Goettingen Journal of International Law最新文献

{"title":"Exercising or Evading International Public Authority? The Many Faces of Environmental Post-Treaty Rules","authors":"T. Staal","doi":"10.3249/1868-1581-7-1-STAAL","DOIUrl":"https://doi.org/10.3249/1868-1581-7-1-STAAL","url":null,"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.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129274042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Soft Authority Against Hard Cases of Racially Discriminating Speech: Why the CERD Committee Needs a Margin of Appreciation Doctrine","authors":"Matthias Goldmann, Mona Sonnen","doi":"10.2139/SSRN.2713848","DOIUrl":"https://doi.org/10.2139/SSRN.2713848","url":null,"abstract":"Faced with an increasing backlash against immigrants in many developed states, this article revisits the practice of the Committee for the Elimination of All Forms of Racial Discrimination (CERD Committee) with respect to racially discriminating speech. Cases like the decision concerning Thilo Sarrazin reveal an impoverished style of reasoning that shows little sensitivity for the actual context of the decision. The CERD Committee seems insufficiently aware of the authority it exercises through its Communications, whose real, albeit not legal, effects resemble those of judgments of international courts. The CERD Committee should therefore consider applying standards of reasoning similar to those of international courts in order to increase the legitimacy and effectiveness of its Communications. They would particularly benefit from a margin of appreciation doctrine that leaves domestic authorities greater leeway in developing context-sensitive strategies to counter the threat of anti-migrant popular sentiment, including, but not limited to, criminal proceedings.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116043253","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"National Investigations of Human Rights Between National and International Law","authors":"Roee Ariav","doi":"10.3249/GOJIL.V4I3.295","DOIUrl":"https://doi.org/10.3249/GOJIL.V4I3.295","url":null,"abstract":"This essay will examine the interplay between international and national law with regards to investigations of human rights violations. The duty to investigate violations of international law touches upon issues that up until recently were considered beyond the reach of international law. Since its recognition by the European Court of Human Rights in 1995, the procedural aspect of the right to life, i.e. the duty to investigate, has developed rapidly. In turn, also due to the unique legal relationship between the ECtHR and national courts, these developments have affected, and are still affecting, national law. This ongoing process of dialogue between national courts and international tribunals has greatly contributed to the development of the duty to investigate certain violation of international law, and the manner in which these investigations should be conducted.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"222 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134472180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Non-Recognition of State Immunity as a Judicial Countermeasure to Jus Cogens Violations: The Human Rights Answer to the ICJ Decision on the Ferrini Case","authors":"P. Moser","doi":"10.3249/GOJIL.V4I3.262","DOIUrl":"https://doi.org/10.3249/GOJIL.V4I3.262","url":null,"abstract":"This paper examines whether the non-recognition of State Immunity, as a response to jus cogens violations committed by the wrong-doing State against its own citizens, can be a valid countermeasure. First, the paper clarifies the hypothesis being examined. Second, the paper considers what the conditions the according countermeasures have to comply with, are. Finally, the paper examines whether the non-recognition of State Immunity can be a lawful solidarity countermeasure. The paper concludes that non-recognition of State Immunity can also be lawful and valid. Nonetheless, it must comply with certain important conditions. Additionally, an opportunity for the victims to have a remedy as well as to maintain the most important values of the international community arises when the non-recognition of State Immunity is properly accomplished.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124325423","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legalization of International Politics: On the (Im)Possibility of a Constitutionalization of International Law from a Kantian Point of View","authors":"Phillip-Alexander Hirsch","doi":"10.3249/GOJIL.V4I2.276","DOIUrl":"https://doi.org/10.3249/GOJIL.V4I2.276","url":null,"abstract":"0 false 21 18 pt 18 pt 0 0 false false false /* Style Definitions */ \u0000table.MsoNormalTable \u0000 {mso-style-name:\"Normale Tabelle\"; \u0000 mso-tstyle-rowband-size:0; \u0000 mso-tstyle-colband-size:0; \u0000 mso-style-noshow:yes; \u0000 mso-style-parent:\"\"; \u0000 mso-padding-alt:0cm 5.4pt 0cm 5.4pt; \u0000 mso-para-margin-top:13.9pt; \u0000 mso-para-margin-right:0cm; \u0000 mso-para-margin-bottom:13.9pt; \u0000 mso-para-margin-left:0cm; \u0000 text-align:justify; \u0000 line-height:150%; \u0000 mso-pagination:widow-orphan; \u0000 font-size:12.0pt; \u0000 font-family:\"Times New Roman\"; \u0000 mso-ascii-font-family:Calibri; \u0000 mso-ascii-theme-font:minor-latin; \u0000 mso-fareast-font-family:\"Times New Roman\"; \u0000 mso-fareast-theme-font:minor-fareast; \u0000 mso-hansi-font-family:Calibri; \u0000 mso-hansi-theme-font:minor-latin;} \u0000 In the debate on the constitutionalization of international law, Kant's work Toward Perpetual Peace is the most important point of reference when talking about the intellectual origin and philosophical background of the idea of constitutionalizing international law. But while it is undeniable that Kant called for a juridification of international relations, it is far less clear which form of juridification Kant aims at. In this essay, I want to show that Kant's ultimate ideal of international law is neither a State of States nor the peace federation (which seems to be commonly accepted), but the cosmopolitan republic , that is, a single homogenous world State. Only such a cosmopolitan republic, backed up by enforceable laws, can be called a constitution in the Kantian sense. Kant's proposal of a peace federation is nothing but a first step towards this ultimate end. Though it is not a constitution, this peace federation still constitutes a rightful condition insofar as it firstly provides the legal framework for international politics to take place in and at the same time secondly assumes the moral and professional ability of lawyers and politicians in charge to conduct their decisions according to the ultimate ideal of a constitutional world order. International law in the Kantian sense is - as I will demonstrate - thus nothing but a constitutional conduct of government . Therefore, scholars who call for a constitutionalization of international law in the form of a multi-level legal system or conceive of present regimes, such as the UN, as a constitution are not following Kant in this respect. Under the presumption of sovereign nation States, the only thing we can hope for according to Kant is a legalization of international politics .","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130439163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Politics of Deformalization in International Law","authors":"Jean d’Aspremont","doi":"10.3249/1868-1581-3-2-ASPREMONT","DOIUrl":"https://doi.org/10.3249/1868-1581-3-2-ASPREMONT","url":null,"abstract":"Confronted with the pluralization of the exercise of public authority at the international level and the retreat of international law as a regulatory instrument, international legal scholars have engaged in two survival strategies. On the one hand, there are international legal scholars who have tried to constitutionalize traditional international law with a view to enhancing its appeal and promoting its use by global actors. On the other hand, there are scholars who, considering any charm offensive to induce global actors to cast their norms under the aegis of classical international a lost battle, have embarked on a deformalization of international law that has led them to loosen the meshed fabric through which they make sense of reality. This deformalization of international law has sometimes materialized in a radical abandonment of theories of sources. The constitutionalist strategy has already been extensively discussed in the literature. The second approach has thrived almost unnoticed. It is this second scholarly strategy to the pluralization of the exercise of public authority that this article seeks to critically evaluate. After describing the most prominent manifestations of deformalization in the theory of international law and examining its agenda, the paper considers some of the hazards of deformalization. This paper simultaneously demonstrates that formalism has not entirely vanished, as it has continued to enjoy some support, albeit in different forms. These variations between deformalization and the persistence of formalism, this paper concludes, are the result of political choices which international legal scholars are not always fully aware of.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124887877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating Information Flows, Regulating Conflict: An Analysis of United States Conflict Minerals Legislation","authors":"Christiana Ochoa, P. Keenan","doi":"10.3249/1868-1581-3-1-OCHOA-KEENAN","DOIUrl":"https://doi.org/10.3249/1868-1581-3-1-OCHOA-KEENAN","url":null,"abstract":"The connection between conflict and commercial activity is the focus of this paper. In particular, it focuses on the ongoing conflict in the Eastern Democratic Republic of Congo (DRC) that is funded, in large part, by the sale of conflict commodities – minerals, metals and petroleum that fund violent groups at their source and then enters legitimate markets and products around the world. Recently, attention has turned to how to regulate conflict commerce as a tool for divesting from violent conflict. In the United States, for example, the recently-adopted Dodd-Frank Wall Street Reform and Consumer Protection Act include a provision addressing conflict minerals originating from this region. The violent and secretive nature of conflict minerals transactions makes crafting effective regulation and policing strategies challenging. As a result the Dodd-Frank Act, like other domestic and international efforts, is designed in large part to discover, gather and disseminate information about the nature and scale of conflict commodities emanating from the DRC. This paper analyzes this legislation while also discussing a number of other current conflict commerce governance efforts. It observes the difficulty of regulating in the context of conflict and corruption and analyses the use of regulation as a tool for information-extraction, information-forcing and information-dissemination, as opposed to its use as a tool for directly proscribing undesirable behavior.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123466538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Riches to Rags - the Paradox of Plenty and its Linkage to Violent Conflict","authors":"Pelin Ekmen","doi":"10.3249/GOJIL.V3I1.182","DOIUrl":"https://doi.org/10.3249/GOJIL.V3I1.182","url":null,"abstract":"The article addresses the economic phenomenon of the so called Dutch Disease, also known as the Paradox of Plenty, as faced by countries rich in natural resources. Rendering a rough definition of this occurrence, the article continues to dwell on the linkage between violent conflict and illicit resource trade in the Democratic Republic of Congo (DRC). Using the example of coltan, which is a rare metallic ore essential to the power-storing parts of consumer electronic products, the article explores why the DRC has so far failed to benefit from its large deposits in this highly demanded resource. While in the case of illicit diamond trade the establishment of a certificate of origin scheme has already increased awareness for the matter, a similar certification scheme for coltan is not in place yet. The article thus reviews past experiences made with the Kimberly Certification Scheme against blood diamonds, to find whether its regulatory structures could be applied to coltan trade as well. Identifying the role of law and the Security Council within this debate, the author finally argues in favor of a model akin to the scheme for coltan, which obligates participant states to pass implementing legislation while operating on the basis of voluntariness. However the article also concludes that a certification scheme alone will not be sufficient to combat the resource curse and thus offers a brief insight into possible assisting mechanisms.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130699531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Secession in Theory and Practice: The Case of Kosovo and Beyond","authors":"Ioana Cismas","doi":"10.3249/1868-1581-2-2-CISMAS","DOIUrl":"https://doi.org/10.3249/1868-1581-2-2-CISMAS","url":null,"abstract":"Since 17 February 2008 - the day of Kosovo’s declaration of independence from Serbia - it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. This article carves out the place of secession in international law by appeal to fundamental principles and legal doctrine. It also explores major socio-political aspects in Kosovo’s history, from the battle of Kosovo Polje in 1389 to Security Council resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). By following these two analytical paths Kosovo is exposed as a case of remedial secession and thus as a potential legal precedent. While the elements of remedial secession are gathered, it is argued that states deprived this instance of practice of its precedential value and made it a legally insignificant act. In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124521535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Post-9/11 Discourse Revisited: The Self-Image of the International Legal Scientific Discipline","authors":"Ulf Linderfalk","doi":"10.3249/GOJIL.V2I3.142","DOIUrl":"https://doi.org/10.3249/GOJIL.V2I3.142","url":null,"abstract":"A few years ago, the legality of Operation Enduring Freedom (OEF) was a topic much discussed in the international legal literature. This article approaches the problem from a new angle. Rather than investigating the relevant issue of legal substance – whether or not OEF was ever consistent with international law – the article focuses attention on the general scholarly performance in dealing with this issue. Scrutinizing the literature published immediately following upon the events of September 11, 2001, the author suggests that overall, the scholarly debate on the legality of OEF did not live up to the standards normally applied in serious legal analysis, and that hence, the debate should be characterized as poor science. The article presents this criticism in further detail. With said criticism as a basis, in a concluding part of this article, the author takes the investigation one step further. As he suggests, when scholars engaged in the post-9 11 discourse, there was something about the whole situation that greatly constrained them. They were obviously hesitant to conclude that in circumstances like those of 9 11, there would still not be any right of self-defense to exercise. So much did they hesitate that they thought the opposite conclusion worth the prize of far-reaching infringements of the most basic of scientific quality standards. Why this hesitation, the article asks. What force or forces are compelling international legal scientists? As the author suggests, this question bears directly on the particular self-image of the legal scientific discipline and the role it envisages for itself in the international community. He concludes the article by initiating a discussion on this very delicate issue specifically, introducing for this purpose a description of the international legal scientist as archetype.","PeriodicalId":360658,"journal":{"name":"Goettingen Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131024493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}