@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{Baeumler2020, type = {Working Paper}, author = {B{\"a}umler, Jelena}, title = {The WTO's Crisis}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {42}, doi = {10.25932/publishup-47601}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-476017}, pages = {34}, year = {2020}, abstract = {The perception of the WTO is currently one of an organisation in crisis. Yet, appraisal varies regarding its extent and seriousness: Is it merely a rough time or are we standing on the edge of destruction? The article will trace developments inside as well as outside the WTO in order to assess the magnitude of the crisis. It will be argued that while certain developments inside the organisation, when seen in accumulation would already warrant serious attention, only together with developments taking place outside of the WTO, the two strands of developments unfold their full potential for the crisis. The overall situation renders the WTO in a difficult position, as it is currently unable to adapt to these challenges, while keeping calm and carrying on might similarly further the crisis. While States might improve and further develop their trade relations in bi- and plurilateral agreements, it is only the WTO that reflects and stands for the multilateral post (cold) war order.}, language = {en} } @techreport{Gulati2020, type = {Working Paper}, author = {Gulati, Rishi}, title = {Judicial Independence at International Courts and Tribunals}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {41}, doi = {10.25932/publishup-47599}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-475997}, pages = {32}, year = {2020}, abstract = {The guarantee of judicial independence is undoubtedly one of the most important institutional design features of international courts and tribunals. An independence deficit can adversely impact a court's authority, create a crisis of legitimacy, and undermine the very effectiveness of an international court or tribunal. It can hardly be denied that for an international court to be considered legitimate, a basic degree of independence is a must. An independent judiciary is a precondition to the fair and just resolution of legal disputes. In the context of interstate dispute settlement where the jurisdiction of courts is based on the principle of consent, in the absence of a basic degree of judicial independence, states may not be willing to submit to the jurisdiction of international courts. Comparing and contrasting the International Court of Justice and the Appellate Body of the World Trade Organisation, I assess whether those international judicial mechanisms possess the basic degree of independence required for a court to be able to maintain its credibility so that it can continue to perform its core function of adjudicating interstate disputes. With both those interstate adjudicative bodies constituting the two leading international courts in terms of participation and the sheer number of cases decided, much may be learned from comparing them. I argue there is a case for bolstering the independence of the ICJ; and without immediate reforms to the Appellate Body's institutional design, its recent demise may become permanent. I conclude that if a basic degree of judicial independence cannot be guaranteed, it is preferable to let a court vanish for a while than to maintain a significantly deficient one.}, language = {en} } @techreport{Jorgensen2020, type = {Working Paper}, author = {Jorgensen, Malcolm}, title = {The United States and the International Law of Global Security}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {43}, doi = {10.25932/publishup-47603}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-476030}, pages = {22}, year = {2020}, abstract = {For the United States the 'international law of global security' is, in a unique sense, synonymous with the entire project of constructing global legal order. Uniquely preponderant power enjoyed since the end of the Second World War has allowed US preferences to manifest not merely in specific rules and regimes, but in purposive development of the entire structure of global legal order to favour American security interests. Perceptions of a recent decline in this order now find expression in advocacy for a 'liberal' or 'rules-based' international order, as the claimed foundation for global prosperity and security. This working paper seeks to map out the parameters of US contributions to the global security order by uncovering the strategic and political foundations of its engagement with the international law of global security. The paper begins by reflecting on competing US conceptions of the relationship between national security and global order as they evolved across the twentieth century. The focus then turns to three significant trends defining the contemporary field. First are US attitudes toward multilateral institutions and global security, and the ongoing contest between beliefs that they are mutually reinforcing versus beliefs that US security and global institutions sit in zero-sum opposition. Second is the impact of the generational 'War on Terror', which has yielded more permissive interpretation and development of laws governing the global use of violence. The final trend is that towards competitive geopolitical interests restructuring international law, which are evident across diverse areas ranging from global economics, to cybersecurity, to the fragmentation of global order into spheres of influence. Looking ahead, a confluence of rising geopolitical competitors with divergent legal conceptions, and conflicted domestic support for the legitimacy and desirability of US global leadership, emerge as leading forces already reshaping the global security order.}, 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{Devaney2019, type = {Working Paper}, author = {Devaney, James Gerard}, title = {Selecting Investment Arbitrators}, series = {KFG Working Paper Series}, journal = {KFG Working Paper Series}, number = {33}, doi = {10.25932/publishup-43579}, url = {http://nbn-resolving.de/urn:nbn:de:kobv:517-opus4-435797}, pages = {27}, year = {2019}, abstract = {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.}, 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{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{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{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} }