@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{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{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{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{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{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{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{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} }