Publishing Institution: The Goettingen Journal of International Law / Publication Year: within 25 Years / Journal: The Goettingen Journal of International Law

1. The Challenges of Redressing Violations of Economic and Social Rights in the Aftermath of the Eurozone Sovereign Debt Crisis

Author:: Giulia Ciliberto
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The Eurozone sovereign debt crisis represented an occasion to assess whether the international, European Union, and national systems provide adequate remedies for violation of socio-economic rights caused by austerity measures. Victims of these violations tried to obtain a remedy by lodging complaints before national judicial organs, the Court of Justice of the European Union, international human rights bodies (such the UN Committee on Economic, Social and Cultural Rights, the ILO Committee on Freedom of Association and the European Committee on Social Rights), and the European Court of Human Rights. This article addresses whether one (or more) of these venues indicted adequate remedies of violations of socio-economic rights and whether these mechanisms could have adopted a different (and more human rights- oriented) adjudicative approach with the view of enhancing the effectiveness of socio-economic rights enshrined in international treaties. The paper assumes that the adequacy of the relief depends on two elements. The first is the collective nature of socio-economic rights, which requires structural or systemic remedies rather than individual ones. The second is the need to preserve States’ economic soundness in order to allow Countries to satisfy their international obligations, namely securing a minimum essential level of socio- economic rights and their progressive realization. Against these assumptions, remedies should benefit the victimized class as a whole, alongside avoiding major distributional or unintended consequences to the detriment of public finances. The investigation focuses on the case law and pronouncements concerning Greece, Portugal, and Spain. The paper reaches the conclusion that constitutional review of austerity measures is the most adequate and effective venue to address such sensitive matters. This is especially true where constitutional courts rely on international conventions protecting socio-economic rights as per se parameters of constitutionality or through consistent interpretation – viz. by construing the national bill of rights in line with treaty-based socio-economic rights.
Topic:: Debt, European Union, Economic Cooperation, Socioeconomics, and Economic Rights
Political Geography:: Greece, Spain, and Portugal

2. The Soft Touch of International Financial Regulation: Status, Flaws and Future

Author:: Niall O'Shaughnessy
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The 2008 global financial crisis focused attention on the relationship between the behaviour of international financial institutions and the rules they follow. Many banks in the US and Europe failed, in part, due to their inability to absorb the fallout of the US mortgage market collapse. If international financial institutions could not protect themselves from the cycles of the market, how come regulators were unable to do so either? The most relevant instrument of international financial regulation for understanding the 2008 crisis is the Basel Accords, the rules that specify how much capital a bank should always hold in reserve. However, these rules are ‘soft law’ and so, non-binding. It is a myth of course that soft law is the only way to regulate international finance, as many scholars argue. Despite numerous rounds of reform, the Basel Accords have always been inadequate. The purpose of this paper is to account for the flaws of the Basel Accords and the role that soft law plays in creating those flaws. This paper also analyses the competing theories behind the rise of soft law within financial regulation and the ‘political economy’ explanation is endorsed. The final section of the paper discusses the future of financial regulation and soft law, as well as highlighting innovations from outside the hard/soft law dichotomy and outside the Global North. This paper concludes by stating that the theory behind soft law does not play out in practice within finance and that it remains in place because it suits the interests of large institutions and powerful states. At the same time, a return to Bretton Woods or a new World Financial Organization is problematic and, as such, we must look beyond the hard/soft law debate and embrace the work of the Global South and East.
Topic:: Markets, Financial Crisis, Regulation, Capital, and Banking
Political Geography:: Global Focus

3. The Evolution of the Prohibition of Genocide: From Natural Law Enthusiasm to Lackadaisical Judicial Perfunctoriness – And Back Again?

Author:: Julia Klaus
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: International legal scholarship and practice have reached a point where it is undisputed that the prohibition of genocide has the status of jus cogens and entails erga omnes obligations. It is, however, astonishing how little academic focus has been dedicated to the normative development leading to this extraordinary rank. In a legal regime with as little hierarchical structure as public international law, examining the birth process of such a norm promises considerable insights into normative formation in general and may inform jurisprudential theories on the nature of international law. This article illustrates the evolution of the prohibition of genocide by outlining the way to the 1948 UN Genocide Convention and the later interpretations of the norm. It traces the origin of the genocide prohibition to naturalistic ideas of overarching laws of humanity in international law and follows its development into the early 21st century. An analysis of international jurisprudence reveals that, after the jus cogens status of the prohibition of genocide and its erga omnes dimension had been settled, international judges handled the norm in a surprisingly lackadaisical and perfunctory manner. The very recent ICJ order on provisional measures in the Myanmar Genocide case potentially marks a return towards a deeper focus on moral facts determining the prohibition that point to naturalistic theories persisting, notwithstanding the positivistic mainstream approaches to international law. The article contributes to a more accurate picture of and greater academic interest in these naturalistic undercurrents.
Topic:: Genocide, International Cooperation, International Law, International Court of Justice (ICJ), and Humanitarian Crisis
Political Geography:: Global Focus

4. Perspectives for a New International Crime Against the Environment: International Criminal Responsibility for Environmental Degradation under the Rome Statute

Author:: Ammar Bustami and Marie-Christine Hecken
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article draws attention to the need of a reform of the environmental protection by means of international criminal law as enshrined in the Rome Statute of the International Criminal Court. After giving a short overview of the contemporary environmental protection in war- and peacetime offered by international criminal law, it becomes clear that international criminal law fails to succeed at offering sufficient environmental protection. This paper outlines that there is no convincing reason for a differentiated approach in international criminal law to environmental damage in wartime and in peacetime, and that a shift from an anthropocentric to an ecocentric approach would positively contribute to a more effective protection of the environment. It is therefore argued for the introduction of a new integral and ecocentric international crime against the environment in the Rome Statute. The paper then elaborates on existing proposals on such a new crime against the environment before some proper observations on the exact contours of the crime are made. A focus lies on the new crime’s threshold of seriousness as well as on the necessary mens rea requirements. The insufficiency of the contemporary legal framework and the merits of a new crime against the environment are exemplified by an archetype example of peacetime environmental damage, the Chevron/Texaco oil spill scenario in Ecuador.
Topic:: Climate Change, Environment, International Cooperation, and International Law
Political Geography:: Global Focus

5. The European Court of Human Rights Through the Looking Glass of Gender: An Evaluation

Author:: Natalie Alkiviadou and Andrea Manoli
Publication Date:: 06-2021
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Gender equality is of paramount importance for a functioning democracy and for economic growth. It is a central tenet of human rights law and has seen significant developments on the legislative, judicial, and policy levels of the Council of Europe. Through a mélange of theory, legislation, and jurisprudential analysis, this paper will assess developments in the European Court of Human Rights’ approach to the issue of gender equality. This will be achieved through a survey of case law involving domestic violence, child-bearing, and the wearing of religious dress by women. The paper will demonstrate that, despite the existence of significant milestones in the ambit of promoting gender equality, and, notwithstanding effective advancements made by this body, particularly vis-à- vis domestic violence case law, improvements to its approach remain necessary. More specifically, on one level, the Court denounces and works against gender inequality and discrimination but, on another, consciously or unconsciously, its approach and findings are marred by its own stereotypes, patriarchal influences, misconceptions, and preconceptions about what gender equality actually is and how it should be pursued.
Topic:: Gender Issues, International Cooperation, Economic Growth, Violence, and Equality
Political Geography:: Europe

6. Enhancing the Protection of the Environment in Relation to Armed Conflicts – the Draft Principles of the International Law Commission and Beyond

Author:: Britta Sjostedt and Anne Dienelt
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: n 2011, the UN International Law Commission (ILC) took up the topic Protection of the Environment in Relation to Armed Conflicts.1 The decision was triggered by a joint report issued by the UN Environment Programme and the Environmental Law Institute in 2009 recommending the ILC to “[...] examine the existing international law for protecting the environment during armed conflicts [...] [including] how it can be clarified, codified and expanded [...]”.2 Since the inclusion of the item on the ILC’s agenda, the Commission has published five reports3 by the two special rapporteurs, Dr. Marie Jacobsson (2011-2016) and Dr. Marja Lehto (2017-). In 2019, the plenary adopted 28 Draft Principles on first reading.4 The ILC has touched on highly controversial issues such as reprisals,5 corporate liability,6 indigenous peoples’ rights,7 among others. Nevertheless, it was clear from the beginning that the ILC would not be able to exhaustively deal with the topic for two main reasons. First, the Commission has a limited mandate that is restricted to “[...] initiate studies and make recommendations for the purpose of [...] encouraging the progressive development of international law and its codification [...]”.8 Enhanced legal protection of the environment, as one of the purposes of the Draft Principles,9 must therefore be based on existing customary international law and its progressive development. The Commission decided to also include recommendations to account for the uncertain legal status of some of the Draft Principles.10 Second, some related issues touch upon controversial and political matters, as mentioned earlier. Consequently, the ILC has been reluctant to include some of these issues in its workflow.11 Therefore, the adoption of the Draft Principles should be regarded as a starting point for shaping and developing the legal framework for environmental protection in relation to armed conflicts. As a part of that process, Hamburg University and Lund University organized an international workshop in March 2019 in Hamburg. Several members of the ILC, including two special rapporteurs, academic legal experts, and practitioners, attended the workshop to discuss the Draft Principles. The discussion also focused on some issues not covered by the ILC, such as the implications for gender and climate security. The engaging dialogue in Hamburg has inspired the publication of this Special Issue of the Goettingen Journal of International Law (GoJIL) to ensure that the outcomes and ideas of the workshop reach a wider audience. It has also contributed to maintaining the momentum of this topical area of international law by inviting contributions from researchers not present during the workshop in Hamburg.12
Topic:: Environment, International Law, and Non State Actors
Political Geography:: Global Focus

7. Reflections on the Legality of Attacks Against the Natural Environment by Way of Reprisals

Author:: Stavros-Evdokimos Pantazopoulos
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The paper examines the concept of belligerent reprisals and assesses the legality of attacking the environment by way of reprisals. The law of belligerent reprisals, which is linked to the principle of reciprocity, allows one belligerent State unlawfully injured by another to react by means of what under normal circumstances would constitute a violation of the jus in bello, so as to induce the violating State to comply with the law. The instances of lawful recourse to reprisals have been considerably limited, since their application is either explicitly prohibited against certain protected persons and objects, including against the natural environment, or is subject to stringent conditions according to customary International Humanitarian Law (IHL). Despite its narrowing scope, the doctrine of reprisals remains a valid concept under the existing legal framework. For one, the state of affairs under customary international law with respect to reprisals directed at civilian objects (including against parts of the environment), subject to certain rigorous conditions, remains unclear. To complicate matters even further, any proposition on the status of reprisals in the context of a non-international armed conflict (NIAC) is shrouded in controversy, as there is no relevant treaty provision. In this regard, the present author endorses the approach espoused in the International Committee of the Red Cross (ICRC) Study on Customary IHL, namely to altogether prohibit resort to reprisals in the context of a NIAC. Turning to the status of reprisals against the natural environment under customary IHL, it is argued that a prohibition of attacks against the natural environment by way of reprisals is in the process of formation with respect to the use of weapons other than nuclear ones. All things considered, the International Law Commission (ILC) was confronted with an uncomfortable situation in the context of its work on the ‘Protection of the Environment in Relation to Armed Conflicts’. By sticking to the verbatim reproduction of Article 55(2) of Additional Protocol I, the ILC chose the proper course of action, since any other formulation would not only undercut a significant treaty provision, but might also result in the normative standard of conduct being lowered.
Topic:: Environment, International Law, Humanitarian Intervention, and Red Cross
Political Geography:: Global Focus

8. Protecting Protected Areas in Bello: Learning From Institutional Design and Conflict Resilience in the Greater Virunga and Kidepo Landscapes

Author:: Elaine (Lan Yin) Hsiao
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: It has often been cited that major armed conflicts (>1,000 casualties) afflicted two-thirds (23) of the world’s recognized biodiversity hotspots between 1950 and 2000.1 In 2011, the International Law Commission (ILC) included in its long-term work program Protection of the Environment in Relation to Armed Conflict.2 This led to the adoption of twenty-eight Draft Principles, including designation of protected zones where attacks against the environment are prohibited during armed conflict.3 Protected zone designations apply to places of major environmental and cultural importance, requiring that they “[...] shall be protected against any attack, as long as it does not contain a military objective.”4 Most research on armed conflict and protected areas has focused on impacts to wildlife and less on how to protect these natural habitats from the ravages of armed conflict.5 This article highlights some of the gaps in the ILC Draft Principles towards protecting protected zones in bello. It uses transboundary protected areas (TBPAs) formalized through multilateral agreements to illustrate challenges on the ground. TBPAs are internationally designated “[...] protected areas that are ecologically connected across one or more international boundaries [...]” and sometimes even established for their promotion of peace (i.e., Parks for Peace).6 There is little legal research on how to design TBPA agreements for conflict resilience, conflict sensitivity, and ultimately positive peace.7 The research draws from two case studies in Africa’s Great Rift Valley: the Greater Virunga Landscape (GVL) between the Democratic Republic of the Congo (DRC), Rwanda, and Uganda, and the Kidepo Landscape, which forms part of the broader Landscapes for Peace initiative between South Sudan and Uganda. Both suffer from armed conflicts of various types and present two of the only TBPAs in the world that have incorporated environmental peacebuilding into their transboundary agreements.8 The case studies illustrate different approaches to TBPA design and the pros and cons of each modality in the context of conflict resilience and conflict sensitivity. This guides us on how to better protect protected areas in bello, ensuring that protected zones endure on the ground and not just in principle.
Topic:: Environment, Culture, and Conflict
Political Geography:: Africa, Democratic Republic of the Congo, and Rwanda

9. Through the Looking Glass: Corporate Actors and Environmental Harm Beyond the ILC

Author:: Daniella Dam-de Jong and Saskia Wolters
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Corporate activities take place in a variety of social contexts, including in countries affected by armed conflict. Whether corporations are physically present in these regions or merely do business with partners from conflict zones, there is an increased risk that their activities contribute to egregious human rights abuses or serious environmental harm. This is especially so for corporations active in or relying on the extractives sector. It is against this background that the ILC included two principles addressing corporate responsibility for environmental harm in its Draft Principles on the protection of the environment in relation to armed conflict. Both principles explicitly call on the home States of these corporations to give effect to their complementary role in regulating and enforcing corporate social responsibility. Draft Principle 10 addresses the responsibility of home States to regulate multinational corporations under the heading of “corporate due diligence”, while Draft Principle 11 addresses the responsibility of home States to hold multinational corporations liable for environmental damage caused in conflict zones. The current contribution engages with the potential normative foundations underpinning extraterritorial responsibilities for the home States of multinational corporations with respect to the prevention and remediation of environmental harm in conflict zones, focusing on international humanitarian law and international human rights law. It concludes that the Draft Principles are certainly indicative of the direction in which the law is evolving, but that no firm obligations beyond treaty law can be discerned as of yet. It was therefore a wise decision to phrase the respective Draft Principles as recommendations instead of obligations. At the same time, there are sufficient indications to conclude that it seems a matter of time before it is accepted that States have distinct obligations under customary international law for which their responsibility may be engaged. It is argued that the ILC Draft Principles provide an important impetus to these developments, not in the least because they provide a reference to States regarding the state-of-the-art and guidance for future action.
Topic:: International Law, Conflict, and Multinational Corporations
Political Geography:: Global Focus

10. Business, Armed Conflict, and Protection of the Environment: What Avenues for Corporate Accountability?

Author:: Marie Davoise
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In July 2019, the International Law Commission (ILC) provisionally adopted, on first reading, a series of draft principles on the protection of the environment in relation to armed conflict (the Draft Principles). The role of businesses in armed conflict is addressed in Draft Principle 10 and Draft Principle 11. The latter, in particular, requires States to implement appropriate measures to ensure that corporations operating in or from their territories can be held accountable for environmental harm in the context of armed conflict. The inclusion of those two Draft Principles reflects increasingly vocal calls for corporate accountability, which has been the focus of the growing field of Business and Human Rights (BHR), an umbrella term encompassing a variety of legal regimes from tort law to criminal law. This contribution will look at the link between businesses, the environment, and armed conflict. Using the newly adopted Draft Principle 11 as a starting point, it explores three major liability regimes through which businesses could be held accountable for damage to the environment in armed conflict: State responsibility, international criminal law, and transnational tort litigation. Using case studies, the article discusses some of the challenges associated with each of those regimes, before concluding that the cross-fertilization phenomenon observed in this article (between public/private law, domestic/international level, and across various jurisdictions) is making BHR an increasingly salient discipline and useful tool in the fight against impunity for corporate environmental harm in armed conflict.
Topic:: Human Rights, International Law, Business, and Conflict
Political Geography:: Global Focus

11. Enhancing Environmental Protection During Occupation Through Human Rights

Author:: Karen Hulme
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Environmental protection is not specifically included in treaty law relating to State obligations during situations of occupation. While clearly not of the same scale as damage caused to the environment during armed conflict, damage caused during occupation is often similar in nature – largely due to those who seek to exploit any governance vacuum and a failure to restore damaged environments. What can human rights offer in helping to protect the environment during occupations? What protection can be offered by an analysis of environmental human rights law?
Topic:: Environment, Human Rights, Governance, and Conflict
Political Geography:: Global Focus

12. The Martens Clause and Environmental Protection in Relation to Armed Conflicts

Author:: Dieter Fleck
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The existing treaty law on the protection of the natural environment during armed conflicts is less than adequate. Treaty provisions relating to international armed conflicts are limited to the prohibition of damage of an extreme kind and scale that has not occurred so far and may hardly be expected from the conduct of hostilities unless nuclear weapons would be used. Even in such a scenario, States possessing nuclear weapons have explicitly objected to the applicability of that treaty law. For internal wars, no pertinent treaty provisions exist in the law of armed conflict. Yet multilateral environmental agreements concluded in peacetime stand as an alternative approach to enhance environmental protection during war. As a civilian object, the environment may not be targeted nor attacked in an armed conflict, but this does not exclude collateral damage, nor does this principle as such offer specific standards for proportionality in attacks. In an effort to close these apparent gaps of treaty law, the present contribution looks into other sources of international law that could be used. In this context, the author revisits the role of the famous Martens Clause in the interplay of international humanitarian law, international environmental law, and human rights law. The role of the Clause in closing gaps caused by the indeterminacy of treaty law is reviewed and customary rules, general principles, and best practices are considered to this effect. For the protection of the natural environment during armed conflicts, the Martens Clause may, indeed, be used as a door opener to facilitate the creation and application of uncodified principles and rules. Particular standards for proportionality in attacks can be derived from the Martens Clause. Pertinent soft law instruments need to be developed in international practical cooperation and by academia. Yet it deserves further study to explore whether, and to what extent, the Martens Clause, which was adopted in the law of armed conflict, may also apply in post-conflict peacebuilding as a case of interaction between the jus in bello and the jus post bellum, at least as far as the protection of the natural environment is concerned.
Topic:: International Law, Treaties and Agreements, Humanitarian Intervention, and Conflict
Political Geography:: Global Focus

13. Precaution in International Environmental Law and Precautions in the Law of Armed Conflict

Author:: Michael Bothe
Publication Date:: 07-2020
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The protection of the environment in relation to armed conflict, in particular during armed conflict is a complex problem as it involves at least two different fields of international law, the law of armed conflict (international humanitarian law) and international environmental law. Their mutual relationship is a delicate issue. International humanitarian law is not necessarily lex specialis. Three principles deserve particular attention in this connection: as to general international environmental law, the principle of prevention and the precautionary principle, as to international humanitarian law the duty to take precautions. The terms prevention and precaution are used in different contexts in environmental law (both national and international) and in the law of armed conflict. The duty, imposed by international humanitarian law, to take precautions has much in common with, but must be distinguished from, the precautionary approach of general environmental law. This paper shows what these principles mean and how they relate to each other. It answers the question to what extent the rules based on these concepts are effective in restraining environmental damage being caused by military activities. The application of these principles in peace and war serves intergenerational equity and is thus an important element of sustainable development.
Topic:: Environment, International Law, Humanitarian Intervention, and Conflict
Political Geography:: Global Focus

14. Avoiding the Legal Black Hole: Re-evaluating the Applicability of the European Convention on Human Rights to the United Kingdom’s Targeted Killing Policy

Author:: Liam Halewood
Publication Date:: 08-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In 2015, the United Kingdom (UK) became the first European State to incorporate extraterritorial targeted killing with drones into its counterterrorism framework. This article examines whether the UK’s obligations under the European Convention on Human Rights (ECHR) extend to such operations. Scholars have suggested not, based on a comparison of a drone strike to the circumstances of the landmark Bankovic case, which was inadmissible on jurisdictional grounds. Consequently, the UK policy is perceived as occurring in a legal black.hole outside the purview of the Convention. However, this article argues that the comparisons to Bankovic overlook the uniqueness of targeted killing operations and the context in which the UK policy is utilized. Considering the distinctiveness of the UK policy, this article re-evaluates the applicability of the ECHR and proposes that the European Court of Human Rights (ECtHR) could find a jurisdictional link between the UK and the victims of targeted killing, thereby avoiding the perceived legal black.hole.
Topic:: Human Rights, Military Strategy, Drones, and Extrajudicial Killings
Political Geography:: United Kingdom and Europe

15. Advancing the Rule of Law Through Executive Measures: The Case of MINUSCA

Author:: Edith Vanspranghe
Publication Date:: 08-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) has been mandated to implement “urgent temporary measures” in the form of arrests and detentions of individuals. This rather innovative mandate brings about several legal and conceptual consequences that the article addresses, focusing on the compatibility of these measures with UN peacekeeping norms and principles and with past UN practice. In addition, the measures are said to contribute to law and order, public safety, the fight against impunity, and to the rule of law. This sheds light on the UN’s interesting conception of the rule of law in the Central African Republic and in conflict and post-conflict settings in general.
Topic:: International Law, United Nations, Conflict, and Rule of Law
Political Geography:: Africa and Central African Republic

16. An Analysis of the Treaty on the Prohibition of Nuclear Weapons in Light of its Form as a Framework Agreement

Author:: Monika Subritzky
Publication Date:: 08-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Nuclear weapons present a unique problem and risk to global safety and security. The destructive capability of nuclear weapons, which extends beyond intended targets, is what sets these weapons apart from all else; they are sui generis. These weapons are indiscriminate in both their scale of destruction, which cannot be said to involve proportionate force, and in their residual effects of radioactive fallout, which some scholars have equated to the effect of a poisoned weapon.1 The Treaty on the Prohibition of Nuclear Weapons (TPNW) was adopted at the United Nations Headquarters on 7 July 2017, with 122 States voting in favour of the final draft, one voting against, and one abstaining.2 As of July 2019, the Treaty has twenty-three parties and seventy signatories.3 It is currently not in force as it requires ratification by a minimum of fifty States in order to come into effect.4 The core prohibitions of the Treaty are set out in its first Article, in which State parties agree to never develop, acquire, use or threaten to use, transfer, or stockpile nuclear weapons. What the Treaty does not do, however, is directly eliminate any nuclear weapons; a challenging task in itself considering that none of the current possessors of nuclear weapons even partook in the negotiation of the Treaty. State parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) have obligations under Article VI to undertake negotiations on effective measures leading to disarmament.5 Against a backdrop of little discernible progress on the implementation of Article VI over the last fifty years, Ireland, on behalf of the New Agenda Coalition, submitted a Working Paper outlining possible pathways to nuclear disarmament in an effort to fulfil the provisions of Article VI.6 These pathways were debated in 2016 during the Open-Ended Working Group (OEWG), which was set up for the purpose of providing a forum for discussion regarding advancing nuclear disarmament. The argument of this paper is that the TPNW has the potential to function radically as a disarmament mechanism. At first glance, the Treaty appears to fit within the second pathway outlined in the Irish Working Paper, effectively functioning as a simple Ban Treaty. However, a careful analysis reveals that it more neatly fits into the third pathway – a framework arrangement. It is this characteristic which makes the TPNW a novel and profound instrument as well as a potential foundational solution to the problem of nuclear weapons. The core section of the paper is divided into two parts. The first delves into the three main pathways discussed in the Irish Working Paper and analyzes how well each of the proposals can address the problem of achieving nuclear disarmament. As suggested by Brazil in the OEWG debates in 2016, three categories are key in establishing the degree to which each pathway can achieve progress in achieving nuclear disarmament – universality, effectiveness, and political viability.7 All nuclear disarmament treaties must intend to be universal in light of the humanitarian consequences of their usage. However, a disarmament treaty can be successful with universality as one of its objectives, rather than a precondition. Widespread support for a treaty also lends to its effectiveness, as do mechanisms for verification and enforcement.8 The political viability of a treaty is key as, without the willing participation of governments, proposals can easily be discarded. The analysis is centred on these categories. The second core part of the paper analyzes the structure of the TPNW with a focus on Articles 4 and 8. It demonstrates that the TPNW surreptitiously functions as a framework agreement and that this attribute has enormous value, both in practice and in shaping norms. The flexibility and adaptability of framework agreements is what makes them the most suitable mechanisms for nuclear disarmament.
Topic:: Diplomacy, Nuclear Weapons, Treaties and Agreements, Military Strategy, and Denuclearization
Political Geography:: Global Focus

17. Reconciling the Irreconcilable? – The Extraterritorial Application of the ECHR and its Interaction With IHL

Author:: Severin Meier
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article examines the extraterritorial application of the European Convention on Human Rights (ECHR) during international armed conflict. After a brief discussion of the different historic origins of international human rights law and international humanitarian law (IHL), the article examines the test for establishing jurisdiction under Article 1 of the ECHR. A critical analysis of some contentious legal issues regarding derogations completes the picture of when jurisdiction is established. Subsequently, the article considers the interaction between the ECHR and IHL in international armed conflicts and concludes by arguing that a balance must be found between protecting human rights in international armed conflicts while not interfering unduly with IHL.
Topic:: Human Rights, International Law, and Conflict
Political Geography:: Europe

18. The Perils of Judicial Restraint: How Judicial Activism Can Help Evolve the International Court of Justice

Author:: Deepak Mawar
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The article analyzes the International Court of Justice and its approach to judicial decision-making. By investigating the Court’s jurisprudence over its seventy years of activity, the article seeks to outline, that if given the choice, the ICJ tends to prioritize judicial restraint over judicial activism. In fact, the Court maintains a strict adherence to judicial restraint, which stems from a fear of losing its legitimacy when facing the issue of consent-based jurisdiction. The article purports that although judicial restraint is an important facet of sound judicial decision-making, the ICJ should not be so reluctant to adopt judicial activism when it is suitable to utilize such an approach. Such a position is strengthened when analyzing the criticisms made of judgments delivered by the Court, which fail to serve the international community beneficially.
Topic:: International Law and International Court of Justice (ICJ)
Political Geography:: Global Focus

19. Access to Fisheries in the United Kingdom’s Territorial Sea after its Withdrawal from the European Union: A European and International Law Perspective

Author:: Valentin Schatz
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article approaches the question of post-Brexit access of European Union (EU) Member States to the United Kingdom’s (UK) territorial sea fisheries by first discussing the pre-Brexit legal status quo under the Common Fisheries Policy (CFP) of the EU. Second, this article discusses the international legal framework for access to territorial sea fisheries that would apply if the UK withdraws from the EU in the absence of a future agreement. As Part II of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) does not contain provisions on fisheries access, this analysis focuses on the role of the 1964 London Fisheries Convention (LFC), bilateral voisinage agreements between the UK and EU Member States, potential acquired historic fishing rights of EU Member States in the UK’s territorial sea, and potential access rights derived from royal privileges. Next, this article addresses the relevance of the transitional arrangements contained in the latest draft withdrawal agreement of 2018, which was not, however, adopted by the UK. Finally, this article offers some conclusions as to the applicable legal framework for access of EU Member States to the UK’s territorial sea fisheries absent a new fisheries agreement between the EU and the UK, and potential ways to proceed in the future regulation of this issue.
Topic:: International Cooperation, Treaties and Agreements, Territorial Disputes, European Union, and Brexit
Political Geography:: United Kingdom and Europe

20. Evaluating the Zero Draft on a UN Treaty on Business and Human Rights: What Does it Regulate and how Likely is its Adoption by States/

Author:: Julia Bialek
Publication Date:: 12-2019
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Infringements of human rights through the actions of transnational corporations are common in our globalizing world. While the international community has undertaken numerous attempts to hold private corporations responsible for their actions, only soft law instruments govern this area of public international law. Only recently, a first draft was released for a Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises, also known as the Zero Draft. This article argues that the Zero Draft, while based on contemporary international law, represents a positive first step in the treaty-making process, but it still needs specification and clarification in order to close the gap in human rights protection effectively. First outlining the need for a closure of the gap in human rights protection, this article then closely examines the content of the Zero Draft. To that end, an in-depth analysis of the core provisions of the Draft is offered, especially focusing on the rights of victims, the prevention of human rights infringements, and corporate liability. Furthermore, this article analyzes current State practice and the expectations of the international community towards a legally binding instrument on the topic of business and human rights. Significantly, this article also compares the Zero Draft to existing soft law and previous recommendations on how to close the gap in a binding manner. Finally, the article concludes that, by indirectly holding companies accountable without depriving States of their sovereign power over their companies, the Zero Draft has the potential to be implemented as a future Treaty on Business and Human Rights.
Topic:: Globalization, Human Rights, Treaties and Agreements, and transnationalism
Political Geography:: Global Focus

21. 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

22. 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

23. 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

24. 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

25. 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

26. Universal Jurisdiction in Absentia Before Domestic Courts Prosecuting International Crimes: A Suitable Weapon to Fight Impunity?

Author:: Tim Kluwen
Publication Date:: 12-2017
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article addresses the legality and desirability of States asserting universal jurisdiction without the suspect being present on their territory when prosecuting international crimes before domestic courts. First the legality under international law of States asserting universal jurisdiction in absentia (or absolute universal jurisdiction) will be discussed. No comprehensive regulation in this regard appears to exist in codified international law. Based on State practice, it would seem that no customary law either fully permits or entirely prohibits States asserting absolute universal jurisdiction. Applying the Lotus paradigm, it could arguably be concluded that the lack of a prohibition under international law results in States being allowed to assert universal jurisdiction in absentia when prosecuting certain international crimes. Having established its legality, this article will consequently approach absolute universal jurisdiction from a normative point of view, i.e. whether States should assert it. Although a tool in ending impunity of perpetrators of international crimes, it will be concluded that it is undesirable for States to assert absolute universal jurisdiction. Its use is likely to compromise fundamental rights of the accused and has a destabilizing effect on international relations while only suboptimally serving the goals of criminal prosecution.
Topic:: International Law, Territorial Disputes, Courts, and Jurisdiction
Political Geography:: Global Focus

27. The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules

Author:: Ezequiel Heffes and Brian E. Frenkel
Publication Date:: 12-2017
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In the last few decades, the role of non-state armed groups has become an essential topic of analysis and discussion to better understand international humanitarian law dynamics. While their increasing importance is uncontroversial, their place and regulation in specific areas of international law still remains unclear or insufficiently explored. Chief among these is the possible non-state armed groups’ international responsibility. Although it is undisputed that some of these entities breach their international law obligations, others seemingly engage with certain rules on the topic. This article addresses some legal consequences of such scenarios. Taking into account the principle of equality of belligerents in non- international armed conflicts, two issues are dealt with: i) the existence of “non- state” organs that could trigger the attribution of violations of international rules to non-state armed groups; ii) possible reparations owed by these non-state entities for their breaches during armed conflicts.
Topic:: International Law, Non State Actors, and Armed Conflict
Political Geography:: Global Focus

28. Modification of Renewable Energy Support Schemes Under the Energy Charter Treaty: Eiser and Charanne in the Context of Climate Change

Author:: Tomas Restrepo
Publication Date:: 12-2017
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Nearly half of the claims brought under the Energy Charter Treaty1 raise issues related to the modification of the Renewable Energy Support Schemes (RESs), but only two decisions have been published: Charanne and Eiser. This paper evaluates these decisions in light of the existing general practice on expropriation and Fair and Equitable Treatment, as well as from a pragmatic perspective in the context of climate change. The article concludes that tribunals should recognize reinforced stability to RESs under the ECT.
Topic:: Climate Change, Energy Policy, Environment, International Cooperation, International Law, and Renewable Energy
Political Geography:: Global Focus

29. Exercising or Evading International Public Authority? The Many Faces of Environmental Post-Treaty Rules

Author:: Tim Staal
Publication Date:: 06-2016
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Post-treaty instruments (PTIs) are informal instruments adopted by consensus of the treaty parties as follow-up decision to a particular provision in a treaty. PTIs are potentially significant instruments for advancing environmental global governance, as the treaty parties may use them to transform indeterminate treaty provisions into more specific environmental rules and decisions. While a number of PTIs are rightly characterized as exercises of authority, this article seeks to demonstrate how certain environmental PTIs with rule-setting character (‘PTRs’) amount to evasions of authority by reducing international authority over States’ environmental policies, or alleviate rather than tighten the treaty parties’ obligations, through their content or legal status. First, some PTRs avoid authoritative language, requiring little or no concrete action by the treaty parties. Some treaty-based assignments to adopt PTRs are never even acted upon. Other PTRs simply water down the obligations of the treaty parties compared to the underlying treaty provisions. Second, PTRs possess an ambiguous legal status both in legal doctrine and in the practice of domestic and EU courts. The article further argues that consensual decision-making may well be at the root of this ambivalent practice. As a broader contribution to the debate about International Public Authority (IPA), the proposition is advanced that we need to scrutinize more carefully what kind and degree of authority an instrument exercises exactly – or not. Evasions of authority and alleviations of obligations – which can be conceived as a special type of exercising authority through inaction – have important implications for what future legal frameworks of international public law must deliver in terms of effective and legitimate procedural design.
Topic:: Diplomacy, Environment, International Cooperation, Treaties and Agreements, Governance, and European Union
Political Geography:: Europe

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

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

31. vSoft Authority against Hard Cases of Racially Discriminating Speech: Why the CERD Committee Needs a Margin of Appreciation Doctrine

Author:: Matthias Goldmann and Mona Sonnen
Publication Date:: 06-2016
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article argues that the Committee for the Elimination of All Forms of Racial Discrimination (CERD Committee), as it exercises quasi-judicial authority, should consider applying standards of reasoning similar to those of international courts. In particular, with respect to racially discriminating speech, the legitimacy of the CERD Committee’s Communications would benefit from a margin of appreciation doctrine that leaves domestic authorities greater leeway in finding their strategy to counter the threat of anti-migrant popular sentiment and gives recognition to alternative approaches beyond criminal persecution. This allows a context sensitive approach that might do justice to both the freedom of expression and the need for a more effective protection against racially discriminating speech.
Topic:: Race, Freedom of Expression, Discrimination, and Hate Speech
Political Geography:: Global Focus

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

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

33. Towards a New International Law of the Atmosphere?

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

34. The Use of Scholarship by the WTO Appellate Body

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

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

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

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

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

37. Between Evolution and Stagnation – Immunities in a Globalized World

Author:: Heike Krieger
Publication Date:: 08-2015
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Immunities here have, on the one hand, been calls for the limitation or even the abolition of immunities, in particular based on the argument of a lack of responsibility for grave violations of human rights. Contrarily, opposed tendencies can be observed which raise ideas such as the extension of the scope of persons to be protected by immunities, resting upon the pluralization of actors in the globalized world. This article examines these two contradictory aspects of development of immunities in public international law and how they might interrelate with each other. It analyses how the simultaneous evolution and stagnation of immunities can be explained. For that purpose the contribution evaluates at first the current state of the legal development. Further, it takes a look at a certain stagnation of legal development and clarifies the structural parameters within public international law which have led to such a stagnation. In this context, it is critically dealt with the question, whether immunities meet the demands of a globalized world. Lastly, this article addresses the development regarding a denial of immunity in cases of grave human rights violations and asks how it could be more cautiously brought forward.
Topic:: Globalization, Human Rights, and Legal Theory
Political Geography:: Global Focus

38. The ‘Bonn Powers’ of the High Representative in Bosnia Herzegovina: Tracing a Legal Figment

Author:: Tim Banning
Publication Date:: 08-2015
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The article traces the legal basis of the so-called ‘Bonn Powers’ that are claimed by the Office of the High Representative (OHR) in Bosnia and Herzegovina (BiH) as the basis for its extensive legislative, judicative, and executive decisions. The OHR’s presence in BiH offers a very controversial example of how international institutions may exercise international public authority. The OHR has attracted far-reaching criticism and it has in fact been argued that its practice of adopting binding decisions runs contra to the main purpose of the civilian international presence in BiH. The contribution offers an analysis that substantiates such criticism on legal grounds. It discusses exemplary OHR decisions that reach far into the legislative, the executive, and the judicial domain of BiH and analyses possible legal sources for the broad powers claimed by the OHR. It explores the limits of the OHR’s original mandate in light of the Vienna Convention on the Law of Treaties and it looks at the implied powers doctrine as a basis for the OHR’s claims. It also considers a conferral of the ‘Bonn Powers’ on behalf of the United Nations Security Council. The article concludes that the ‘Bonn Powers’ do not qualify as a legal power and that their existence is merely a powerful, but delusive legal fiction.
Topic:: Diplomacy, International Cooperation, Legal Theory, UN Security Council, and Authority
Political Geography:: Europe and Bosnia and Herzegovina

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

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

40. Complete Edition

Publication Date:: 10-2014
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The atrocities committed by Isis in Iraq and Syria, the conflict between Israel and Gaza, the crisis in the Ukraine: Rarely has the international news been almost completely dominated by topics related to international law as it is at the moment. The international community has been observing each of the three hot spots with utmost alertness. As different as these conflicts may be, they have in common that mid- or even long-term adjustments currently seem hardly feasible.

41. 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

42. "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

43. 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

44. 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

45. 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

46. Indigenous Peoples' Rights and the Extractive Industry: Jurisprudence From the Inter-American System of Human Rights

Author:: Efrén C. Olivares Alanis
Publication Date:: 11-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The right of indigenous peoples over their lands, territories, and natural resources has been developed in recent years by the Inter-American Court of Human Rights. When this right is in apparent or real conflict with the rights or interests of the extractive industry over these lands or natural resources, resolving the conflict presents complex legal and practical problems. The Inter-American Court has established standards that must be met in order to restrict indigenous peoples' rights over their lands and natural resources, as well as the requirement to conduct transparent consultations in good faith and, when applicable, obtain the free, prior, and informed consent of the affected indigenous peoples before a project can be approved in their territories. This article explores these standards and requirements, and analyzes their application by the Inter-American Court and the Inter-American Commission on Human Rights.
Topic:: International Law
Political Geography:: America

47. Pascua Lama, Human Rights, and Indigenous Peoples: A Chilean Case Through the Lens of International Law

Author:: Gonzalo Aguilar Cavallo
Publication Date:: 11-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In recent decades, experience has shown that private corporations have been increasingly involved in environmental disasters and human rights abuses in all parts of the world. Many of these corporations belong to the energy, metallurgy, extraction, and mining sectors. Pascua Lama is the name of a major mining project on the border of Chile and Argentina. Since the onset of this mining project, civil society organizations have warned of the risk of serious threats to freshwater resources and indigenous rights. This Chilean case illustrates the difficulty of holding corporations accountable for environmental and indigenous rights abuses. The article suggests that interactions between three branches of public international law; namely, international human rights law, international law of indigenous peoples, and international environmental law can be helpful for individuals and communities affected to have access to an effective remedy.
Topic:: Environment
Political Geography:: America

48. "We Will Remain Idle No More": The Shortcomings of Canada's 'Duty to Consult' Indigenous Peoples

Author:: Derek Inman, Stefaan Smis, and Dorothée Cambou
Publication Date:: 11-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Bill C-38, Jobs, Growth and Long-term Prosperity Act, and Bill C-45, Jobs and Growth Act, both passed in 2012, contain numerous amendments that could affect established and potential Aboriginal rights across Canada. This unilateral action by the Government of Canada came as a great surprise to many Aboriginal people, who indicated that they were not consulted in advance of the legislation's introduction. However, this then begs the question: What is Canada's 'duty to consult'? What is the content of this 'duty'? Does this 'duty' even exist? If it does, is there a discrepancy between the established 'duty to consult' and the legislative amendments included in Bill C-38 and Bill C-45? The purpose of this article is to attempt to answer all of these questions. To do this, we will begin by examining contemporary Canadian jurisprudence on the issue, including reviewing the relevant case law in order to gain an insight into the procedural substance of the 'duty to consult'. Following this, in an attempt to enrich and deepen the discussion concerning the recent developments in Canada, we will outline the emergence of consultation norms at the international level, and highlight recent jurisprudence that takes into consideration consultation duties at the Inter-American Court of Human Rights. The article will conclude by juxtaposing the emergence of the international and regional norms regarding consultation duties with current events in Canada, in order to confirm the discrepancy between the recent legislative amendments and domestic jurisprudence, international law, international human rights law, and regional human rights law. Our hope is that this article will not only inform readers of current events in Canada but also enrich the current discourse on the participatory rights of indigenous peoples in the context of land and natural resource development.
Topic:: Environment
Political Geography:: America and Canada

49. Rights of Indigenous Peoples and the International Drug Control Regime: The Case of Traditional Coca Leaf Chewing

Author:: Sven Pfeiffer
Publication Date:: 11-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article discusses whether there is a normative conflict between the rights of indigenous peoples and the international drug control regime. Treaty obligations to abolish coca leaf chewing might clash with the indigenous peoples' right to practice their customs and traditions in States of the Andean region where indigenous peoples have practiced coca leaf chewing for centuries. Taking into account the manner with which States have addressed this issue, the article focuses on the case of Bolivia and its recent attempt to amend the 1961 Single Convention on Narcotic Drugs. It is argued that the normative conflict can be resolved or at least avoided by applying the methods of treaty interpretation, though only at the expense of indigenous rights. Options to change the international drug control regime to ensure indigenous rights are not only limited by the common interest in preserving its integrity, but also by the negative impact this could have on treaty relations.
Topic:: Government
Political Geography:: America

50. Editorial

Publication Date:: 12-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The Crimean crisis represents one of diplomacy's greater challenges in recent history. The demeanor of the parties involved raises numerous questions of international law already extensively commented on in respective blogs. Furthermore, the superpowers' pursuit of evident political and geo-strategical interests exposes yet again what may be perceived as the powerlessness of public international law.

51. Non-Permanent Members of the United Nations Security Council and the Promotion of the International Rule of Law

Author:: Alejandro Rodiles
Publication Date:: 12-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Non-permanent members of the United Nations Security Council experience clear and well-known limits. Yet, there are certain tools at their disposal which, beyond lucky political constellations, allow them to exercise a more systemic influence on the Council's work and outcomes. These tools are of a juridical nature, often established and developed through the organ's practice, but their efficient use depends primarily on diplomatic expertise and imagination channeled through informal venues. The present article shows how said tools have been used in the case of the promotion of the 'international rule of law'. However contested the concept and restricted its practical consequences on the organ's functions, the evolution of its promotion within the Security Council is both a demonstration of and a further vehicle for non-permanent members' influence on this body. That this in turn serves to legitimate the Council under its current configuration can be seen critically. However, it seems important to underline that the UN Security Council's efficiency depends ever more on the legitimacy that non-permanent members can best imprint on it. In a non-polar world, this tendency can be expected to increase.
Political Geography:: United Nations

52. "All's Well That Ends Well" or "Much Ado About Nothing"?: A Commentary on the Arms Trade Treaty

Author:: Marlitt Brandes
Publication Date:: 12-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: To date no international treaty comprehensively regulates the international trade in conventional arms. In 2012 and 2013, two conferences were convened under the auspices of the United Nations to adopt an 'Arms Trade Treaty' putting an end to this state of affairs. Both failed to reach consensus on the final treaty draft before them. Nevertheless, on 2 April 2013, the UN General Assembly adopted the final draft submitted by the President of the second conference and the Arms Trade Treaty (ATT) is now open for signature and will enter into force after its fiftieth ratification. This article analyzes the legal value of the provisions enshrined in the ATT by concentrating on its scope, substantive obligations, and implementation. It concludes that while much criticism is in order with regard to ambiguous language and potential loopholes in the treaty, it still represents progress as it will provide for written obligations which States Parties must follow when deciding on arms transfer authorizations. Whether the treaty will actually help victims of violations of international human rights and humanitarian law on the ground, however, depends on its ratification by major supplier States and on how far States Parties will be willing to go when implementing and enforcing its provisions.

53. The Lubanga Case of the International Criminal Court: A Critical Analysis of the Trial Chamber's Findings on Issues of Active Use, Age, and Gravity

Author:: MIchael E. Kurth
Publication Date:: 12-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The author explores the International Criminal Court's (ICC) very first judgment in the case of Lubanga. He examines numerous contentious questions arising from the war crime of recruiting child soldiers, such as children's voluntariness of joining armed forces, the legal assessment of sexual slavery and 'active use', and the intricate task of proving the age of a child soldier. Notwithstanding certain blind spots, it is ultimately inferred that the ICC not only proved to be a functioning institution but also provided a ruling of precedential value, in respect of the issues of both child soldiering and general sentencing.

54. Americanization of the BIT Universe: The Influence of Friendship, Commerce and Navigation (FCN) Treaties on Modern Investment Treaty Law

Author:: Wolfgang Alschner
Publication Date:: 12-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Friendship, Commerce and Navigation (FCN) treaties are more than a historical precursor to international investment agreements (IIA) and continue to influence and inspire modern investment treaty design. Until the 1960s, FCN treaties were the American conceptual alternative to the European BIT Model. FCN treaties were comprehensive and complex agreements covering trade, intellectual property, and even human rights in addition to investment disciplines. BITs, in contrast, were short, simple, and focused on investment protection only. Furthermore, while FCN treaties were designed to govern symmetrical investment relations between like-minded developed countries, BITs targeted an asymmetrical relationship between developed capital exporting States and developing capital importers. Even after the U.S. shifted from FCN to BITs in the early 1980s, FCN treaties continued to impact investment policy-making. First, key FCN features such as pre-establishment commitments, non-conforming measures, and investor rights survived the U.S. policy-shift and have since found their way into IIAs around the world. Second, as a conceptual alternative to simple and specialized European BITs, FCN treaties have inspired a new generation of IIAs that are complex and comprehensive in nature, containing a fine-tuned mix of rights and obligations, and treating investment alongside other policy concerns. Third, the spread of FCN-inspired treaties coincides with the demise of European-style BITs. As policy-makers turn to the United States instead of Europe for investment policy innovation, we observe an Americanization of the IIA universe.
Political Geography:: United States and Europe

55. The Possible Future of Promoting and Protecting European Investments in Sub-Saharan Africa

Author:: Lars Schonwald
Publication Date:: 12-2013
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Sub-Saharan Africa (SSA) represents an interesting target market for European investors. However, the level of investment protection in SSA is rather outdated. Considering that Article 207 of the Treaty on the Functioning of the European Union confers upon the European Union (EU) the exclusive competence to negotiate and conclude new investment treaties, the scope of this article is to determine what a possible future treaty aiming at protecting foreign investments concluded between the EU and SSA could look like. Following a brief introduction and after determining the potential parties of a new investment treaty between the EU and SSA, it will be examined whether the current standard clauses can be introduced into the new treaty as well, and to what extent new concepts can, should or even have to be included in a respective new agreement.
Political Geography:: Africa and Europe

56. Editorial

Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Once more the Goettingen Journal of International Law was involved in organizing an international conference and publishing the contributions. On 9 and 10 March 2012 scholars from Germany, Israel and Norway assembled in the “Paulinerkirche” in Goettingen to present their research on “Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law”. The symposium was the final step of a research project organized by the Institute of International and European Law of the Georg-August University Goettingen and the Minerva Center for Human Rights, Hebrew University, Jerusalem. Its central idea is that international constitutionalism is not only a topic contemporarily much discussed, but finds its precursors in earlier “German” constitutional approaches.
Topic:: International Law
Political Geography:: Israel and Germany

57. Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law Introduction

Author:: Tomer Broude and Andreas L. Paulus
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Over the last decade, international constitutionalism has been the focal point of contemporary international legal debate and practice, as evidenced inter alia by the Kadi-Jurisprudence of the European Courts and the burgeoning literature that employs constitutional as well as fragmentation terms with respect to modern international law. The discourse deals with the pluralistic structure of modern international law, post-national law and constitutional diversity, as well as the quest for an international rule of law, the shifting allocation of authority in international law and the possible demise of general international law. This seemingly new discourse is all- pervasive, with implications in international politics, law, trade, human rights and, global environmental law.
Topic:: International Law
Political Geography:: Europe and Germany

58. German Federalist Thinking and International Law

Author:: Dirk Hanschel
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This paper examines the explanatory and the prescriptive value of German (and related) federalist ideas with regard to the constitutionalization of international law. The author contends that respective scholars have, on the one hand, developed federalist thought with regard to the national constitutional level which may help to explain or shape international processes of constitution-building. On the other hand, they have themselves promoted international federalism as a natural extension of their national constitutional doctrine, hence partially weakening the classical dichotomy between national and international law.
Topic:: International Law
Political Geography:: Germany

59. Alfred Verdross as a Founding Father of International Constitutionalism?

Author:: Thomas Kleinlein
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Alfred Verdross was one of the first scholars who transferred a meaningful concept of constitution to international law. Like international constitutionalists today, he aimed at establishing the autonomy of international law vis-à-vis State sovereignty and State consent. With his theory of moderate monism, Verdross refers to a further issue raised by today's multilevel constitutionalism, i.e. the relationship between international and domestic law. In contrast to some modern approaches, Verdross's use of the term 'constitution' in international law was only metaphorical. More ambitiously, international constitutionalism also serves as a kind of meta-theory for international law in the present debate.
Topic:: International Law
Political Geography:: United Nations

60. Making it Whole: Hersch Lauterpacht's Rabbinical Approach to International Law

Author:: Reut Yael Paz
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article seeks to contextualize the international legal contributions of Hersch (Zvi) Lauterpacht (1897-1960) against his specific historical conditions. It therefore begins with an overview of his biography. The intention is to emphasize his Jewish background in the context of the overlapping cultural and social influences of his time. The article then moves to deal with the three main pillars of Lauterpacht's theoretical approach to international law – his 'Kelsenian twist', the individual and nation State sovereignty. The purpose here is review them in light of his Jewish affinity and German-speaking legal education. The article is concluded with the argument that our understanding of Lauterpacht's international legal contributions could be infinitely richer when and if they are reread against a Babylonian Talmudic text, which is used below in an analogical fashion.
Topic:: International Law
Political Geography:: Germany

61. Francis Lieber on Public War

Author:: Rotem Giladi
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This paper examines Francis Lieber's concept of modern war as “public war” — in the Code he drafted for the 1863 Union Armies and in his earlier writings. Though Lieber was not the first to engage the distinction between private and public war, his treatment of modern war as exclusively public nevertheless deserves special attention. It became, in time, a foundational concept of the 19 th Century effort to modernize and humanize the laws of war. Today, it remains embedded, albeit implicit, in contemporary international humanitarian law and its paradigmatic interstate war outlook.
Topic:: War
Political Geography:: Germany

62. Legalization of International Politics: On the (Im)Possibility of a Constitutionalization of International Law from a Kantian Point of View

Author:: Phillip-Alexander Hirsch
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In the debate on the constitutionalization of international law, Kant's work Toward Perpetual Peace is the most important point of reference when talking about the intellectual origin and philosophical background of the idea of constitutionalizing international law. But while it is undeniable that Kant called for a juridification of international relations, it is far less clear which form of juridification Kant aims at . In this essay, I want to show that Kant's ultimate ideal of international law is neither a State of States nor the peace federation (which seems to be commonly accepted), but the cosmopolitan republic , that is, a single homogenous world State. Only such a cosmopolitan republic, backed up by enforceable laws, can be called a constitution in the Kantian sense. Kant's proposal of a peace federation is nothing but a first step towards this ultimate end.
Topic:: International Law
Political Geography:: United Nations

63. Why Global Constitutionalism Does not Live up to its Promises

Author:: Christian Volk
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This paper argues that cosmopolitan constitutionalism suffers from a liberal bias when it comes to comprehend the challenges and conflicts of international politics. This liberal bias becomes obvious in the way cosmopolitan constitutionalism conceives the meaning and function of democracy in global governance. For the cosmopolitan constitutionalism, democracy is mainly thought of as a mechanism to guarantee a political process that brings about reasonable, sustainable and fair compromises between the diverging interests of states and individuals.
Topic:: International Law
Political Geography:: America

64. The Relationship Between Constitutionalism and Pluralism

Author:: Geir Ulfstein
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.

65. Overcoming Dichotomies: A Functional Approach to the Constitutional Paradigm in Public International Law

Author:: Markus Kotzur
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The article discusses the potential of a constitutional matrix to conceptualize public international law. Next to criteria of constitutional quality the very functions of a constitution are analyzed. The constitutional reading of public international law is seen not in contrast to obvious fragmentations but as a means to deal with fragmental legal orders.

66. Constitutionalism as a Cipher: On the Convergence of Constitutionalist and Pluralist Approaches to the Globalization of Law

Author:: Lars Viellechner
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Global constitutionalism still remains an essentially contested concept. While both its descriptive and normative usages remain unclear, the possibility and the desirability of framing the postnational constellation in constitutionalist terms meet equally strong objection. Yet, recently, even pluralist approaches to the globalization of law which call for a more radical departure from the statist legacy explicitly or implicitly refer to the notion of constitutionalism. Animated by democratic concerns for the inclusion of all those concerned by a rule as well as legal certainty and equality, they envisage a new kind of conflicts law that allows for a mutual recognition and reconciliation of the different legal orders and regimes emerging in world society. Hence, constitutionalism, when employed in a global context, appears but as a reminiscence of an historical achievement. It serves as a cipher under which the reconstruction of law under conditions of globalization has begun and will continue until more adequate concepts will be discovered.

67. The System Theory of Niklas Luhmann and the Constitutionalization of the World Society

Author:: Clemens Mattheis
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The article takes a critical look at the current 'constitutionalization vs. fragmentation' debate and examines it on a system theory-based outlook. The historical background deals with Niklas Luhmann's system theory and analyses whether his move 'from territoriality to functionality' is applicable to modern international law. The contribution analyses a possible constitutionalization in Luhmann's “world society” in form of structural couplings and beyond a societal constitutionalism or a postnational order. The essential argument is that there is a constitutional system-theoretical element in modern, state-centered international law: a value-based, 'structural coupling' between the political system and the law system in terms common values such as core human rights and basic principles.

68. The Constitutional Function of Contemporary International Tribunals, or Kelsen's Visions Vindicated

Author:: Tomer Broude
Publication Date:: 11-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In this article the author makes two complementary arguments, one deceptively simple, the other deceptively esoteric. First, contemporary international courts and tribunals (most, though not necessarily all) are increasingly requested, or required (often, though not always), to adjudicate issues in ways that are tantamount to international constitutional judicial review of national acts and domestic measures, rather than traditional interstate dispute resolution. This is a point that seems to have so far evaded most of the contemporary literature on the continually enhanced judicialized system of international law, and its constitutionalization. Second, in order to understand the emergence of this current predilection towards constitutional judicial review at the international level, it is instructive to look back to Hans Kelsen's post-World War II visionary approach towards the (then) prospective constitutional role of the international judiciary. This approach is analogous to (and has its roots in) Kelsen's Weimar-era positions on the preferred role of courts as constitutional guardians in domestic legal systems. These arguments are demonstrated through analyses of recent jurisprudence of the ICJ, the WTO, and the ECtHR.

69. Editorial

Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: We are proud to present the Goettingen Journal of International Law's first issue of 2012. After the successful three issues of last year, GoJIL can now turn to its new and exciting projects of 2012! Since our last issue in January 2012, several events of global importance have filled the newspapers, confronting the global community with the need for new judicial and political solutions. The Arab Spring movement still continues, with the situation in Syria aggravating further, which has led to the UN Security Council to authorize the establishment of the United Nations Supervising Mission in Syria (UNSMIS).
Topic:: Security and International Law
Political Geography:: Arabia and Syria

70. The Status and Future of International Law after the Libya Intervention

Author:: Pierre Thielbörger
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article uses the case of the Libya intervention to address three general claims about international law. Firstly, it examines whether the reliance of the intervention on the mechanisms of collective security under the UN Charter suggests that international law relating to peace and security has finally overcome its post-9/11 crisis. It concludes that the resolution's vague wording – which makes the distinction between what is “legal” under the resolution, and what is not, hard to draw – undermines such an assumption. Secondly, it explores whether the Libya intervention has put new emphasis on what has been termed the “emerging right of democratic governance”. In spite of the underlying democracy-enhancing spirit of the execution of the intervention, Resolution 1973 was exclusively written in the language of human rights. It did little to indicate a changed attitude of States towards a norm of democratic governance. Finally, the article examines whether the case of Libya shows a renewed international attitude towards States which violate the most fundamental human rights of their citizens. The article concludes by suggesting that, in this third respect, a more muscular liberalism is indeed on the rise again in international law, challenging the formerly almighty concept of State sovereignty. In contributing to this subtle transformation, the Libyan case has made a genuine contribution to the development of the international legal order.
Topic:: Security, Human Rights, and International Law
Political Geography:: America, Libya, and United Nations

71. The Responsibility to Protect and the Role of Regional Organizations: An Appraisal of the African Union's Interventions

Author:: Tom Kabau
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article examines the dilemmas and opportunities of the African Union, a regional organization, in implementing the responsibility to protect concepts in respect to forceful intervention to prevent or stop the occurrence of genocide, crimes against humanity and war crimes. Article 4(h) of the Constitutive Act of the African Union specifically mandates the Union to forcefully intervene in a Member State in such circumstances. Although the African Union has successfully resolved some situations where peaceful negotiations or consensual military intervention was sufficient, there has also been failure by the Union where such means fail or are inadequate. Such instances include the Darfur conflict where peacekeeping was insufficient, and recently in Libya where the African Union openly opposed enforcement of no fly zones to protect civilians. This article is of the view that the African Union's failure to implement Article 4(h) of the Constitutive Act, even in deserving situations, may have been aggravated by the failure to institutionalize the concept of responsible sovereignty within the Union's legal framework and processes. Despite the forceful intervention mandate, there are also provisions that affirm the principles of non-interference. The AU system therefore fails to resolve the dilemma between sovereignty and intervention. Sovereignty preservation remains as an effective legal and political justification for non-intervention by the AU. This has promoted a subsequent trend of greater sovereignty concerns by the Union. Institutionalization of the concepts postulated under the emerging norm of responsibility to protect within the AU framework and processes can contribute to the elimination of the legal and political dilemmas of forceful intervention by the Union.
Topic:: Crime and War
Political Geography:: Africa and Libya

72. The Continuing Functions of Article 98 of the Rome Statute

Author:: Jens M. Iverson
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: According to the current jurisprudence of the International Criminal Court, Article 98 of the Rome Statute does not forbid the issuance of an arrest warrant for a sitting head of state. The African Union Commission vehemently objects to this reading of Article 98. Because it viewed the function of Article 98 as forbidding such arrest warrants, it views the current jurisprudence as effectively reading Article 98 out of the Statute, with no continuing function. This article demonstrates the continuing function of Article 98. This continuing function includes immunities resulting from agreements under Article 98(2), as well as customary immunities pertaining to property, persons, diplomatic immunity, and state immunity. Countering the rhetoric and providing a close analysis of the current state of Article 98 in ICC jurisprudence is useful, both with respect to understanding the current operation of Article 98 and to reflect on balancing multiple maximands of criminal law, human rights law, and the international law of immunity.
Topic:: Human Rights and International Law
Political Geography:: Africa and Rome

73. Sovereign Debt Crises as Threats to the Peace: Restructuring under Chapter VII of the UN Charter?

Author:: Matthias Goldmann
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Sovereign debt crises might significantly decrease the level of socioeconomic rights enjoyment for the population in the affected state. According to recent data, they even increase the risk of civil unrest. However, the resolution of sovereign debt crises is compromised by legal obstacles which result from the absence of a statutory, obligatory bankruptcy procedure for states. On the one hand, creditors might refuse to accept an exchange of their debt instrument in the frame of a workout and choose to litigate against the state. On the other hand, states might worsen their situation by unnecessarily delaying inevitable workouts. This article explores whether and to what extent the powers UN Security Council could be deployed in order to mitigate these problems. This requires a reconsideration of the concept of peace in Article 39 UN Charter. The article concludes that, at the request of the International Monetary Fund (IMF), the Security Council might put a stay on the enforcement of creditors' claims or order workout negotiations.
Topic:: Security, International Law, War, and International Monetary Fund
Political Geography:: Germany and United Nations

74. Have Measures Adopted by States to Cope With the Global Financial Crisis Been in Accordance With Their Obligations Under International Investment Law?

Author:: Maximilian Hocke
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: International investment law guarantees broad protection. The following article examines how measures against the Global Financial Crisis, e.g. the acquisition of shares or the refusal to help particular financial institutions, affected those standards. However, the article argues that due to public policy reasons the measures have been in accordance with all protection standards.
Topic:: Financial Crisis
Political Geography:: China, Germany, and Switzerland

75. Human Rights and International Investment Law: Investment Protection as Human Right?

Author:: Nicolas Klein
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Legal research conceptualized the relationship between International Investment Law (IIL) and International Human Rights Law (IHRL) until recently rather as opposing fields of law with colliding policy interests as well as contradictory rules and regulations. However, lately a new approach is gaining increasing support in the academic community: Investment protection could be understood as being part of human rights law. Such a conclusion may be perceived as highly controversial, however, from a conceptual perspective IIL and IHRL share more common ground than differences. This article will argue, first, that certain material standards of IIL can be conceptualized to be human rights-like guarantees of a minimum standard of protection and second, that such an understanding does not lead to a neoliberal proliferation of economic rights but, to the contrary, may serve as an important conceptual tool to prevent overly extensive interpretations of investment treaties and to balance economic rights with other human rights in case of norm conflict. After all, IIL could prove to be not more, but also not less, than “One Out of a Crowd” of all other fundamental human rights.
Topic:: Economics, Human Rights, and International Law
Political Geography:: Pakistan, Germany, and Guinea

76. European Asylum Law and the ECHR: An Uneasy Coexistence

Author:: Laurens Lavrysen
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: During the last two decades the European Union has become a major actor in the field of asylum law. Meanwhile, human rights law, in particular the European Convention on Human Rights (ECHR), has become of paramount importance in this field. This paper highlights certain areas of concern in the European Asylum System from the viewpoint of the ECHR. It particularly focuses on the Dublin II Regulation, the reception conditions and the detention of asylum seekers.
Topic:: Human Rights and Law
Political Geography:: Europe and Dublin

77. Re-thinking the Role of Indigenous Peoples in International Law: New Developments in International Environmental Law and Development Cooperation

Author:: Maria Victoria Cabrera Ormaza
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Indigenous Peoples have classically been defined in terms of their situation of vulnerability and discrimination traceable back to colonialism. The first international legal instruments addressing indigenous peoples are based on such an understanding, and emphasize special protection for indigenous peoples in order to preserve their cultural identity. This article describes this approach a human rights-based one, even though, at the national level, the label “indigenous” is sometimes also interpreted as a synonym of political power. Meanwhile, international environmental law has introduced what this author calls a “functional approach” recognizing the participatory role of indigenous communities in supporting environmental conservation and use of biodiversity. From a functional perspective, it is a logical consequence to include other local communities, albeit not “indigenous” in the classical sense. Thirdly, in the sector of development cooperation, international financial institutions (IFIs) have designed policies with the aim of assuring indigenous peoples the opportunity to be consulted when IFIfunded projects could entail a negative impact on indigenous communities. At first glance, it could be said that those policies were inspired by a human rights-based approach. However, from a holistic perspective, the role of indigenous peoples becomes a more functional one. This paper contributes a critical analysis of the role of indigenous peoples from these two approaches: the human rights-based approach and the functional approach. The author argues that a definition of indigenous peoples based on a humanrights approach should be understood as encompassing also other groups living in similarly vulnerable situations. Even though a functional approach to indigenous peoples responds better to the principle of equality, this approach should be more respectful to the cultural and social values of indigenous or local communities, from whom a particular behavior is expected in order to achieve certain goals.
Topic:: Human Rights and International Law
Political Geography:: North America

78. They Entered without any Rumor. Human Rights in the Belgian Legal Periodicals

Author:: Sebastiaan Vandenbogaerde
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Legal periodicals offer an opportunity to gaze on the daily pursuits of legal practitioners. By measuring the attention on a certain topic, it is possible to retrace to what extent it was deemed to be important for Belgian jurists. In this particular paper, a closer look will be taken at human rights and their relevance for Belgian legal practice. Therefore, research will be done in one of the most influential periodicals in Flanders: the Rechtskundig Weekblad. The attention on human rights, and more specific the European Convention of Human Rights, can give an impression of the importance of these rights for Belgian, and more specific, Flemish legal practice. As this periodical was preoccupied with the Flemish movement, its 'ideology' also affected its reporting of human rights. Thus, legal periodicals can be found at the crossroads of all actors in the legal world.
Topic:: Human Rights
Political Geography:: Europe

79. The EU Charter of Fundamental Rights and its Impact on Labor Law: a Plea for a Proportionality-Test "Light"

Author:: Herman Voogsgeerd
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading 'solidarity'. In this article two basic questions will be addressed. The first question will address the 'old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test 'light' in order to limit the interference of EU law with the essence of fundamental rights.
Topic:: Economics, Human Rights, and Law
Political Geography:: Europe

80. Kosovo's Chances of UN Membership: A Prognosis

Author:: David Ighojohwegba Efevwerhan
Publication Date:: 06-2012
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The International Court of Justice has ruled that Kosovo.'s unilateral declaration of independence neither violated general rule of international law nor the lex specialis. As of the time of writing, 86 UN Member States have recognized Kosovo as a State. With the judicial pronouncement in their favour, the authorities in Kosovo are likely to apply for membership in the United Nations. This paper reviews the rules and practice of UN membership admission and assesses Kosovo.'s chances of success should it apply to the world body for admission. It argues that ordinarily, Kosovo meets the requirements for admission into the UN but political considerations of the permanent members of the Security Council would constitute a clog in Kosovo.'s ambition to become the 194th member of the United Nations. However, four options are proffered as ways out of the political logjam that is sure to surface if and when, Kosovo puts in an application for admission into the membership of the UN.
Topic:: Security and International Law
Political Geography:: Kosovo and United Nations

81. Editorial

Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: “Conflicts over resources have been responsible for disputes and even wars both among, and within, many countries. They cause suffering for millions today, and continue to hold back important progress for many, many more. This conference doesn't just accept these terrible facts. It actively considers how the law can help to break the vicious cycle, bringing resolution and sustainable development to those who most need it”.

82. Keynote Speech: Resources of Conflict – Conflicts over Resources

Author:: Marie-Claire Cordonier Segger
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: I am honored, esteemed colleagues and scholars, to assist you in opening this conference. We are gathered here to consider a crucial and timely problem, the linkages between two impossible challenges facing over a billion people in our world today. Conflicts over resources have been responsible for disputes and even wars both among, and within, many countries. They cause suffering for millions today, and continue to hold back important progress for many, many more. This conference doesn't just accept these terrible facts. It actively considers how the law can help to break the vicious cycle, bringing resolution and sustainable development to those who most need it. I congratulate the organizers, and also all of you as speakers and participants, for your fore sight and your intellectual courage.

83. The Redistribution of Resources in Internationalised Intra-State Peace Processes by Comprehensive Peace Agreements and Security Council Resolutions

Author:: Cindy Daase
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The (illegal) exploitation and (bad) management of high value resources like timber, diamonds, gold, minerals and oil constitute key-factors for the inflammation, continuation and termination of numerous intra-state conflicts. Since the 1990s these conflicts have been increasingly settled by the conclusion of comprehensive peace agreements between the conflicted state and belligerent non-state parties. At the example of the Lomé, Accra and Ouagadougou Agreement, which were negotiated to terminate the conflicts in Sierra Leone, Liberia and Côte d'Ivoire , the paper describes and analyzes whether and how these agreements addressed the redistribution of conflict-resources during the peace process. In the course of this documentation, the paper finds a strong involvement of the UN Security Council when it comes to the redistribution of resources and the implementation of all three agreements that goes beyond addressing an immediate threat to peace and security. Focusing on this involvement of the Security Council to exert a strong pull towards the compliance of the parties with these agreements, the paper will discuss the legal nature of the example peace agreements and of the specific obligations concerning the redistribution of resources. The paper finds that, under certain circumstances, internationalized comprehensive peace agreements, with a strong endorsement and involvement of the Security Council, can create effective legal obligations for the parties with respect to the redistribution and treatment of resources during the transition from conflict to peace.
Political Geography:: Liberia and Sierra Leone

84. The Falkland Islands and the UK v. Argentina Oil Dispute: Which Legal Regime?

Author:: Alice Ruzza
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Following Argentina's withdrawal from the 1995 Joint Declaration concluded with the UK for the common exploration and exploitation of hydrocarbons in the Falklands, the sovereignty dispute over the Islands has recently re-emerged as an economic 'struggle' for access to the North Falklands Basin's oil deposits. The pa per analyzes the states' pending sovereignty dispute and their present claims, from the perspective of the exploitation of the Island s' natural resources. The lawfulness of uncoupling the treatment of title to territory and to natural resources, particularly in an area where sovereignty is disputed has been examined in the present paper. By considering the UN practice on the Falklands' case, it is argued that a separate treatment is not per se unlawful, provided that all the parties having a legitimate sovereign claim over the territory are involved. The Joint Declaration is employed as a model to provide evidence in this regard. In addition, the paper discusses the unilateral conduct of the parties as a possible alternative to a cooperative agreement. As the UK is currently acting unilaterally with regard to the access to the oil deposits in the Islands, the implications of its conduct are also reviewed.
Topic:: United Nations
Political Geography:: United Kingdom, Argentina, and Falkland Islands

85. Conflicts over Protection of Marine Living Resources: The 'Volga Case' Revisited

Author:: Saiful Karim
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Non-traditional maritime security concerns have become more important than ever in the post-Cold War era. Naval forces of most developed countries are more concerned about these threats than conventional war. One of the main maritime security issues for many countries in the world is illegal, unreported and unregulated (IUU) fishing in the marine area. With these burgeoning issues comes the potential for a large number of disputes involving international law. In early 2002, a long-line fishing vessel under a Russian flag – the Volga, was detained by Australian authorities a few hundred meters outside the Exclusive Economic Zone of Australia's Heard and McDonald Islands in the Southern Ocean. The vessel was reportedly engaged in illegal fishing. This incident gave birth to litigation in international and Australian courts. Apart from these cases, Russia also announced separate litigation against Australia for violation of Articles 111 and 87 of the United Nations Convention on the Law of the Sea (UNCLOS). Considering the outcome of these cases, this article critically examines the characteristics of litigation as a strategy for pacific settlement of disputes over marine living resources. Using the Volga Case as an example, this article explores some issues related to the judicial settlement of disputes over marine living resources. This article demonstrates that the legal certainty of winning a case may not be the only factor influencing the strategy for settlement of an international dispute.
Topic:: United Nations
Political Geography:: Russia and Australia

86. Regulating Information Flows, Regulating Conflict: An Analysis of United States Conflict Minerals Legislation

Author:: Christiana Ochoa and Patrick J. Keenan
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The focus of this paper is the connection between conflict and commercial activity. In particular, it focuses on the ongoing conflict in the Eastern Democratic Republic of Congo (DRC) that is funded, in large part, by the sale of conflict commodities – minerals, metals, and petroleum – that fund violent groups at their source and then enter legitimate markets and products around the world. Recently, attention has turned to how to regulate conflict commerce as a tool for divesting from violent conflict. In the United States, for example, the recently adopted Dodd-Frank Wall Street Reform and Consumer Protection Act include a provision addressing conflict minerals originating from this region. The violent and secretive nature of conflict minerals transactions makes crafting effective regulation and policing strategies challenging. As a result the Dodd-Frank Act, like other domestic and international efforts, is designed in large part to discover, gather and disseminate information about the nature and scale of conflict commodities emanating from the DRC. This paper analyzes this legislation while also discussing a number of other current conflict commerce governance efforts. It observes the difficulty of regulating in the context of conflict and corruption and analyses the use of regulation as a tool for information- xtraction, information-forcing and information-dissemination as opposed to its use as a tool for directly proscribing undesirable behavior.
Political Geography:: United States and Democratic Republic of the Congo

87. Incentives and Survival in Violent Conflicts

Author:: Moshik Lavie and Christophe Muller
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This paper analytically investigates the incentive scheme of perpetrators of violent conflicts. It provides a rational equilibrium framework to elicit how monetary incentives and survival considerations shape a combatant‟s decision to participate in a conflict. In the model, a leader decides to award soldiers monetary incentives. Civilians finance the militia via donations and soldiers decide on the actual fighting and indulge in looting. We explore the scheduled decision-making that takes place on the path toward a violent conflict and study the principal-agent relationship that exists between the leader and the militia. In addition, we analyze the effect of several internal factors (productivity and survival risk) and external factors (relative economic resources, opponents‟ military strength) on the intensity of the conflict.
Topic:: Economics

88. Enhancing Compliance with International Law by Armed Non-State Actors

Author:: Annyssa Bellal and Stuart Casey-Maslen
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Enhancing compliance with international norms by armed non-state actors is central to efforts to improve the protection of civilians in armed conflict. Limited engagement with such actors, as well as lack of clarity as to the precise nature and extent of the international legal regimes that are applicable to them, constitute significant barriers to achieving better compliance. In this article the authors argue for international human rights law to be more widely seen as imposing direct obligations upon armed nonstate actors and for counter-terrorism legislation not to be interpreted so as to preclude engagement on positive respect for humanitarian norms. What is needed is greater engagement with armed non-State actors, not less.

89. Regulation of Private Military Companies

Author:: Alexander Kees
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The increasing use of private military companies by states in armed conflict raises questions regarding the regulation of those non-state actors. However, even though the privatization of core state functions might be an emerging phenomenon with respect to its extent and quality, there is no legal vacuum for the activities of private military contractors. According to international humanitarian law, states must ensure respect for the ius in bello and enforce applicable international law also with respect to private contractor personnel if they are charged with functions governed by international law. Against this background, the challenge for future regulation is on the national and administrative level. States must intensify their efforts to implement existing standards.

90. Armed Forces as Carrying both the Stick and the Carrot? Humanitarian Aid in U.S. Counterinsurgency Operations in Afghanistan and Iraq

Author:: Alice Gadler
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The fight against insurgents in Afghanistan and Iraq has led the U.S. and its allies to devote growing attention and resources to counterinsurgency strategies, stability operations and civil-military operations. Humanitarian and development assistance have acquired an important role in military strategies. However, the activities carried out by armed forces in the field of humanitarian assistance in Afghanistan and Iraq have been criticized for blurring the distinction between civilian and military actors and thus increasing the risk of being targeted for humanitarians and civilians. The article analyzes the conduct of U.S. armed forces in Afghanistan and Iraq and the challenges it has posed to humanitarian actors. It then examines U.S. military doctrines and manuals and argues that their most recent versions have increasingly taken into account the needs of humanitarian actors and the principles of humanitarian action, but reasons for concern remain. The engagement of the military in humanitarian assistance has not been definitely limited. In addition, humanitarians should be careful in their relationships with the armed forces in the field of information-sharing.
Political Geography:: Afghanistan, United States, and Iraq

91. Settling Trade Disputes over Natural Resources: Limitations of International Trade Law to Tackle Export Restrictions

Author:: Stormy-Annika Mildner and Gitta Lauster
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In the light of rising competition, scarce natural resources are increasingly perceived as a potential national security risk. Hence, governments are increasingly intervening in primary commodity markets to secure domestic supply at lower prices, for instance, by restricting exports through tariffs and quotas. While limiting exports may be justified in certain cases such as temporary shortages of food supply, they are often a second-best policy tool to address domestic market failures, risking international trade distortions. Some import-dependent countries have therefore lobbied for an update of WTO regulations to curtail the use of export restrictions; others have turned to preferential trade agreements (PTAs) to achieve stricter disciplines. In this paper, the following questions are addressed: What are the current WTO rules regulating export restrictions on natural resources, and what are their limitations? Are PTAs better equipped to prevent trade distortions through export restrictions? To answer these questions, we confine our analysis mostly to Free Trade Agreements (FTAs), not considering the multitude of one-sided preferential agreements.

92. Resource Conflicts over Arable Land in Food Insecure States: Creating an United Nations Ombudsman Institution to Review Foreign Agricultural Land Leases

Author:: Anastasia Telesetsky
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In the last decade of globalization, States in the Middle East, East Asia, Europe, and North America have looked towards Africa and Southeast Asia for opportunities to lease for 30-50 years large tracts of arable land for production of commodity crops and biofuels in order to meet the needs of home markets. Facing their own governance challenges, States in Africa and Southeast Asia have leased land to private foreign investors without requiring any environmental review or mitigation of the proposed land leases. This paper argues that in food insecure states the recent flurry of land leasing activity to foreign agribusiness is likely to lead to unintended long term consequences for the ecology in land-leasing States by depleting the already fragile environment through monocropping, chemical pesticide and fertilizer applications, and large scale irrigation. This paper argues that international investment law may provide foreign investors with legal protection if land leasing States in the future decide to regulate the leases in a manner that discriminates against large agribusiness. The current proposals for self-regulatory voluntary codes of conduct do not provide sufficient oversight over the leasing process to protect the public's interest in a healthy and productive environment against foreign investors who have under the current lease structure no incentive to improve the land that they are leasing. The creation of an United Nations based ombudsman to provide legal and technical oversight and support for States making long-term leases has greater potential than a voluntary code for ensuring a balanced negotiation among the interests of host State governments for investment, investors for arable land, and the public for long-term sustainability.
Topic:: United Nations
Political Geography:: Africa, Europe, Middle East, East Asia, North America, and Southeast Asia

93. Overcoming State-Centrism in International Water Law: 'Regional Common Concern' as the Normative Foundation of Water Security

Author:: Bjørn-Oliver Magsig
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The peaceful management of the world's freshwater resources is one of the most challenging tasks the international community is facing. While 'water war' is a catchphrase mainly used by the media, one cannot overstate the disruptive force water disputes have on all aspects of socio-economic development and the environment. Furthermore, the accelerating global water crisis draws a dark picture in which the future may look nothing like the present. With rising demand and declining availability of key natural resources, the world might soon face a 'perfect storm' of food, energy and water shortages. A simultaneous occurrence of these crises would seriously threaten global stability, and thus endanger the very foundation of international security.

94. Between the Scylla of Water Security and Charybdis of Benefit Sharing: The Nile Basin Cooperative Framework Agreement â€“ Failed or Just Teetering on the Brink?

Author:: Dereje Zeleke Mekonnen
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The threat of water-related conflicts is comparatively more real and serious in the Middle East and North Africa hydrographic region where the Nile is found. Ominous predictions about water being the next casus belli in the region abound. There are many conflict determinants in the Nile basin which lend much credence to the predictions and the basin's proneness to conflict is quite evident. The unprecedented positive rapport brought about by the launching of the Nile Basin Initiative (NBI) and the enormous hope and optimism evoked by its lofty Shared Vision explain the unprecedented serenity and cooperative atmosphere the basin has witnessed over the past decade. The decade-long effort to work out and agree on an inclusive legal and institutional framework for the basin has, due to the cunning interpolation of the treacherous, non-legal concept of 'water security', ended up in failure., The subsequent shift to and endorsement of benefit sharing as an alternative, simple and cure-all solution to the Nile waters question has further dimmed the prospect for the realization of the Shared Vision which now sounds more like a pipe dream than a realizable vision. Whether these adverse developments would finally pave the way for the ominous predictions to come to pass is as much unlikely as it is perplexing. It will be argued, in this paper, that the likelihood of violent conflicts over the Nile waters is an unlikely scenario, the more likely turn of events being further continuation of the iniquitous status quo.
Political Geography:: Africa, Middle East, and North Africa

95. Information Warfare and Civilian Populations: How the Law of War Addresses a Fear of the Unknown

Author:: Lucian Dervan
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Imagine a civilian communications system is being temporarily relied upon by an opposing military force for vital operations. If one launches a computer network attack against the communications system, the operation may disable the opposing force's ability to function adequately and, as a result, prompt their surrender. The alternative course of action is to launch a traditional kinetic weapons attack in the hopes of inflicting enough casualties on the troops to induce surrender. Given these options, the law of war would encourage the utilization of the computer network attack because it would result in less unnecessary suffering. But is the same true if we are unsure of the collateral consequences of the computer network attack on a large civilian population that also relies on this communications system? For instance, because civilians use the same communications system to gather critical information, disabling the system might result in rioting, civil disorder, serious injuries, and deaths. Further, civilians may be unable to call for help, seek out medical assistance, or locate emergency response centers. Given these unknown yet potentially severe collateral consequences to civilians, it becomes less clear that a proportionality analysis under the law of war would favor the computer network attack over the traditional kinetic operation. In this article, Professor Lucian E. Dervan examines the application of the law of war to information operations and analyses the role of the Geneva Convention's utilitarian goals in determining the validity of computer network attacks against dual-use civilian objectives.
Political Geography:: Geneva

96. Limits of the Impact of the International Criminal Tribunal for the Former Yugoslavia on the Domestic Legal System of Bosnia and Herzegovina

Author:: Eszter Kirs
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Information is a fundamental resource in post-conflict societies. However, information-sharing may lead to both advantages and disadvantages. The main focus of the present paper is the flow of information and knowledge from the International Criminal Tribunal for the Former Yugoslavia (ICTY) to the domestic judicial system of Bosnia and Herzegovina. Following a brief introduction of the dynamics of the changing relationship of the Tribunal and the Bosnian judiciary, the paper aims to outline the positive achievements and the practical barriers of the international intervention into the management of war crime cases in Bosnia and Herzegovina. The paper introduces the practical problems that came forth with the introduction of the adversarial procedure in the domestic judicial system, by which measure international intervention might have gone too far resulting also in negative consequences with regard to the management of domestic war crime trials.
Political Geography:: Bosnia, Herzegovina, and Yugoslavia

97. The Abyei Arbitration: A Model Procedure for Intra-State Dispute Settlement in Resource-Rich Conflict Areas?

Author:: Freya Baetens and Rumiana Yotova
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In 2009, the Permanent Court of Arbitration administered a unique case: the Abyei Arbitration between the Government of Sudan and the Sudan People's Liberation Movement/Army. This case is unique in several aspects: first, it is an example of intra-state dispute settlement in a conflict zone rich in natural resources, second, it was conducted under a fast-track procedure, and third, it was fully transparent, with all documents and full webcast of the proceedings still available on the PCA website. Currently there is a large number of outstanding intra-state disputes, not limited to Africa, so this paper assesses why the Parties in the Abyei Arbitration chose arbitration in the first place and whether this model could be successfully applied to other similar disputes.
Topic:: Government
Political Geography:: Africa and Sudan

98. Adjudicating Conflicts Over Resources: The ICJ's Treatment of Technical Evidence in the Pulp Mills Case

Author:: Juan Guillermo Sandoval Coustasse and Emily Sweeney-Samuelson
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Conflicts over resources and the consequences of utilizing those resources can ignite social and political demonstrations, especially when the conflict is over a shared resource. Solving those conflicts requires both an institution and a procedure that are not just binding but also legitimate in the eyes of the constituencies An important aspect of a legitimate procedure is that it correctly establishes the facts.

99. From Riches to Rags – the Paradox of Plenty and its Linkage to Violent Conflict

Author:: Pelin Ekmen
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The article addresses the economic phenomenon of the so called Dutch Disease, also known as the Paradox of Plenty, as faced by countries rich in natural resources. Rendering a rough definition of this occurrence, the article continues to dwell on the link age between violent conflict and illicit resource trade in the Democratic Republic of Congo (DRC).
Political Geography:: Democratic Republic of the Congo

100. Resources of Conflict - Conflicts over Resources

Author:: Marie-Claire Cordonier Segger
Publication Date:: 06-2011
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: I am honored, esteemed colleagues and scholars, to assist you in opening this conference. We are gathered here to consider a crucial and timely problem, the linkages between two impossible challenges facing over a billion people in our world today. Conflicts over resources have been responsible for disputes and even wars both among, and within, many countries. They cause suffering for millions today, and continue to hold back important progress for many, many more. This conference doesn't just accept these terrible facts. It actively considers how the law can help to break the vicious cycle, bringing resolution and sustainable development to those who most need it. I congratulate the organizers, and also all of you as speakers and participants, for your foresight and your intellectual courage.

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