@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} }