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Begin New Search Topic International Law Content Type Journal Article

71. From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal

Author:
Hannah Woolaver
Publication Date:
01-2019
Content Type:
Journal Article
Abstract:
If a state withdraws from a treaty in a manner that violates its own domestic law, will this withdrawal take effect in international law? The decisions to join and withdraw from treaties are both aspects of the state’s treaty-making capacity. Logically, international law must therefore consider the relationship between domestic and international rules on states’ treaty consent both in relation to treaty entry and exit. However, while international law provides a role for domestic legal requirements in the international validity of a state’s consent when joining a treaty, it is silent on this question in relation to treaty withdrawal. Further, there has been little scholarly or judicial consideration of this question. This contribution addresses this gap. Given recent controversies concerning treaty withdrawal – including the United Kingdom’s exit from the European Union, South Africa’s possible withdrawal from the International Criminal Court, and the threatened US denunciation of the Paris Agreement – and the principles underlying this body of law, it is proposed that the law of treaties should be interpreted so as to develop international legal recognition for domestic rules on treaty withdrawal equivalent to that when states join treaties, such that a manifest violation of domestic law may invalidate a state’s treaty withdrawal in international law.
Topic:
International Law, Treaties and Agreements, European Union, Courts, and State Actors
Political Geography:
United Kingdom, Europe, South Africa, and United States of America

72. Ocean Floor Grab: International Law and the Making of an Extractive Imaginary

Author:
Surabhi Ranganathan
Publication Date:
04-2019
Content Type:
Journal Article
Abstract:
In this article, I argue for a critical recognition of the law of the sea, as it developed from the post-war period, as fostering a ‘grab’ of the ocean floor via national jurisdiction and international administration. I discuss why we should view what might be discussed otherwise as an ‘enclosure’ or ‘incorporation’ of the ocean floor within the state system as its grab. I then trace the grounds on which the ocean was brought within national and international regimes: the ocean floor’s geography and economic value. Both were asserted as givens – that is, as purely factual, but they were, in fact, reified through law. The article thus calls attention to the law’s constitutive effects. I examine the making of this law, showing that law-making by governments was influenced by acts of representation and narrative creation by many non-state actors. It was informed by both economic and non-economic influences, including political solidarity and suspicion, and parochial as well as cosmopolitan urges. Moreover, the law did not develop gradually or consistently. In exploring its development, I bring into focus the role played by one influential group of actors – international lawyers themselves.
Topic:
Economics, International Law, History, Law of the Sea, and Maritime
Political Geography:
Europe and Oceans

73. 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

74. Taking Care of Business: Industrial Espionage and International Law

Author:
Russell Buchan
Publication Date:
09-2019
Content Type:
Journal Article
Journal:
Brown Journal of World Affairs
Institution:
Brown Journal of World Affairs
Abstract:
The essence of espionage is the non-consensual collection of confidential information. Espionage takes different forms depending upon the identity of the perpetrator and the nature of the confidential information targeted. Political espionage describes the state-sponsored theft of confidential information, and its purpose is to shed light on the capabilities and intentions of other state and non- state actors. Economic espionage is also state-sponsored, and it involves states stealing trade secrets from companies located in foreign jurisdictions, usually with the intention of passing this information to domestic companies so that they possess a competitive advantage. In contrast, industrial espionage is perpetrated by non-state actors insofar as it entails companies stealing foreign competitors’ confidential information without the support or assistance of a state. Espionage usually implies a transboundary dimension to its operations, thereby raising the question of whether international law can be invoked to regulate this practice. In recent years, considerable academic attention has been dedicated to the status of political and economic espionage under international law.2 Less attention, however, has been directed toward the application of inter- national law to industrial espionage. While this omission is understandable given that international law is a state-based system, it is not inevitable: the activities of non-state actors fall within the purview of international law on the basis that they operate under the jurisdiction of the state.3 As such, international law imposes an obligation upon states to regulate the conduct of non-state actors within their jurisdictions or, to be exact, to streamline non-state actors’ conduct such that their activities do not contravene the rights of other states. The objective of this article is to examine whether and to what extent the obligation to prevent transboundary harm applies to those situations in which a company commits industrial espionage against a company located in a foreign jurisdiction.4
Topic:
International Law, Business, Espionage, and Industry
Political Geography:
Global Focus

75. The Extraordinary Gamble: How the Yugoslav Tribunal’s Indictment of Slobodan Milošević During the Kosovo War Affected Peace Efforts

Author:
Jacqueline R. McAllister
Publication Date:
09-2019
Content Type:
Journal Article
Journal:
Brown Journal of World Affairs
Institution:
Brown Journal of World Affairs
Abstract:
On 24 May 1994, the International Criminal Tribunal for the former Yugoslavia (ICTY or Yugoslav Tribunal) made history by becoming the first international court to indict a sitting head of state: Yugoslav President Slobodan Milošević. Since Milošević’s rise to power roughly a decade before, forces either directly or indirectly under his control had unleashed a reign of terror first in Croatia, then in Bosnia and Herzegovina, and finally in Kosovo. Indicting Milošević was no small feat: he did everything in his power to cover his tracks. Moreover, in order to secure crucial evidence (e.g., intelligence and satellite imagery linking Serb forces to crime sites) and the support necessary to actually put Milošević on trial, the ICTY required the backing of Western powers, which—until the Kosovo War in 1999—viewed Milošević as a vital, yet unsavory guarantor of peace in the region. Reactions to the indictment were mixed. While the Yugoslav Tribunal’s supporters heralded the indictment as a legal triumph that brought Milošević to his knees, its critics emphasized that, at best, the indictment was irrelevant and, at worst, an extraordinary gamble that had the potential to thwart an end to hostilities.1
Topic:
NATO, Ethnic Conflict, International Law, Peace, and Slobodan Milosevic
Political Geography:
Kosovo, Yugoslavia, Serbia, and Balkans

76. 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

77. 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

78. 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

79. 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

80. 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