TY - RPRT A1 - Devaney, James Gerard T1 - Selecting Investment Arbitrators BT - Reconciling Party Autonomy and the International Rule of Law T2 - KFG Working Paper Series N2 - This paper focuses on one particular issue which has arisen in the course of the ongoing debate on the reform of investor-State dispute settlement (ISDS), namely that of the appointment of arbitrators. Taking as its starting point that there now exists tentative consensus that the present system for the appointment of arbitrators either causes or exacerbates certain problematic aspects of the current ISDS system, the paper explores one option for reform, namely the introduction of an independent panel for the selection of investment arbitrators. In doing so, it is argued that a shift in the normative basis of the rules governing appointments is required in order to accommodate the principles of party autonomy and the international rule of law. Such reform, while not completely removing the initiative that parties presently enjoy, is the most efficient way to introduce rule of law considerations such as a measure of judicial independence into the current appointments system. This, it is argued, would in turn help to address some of the problematic features of the appointment of arbitrators in ISDS. T3 - KFG Working Paper Series - 33 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435797 IS - 33 ER - TY - RPRT A1 - Krieger, Heike A1 - Püschmann, Jonas T1 - Securing of Resources as a Valid Reason for Using Force? BT - A Pre-Emptive Defence of the Prohibition on the Use of Force T2 - KFG Working Paper Series N2 - 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. T3 - KFG Working Paper Series - 31 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435738 IS - 31 ER - TY - RPRT A1 - Kulaga, Julian T1 - A Renaissance of the Doctrine of Rebus Sic Stantibus? T2 - KFG Working Paper Series N2 - 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. T3 - KFG Working Paper Series - 32 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435788 IS - 32 ER - TY - RPRT A1 - Pellet, Alain T1 - Values and Power Relations – The “Disillusionment” of International Law? T2 - KFG Working Paper Series N2 - 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. T3 - KFG Working Paper Series - 34 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435819 IS - 34 ER - TY - RPRT A1 - Neugebauer, Konrad T1 - Holding Domestic Judges Accountable under International Criminal Law BT - A Useful Step to Foster the International Rule of Law? T2 - KFG Working Paper Series N2 - 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-à-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. T3 - KFG Working Paper Series - 36 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435877 IS - 36 ER - TY - RPRT A1 - Sandholtz, Wayne T1 - Resurgent Authoritarianism and the International Rule of Law T2 - KFG Working Paper Series N2 - 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. T3 - KFG Working Paper Series - 38 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435899 IS - 38 ER - TY - RPRT A1 - Sandholtz, Wayne T1 - Human Rights Courts and Global Constitutionalism BT - Coordination through Judicial Dialogue T2 - KFG Working Paper Series N2 - 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. T3 - KFG Working Paper Series - 35 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435831 IS - 35 ER - TY - RPRT A1 - Nolte, Georg T1 - How to Identify Customary International Law? – On the Final Outcome of the Work of the International Law Commission (2018) T2 - KFG Working Paper Series N2 - 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. T3 - KFG Working Paper Series - 37 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435884 IS - 37 ER - TY - RPRT A1 - Jo, Hyeran T1 - Rise and Decline of International Rule of Law BT - Case of Non-State Armed Actors T2 - KFG Working Paper Series N2 - This paper assesses the rise and decline of international rule of law in the case of non-state armed actors. Both signs of rise and signs of decline of international rule of law show in the case of non- state armed actors. Signs of rise include the expansion of coverage of international humanitarian law (IHL) and international criminal law, as well as international legal argumentation and rhetoric made by non-state armed groups. Some non-state armed actors express that they are governed by IHL in public statements or bilateral agreements with international actors, partly acknowledging universality of international humanitarian norms, and sometimes act as such. Signs of decline in the international rule of law also show – although some of them can be seen as business-as-usual – privileging of military advantage, instrumental use of international law (as justification and local interpretations), as well as conflicting understanding of IHL between local and global norms. The multiplicity of non-state actors also portends the decline of international rule of law, with the proliferation of many non-organized groups without legitimacy-seeking motivations. T3 - KFG Working Paper Series - 39 KW - rule of law KW - international rule of law KW - non-state actors KW - non-state armed actors KW - rise KW - decline KW - international humanitarian law KW - international criminal law Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-435900 IS - 39 ER - TY - RPRT A1 - Krieger, Heike T1 - Populist governments and international law T2 - KFG Working Paper Series N2 - 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. T3 - KFG Working Paper Series - 29 Y1 - 2019 U6 - http://nbn-resolving.de/urn/resolver.pl?urn:nbn:de:kobv:517-opus4-426863 IS - 29 ER -