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51. 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

52. 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

53. 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

54. 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

55. Pursuing justice for international crimes in Ukraine: A patchwork of multi-level and long-running efforts

Author:
Katja Creutz
Publication Date:
06-2023
Content Type:
Policy Brief
Institution:
Finnish Institute of International Affairs (FIIA)
Abstract:
The Russian aggression against Ukraine has triggered debates and initiatives on how to address crimes under international law committed in and against Ukraine, including war crimes and the crime of aggression. A single institution capable of dealing with all international crimes is nonetheless lacking. Tens of thousands of alleged war crimes have been reported and documented, part of which the Ukrainian courts themselves are handling. The massive caseload requires international assistance, in addition to which the ICC is also investigating alleged war crimes. The international community is divided in regard to the investigation and prosecution of the crime of aggression. As the ICC lacks jurisdiction with respect to this crime in this particular situation, European states are advancing a special ad hoc tribunal. Nonetheless, the majority of countries globally, particularly in the Global South, find it hard to support the initiative. The discussion on the best way to proceed with regard to addressing the crime of aggression committed by Russia is ongoing. Many problematic issues are being debated, ranging from political desirability to the issue of head of state immunities.
Topic:
Human Rights, International Law, United Nations, War Crimes, and Russia-Ukraine War
Political Geography:
Russia, Ukraine, and Eastern Europe

56. Cities as global actors: Bringing governance closer to the people

Author:
Katja Creutz
Publication Date:
02-2023
Content Type:
Policy Brief
Institution:
Finnish Institute of International Affairs (FIIA)
Abstract:
Globalization and extensive urbanization worldwide have brought cities to the forefront of global governance in a multilateral system designed and created for states. Cities have come to exercise power due in part to the inadequacy or ineffectiveness of inter-state action, but also because their democratic nature and immediate connection to the population make them legitimate actors. Cities are also home to many problems of a global nature, such as greenhouse gas emissions, pandemics, and sustainability. This makes them uniquely situated to address these challenges. City diplomacy has become a prevalent feature in many global policy issues, ranging from climate change to development cooperation. The primary tool through which cities act is networking, with hundreds of global city networks pursuing the interests and values of their constituencies. By demanding a seat at the table where global affairs are decided upon, cities challenge and complement the state-based international order, in addition to which they stretch the basic concepts and constructs of both international relations and international law.
Topic:
Globalization, International Law, Governance, Democracy, and Cities
Political Geography:
Global Focus

57. The EU’s Magnitsky Act Obsolete in the Face of Russia’s Crimes in Ukraine?

Author:
Steven Blockmans
Publication Date:
05-2023
Content Type:
Policy Brief
Institution:
International Centre for Defence and Security - ICDS
Abstract:
Despite the mounting evidence of the most serious of human rights violations being conducted by Russian forces on Ukrainian soil, the EU has chosen not to use its new Magnitsky Act to blacklist the perpetrators and their commanders. Instead, the EU has preferred to respond to Russia’s ‘dumb’ bombs with increasingly ‘dumb’ sanctions. This Brief explains why, after decades of work to smarten up its restrictive measures, the politicisation of human rights sanctions and the high threshold of evidentiary standards make it very hard for the Council to rely on evidence gathered from transition countries where the justice sector is still vulnerable to widespread corruption and political cronyism.
Topic:
Human Rights, International Law, European Union, and Russia-Ukraine War
Political Geography:
Russia, Europe, and Ukraine

58. Recovering the History of Interwar International Environmental Law: An Interview with Omer Aloni

Author:
Daniel R. Quiroga-Villamarín and Omer Aloni
Publication Date:
04-2023
Content Type:
Commentary and Analysis
Institution:
The Toynbee Prize Foundation
Abstract:
For a long time, international legal scholars and practitioners tended to see the League of Nations solely as a historical failure. In leading textbooks and inside the classroom, it was not uncommon to read and hear depictions of the interwar international institutions as a mere prelude to the post-1945 international order. The League, in comparison to the United Nations, was dismissed as a moment of not yet. In the last decade or so, however, more nuanced waves of scholarship across disciplines have unearthed the inner lives of international ordering, exploring the immense efforts and disappointments that surrounded the work of the League and other interwar institutions. In his recent monograph, Omer Aloni joins this renaissance of historical scholarship, adding a distinctively socio-legal perspective grounded in rich archival research to a conversation in which lawyers have been relative latecomers. In this sense, The League of Nations and the Protection of the Environment (Cambridge University Press, 2021) provides an exploration the ways in which the relations between “nature, environment, and humankind” were legally regulated at the international plane in the interwar period—and beyond. Aloni’s monograph offers a textured account not only of the origins of modern international environmental law, but also of the deep roots of our contemporary ecological crises. In it, we find that many of the issues that contemporary commentators decry as novel have, in fact, long histories. For instance, Aloni details that the quest for environmental protection and conservation has long been tangled with difficult questions related to scientific expertise, civil society participation, colonial and imperial hegemony, industrial lobbies and economic interests, and the relationship between public and private interests. By exploring several cases studies (which, as Aloni notes, “cover almost every part of the Earth—from the depth of the oceans to wooden landscapes”), the monograph provides us with a thick account of the interaction between the League, legal vocabularies, and environmental agendas. In our conversation, we explore what Dr. Aloni’s book can reveal about the challenges that international organizations face in their quest to enact environmental regulation as the planetary situation becomes increasingly dire.
Topic:
Environment, International Law, History, Interview, and League of Nations
Political Geography:
Global Focus

59. The EU and Gaza 2023: Terrorism is fought with Counter-terrorism, not Wars against Civilians

Author:
Zafiris Tzannatos
Publication Date:
11-2023
Content Type:
Policy Brief
Institution:
Hellenic Foundation for European and Foreign Policy (ELIAMEP)
Abstract:
Despite several attempts for decades to reach at a political solution between Israel and Palestine, Netanyahu and his supporters offer nothing but permanent oppression while Hamas has resorted to terror. Each party refers to their rights: The right to defend versus the right to self-determination. This attitude has resulted in an escalation of tensions over time that led to a massive loss of life since October 7, 2023, when Hamas killed 1,200 Israelis and Israeli forces have so far killed 11,000 mostly civilians in Gaza. If there is a solution, it can be none other than a political one agreed between the two parties and be supported by an evenhanded approach by the international community within the confines of international law.
Topic:
International Law, European Union, Counter-terrorism, Civilians, Hamas, and October 7
Political Geography:
Europe, Middle East, Israel, Palestine, and Gaza

60. How to hold the Islamic Republic of Iran accountable in European courts

Author:
Gissou Nia, Celeste Kmiotek, Lisandra Novo, and Alyssa T. Yamamoto
Publication Date:
12-2023
Content Type:
Special Report
Institution:
Atlantic Council
Abstract:
The past year has witnessed increased and sustained calls to secure accountability for the Islamic Republic of Iran (IRI)’s atrocity crimes and gross human rights violations, particularly in response to the protests triggered by Mahsa Jina Amini’s death at the hands of the IRI’s morality police in September 2022. Accountability efforts have primarily focused on securing justice for victims and survivors of extrajudicial killings, mass arbitrary detention, torture, and other grave abuses committed by the IRI in response to peaceful protests. However, these efforts have also sought to hold IRI authorities to account for unpunished crimes during prior decades, including the IRI’s brutal crackdowns on protestors in November 2019 and the 1988 summary executions of thousands of Iranian political prisoners. Because the judicial system in Iran is neither independent nor impartial—and is, in fact, responsible for unjust imprisonments and complicit in serious abuses in Iranian prisons—there are no viable domestic routes for accountability. However, there are paths available through national judicial systems in other states. This report from the Atlantic Council’s Strategic Litigation Project explores accountability options that European states in particular can pursue, with the help of civil society. Throughout Europe, states have adopted universal jurisdiction provisions, which allow them to prosecute acts that constitute core international crimes—genocide, war crimes, and crimes against humanity—even if the crime was committed in a different state by and against foreign nationals. Sweden used these provisions to convict former IRI official Hamid Noury for murder and war crimes committed during the 1988 prison massacres, but so far no other IRI official has been tried under universal jurisdiction provisions for crimes committed in Iran, despite newfound opportunities to pursue these cases. For decades, IRI officials have traveled throughout Europe, often owning assets and even reportedly receiving healthcare in different countries. At the same time, many victims and survivors of the IRI’s brutality have sought refuge in Europe—making the presence of IRI officials with no accountability all the more egregious, yet providing an opportunity for these victims and survivors to support investigations with eyewitness accounts and further information. The countries included in this report—Belgium, England and Wales, France, Germany, the Netherlands, Sweden, and Switzerland—are just seven jurisdictions out of 148 United Nations member states worldwide that have laws allowing for the investigation and prosecution of some or all core international crimes, even when those crimes are committed beyond their own borders. These seven jurisdictions were selected as a focus of this report due to several factors including: the strength of their universal jurisdiction frameworks and frequency of use; their robust caselaw and policies for prosecuting atrocity crimes committed extraterritorially; the size of Iranian expatriate communities in these countries, especially those fleeing persecution and violence; and the possibility of travel by IRI officials to these jurisdictions. This report details what each country’s universal jurisdiction provisions entail, how proceedings are initiated, and what victims’ rights are protected. It also gives an overview of each state’s relevant jurisprudence to date, analyzing the legal, practical, and political viability of future cases involving IRI violations, including in light of the country’s diplomatic relationship with Iran. Finally, it provides regional and country-specific recommendations to facilitate more cases against IRI perpetrators and to strengthen universal jurisdiction frameworks more broadly.
Topic:
Human Rights, International Law, Accountability, and Norms
Political Geography:
Europe, Iran, and Middle East