@techreport{KriegerLiese2019, type = {Working Paper}, author = {Krieger, Heike and Liese, Andrea Margit}, title = {A Metamorphosis of International Law?}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {27}, doi = {10.25932/publishup-42608}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-426088}, pages = {26}, year = {2019}, abstract = {The paper aims to lay out a framework for evaluating value shifts in the international legal order for the purposes of a forthcoming book. In view of current contestations it asks whether we are observing yet another period of norm change (Wandel) or even a more fundamental transformation of international law - a metamorphosis (Verwandlung). For this purpose it suggests to look into the mechanisms of how norms change from the perspective of legal and political science and also to approximate a reference point where change turns into metamorphosis. It submits that such a point may be reached where specific legally protected values are indeed changing (change of legal values) or where the very idea of protecting certain values through law is renounced (delegalizing of values). The paper discusses the benefits of such an interdisciplinary exchange and tries to identify differences and commonalities among both disciplinary perspectives.}, language = {en} } @techreport{Wiener2020, type = {Working Paper}, author = {Wiener, Antje}, title = {Norm(ative) Change in International Relations}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {44}, doi = {10.25932/publishup-47607}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-476076}, pages = {27}, year = {2020}, abstract = {Current contestations of the liberal international order stand in notable contrast with the earlier rise of international law during the post-cold war period. As Krieger and Liese argue, this situation calls for assessment of the type of change that is currently observed, i.e. norm change (Wandel) or a more fundamental transformation of international law - a metamorphosis (Verwandlung)? To address this question, this paper details the bi-focal approach to norms in order to reflect and take account of the complex interrelation between fact-based and value-based conceptions of norms. The paper is organised in three sections. The first section presents three axioms underlying the conceptual framework to study norm(ative) change which are visualised by a triangular operation to analyse this change in relation with practices and norms. The second section recalls three key interests that have guided IR norms research after the return to norms in the late 1980s. They include, first, allocating change in and through practice, second, identifying behavioural change with reference to norm- following, and third, identifying norm(ative) change with reference to discursive practice. The third section presents the two analytical tools of the conceptual frame, namely, the norm-typology and the cycle-grid model. It also indicates how to apply these tools with reference to illustrative case scenarios. The conclusion recalls the key elements of the conceptual framework for research on norm(ative) change in international relations in light of the challenge of establishing sustainable normativity in the global order.}, language = {en} } @techreport{Baeumler2020, type = {Working Paper}, author = {B{\"a}umler, Jelena}, title = {The WTO's Crisis}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {42}, doi = {10.25932/publishup-47601}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-476017}, pages = {34}, year = {2020}, abstract = {The perception of the WTO is currently one of an organisation in crisis. Yet, appraisal varies regarding its extent and seriousness: Is it merely a rough time or are we standing on the edge of destruction? The article will trace developments inside as well as outside the WTO in order to assess the magnitude of the crisis. It will be argued that while certain developments inside the organisation, when seen in accumulation would already warrant serious attention, only together with developments taking place outside of the WTO, the two strands of developments unfold their full potential for the crisis. The overall situation renders the WTO in a difficult position, as it is currently unable to adapt to these challenges, while keeping calm and carrying on might similarly further the crisis. While States might improve and further develop their trade relations in bi- and plurilateral agreements, it is only the WTO that reflects and stands for the multilateral post (cold) war order.}, language = {en} } @techreport{Gulati2020, type = {Working Paper}, author = {Gulati, Rishi}, title = {Judicial Independence at International Courts and Tribunals}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {41}, doi = {10.25932/publishup-47599}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-475997}, pages = {32}, year = {2020}, abstract = {The guarantee of judicial independence is undoubtedly one of the most important institutional design features of international courts and tribunals. An independence deficit can adversely impact a court's authority, create a crisis of legitimacy, and undermine the very effectiveness of an international court or tribunal. It can hardly be denied that for an international court to be considered legitimate, a basic degree of independence is a must. An independent judiciary is a precondition to the fair and just resolution of legal disputes. In the context of interstate dispute settlement where the jurisdiction of courts is based on the principle of consent, in the absence of a basic degree of judicial independence, states may not be willing to submit to the jurisdiction of international courts. Comparing and contrasting the International Court of Justice and the Appellate Body of the World Trade Organisation, I assess whether those international judicial mechanisms possess the basic degree of independence required for a court to be able to maintain its credibility so that it can continue to perform its core function of adjudicating interstate disputes. With both those interstate adjudicative bodies constituting the two leading international courts in terms of participation and the sheer number of cases decided, much may be learned from comparing them. I argue there is a case for bolstering the independence of the ICJ; and without immediate reforms to the Appellate Body's institutional design, its recent demise may become permanent. I conclude that if a basic degree of judicial independence cannot be guaranteed, it is preferable to let a court vanish for a while than to maintain a significantly deficient one.}, language = {en} } @techreport{Jorgensen2020, type = {Working Paper}, author = {Jorgensen, Malcolm}, title = {The United States and the International Law of Global Security}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {43}, doi = {10.25932/publishup-47603}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-476030}, pages = {22}, year = {2020}, abstract = {For the United States the 'international law of global security' is, in a unique sense, synonymous with the entire project of constructing global legal order. Uniquely preponderant power enjoyed since the end of the Second World War has allowed US preferences to manifest not merely in specific rules and regimes, but in purposive development of the entire structure of global legal order to favour American security interests. Perceptions of a recent decline in this order now find expression in advocacy for a 'liberal' or 'rules-based' international order, as the claimed foundation for global prosperity and security. This working paper seeks to map out the parameters of US contributions to the global security order by uncovering the strategic and political foundations of its engagement with the international law of global security. The paper begins by reflecting on competing US conceptions of the relationship between national security and global order as they evolved across the twentieth century. The focus then turns to three significant trends defining the contemporary field. First are US attitudes toward multilateral institutions and global security, and the ongoing contest between beliefs that they are mutually reinforcing versus beliefs that US security and global institutions sit in zero-sum opposition. Second is the impact of the generational 'War on Terror', which has yielded more permissive interpretation and development of laws governing the global use of violence. The final trend is that towards competitive geopolitical interests restructuring international law, which are evident across diverse areas ranging from global economics, to cybersecurity, to the fragmentation of global order into spheres of influence. Looking ahead, a confluence of rising geopolitical competitors with divergent legal conceptions, and conflicted domestic support for the legitimacy and desirability of US global leadership, emerge as leading forces already reshaping the global security order.}, language = {en} } @techreport{BarkholdtReiners2019, type = {Working Paper}, author = {Barkholdt, Janina and Reiners, Nina}, title = {Pronouncements of Expert Treaty Bodies}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {40}, doi = {10.25932/publishup-47588}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-475886}, pages = {26}, year = {2019}, abstract = {While some pronouncements of expert treaty bodies have been considered 'key catalysts' for the development of international human rights law, others are only selectively referred to in legal practice. This article argues that the varying normative impact is due to the informal character of pronouncements. In the absence of treaty provisions specifying their legal effect, practitioners tend to rely on different factors and arguments when either drawing on or rejecting certain pronouncements. Scholars in turn face difficulties when trying to identify explanatory patterns within this diverging practice as the informal character confronts both international lawyers and international relations scholars with their respective methodological 'blind spots'. In light of these intradisciplinary challenges, this article explores the extent as to which an interdisciplinary approach helps to assess the reasons for the varying impact of pronouncements. After analysing the factors determining their legal significance on the basis of State practice and the academic debate, this article identifies the drafting process as a factor which promises to be particularly insightful when explored from an interdisciplinary perspective and sketches out a framework for future research.}, language = {en} } @techreport{KriegerZimmermann2018, type = {Working Paper}, author = {Krieger, Heike and Zimmermann, Andreas}, title = {Sentenza 238/2014 of the Italian Constitutional Court and the International Rule of Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {15}, issn = {2509-3770}, doi = {10.25932/publishup-42214}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422140}, pages = {30}, year = {2018}, abstract = {The German-Italian dispute over the scope of sovereign immunities and claims of reparations for war crimes committed by German armed forces during World War II in Italy is in many ways specific and historically contingent. At the same time, it touches upon a number of fundamental challenges which the international community has to address in the interest of furthering the international rule of law. In this working paper both authors address the question whether the current law of sovereign immunities should be changed or interpreted in a manner as to allow for exceptions from State immunities in cases of grave violations of human rights. While the first part of the paper focusses on the perspective of general international law the second part addresses the question through the lense of European law. Both authors agree that unilateral efforts to push for what many consider a progressive development of international law actually may entail adverse effects for the international rule of law and thus may even contribute to a broader crisis of the international legal order.}, language = {en} } @techreport{McLachlan2020, type = {Working Paper}, author = {McLachlan, Campbell A}, title = {Populism, the Pandemic \& Prospects for International Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {45}, doi = {10.25932/publishup-48347}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-483479}, pages = {31}, year = {2020}, abstract = {Populism has fatally weakened the world's ability to respond to COVID-19, by undermining the capacity of the structures and mechanisms of international law to address the pandemic. The pandemic has exposed as a fallacy a key tenet of populism - to protect the 'people' of a nation from external forces, including international law. In fact international law, through the principle of self-determination, enshrines the ability of peoples to determine their own political organization. But this does not preclude agreement at the international level on matters of common interest to humanity as a whole that require community action. The prevention of infectious disease is just such a case, which states have long agreed could not remain solely the preserve of national polities, but requires a common international response. This paper, placing the current crisis in light of the development of international health law, critically examines the response of key populist governments to COVID-19 in order to address the larger issue of the implications of populism for the fate of international law.}, language = {en} } @techreport{Jorgensen2018, type = {Working Paper}, author = {Jorgensen, Malcolm}, title = {Equilibrium \& Fragmentation in the International Rule of Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, issn = {2509-3770}, doi = {10.25932/publishup-42282}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422829}, pages = {39}, year = {2018}, abstract = {Seeming consensus has formed among legal scholars and practitioners that a rising China seeks changes in rules and institutions of international law. Yet, attendant accounts of how such changes may and already do restructure global legal order remain relatively underdeveloped. An observed rise in the international rule of law during immediate post-Cold War years has now been disrupted by a confluence of regional shifts in geopolitical power and contestation of law's normative foundations by newly empowered states. In these circumstances, advocates for stability and continuity in variations of the "liberal international order" or "rules-based order" have sought to defend the authority and resilience of universally defined international legal norms against various regional challenges to the boundary between law and politics. Yet, as both global power and universal conceptions of law fragment, so too will the presumed equilibrium between international law's political and normative foundations. Signs of fragmentation are now conspicuously playing out in East and Southeast Asia, where the relative rise of China is amplified by alternative Chinese conceptions of foundations and purposes of global legal order. This working paper introduces the concept of "geolegal power" to describe the competitive logic of a territorially bounded leading state restructuring interpretation and development of legal rules and institutions, which is emerging more explicitly within regional subsystems. Fragmentation of the international rule of law by a rising Chinese "geolegal order" is demonstrated by contested maritime rules in three key areas: freedom of navigation; third-party and judicial settlement; and, territorial claims under UNCLOS. Evidence that China is carving out an effective subsystem of rules designated as "law" in the most consequential of security and geopolitical domains poses a critical challenge to the structure of a unified and universal system of international law. Legal scholars and practitioners must better grasp reconfiguring foundations of international law in order to address rising orders of "geolegal power", in which the regional meaning and operation of law is no longer reconcilable within the terms of an "international" rule of law.}, language = {en} } @techreport{Berman2018, type = {Working Paper}, author = {Berman, Franklin}, title = {Authority in International Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {22}, issn = {2509-3770}, doi = {10.25932/publishup-42284}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422843}, pages = {21}, year = {2018}, abstract = {The author discusses the question of authority when determining the content of an international legal rule. Taking Article 38(1)(d) of the ICJ Statute as a point of departure, he determines through meticolous analysis what ranks as judicial decisions as well as teachings within the meaning of the norm. The author then proceeds to a number of factors to determine authoritativeness: objectivity, knowledgeability, depth of analysis, and the presence or otherwise of reasoning and, in particular, the persuasiveness of an opinion. In the case of judicial pronouncements, the author points out that the paradox between Article 59 and Article 38(1)(d) of the ICJ Statute is only an apparent one. While judgments of the Court are binding only between the parties, it is merely the underlying reasoning that can be taken into account in the context of Article 38(1)(d) if considered persuasive. Without central authority, authoritativenes in international law must always be earned which is also the reason for the lack of an hierarchical order between as well as within judicial pronouncements and learned writings though the former are usually more likely to fulfil the criteria of authoritativeness. In both cases, however, previously acquired reputation of a court or even an individual judge as well as of a learned writer can create a presumption of authoritativeness. On a more general level, the author concludes with a call for a more careful differentiation between the determination of law and its application. Putting the issue discussed into perspective, the author argues that situations of law determination arise, contrary to common understanding, in fact far less often than situations of law application.}, language = {en} } @techreport{Kahombo2018, type = {Working Paper}, author = {Kahombo, Balingene}, title = {The Peace and Security Council of the African Union}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {23}, issn = {2509-3770}, doi = {10.25932/publishup-42286}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422864}, pages = {28}, year = {2018}, abstract = {This paper assesses, both quantitatively and qualitatively, the work of the Peace and Security Council (PSC) of the African Union (AU) with respect to peace support operations. It seeks to know whether the establishment of the PSC in 2002 is leading or has led to a rise or a decline of collective security in Africa. It is demonstrated that in regard to its relative legal and institutional robustness, the PSC can be perceived as a rise of collective security compared with its predecessor, the Central Organ of the Organisation of African Unity (OAU). However, it stagnates in terms of quantity and quality of actions on the ground. The main problem lies in the lack of sufficient operational autonomy from member states and international partners, such as the United Nations. Therefore, the PSC's contribution to the maintenance of peace and security, and so the rise of the international rule of law in Africa is limited. The continent is still a war-torn region, affected by political crises and the expansion of terrorism in many countries. To solve this problem, AU member states should strengthen the PSC's capacity, starting with the quick operationalisation of the African Standby Force. The implementation of the 2016 decision on alternative sources of financing AU's institutions and activities is also a priority. In this regard, the political will of African states that may show that they want to take their organisation more seriously is required. This can further the AU self-reliance policy in collective security though the promotion of African solutions to African problems, and reduce the burden of the United Nations and other non-African actors' interventions in the continent.}, language = {en} } @techreport{Kleinlein2018, type = {Working Paper}, author = {Kleinlein, Thomas}, title = {Matters of Interpretation}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {24}, issn = {2509-3770}, doi = {10.25932/publishup-42287}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422871}, pages = {22}, year = {2018}, abstract = {This article analyses, from a methodological and theoretical perspective, how international legal method deals with change. Section 2 sets the stage, develops a legal perspective on change of norms and values in the international legal order and distinguishes between structural change and norm change. This is followed in sections 3 and 4 by an examination of doctrinal categories that provide techniques to process change in international legal practice. International legal method is equipped with several techniques to process—and to conceptualize and evaluate—change: 'Formal' norm change is a matter of the doctrine of sources. International law can also change 'informally' through the shifting meaning of norm texts. Both formal and informal change is a matter of interpretation. Therefore, section 5 aims at theorizing interpretive change. It examines the relationship between the sources of law and legal interpretation as categories of change and analyses theoretical perceptions of interpretive change.}, language = {en} } @techreport{McLachlan2019, type = {Working Paper}, author = {McLachlan, Campbell}, title = {The Double-facing Foreign Relations Function of the Executive and Its Self-enforcing Obligation to Comply with International Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {30}, doi = {10.25932/publishup-42908}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-429088}, pages = {35}, year = {2019}, abstract = {How does the international Rule of Law apply to constrain the conduct of the Executive within a constitutional State that adopts a dualist approach to the reception of international law? This paper argues that, so far from being inconsistent with the concept of the Rule of Law, the Executive within a dualist constitution has a self-enforcing obligation to abide by the obligations of the State under international law. This is not dependent on Parliament's incorporation of treaty obligations into domestic law. It is the correlative consequence of the allocation to the Executive of the power to conduct foreign relations. The paper develops this argument in response to recent debate in the United Kingdom on whether Ministers have an obligation to comply with international law-a reference that the Government removed from the Ministerial Code. It shows that such an obligation is consistent with both four centuries of the practice of the British State and with principle.}, language = {en} } @techreport{Zivkovic2018, type = {Working Paper}, author = {Zivkovic, Velimir}, title = {International Rule of Law Through International Investment Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {16}, issn = {2509-3770}, doi = {10.25932/publishup-42218}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422181}, pages = {33}, year = {2018}, abstract = {In challenging times for international law, there might be a heightened need for both analysis and prescription. The international rule of law as a connecting thread that goes through the global legal order is a particularly salient topic. By providing a working understanding of the content and contexts of the international rule of law, and by taking the regime of international investment law as a case study, this paper argues that assessing 'rise' or 'decline' motions in this sphere warrants a nuanced approach that should recognise parallel positive and negative developments. Whilst prominent procedural and substantive aspects of international investment law strongly align with the international rule of law requirements, numerous challenges threaten the future existence of the regime and appeal of international rule of law more broadly. At the same time, opportunities exist to adapt the substantive decision-making processes in investor-State disputes so to pursue parallel goals of enhancing rule of law at both international and national levels. Through recognising the specificities of interaction between international and national sphere, arbitrators can further reinvigorate the legitimacy of international rule of law through international investment law - benefitting thus the future of both.}, language = {en} } @techreport{McLachlan2019, type = {Working Paper}, author = {McLachlan, Campbell}, title = {The assault on international adjudication and the limits of withdrawal}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {28}, doi = {10.25932/publishup-42685}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-426855}, pages = {38}, year = {2019}, abstract = {International adjudication is currently under assault, encouraging a number of States to withdraw, or to consider withdrawing, from treaties providing for international dispute settlement. This Working Paper argues that the act of treaty withdrawal is not merely as the unilateral executive exercise of the individual sovereign prerogative of a State. International law places checks upon the exercise of withdrawal, recognising that it is an act that of its nature affects the interests of other States parties, which have a collective interest in constraining withdrawal. National courts have a complementary function in restraining unilateral withdrawal in order to support the domestic constitution. The arguments advanced against international adjudication in the name of popular democracy at the national level can serve as a cloak for the exercise of executive power unrestrained by law. The submission by States of their disputes to peaceful settlement through international adjudication is central, not incidental, to the successful operation of the international legal system.}, language = {en} } @techreport{deWet2019, type = {Working Paper}, author = {de Wet, Erika}, title = {Entrenching international values through positive law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {25}, issn = {2509-3770}, doi = {10.25932/publishup-42385}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-423859}, pages = {19}, year = {2019}, abstract = {Underpinning a legal system with certain values and helping to resolve norm conflicts is in domestic legal systems usually achieved through hierarchical superiority of certain norms of a constitutional nature. The present paper examines the question whether jus cogens can discharge this function within the traditionally horizontal and decentralized international legal order. In so doing, it commences with an overview of the historical origins of peremptory norms in legal scholarship, followed by its endorsement by positive law and courts and tribunals. This analysis illustrates that there are lingering uncertainties pertaining to the process of identification of peremptory norms. Even so, the concept has been invoked in State executive practice (although infrequently) and has been endorsed by various courts. However, such invocation thus far has had a limited impact from a legal perspective. It was mainly confined to a strengthened moral appeal and did in particular not facilitate the resolution of norm conflicts. The contribution further suggests that this limited impact results from the fact that the content of peremptory obligations is either very narrow or very vague. This, in turn, implies a lack of consensus amongst States regarding the content (scope) of jus cogens, including the values underlying these norms. As a result, it is questionable whether the construct of jus cogens is able to provide meaningful legal protection against the erosion of legal norms. It is too rudimentary in character to entrench and stabilize core human rights values as the moral foundation of the international legal order.}, language = {en} } @techreport{Roggeband2019, type = {Working Paper}, author = {Roggeband, Conny}, title = {International women's rights}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {26}, issn = {2509-3770}, doi = {10.25932/publishup-42388}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-423887}, pages = {24}, year = {2019}, abstract = {This paper explores current contestations of women's rights and the implications thereof for international legislation. While contestation over women's rights is a far from new phenomenon, over the past two decades opposition to gender equality has become better organized at the transnational level, mobilizing a dispersed set of state and non-state actors, and is becoming more successful in halting the progress of women's rights. I argue that the position of oppositional actors vis-{\`a}-vis women rights activism appears to be strengthened by two recent political developments: democratic backsliding and the closure of civic space. Some preliminary findings show how these interrelated developments lead to an erosion of women's rights at the national level. Governments use low key tactics to dismantle institutional and implementation arrangements and sideline women's organisations. Next, I explore the implications of these developments for gender equality norms at the national and international level. The active strategy of counter norming adopted by conservative and religious state and non-state actors, designed to circumvent and also undermine Western norms, is increasingly successful. In addition to this, the threatened position of domestic actors monitoring compliance of international treaties, makes the chances of backsliding on international commitments much higher.}, language = {en} } @techreport{Burchardt2018, type = {Working Paper}, author = {Burchardt, Dana}, title = {The Functions of Law and Their Challenges}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {17}, issn = {2509-3770}, doi = {10.25932/publishup-42231}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422318}, pages = {29}, year = {2018}, abstract = {This paper illustrates the functional and conceptual variances of law in different contexts. Whereas legal actors on the international level might normatively aim for law to have a similar effect to that of domestic law, the way in which international and supranational law can fulfil these potential functions is different. Accordingly, this paper argues that an awareness with regard to the particularities and challenges that the potential functions of law encounter in the international and supranational context is needed. Moreover, it suggests an analytical lens to conceptually frame and locate current developments, offering a broader perspective on, or even an element of explication for, the apparent crisis that law is currently facing on the international and supranational scale. After describing the potential functions of law on an abstract scale and grouping them into analytical categories, the paper uses these categories as a lens in order to assess in which way international law can fulfil these potential functions, where priorities regarding certain functions might differ and where some aspects of these functions are challenged when law is made and applied in the international and supranational sphere.}, language = {en} } @techreport{Baade2018, type = {Working Paper}, author = {Baade, Bj{\"o}rnstjern}, title = {Fake News and International Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {18}, issn = {2509-3770}, doi = {10.25932/publishup-42238}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422383}, pages = {23}, year = {2018}, abstract = {In light of current efforts at addressing the dangers of fake news, this article will revisit the international law relevant to the phenomenon, in particular the prohibition of intervention, the 1936 International Convention on the Use of Broadcasting in the Cause of Peace, and the 1953 Convention on the International Right of Correction. It will be argued that important lessons can be learned from the League of Nations' (LON) efforts in the interwar period and the UN's activities in the immediate post-WWII era, while taking into account the new challenges that arise from modern communication technology. Taking up the LON's and UN's distinction between false and distorted news, the international legal framework will be tested, in particular, against the coverage of the 2016 'Lisa case' by Russian Government-funded media. This coverage is widely considered to be fake news aimed at destabilizing Germany's society and institutions. The article argues that false news can be subject to repressive regulation in a sensible manner. Distorted news, however, will have to be tolerated legally, since prohibitions in this regard would be too prone to abuse. A free and pluralist media, complemented by an appropriate governmental information policy, remains the best answer to fake news in all its forms. Due diligence obligations to fact-check, transparency, and remedies that are effective despite difficulties in attribution, and despite a lack of universal acceptance, could likewise be conducive.}, language = {en} } @techreport{Lange2018, type = {Working Paper}, author = {Lange, Felix}, title = {Challenging the Paris Peace Treaties, State Sovereignty, and Western-Dominated International Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {18}, issn = {2509-3770}, doi = {10.25932/publishup-42251}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422510}, pages = {23}, year = {2018}, abstract = {The genesis of the jus cogens doctrine in international law for long has been associated with a turn to a more value-laden international law after the Second World War promoted by British rapporteurs in the International Law Commission. This paper builds on this narrative but adds two seemingly contradictory story lines. In the 1920s and 1930s German-speaking international legal scholars like Alfred Verdross developed the concept as a tool to renounce the disliked Paris Peace Treaties in the context of more and more aggressive German revision policies. Furthermore, after 1945 Soviet thinkers of the Khrushchev era used jus cogens to criticize Western economic and military integration, while newly independent states regarded the concept as a promising vehicle for distancing themselves from traditional Western international legal notions in the era of decolonization. Hence, instead of embracing a progress narrative, a dark sides-account or a contributionist reading of the history of international law, this paper highlights the multifaceted origins of the jus cogens doctrine.}, language = {en} }