Publishing Institution: The Goettingen Journal of International Law

1. When the Exception Overtakes the Rule: COVID-19, Security Exemption Clauses, and International Investment Agreements

Author:: Kayla Maria Rolland
Publication Date:: 02-2024
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In the trade and investment law regimes built in the post-war period, “security exemption clauses” were included within trade and investment agreements as a safety valve, permitting States to deviate from their commitments in the event that their security interests were implicated. Initially, these clauses were understood to be narrowly limited to instances of war and interstate conflict. With the rise of the national security state in the decades since, however, the concept of security interests has ballooned to encompass an ever-growing set of issues, with some fearing that the rules may become irrelevant. This has been particularly facilitated through “third generation” security exemption clauses and their inclusion of self-judging language. The COVID-19 pandemic in particular adds a new dimension to this phenomenon. As a case study analysis of the text of the Chile-Hong Kong, China SAR bilateral investment treaty (BIT) will demonstrate, it may be feasible for States to invoke security exemption clauses to justify measures taken in response to the COVID-19 pandemic in some contexts, particularly with third generation, self-judging security exemption clauses. The expanding notions of security exemption clauses have significant implications for the investor-State dispute system as a whole.
Topic:: Security, International Law, International Trade and Finance, Treaties and Agreements, COVID-19, and International Investment Agreements
Political Geography:: China and Global Focus

2. Remedying a Legal Black Hole: The Future of Human Rights Jurisdiction in the Mediterranean Sea

Author:: Alison Beuscher
Publication Date:: 02-2024
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The coastal States of the Mediterranean Sea tend toward a steady decrease in their search and rescue capacities. When a migrant boat sends out a distress signal, many ships in its vicinity either ignore it, merely observe the ship, or even move away from it. Rather than allowing people in distress onto rescue boats, the coastal States control the activity from a distance via, for example, mere distress calls. This lack of action occurs despite their legal obligation to protect under the law of the sea. Due to a maritime legal black hole, those stranded are effectively rendered rightless. This article examines whether a new jurisdictional approach may serve as a remedy and explores an intermediate design. It will assess this jurisdictional approach based on progressive Inter-American Court of Human Rights and Human Rights Committee cases while bearing in mind potential advantages and drawbacks.
Topic:: Human Rights, Migration, Law of the Sea, and Jurisdiction
Political Geography:: Europe and Mediterranean

3. A Right to Come Within State Jurisdiction Under Non-Refoulement? Interpreting Article 1 of the European Convention on Human Rights in Good Faith Within the Context of Extraterritorial Migration Control

Author:: Laura Goller
Publication Date:: 02-2024
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Externalizing borders for the purpose of shifting and avoiding responsibilities under human rights law is not a new phenomenon in the context of migration control. In the Mediterranean, European States have increasingly sought new measures of extraterritorial migration control to avoid being held responsible under cornerstones of international refugee law such as non-refoulement. In the precedent Hirsi Jamaa and Others v. Italy, the European Court of Human Rights (ECtHR) established that the exercise of effective control over persons on the high seas amounts to the exercise of jurisdiction within the meaning of Art. 1 of the European Convention on Human Rights (ECHR). As a result, European States began to find new ways of controlling their borders. The focus on physically controlled ‘push-backs’ shifted to administratively controlled ‘pull-backs’. Cooperation with third States by equipping and training their coast guards has become a way for European States to avoid any direct contact with migrants, thereby avoiding triggering jurisdiction as defined by the current case law of the ECtHR. This paper focuses, first, on how ECtHR jurisprudence responds to new forms of extraterritorial migration control and, second, on how this concept of jurisdiction relates to the obligation of States to fulfill their international obligations in good faith. How can the object and purpose of an obligation be undermined if that obligation does not apply in the first place? While the realization of Hannah Arendt’s concept of ‘the right to have rights’ seems to depend in practice on the geographical location of the individual, this paper addresses the question of whether there might be a right to come within the jurisdiction of a State, in the sense of gaining access to a legal system, applying a good faith reading to non-refoulement.
Topic:: International Law, Migration, Borders, Jurisdiction, Non-refoulement, European Court of Human Rights (ECtHR), and European Convention on Human Rights (ECHR)
Political Geography:: Europe

4. Containing the Containment: Using Art. 16 ASR to Overcome Accountability Gaps in Delegated Migration Control

Author:: Almut Möller
Publication Date:: 02-2024
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: When the European Court of Human Rights found Italy responsible for push-backs on the high seas in Hirsi Jamaa based on Italy’s effective control over the individuals, it simultaneously solidified the concept of jurisdiction as a prerequisite of human rights obligations and provided States with deeper knowledge on how to avoid responsibility. Since then, instead of pushing the migrants back themselves, destination States increasingly delegate the task of migration control to third States. Under the guise of “capacity building”, they fund, train, and equip third States to exercise containment measures and carry out pull-backs. By way of bilateral agreements, destination States remain in control of the migration flow while avoiding any direct contact with the migrants that would trigger their human rights obligations. One example for this is the Italian-Libyan cooperation under the 2017 Memorandum of Understanding, which was renewed in 2020. Migrants intercepted by Libya are systematically detained in prisons under horrific conditions, which is in clear violation of their human rights. The present article explores ways to allocate responsibility on destination States for their involvement in those human rights violations notwithstanding the lack of jurisdiction. In particular, the article deals with the question whether the general international law of State responsibility is applicable alongside international human rights law. Responsibility for complicity, as lined out in Art. 16 of the Articles on State Responsibility for Internationally Wrongful Acts, is compared to the concept of due diligence obligations in international human rights law, dismissing the claim that the latter poses lex specialis. Subsequently, Art. 16 ASR’s substantive requirements are applied to the case study in order to test the provision’s capability to overcome the accountability gap.
Topic:: Human Rights, International Law, Migration, Accountability, and European Court of Human Rights (ECtHR)
Political Geography:: Europe, Libya, and Italy

5. Nigerien Law 2015-36: How a New Narrative in the Fight Against Smugglers Affects the Right to Leave a Country

Author:: Sarah Isabel Pfeiffer
Publication Date:: 02-2024
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: In 2015, the Republic of the Niger adopted an anti-migrant smuggling law (Law 2015-36) with direct involvement of the European Union (EU). Since then, concerns have been raised that this law constitutes a de facto travel ban for anyone moving northwards from Niger. Rather than addressing the involvement of the EU, this article will focus on the direct obligations of Niger, including those set by regional human rights agreements, as the country where the so-called cooperative migration control takes place. People on the move towards Libya will be a special focus as the most affected by the Nigerien law. First, the Nigerien law and its provisions will be described, in order to then assess whether the law and its application infringe the human right to leave any country including one’s own. Drawing from the findings of non-governmental organizations and the United Nations Special Rapporteur on the Human Rights of Migrants, this article argues that Law 2015- 36 renders it impossible for non-Nigerien nationals to leave the country without risking their life and safety. Thus, Law 2015-36 infringes the right to leave. The third part explores possible justifications for the law with a focus on the interests of people on the move, the interests of bordering States, and national interests. It finds that Law 2015-36 is disproportionate and, in fact, impairs the essence of the right to leave, resulting in an unjustified interference. The concluding fourth part contains recommendations for possible amendments to the law.
Topic:: Human Rights, International Law, Migration, European Union, Smuggling, and Irregular Migration
Political Geography:: Africa, Europe, and Nigeria

6. Dogmatik and International Criminal Law: Approximations in the Realm of ‘Language’ and ‘Grammar’

Author:: Morten Boe
Publication Date:: 08-2023
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Starting from the assertion of George Fletcher that there could never be an effective International Criminal Law (ICL) without a corresponding ICL Dogmatik – understood as a supporting culture of ideas and general principles – the article attempts to retrace and critically assess the connection made between the domestic concept and the international realm; to give a first approximation of what ‘ICL Dogmatik’ is supposed to mean. While not being definable in a conclusive way, Dogmatik – as understood in the German legal system – represents a specific habitus and mindset when approaching law, providing for an autonomous legal discourse fueled by the aspiration of a coherent normative system based on argumentative rationality and close cooperation of legal scholarship and legal practice. The article argues that, while the term Dogmatik is a specific cultural expression, the substance of the concept more generally refers to and echoes universal challenges of law and legal scholarship. The urge for an ICL Dogmatik should therefore not be (mis-)understood to argue for an authoritative rule of scholars or the adoption of German legal theories on the international level. Instead, the statement enunciates the necessity to establish ICL as an autonomous normative framework of concepts and terms. Dogmatik merely stands for an abstract vision, which may help to organize legal thinking in ICL, to structure and systemize the field, and most importantly to raise awareness for the necessity to develop a shared and coherent (legal) language, which enables productive discourse between all legal families.
Topic:: International Law and International Criminal Law (ICL)
Political Geography:: Global Focus

7. The Settlement of EEZ Fisheries Access Disputes under UNCLOS: Limitations to Jurisdiction and Compulsory Conciliation

Author:: Valentin J. Schatz
Publication Date:: 08-2023
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: This article revisits the scope of the limitation to jurisdiction ratione materiae under Article 297(3) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in the context of Exclusive Economic Zone (EEZ) fisheries access disputes in the light of recent jurisprudence of UNCLOS tribunals. It first provides an overview over general aspects of Article 297(3) of UNCLOS in the compulsory dispute settlement mechanism of Section 2 of Part XV of UNCLOS. Next, it briefly considers the relationship between Article 297(3) and Article 297(1) of UNCLOS in order to clarify the former limitation’s role in the complex internal logic of Article 297 of UNCLOS. Thereafter, this article addresses the sometimes-overlooked function of Article 297(3) of UNCLOS as a confirmation of jurisdiction with respect to fisheries disputes that are not related to the EEZ. It then analyzes the scope of the limitation to jurisdiction ratione materiae of Article 297(3) of UNCLOS in the context of fisheries access disputes. Next, this article examines the potential and limits of the compulsory conciliation procedure under Article 297(3)(b) and Annex V of UNCLOS with a focus on the scope of the procedural mandate and subject-matter competence of such conciliation commissions.
Topic:: Economics, International Law, and Fishing
Political Geography:: Global Focus

8. Compulsory Settlement of EEZ Fisheries Enforcement Disputes under UNCLOS: “Swallowing the Rule” or “Balancing the Equation”?

Author:: Camille Goodman
Publication Date:: 08-2023
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: While there is a widely held view that disputes concerning fisheries in the exclusive economic zone (EEZ) are largely exempt from the compulsory jurisdiction of courts and tribunals as a result of far-reaching exceptions in Part XV of the 1982 United Nations Convention on the Law of the Sea (LOSC), this is not the case for all EEZ fisheries disputes. This article examines the specific question of disputes concerning the enforcement of fisheries laws and regulations in the EEZ, and considers how the Part XV framework has been – or could be – used and interpreted for the compulsory settlement of EEZ fisheries enforcement disputes. It examines the obligation of prompt release established in Article 292, the option to exclude compulsory jurisdiction with respect to law enforcement activities concerning EEZ fisheries by written declaration under Article 298(1)(b), and the opportunity to bring disputes concerning EEZ fisheries enforcement within the scope of compulsory jurisdiction under Article 297(1) by characterising them as relating to the freedom of navigation or the protection and preservation of the marine environment. Framing its enquiry by reference to the question posed in this special issue, the article argues that, rather than “swallowing the rule” of compulsory jurisdiction, the jurisdictional scheme established for EEZ fisheries enforcement disputes helps to “balance the equation” and support the effectiveness of Part XV in protecting the compromises that are embodied in the LOSC.
Topic:: International Law, Territorial Disputes, Fishing, and Jurisdiction
Political Geography:: Global Focus

9. The Many Facets of EEZ Fisheries Disputes and their Resolution under UNCLOS

Author:: Natalie Klein
Publication Date:: 08-2023
Content Type:: Working Paper
Institution:: The Goettingen Journal of International Law
Abstract:: The core question being posed for this symposium was whether the ‘exception swallows the rule’ in relation to disputes concerning fishing in the exclusive economic zone (EEZ). This question emerges because of the starting point that disputes relating to the interpretation or application of the UN Convention on the Law of the Sea (UNCLOS)1 may be subject to compulsory procedures entailing binding decisions – arbitration or adjudication – at the request of a party to the Convention. However, while this ‘rule’ is the start, it is immediately important to point our that there are exceptions and limitations to this proposition; the grant of compulsory jurisdiction in UNCLOS is limited in significant ways.2 The ‘exception’ of concern to this symposium is set out in Article 297(3) of UNCLOS, which excludes fisheries disputes from adjudication or arbitration in the following situation: “the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.“3 Pursuant to Article 298(1)(b), States also have the option to exclude ‘disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal’ under Article 297(3).4 The symposium papers that follow seek to improve our understanding of these exceptions to compulsory jurisdiction; do they swallow the ‘rule’ of compulsory jurisdiction? This introduction aims to explain the relevance of the exception (Part B), situate the papers that are part of the symposium (Part C) and indicate what has been jurisprudentially achieved despite the exception (Part D).
Topic:: International Law, Sovereignty, Fishing, and Disputes
Political Geography:: Global Focus

10. An Unlikely Duo? Regionalism and Jus Cogens in International Law

Author:: Carlos Lima Lima and Loris Marotti
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Recent years have witnessed a renewed interest in peremptory norms of international law (jus cogens) in the international legal discourse.  e ongoing works of the International Law Commission (ILC or Commission) on the topic1 , also prompted by the increasing relevance such norms have gained in the case law of national and international courts, is refreshing the long-standing debate about the scope, nature and content of peremptory norms2 . Against this background, less attention is being paid to the possible relations between jus cogens and regionalism, as well as to the legal and political implications such relations may have in the international realm.
Topic:: International Law, Law, and Regionalism
Political Geography:: Global Focus

11. Dynamic Belt and Road Initiative and the Global South’s Approach to Sustainability

Author:: Dan Yao and Mingzhe Zhu
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: When discussing China’s Belt and Road Initiative (BRI), mainstream scholarship adopts the narrative of grand strategy, which assumes the existence of a predetermined and top-down plan as well as China’s determination to implement it according to its interests and vision. This article, with its focus on sustainability, challenges this narrative and draws attention to the indeterminate features of the BRI. It proposes an alternative interpretation that considers the BRI as a dynamic field that facilitates the emergence of the Global South’s approach to international law. It argues that the countries of the Global South can be regrouped as a symbolic region by their proximity in the global distribution of economic and environmental goods, with its identity defined by common history with international law, and necessary solidarity in the pursuit of the cause of liberation. This article then compares the BRI with the previous projects of the Global South and identifies a vagueness of commitment, lack of coordination mechanism, and flexibility as their key features. Further substantialized by two case studies, it contends that the formulation of rules is determined by strategic interactions between States and different non-State actors in a given location according to local realities.
Topic:: International Law, Belt and Road Initiative (BRI), and Sustainability
Political Geography:: Global South

12. Is the International Law Commission Taking Regionalism Seriously (Enough)?

Author:: Janina Barkholdt
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Regionalism poses a challenge to the work of the International Law Commission (ILC). The Commission, entrusted by the United Nations General Assembly (UNGA) with the “progressive development of international law and its codification”, is tasked with identifying and elaborating universally accepted and acceptable rules of international law. The challenge posed by regionalism lies in its ambivalent role precisely in relation to the mandate of the ILC: on the one hand, a significant share of practice in international law is generated at the regional level. Since regional practice thus constitutes a substantial part of State practice, the ILC cannot avoid taking regional practice into account if it is to identify and develop common rules. On the other hand, regionalism often involves claims for special legal treatment based on the affiliation with a region; thus, deviations from precisely those general legal rules which the ILC seeks to codify and develop. The present contribution analyses how the Commission has approached regionalism in its previous work and identifies four approaches. It shows that each of these approaches suffers from shortcomings. At the same time, the current projects on General principles of law (GPL) and Sea-level rise in relation to international law possibly indicate the emergence of a more fruitful fifth approach. Based on this analysis, the present contribution shows that the practice of the ILC evinces two methodological challenges arising from regional plurality –, the challenge of equal regional representation and the challenge of regional exceptionalism, – and makes suggestions as to how to address these in the future.
Topic:: International Law, United Nations, and Regionalism
Political Geography:: Global Focus

13. Interpretation and Application of the ECHR: Between Universalism and Regionalism

Author:: Mattias Guyomar
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract::  e protection of human rights guaranteed by the Council of Europe, in particular through the Convention for the Protection of Human Rights and Fundamental Freedoms and the supervision exercised by the European Court of Human Rights, has a dual dimension: its universal vocation goes hand in hand with the regional nature of its implementation. Tensions between universalism and regionalism play out in a fruitful and productive way.
Topic:: Human Rights, International Law, Regionalism, Universalism, and European Court of Human Rights (ECtHR)
Political Geography:: Europe

14. Military Intervention on Request in Jus Ad Bellum and Jus In Bello and the question of recognition of governments

Author:: Chiari Redealli
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: Over the past decades, foreign interventions in internal conflicts upon the request of host governments have turned into a common practice. These instances have proved to be particularly challenging both from a jus ad bellum and a jus in bello point of view. On the one hand, it is often unclear whether the intervention is lawful; on the other hand, the classification of these armed conflicts is equally problematic. In both cases, the key to answer these questions is the identification of the organ capable of speaking on behalf of the state: who is the government? Considering the pivotal relevance of the identification of the government both in jus ad bellum and jus in bello, it is crucial to determine the criteria for identifying the authority capable of issuing a valid invitation. This article seeks to clarify these criteria. Ultimately, it will demonstrate that jus ad bellum and jus in bello reach different conclusions on the matter and it will argue that this should not be the case.
Topic:: International Law, Humanitarian Intervention, Military Intervention, Conflict, and International Humanitarian Law (IHL)
Political Geography:: Global Focus

15. Missed Communications and Miscommunications: International Courts, the Fragmentation of International Law and Judicial Dialogue

Author:: Francis Maxwell
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: The increase in the number of international judicial bodies has led to different international courts deciding similar issues of international law. There is the real possibility that these international judicial bodies, not subject to the supervision of a common appeal court, may rule differently on similar questions before them. While this fragmentation of decision-making may undermine the coherency and certainty of the international legal system, it may in some cases be in the interests of the international community, including where divergences in decision-making are the result of specialized regimes or where there is progressive development of the law. So that fragmentation is limited to what is beneficial and necessary for the international community, it is essential that international judicial bodies are in open and structured dialogue with one another. This analysis considers three scenarios of overlapping decision-making, over the course of the lives of two sets of international courts: the International Court of Justice, and the international criminal courts and tribunals. It also considers the recent decision of the International Criminal Court with respect to Palestine and the Court’s refusal to weigh in on questions of general international law, in apparent departure from the previous three examples. It is submitted that these examples demonstrate that insufficient attention is given by these international judicial bodies to the issue of judicial dialogue and its importance. This may undermine the legitimacy of the system and introduce the risks of fragmentation without its benefits.
Topic:: International Law, International Court of Justice (ICJ), International Criminal Court (ICC), Dialogue, Fragmentation, and Customary International Law
Political Geography:: Global Focus

16. Of Dark Clouds and  eir Silver Linings: Crisis as Opportunity in the Economic and Social Rigths Jurisprundence of the European Court of Human Rights

Author:: Caroline Omari Lichuma
Publication Date:: 11-2022
Content Type:: Journal Article
Journal:: The Goettingen Journal of International Law
Institution:: The Goettingen Journal of International Law
Abstract:: We live in a world in crisis. These crises are experienced globally, regionally, by individual States and mostly by individuals themselves. Despite our differences, we are all united by crisis. However, adopting a regional outlook, this paper focuses on Europe, which, like much of the rest of the world, has in recent times been buffeted by multiple crises ranging from the financial and economic crisis that begun in 2008, to the climate change crisis, to the migrant and refugee crisis, to the Brexit crisis, to the COVID-19 pandemic that has rocked the entire globe. In times of crisis, it is commonplace to turn to legal and institutional frameworks in the hopes of finding some reprieve. Within Europe, one such institution is the European Court of Human Rights (ECtHR). This Court, also known as the Strasbourg court, was established in 1959 under Article 19 of the European Convention on Human Rights (ECHR). Despite its primarily Civil and Political Rights (CPRs) mandate, the ECtHR has in numerous cases proven to be fertile ground for planting the seeds of Economic and Social Rights (ESRs) protection, which is/was inevitable, given the widely accepted indivisible, interdependent and interrelated nature of all human rights, whether CPRs or ESRs. The ECtHR explicates that “the Convention is a living instrument which […] must be interpreted in the light of present-day conditions.” In the present day conditions of numerous crises that have only exacerbated the already precarious conditions of numerous vulnerable rightsholders in the family of European States, the question then becomes what jurisprudential trends, prospects and pitfalls exist for the ECtHR in its dynamic interpretation of the ECHR to include ESRs. In seeking answers to this question, this paper analyzes the ESRs jurisprudence of the ECtHR with the intention of illuminating how the Court has, and ought to utilize its institutional role as an enforcer of human rights in general and ESRs in particular in the quest to mitigate the effects on rightsholders, of the crises being experienced within Europe. At the heart of this inquiry lies the assertion that in line with the ECtHR’s ESRs jurisprudence thus far, which evinces a willingness on the part of the Court to vindicate ESRs in order to bring these rights to life for the vulnerable rightsholders who need them the most, the myriad crises currently plaguing Europe continue to create opportunities for the ECtHR to craft a principled and consistent ESRs jurisprudence while simultaneously respecting the margin of appreciation enjoyed by the respective European States. This paper does not analyze State responses under Article 15 of the ECHR, which specifically allows the High Contracting Parties to derogate from their obligations under the Convention in times of war or other public emergency threatening the life of the nation. Rather, the analysis will be restricted to the ESRs jurisprudence of the ECtHR in times of the specific crises outlined below and where the States in question have not made an Article 15 derogation. The paper will proceed in three parts. Part A will give a brief overview of how the ECtHR has vindicated ESRs through its interpretation of the primarily CPRs found in the ECHR. Part B will thereafter briefly analyze three specific crises that have shaped the more recent ESRs jurisprudence of the Court: the financial and economic crisis, the migrant and refugee crisis and the COVID-19 pandemic. Finally, Part C will offer some tentative recommendations on the way forward, arguing that while some progress has been made by the ECtHR in centering ESRs as a very necessary part of its response to contemporary European and global crises, the battle is far from won.
Topic:: Crisis Management, Economic Rights, European Court of Human Rights (ECtHR), Jurisprudence, and Social Rights
Political Geography:: Europe

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. Promoting the Rule of Law Through the Law of Occupation? An Uneasy Relationship

Author:: Andreas Th. Muller
Publication Date:: 12-2018
Content Type:: Working Paper
Institution:: The Goettingen Journal of International Law
Abstract:: A core objective of the law of occupation has traditionally been that the occupying power should heed rule of law standards in the administration of the occupied territory. Less clear is whether it should also seek to inculcate rule of law standards into the local government. To be sure, the pertinent rules of the law of occupation provide for far-reaching competences of the occupying power. However, given the predominately negative, security-focused and conservationist nature of the occupier’s powers, its involvement in the “rule of law transfer” business should not be overrated. While it is true that two major post-1945 developments, i.e. international human rights law and the involvement of the UN Security Council, have contributed toward broadening, recalibrating, and dynamizing the applicable legal standards in situations of occupation, it is nonetheless crucial to resist the temptation to concede, in the name of promoting the rule of law, too much legislative leeway to the occupying power. Thus, the question whether, and to what extent, the law of occupation mandates the occupying power to engage in promoting the rule of law in the occupied territory, calls for a differentiated, and cautious, answer.
Topic:: Security, International Cooperation, United Nations, and Territorial Disputes
Political Geography:: Global Focus

41. 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

42. 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

43. 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

44. 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

45. 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

46. 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

47. 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

48. 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

49. 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

50. 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

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COLUMBIA UNIVERSITY PRESS