership. Therefore many students, primarily from the Faculty of Law, have hitherto been engaged in the project.
Topic:
International Law
Political Geography:
Australia

247. "By What Right?": The Contributions of the Peninsular School for Peace to the Basis of the International Law of Indigenous Peoples

Author:
Silvia Maria da Silveira Loureiro
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This paper aims to investigate the Peninsular School for Peace's contributions in the sixteenth and seventeenth centuries to the establishment of international law for indigenous peoples within a proper collective dimension. The recognition of collective rights of indigenous peoples is part of a phenomenon which occurred in the transition to the twenty-first century and is known as the collectivization of the international law of human rights. The first section of this article will discuss the inadequacy of modern human rights sources to recognize indigenous peoples as subjects of collective rights. This inadequacy stems from the lack of legal mechanisms that are able to reach the collective dimension of claimed international human rights in the context of contemporary indigenous movements. Thus, the second section will defend a pre-Westphalian conception of international law and support the return to its historic origins – in the Jus Gentium condition in an earlier view of the consolidation of the Modern NationState – in order to understand how the theorists from the Peninsular School for Peace faced questions of conscience generated by the collision between the Luso-Spanish kingdoms and indigenous sovereignty in the New World. For this purpose, the works of theologians Francisco de Vitória (1492-1546), Luis de Molina (1531-1600), and Francisco Suárez (1548-1617) provide insight. In this context, this paper endeavors to redeem the democratic peninsular doctrine towards a new reasoning for the international law of indigenous peoples.
Topic:
International Law
Political Geography:
Europe

248. Romanticization Versus Integration?: Indigenous Justice in Rule of Law Reconstruction and Transitional Justice Discourse

Author:
Padraig McAuliffe
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
There is great optimism in transitional justice literature that indigenous legal processes can capture the meaning of conflict in ways that more remote, state- or international-based processes cannot. However, if the innovations in terms of inclusiveness, gender, and fairness that transitional justice invariably promote when employing indigenous justice processes are to make a long-term, sustainable impact beyond the transitional moment, greater attention must be given to how their employment as a form of transitional justice might interact with the usually simultaneous process of rule of law reconstruction. If transitional justice actors are to interact productively with justice sector reformers and national governments to establish traditional dispute resolution mechanisms in post-conflict States, they will have to abandon some of their more romantic notions evident in the literature and policy documents of indigenous justice as something inherently restorative, as an antidote to the shortcomings of legal formalism or as a site of resistance to the State Leviathan. Enthusiasts for the employment of indigenous mechanisms in transitional justice can learn lessons from the processes of de-romanticization that legal pluralism went through and the experiences of peace building missions in recent decades.
Topic:
International Law
Political Geography:
Europe

249. Protection and Realization of Indigenous Peoples' Land Rights at the National and International Level

Author:
Katja Göcke
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Today, it is generally recognized that the relationship to land forms the basis of an indigenous people's identity, and that indigenous peoples' cultures cannot be preserved without a certain degree of control over land and natural resources. In the course of colonization, however, indigenous peoples lost ownership and control over most of their ancestral lands, and from the end of the 19th century onwards the existence of inherent indigenous land rights, i.e. rights not derived from the colonial powers but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial, had been completely denied. This began to change in the 1960s. Due to increased pressure by national courts and international institutions, state governments started to recognize the continued existence of inherent indigenous land rights and to develop different policies to protect them. This paper looks at how indigenous peoples' land rights are nowadays recognized and protected in the United States of America, Canada, Australia, and New Zealand, and whether the different national approaches are in accordance with international legal standards. It will be shown that none of the States subject to this study acts completely in accordance with its obligations under international law, but that nevertheless all States have some strong points regarding the realization and protection of indigenous land rights and can learn from each other's experiences.
Topic:
International Law
Political Geography:
United States, America, Canada, and Australia

250. A Step Further on Traditional Peoples Human Rights: Unveiling the Key-Factor for the Protection of Communal Property

Author:
Giovana F. Teodoro and Ana Paula N.L. Garcia
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The purpose of this article is to provide a new perspective in relation to the protection of property rights of indigenous and non-indigenous peoples. Through an analysis based on the jurisprudence of the Inter-American Human Rights System, it is possible to identify the core elements that justify the special protection concerning traditional territories, leading to a rationality that revolves around the unique bond that traditional peoples establish with their land. By studying the recent evolution of the debate within the Inter-American Court of Human Rights, the article intends to shift the focus from formal and constricted ethnic classifications to the underlying cultural identity aspects of the relationship between a certain people and its own land. This change of perspective allows the consolidation of a singular idea of property rights towards traditional territories. Aimed not only at indigenous peoples, but also to any community that shows a distinguished and deep cultural tie to its land, this particular property right notion leads to a more comprehensive and consistent protection of indigenous and non-indigenous peoples' fundamental rights.
Topic:
International Law
Political Geography:
United States and America