@techreport{Krieger2019, type = {Working Paper}, author = {Krieger, Heike}, title = {Populist governments and international law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {29}, doi = {10.25932/publishup-42686}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-426863}, pages = {29}, year = {2019}, abstract = {The worldwide populist wave has contributed to a perception that international law is currently in a state of crisis. This article examines in how far populist governments have challenged prevailing interpretations of international law. The article links structural features of populism with an analysis of populist governmental strategies and argumentative practices. It demonstrates that, in their rhetoric, populist governments promote an understanding of international law as a mere law of coordination. This is, however, not entirely reflected in their legal practices where an instrumental, cherry-picking approach prevails. The article concludes that policies of populist governments affect the current state of international law on two different levels: In the political sphere their practices alter the general environment in which legal rules are interpreted. In the legal sphere populist governments push for changes in the interpretation of established international legal rules. The article substantiates these propositions by focusing on the principle of nonintervention and foreign funding for NGOs.}, language = {en} } @techreport{Krieger2016, type = {Working Paper}, author = {Krieger, Heike}, title = {Rights and Obligations of Third Parties in Armed Conflict}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {5}, issn = {2509-3770}, doi = {10.25932/publishup-42073}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-420732}, pages = {23}, year = {2016}, abstract = {This paper will turn into a contribution to a book on community obligations. It focusses on third parties' rights and obligations in armed conflict. It is often said that international law has developed from a legal order which is designed to protect sovereignty to a system which also promotes community interests. This shift is said to be reflected in structural changes of the legal system. The creation of rights and obligations for third parties is generally seen as a part of this perceived paradigmatic shift. Community interests can be furthered either by negative duties of abstention, by an entitlement for third states, or even by duties to take positive measures. Since the shift towards protecting community interests apparently requires some form of cooperation, positive rights and duties to protect and to promote appear to be indispensable. Authors relying on a community perspective often dismiss duties of abstention as an expression of indifference in the face of a violation of a fundamental norm. Solidarity seems to require that third states take a more proactive role in actively enforcing community interests. The paper aims to test this understanding on the basis of an analysis of rights and obligations of third states in armed conflict. In order to argue that duties of abstention of third states are a central instrument for promoting community interests in relation to armed conflicts, the paper will first trace pertinent structural changes in international law. In particular, it will question the extent to which positive rights and obligations of third states have been firmly established in international law. In a second step, this contribution will evaluate the overall tendencies in the ongoing lawmaking process for promoting community interests in relation to armed conflict.}, language = {en} } @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{KriegerNolte2016, type = {Working Paper}, author = {Krieger, Heike and Nolte, Georg}, title = {The International Rule of Law - Rise or Decline?}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {1}, issn = {2509-3770}, doi = {10.25932/publishup-41952}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-419528}, pages = {25}, year = {2016}, abstract = {The paper undertakes a preliminary assessment of current developments of international law for the purpose of mapping the ground for a larger research project. The research project pursues the goal of determining whether public international law, as it has developed since the end of the Cold War, is continuing its progressive move towards a more human-rights- and multi-actor-oriented order, or whether we are seeing a renewed emphasis of more classical elements of international law. In this context the term "international rule of law" is chosen to designate the more recent and "thicker" understanding of international law. The paper discusses how it can be determined whether this form of international law continues to unfold, and whether we are witnessing challenges to this order which could give rise to more fundamental reassessments.}, language = {en} } @techreport{KriegerPueschmann2019, type = {Working Paper}, author = {Krieger, Heike and P{\"u}schmann, Jonas}, title = {Securing of Resources as a Valid Reason for Using Force?}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {31}, doi = {10.25932/publishup-43573}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-435738}, pages = {24}, year = {2019}, abstract = {A growing demand for natural resources embedded in current changes of the international order will put pressure on states to secure the future availability of these resources. Some political discourses suggest that states might respond by challenging the foundations of international law. Whereas the UN Charter was inter alia aimed at eliminating uses of force for economic reasons, one may observe an on-going trend of securitization of matters of resource supply resulting into the revival of self-preservation doctrines. The chapter will show that those claims lack a normative foundation in the current framework of the prohibition of the use of force. Moreover, international law has sufficient instruments to cope with disputes over access to resources by other means than the use of force. The international community, therefore, must oppose claims that may contribute to normative uncertainties and strengthen already existing instruments of pacific settlement of disputes.}, 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{Kulaga2019, type = {Working Paper}, author = {Kulaga, Julian}, title = {A Renaissance of the Doctrine of Rebus Sic Stantibus?}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {32}, doi = {10.25932/publishup-43578}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-435788}, pages = {21}, year = {2019}, abstract = {Once the "popular plaything of Realpolitiker" the doctrine of rebus sic stantibus post the 1969 VCLT is often described as an objective rule by which, on grounds of equity and justice, a fundamental change of circumstances may be invoked as a ground for termination. Yet recent practice from States such as Ecuador, Russia, Denmark and the United Kingdom suggests that it is returning with a new livery. They point to an understanding based on vital States' interests--a view popular among scholars such as Erich Kaufmann at the beginning of the last century.}, 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} } @techreport{Lange2018, type = {Working Paper}, author = {Lange, Felix}, title = {Between Systematization and Expertise for Foreign Policy}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {8}, issn = {2509-3770}, doi = {10.25932/publishup-42189}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-421895}, pages = {27}, year = {2018}, abstract = {German international legal scholarship has been known for its practice-oriented, doctrinal approach to international law. On the basis of archival material, this article tracks how this methodological take on international law developed in Germany between the 1920s and the 1980s. In 1924, as a reaction to the establishment of judicial institutions in the Treaty of Versailles, the German Reich founded the Kaiser Wilhelm Institute for Comparative Public Law and International Law. Director Viktor Bruns institutionalized the practice-oriented method to advance the idea of international law as a legal order as well as to safeguard the interests of the Weimar government before the various courts. Under National Socialism, members of the Institute provided legal justifications for Hitler's increasingly radical foreign policy. At the same time, some of them did not engage with v{\"o}lkisch-racist theories, but systematized the existing ius in bello. After 1945, Hermann Mosler, as director of the renamed Max Planck Institute, took the view that the practice-oriented approach was not as discredited as the more theoretical approach of v{\"o}lkisch international law. Furthermore, he regarded the method as a promising vehicle to support the policy of Westintegration of Konrad Adenauer. Also, he tried to promote the idea of 'international society as a legal community' by analysing international practice.}, 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{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{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{Neugebauer2019, type = {Working Paper}, author = {Neugebauer, Konrad}, title = {Holding Domestic Judges Accountable under International Criminal Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {36}, doi = {10.25932/publishup-43587}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-435877}, pages = {31}, year = {2019}, abstract = {This article explores, whether domestic judges might be held accountable under international criminal law (ICL). To date, international criminal justice has almost entirely focused on prosecuting political or military leaders. The Justice Case tried before the Nuremberg Military Tribunal in 1946 marks the most prominent exception. Prior to it, the judiciary - otherwise considered the epitome of justice - had mutated into a murderous machinery under Nazi rule. Judicial decisions do have far-reaching implications possibly constituting or contributing to international crimes. This holds true in a wide range of cases, for instance on practices of warfare and torture, on the use of certain weapon technologies, or on policies relating to minorities or racial segregation. I argue that domestic judges are accountable when engaging in international crimes. The article delves into technical aspects of criminal law; as well as the notions of judicial independence and immunity. While guaranteeing the rule of law, these two notions challenge the core idea of ICL: its equal application vis-{\`a}-vis all perpetrators of international crimes irrespective of official capacity. In order to differentiate due judicial conduct and its abuse in violation of ICL, I suggest a threshold a judicial act needs to exceed for entailing accountability for an international crime.}, language = {en} } @techreport{Nolte2019, type = {Working Paper}, author = {Nolte, Georg}, title = {How to Identify Customary International Law? - On the Final Outcome of the Work of the International Law Commission (2018)}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {37}, doi = {10.25932/publishup-43588}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-435884}, pages = {22}, year = {2019}, abstract = {How to identify customary international law is an important question of international law. The International Law Commission has in 2018 adopted a set of sixteen conclusions, together with commentaries, on this topic. The paper consists of three parts: First, the reasons are discussed why the Commission came to work on the topic "Identification of customary international law". Then, some of its conclusions are highlighted. Finally, the outcome of the work of the Commission is placed in a general context, before concluding.}, language = {en} } @techreport{Nolte2017, type = {Working Paper}, author = {Nolte, Georg}, title = {The International Law Commission and Community Interests}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {7}, issn = {2509-3770}, doi = {10.25932/publishup-42187}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-421875}, pages = {22}, year = {2017}, abstract = {The paper looks at community interests in international law from the perspective of the International Law Commission. As the topics of the Commission are diverse, the outcome of its work is often seen as providing a sense of direction regarding general aspects of international law. After defining what he understands by "community interests", the author looks at both secondary and primary rules of international law, as they have been articulated by the Commission, as well as their relevance for the recognition and implementation of community interests. The picture which emerges only partly fits the widespread narrative of "from self-interest to community interest". Whereas the Commission has recognized, or developed, certain primary rules which more fully articulate community interests, it has been reluctant to reformulate secondary rules of international law, with the exception of jus cogens. The Commission has more recently rather insisted that the traditional State-consent-oriented secondary rules concerning the formation of customary international law and regarding the interpretation of treaties continue to be valid in the face of other actors and forms of action which push towards the recognition of more and thicker community interests.}, language = {en} } @techreport{Palchetti2018, type = {Working Paper}, author = {Palchetti, Paolo}, title = {International Law and National Perspective in a Time of Globalization}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {20}, issn = {2509-3770}, doi = {10.25932/publishup-42281}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422818}, pages = {17}, year = {2018}, abstract = {The present study aims at identifying the main trends in Italian international legal scholarship from 1990 onward. After a brief appraisal of the current situation within the Italian community of international law scholars, it will first focus on the methods and fields of interest of the most recent scholarship. Then, an attempt at contextualization will be made, by offering a brief overview of some current trends in international legal scholarship outside Italy and comparing these trends with the recent developments in Italian scholarship. In conclusion, it will be argued that, despite the greater fluidity of national identities, the persistence of common features still appears to characterize the Italian scholarship of international law. A long, deeply rooted and culturally rich tradition of studies in international law, the use of the Italian language, the dimension of the community as well as the presence of lively scientific institutions, are factors that, taken together, appear to favor a phenomenon of reproduction and perpetuation of certain common patterns of thought, thereby preserving the existence of a national perspective.}, language = {en} } @techreport{Pellet2019, type = {Working Paper}, author = {Pellet, Alain}, title = {Values and Power Relations - The "Disillusionment" of International Law?}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {34}, doi = {10.25932/publishup-43581}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-435819}, pages = {15}, year = {2019}, abstract = {This paper - which is based on the Thomas Franck Lecture held by the author at Humboldt University Berlin on 13 May 2019 - argues that the most likely development of international to be expected will be the coexistence of two "legal worlds". On the one hand, an inter-State law brutally regulating political relations between human groups whitewashed by nationalism; on the other hand, a transnational or "a-national" law regulating economic relations between private as well as public interests. Further, the paper argues that there are two obvious victims - of very different nature - of this foreseeable evolution: the human being on the one hand, the certainty and effectiveness of the rule of law itself on the other hand.}, language = {en} } @techreport{Rajput2018, type = {Working Paper}, author = {Rajput, Aniruddha}, title = {Protection of Foreign Investment in India and International Rule of Law: Rise or Decline?}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {10}, issn = {2509-3770}, doi = {10.25932/publishup-42197}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-421970}, pages = {32}, year = {2018}, abstract = {This paper narrates the changes in the Indian policy towards foreign investment and analyses them in the backdrop of overall changes in the field of international law and particularly within the framework of the international rule of law. The policy changes that have taken place in India can be categorised into three periods. The first period commences after independence from colonial rule. This period is intriguing. At the international level, India insisted on national treatment for foreign investment and supported the New International Economic Order. Domestically, however, nationalisation was not pursued, and even when pursued, was not applied to foreign investors. This period continued until the 1990s when India faced serious economic problems and this coincided with the high point of the Washington consensus, often seen as the rise of the international rule of law. During this time, national treatment was abandoned and innumerable investment treaties granting liberal protection were entered into. This process ended abruptly after India lost the first investment case. This turn of events comments the third period, where efforts were made towards balancing between investor protection and conserving regulatory freedom. Although this period may appear to be a decline of the international rule of law, a nuanced approach shows that it is rather a rise. India has not withdrawn from the system of investor protection, as has been done by some other States. This period is characterised by extensive and detailed treaties to replace the prior sketchy treaty provisions. This is a move towards a more rule based investment protection.}, 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{Sandholtz2019, type = {Working Paper}, author = {Sandholtz, Wayne}, title = {Resurgent Authoritarianism and the International Rule of Law}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {38}, doi = {10.25932/publishup-43589}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-435899}, pages = {31}, year = {2019}, abstract = {Modern rule of law and post-war constitutionalism are both anchored in rights-based limitations on state authority. Rule-of-law norms and principles, at both domestic and international levels, are designed to protect the freedom and dignity of the person. Given this "thick" conception of the rule of law, authoritarian practices that remove constraints on domestic political leaders and weaken mechanisms for holding them accountable necessarily erode both domestic and international rule of law. Drawing on political science research on authoritarian politics, this study identifies three core elements of authoritarian political strategies: subordination of the judiciary, suppression of independent news media and freedom of expression, and restrictions on the ability of civil society groups to organize and participate in public life. According to available data, each of these three practices has become increasingly common in recent years. This study offers a composite measure of the core authoritarian practices and uses it to identify the countries that have shown the most marked increases in authoritarianism. The spread and deepening of these authoritarian practices in diverse regimes around the world diminishes international rule of law. The conclusion argues that resurgent authoritarianism degrades international rule of law even if this is defined as the specifically post-Cold War international legal order.}, language = {en} } @techreport{Sandholtz2019, type = {Working Paper}, author = {Sandholtz, Wayne}, title = {Human Rights Courts and Global Constitutionalism}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {35}, doi = {10.25932/publishup-43583}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-435831}, pages = {30}, year = {2019}, abstract = {International courts regularly cite each other, in part as a means of building legitimacy. Such international, cross-court use of precedent (or "judicial dialogue") among the regional human rights courts and the Human Rights Committee has an additional purpose and effect: the construction of a rights-based global constitutionalism. Judicial dialogue among the human rights courts is purposeful in that the courts see themselves as embedded in, and contributing to, a global human rights legal system. Cross-citation among the human rights courts advances the construction of rights-based global constitutionalism in that it provides a basic degree of coordination among the regional courts. The jurisprudence of the U.N. Human Rights Committee (HRC), as an authoritative interpreter of core international human rights norms, plays the role of a central focal point for the decentralized coordination of jurisprudence. The network of regional courts and the HRC is building an emergent institutional structure for global rights-based constitutionalism.}, language = {en} } @techreport{UlfsteinZimmermann2018, type = {Working Paper}, author = {Ulfstein, Geir and Zimmermann, Andreas}, title = {Certiorari Through the Backdoor?}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {13}, issn = {2509-3770}, doi = {10.25932/publishup-42205}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-422054}, pages = {21}, year = {2018}, abstract = {In its Burmych and Others v. Ukraine judgment of October 2017 the European Court of Human Rights has dismissed more than 12.000 applications due to the fact that given that they were not only repetitive in nature, but also mutatis mutandis identical to applications covered by a previous pilot judgment rendered against Ukraine. This raises fundamental issues as to the role of the Court within the human rights protection system established by the ECHR, as well as those concerning the interrelationship between the Court and the Committee of Ministers.}, 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{ZimmermannBoos2018, type = {Working Paper}, author = {Zimmermann, Andreas and Boos, Felix}, title = {Bringing States to Justice for Crimes against Humanity}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {12}, issn = {2509-3770}, doi = {10.25932/publishup-42203}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-422035}, pages = {24}, year = {2018}, abstract = {Draft Art. 15 CCAH attempts to strike a balance between State autonomy and robust judicial supervision. It largely follows Article 22 CERD conditioning the jurisdiction of the ICJ on prior negotiations. Hence, the substance of the clause is interpreted in light of the Court's recent case law, especially Georgia v. Russia. Besides, several issues regarding the scope ratione temporis of the compromissory clause are discussed. The article advances several proposals to further improve the current draft, addressing the missing explicit reference to State responsibility, as well as the relationship between the Court and a possible treaty body, It also proposes to recalibrate the interplay of a requirement of prior negotiations respectively the seizing of a future treaty body on the one hand and provisional measures to be indicated by the Court on the other.}, 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} } @periodical{OPUS4-41951, title = {KFG Working Paper Series}, address = {Berlin}, organization = {Kolleg-Forschergruppe "The International Rule of Law - Rise or Decline?"}, issn = {2509-3770}, language = {en} }