@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{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{Kahombo2016, type = {Working Paper}, author = {Kahombo, Balingene}, title = {Africa Within the Justice System of the International Criminal Court}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {2}, issn = {2509-3770}, doi = {10.25932/publishup-41953}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-419537}, pages = {42}, year = {2016}, abstract = {This article re-examines the relationship between Africa and the International Criminal Court (ICC). It traces the successive changes of the African attitude towards this Court, from states' euphoria, to hostility against its work, to regional counter-initiatives through the umbrella of the African Union (AU). The main argument goes beyond the idea of "the Court that Africa wants" in order to identify concrete reasons behind such a formal argument which may have fostered, if not enticed, the majority of African states to become ICC members and actively cooperate with it, when paradoxically some great powers have decided to stay outside its jurisdiction. It also seeks to understand, from a political and legal viewpoint, which parameters have changed since then to provoke that hostile attitude against the Court's work and the entrance of the AU into the debate through the African Common Position on the ICC. Lastly, this article explores African alternatives to the contested ICC justice system. It examines the need to reform the Rome Statute in order to give more independence, credibility and legitimacy to the ICC and its duplication to some extent by the new "Criminal Court of the African Union". Particular attention is paid to the resistance against this idea to reform the ICC justice system.}, language = {en} } @techreport{BarkholdtKulaga2018, type = {Working Paper}, author = {Barkholdt, Janina and Kulaga, Julian}, title = {Analytical Presentation of the Comments and Observations by States on Draft Article 7, Paragraph 1, of the ILC Draft Articles on Immunity of State Officials From Foreign Criminal Jurisdiction, United Nations General Assembly, Sixth Committee, 2017}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {14}, issn = {2509-3770}, doi = {10.25932/publishup-42212}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-422128}, pages = {108}, year = {2018}, abstract = {During its sessions in 2016 and 2017 the UN International Law Commission (ILC) debated the question whether the immunity of State officials from foreign criminal jurisdiction is subject to exceptions for international crimes and provisionally adopted a Draft Article 7 on immunity ratione materiae. The following analytical presentation classifies and documents the reactions of States to draft article 7, paragraph 1, as they have been expressed in the Sixth (Legal) Committee of the General Assembly in 2017.}, 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{Braun2018, type = {Working Paper}, author = {Braun, Harald}, title = {Berlin - New York}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {11}, issn = {2509-3770}, doi = {10.25932/publishup-42198}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-421984}, pages = {17}, year = {2018}, abstract = {Beginning in January 2019, the new German government will face a particular new responsibility for world affairs: provided the elections in June 2018 lead to the desired result, Germany will be an elected member of the UN Security Council for two years from January 2019 until December 2020. However, Germany has been a respected and highly relevant member of the United Nations not only during its terms on the Security Council but also in "normal" times. The present article attempts to shed light on a few aspects of Germany's role in the UN during Merkel's chancellorship with an emphasis on her third term (2014-2017), such as the cooperative relationship between Germany and the UN Secretary-General in important policy fields, Germany's financial contributions to the UN, the impact of Germany's EU membership on its UN membership and the country's efforts with regard to the reform of the Security Council. The paper further provides context for Germany's abstention in the vote on Security Council Resolution 1973 on Libya in 2011. It concludes by ascertaining that Germany with its approach of active multilateralism has taken its place as one of the leading nations in Europe and is ready to take on responsibility with its partners to achieve a peaceful and stable world order.}, 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{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{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{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} }