@article{Streck2021, author = {Streck, Charlotte}, title = {Strengthening the Paris Agreement by holding non-state actors accountable}, series = {Transnational environmental law}, volume = {10}, journal = {Transnational environmental law}, number = {3}, publisher = {Cambridge Univ. Press}, address = {Cambridge}, issn = {2047-1025}, doi = {10.1017/S2047102521000091}, pages = {493 -- 515}, year = {2021}, abstract = {While the intergovernmental climate regime increasingly recognizes the role of non-state actors in achieving the goals of the Paris Agreement (PA), the normative linkages between the intergovernmental climate regime and the non-state dominated 'transnational partnership governance' remain vague and tentative. A formalized engagement of the intergovernmental climate regime with transnational partnerships can increase the effectiveness of partnerships in delivering on climate mitigation and adaptation, thereby complementing rather than replacing government action. The proposed active engagement with partnerships would include (i) collecting and analyzing information to develop and prioritize areas for transnational and partnership engagement; (ii) defining minimum criteria and procedural requirements to be listed on an enhanced Non-state Actor Zone for Climate Action platform; (iii) actively supporting strategic initiatives; (iv) facilitating market or non-market finance as part of Article 6 PA; and (v) evaluating the effectiveness of partnerships in the context of the enhanced transparency framework (Article 13 PA) and the global stocktake (Article 14 PA). The UNFCCC Secretariat could facilitate engagement and problem solving by actively orchestrating transnational partnerships. Constructing effective implementation partnerships, recording their mitigation and adaptation goals, and holding them accountable may help to move climate talks from rhetoric to action.}, language = {en} } @article{Streck2021, author = {Streck, Charlotte}, title = {How voluntary carbon markets can drive climate ambition}, series = {Journal of energy \& natural resources law : the journal of the Section on Energy and Natural Resources Law of the International Bar Association}, volume = {39}, journal = {Journal of energy \& natural resources law : the journal of the Section on Energy and Natural Resources Law of the International Bar Association}, number = {3}, publisher = {Routledge, Taylor \& Francis Group}, address = {Abingdon}, issn = {0264-6811}, doi = {10.1080/02646811.2021.1881275}, pages = {367 -- 374}, year = {2021}, abstract = {Over the last three years, corporate interest in voluntary carbon markets has almost tripled, and this trend has seemed to resist the COVID-19 economic fallout. If managed well, this market has the potential to become a very significant driver of mitigation action, in particular in developing countries, which supply the majority of voluntary carbon offsets. Robust standards and rules can overcome concerns that voluntary carbon markets could lead to company greenwashing and undermine the goals of the Paris Agreement. On the contrary, voluntary corporate investments can encourage more ambitious government climate action, and encourage governments to make more ambitious pledges under the Paris Agreement. Multisectoral mitigation partnerships can ensure the complementarity of public and private action and support policy alignment and investments in priority sectors and regions.}, language = {en} } @article{Czychowski2021, author = {Czychowski, Christian}, title = {What is the significance of a FRAND license declaration for standard essential patents with regard to their transferability?}, series = {GRUR international : journal of European and international IP law}, volume = {70}, journal = {GRUR international : journal of European and international IP law}, number = {5}, publisher = {Beck}, address = {M{\"u}nchen}, issn = {2632-8623}, doi = {10.1093/grurint/ikaa189}, pages = {421 -- 426}, year = {2021}, abstract = {There has been considerable movement in German licensing law for some years now. Based on the fate of the license in the case of the granting of sub-licenses and in the case of insolvency of one of the contracting parties involved, a number of court decisions have been handed down which mainly deal with the legal nature of licenses and their mode of operation. Moreover, there is now an internationally significant development in licensing law, namely the increasing independence of patents used in standards, which have increasingly become the subject of economic considerations - and not only of the companies or inventors filing them. zur Fussnote 1 These so-called standard essential patents (SEPs) are the subject of numerous legal disputes and legislative activities and constitute a scientific discourse around the globe. In 2015, the European Court of Justice (ECJ) created the first leading case for the EU with regard to SEPs in its highly regarded Huawei/ZTE ruling. zur Fussnote 2 Although an abundance of decisions of the courts of first instances are now available, many questions still remain unanswered since the fundamental decision of the ECJ. There is controversy both over the dogmatic classification of the FRAND declaration and the legal consequences of the declaration's binding effect. It is particularly unclear what happens to the FRAND declaration when the SEP is transferred to a third party and whether, how and to what extent the acquirer is bound by this declaration of the transferor. In a decision that can certainly be described as bold, a Higher Regional Court has now ruled on some of these issues for the first time, thus providing further food for discussion.}, language = {en} } @article{Weiss2021, author = {Weiß, Norman}, title = {How to integrate environmental law into constitutional law}, series = {Revue juridique de l'Oc{\´e}an Indien}, volume = {26}, journal = {Revue juridique de l'Oc{\´e}an Indien}, number = {31}, publisher = {Universit{\´e} de La R{\´e}union}, address = {Saint-Denis}, issn = {1630-6910}, pages = {171 -- 175}, year = {2021}, abstract = {This chapter consists of three parts. In the first part, I will give a short overview about the integration of the protection of the environment into German constitutional law. This section will start with the presentation of the relevant provision, Art. 20a BL. Then, I will elaborate on its legal character. In the second part, I will make some brief remarks on the practical implications of Art. 20a BL. Finally, I will present some preliminary conclusions.}, language = {en} } @article{ZimmermannJauer2021, author = {Zimmermann, Andreas and Jauer, Nora}, title = {Legal shades of grey?}, series = {Archiv des V{\"o}lkerrechts}, volume = {59}, journal = {Archiv des V{\"o}lkerrechts}, number = {3}, publisher = {Mohr Siebeck}, address = {T{\"u}bingen}, issn = {0003-892X}, doi = {10.1628/avr-2021-0016}, pages = {278 -- 299}, year = {2021}, abstract = {As part of the current process of de-formalization in international law, States increasingly chose informal, non-legally binding agreements or 'Memoranda of Understanding' ('MOUs') to organize their international affairs. The increasing conclusion of such legally non-binding instruments in addition to their flexibility, however, also leads to uncertainties in international relations. Against this background, this article deals with possible indirect legal consequences produced by MOUs. It discusses the different legal mechanisms and avenues that may give rise to such secondary legal effects of MOUs through a process of interaction with, and interpretation in line with, other (formal) sources of international law. The article further considers various strategies how to avoid such eventual possible unintended or unexpected indirect legal effects of MOUs when drafting such instruments and when dealing with them subsequent to their respective 'adoption'.}, language = {en} } @article{Zeisberg2021, author = {Zeisberg, Marie-Christine}, title = {An international law on natural resources for the 21st century}, series = {German Yearbook of International Law}, volume = {64}, journal = {German Yearbook of International Law}, number = {1}, publisher = {Duncker \& Humblot}, address = {Berlin}, issn = {0344-3094}, pages = {559 -- 564}, year = {2021}, language = {en} } @article{HeckeFuhrWolfs2021, author = {Hecke, Steven van and Fuhr, Harald and Wolfs, Wouter}, title = {The politics of crisis management by regional and international organizations in fighting against a global pandemic}, series = {International review of administrative sciences : an international journal of comparative public administration}, volume = {87}, journal = {International review of administrative sciences : an international journal of comparative public administration}, number = {3}, publisher = {Sage}, address = {Los Angeles, Calif. [u.a.]}, issn = {0020-8523}, doi = {10.1177/0020852320984516}, pages = {672 -- 690}, year = {2021}, abstract = {Despite new challenges like climate change and digitalization, global and regional organizations recently went through turbulent times due to a lack of support from several of their member states. Next to this crisis of multilateralism, the COVID-19 pandemic now seems to question the added value of international organizations for addressing global governance issues more specifically. This article analyses this double challenge that several organizations are facing and compares their ways of managing the crisis by looking at their institutional and political context, their governance structure, and their behaviour during the pandemic until June 2020. More specifically, it will explain the different and fragmented responses of the World Health Organization, the European Union and the International Monetary Fund/World Bank. With the aim of understanding the old and new problems that these international organizations are trying to solve, this article argues that the level of autonomy vis-a-vis the member states is crucial for understanding the politics of crisis management.
Points for practitioners
As intergovernmental bodies, international organizations require authorization by their member states. Since they also need funding for their operations, different degrees of autonomy also matter for reacting to emerging challenges, such as the COVID-19 pandemic. The potential for international organizations is limited, though through proactive and bold initiatives, they can seize the opportunity of the crisis and partly overcome institutional and political constraints.}, language = {en} } @article{Kulick2021, author = {Kulick, Andreas}, title = {Minority protection in German-Polish relations}, series = {Polish Yearbook of International Law}, volume = {41}, journal = {Polish Yearbook of International Law}, number = {41}, publisher = {Agencja Scholar}, address = {Warszawa}, issn = {0554-498X}, doi = {10.24425/PYIL.2022.142339}, pages = {63 -- 79}, year = {2021}, abstract = {The anniversaries of the 1970 Warsaw and the 1990 2+4 Treaties give occasion to revisit the matter of minority protection in German-Polish relations. The interwar system established a problematic unevenness that tainted its acceptance, particularly from the Polish perspective. After 1990 the minority issues achieved an increased, albeit moderate, relevance in German-Polish relations. To some extent the 1991 Polish-German Treaty on Good Neighbourly Relations and Friendly Co-operation retains the unevenness of the inter-war period, as Art. 20(1) recognizes a German minority in Poland, but refuses to acknowledge a Polish minority in Germany. However, currently the thorniest issues concern various situations related to the "Silesians" in Poland, which the Polish government does not recognize as a protected minority under the European Council Framework Convention for the Protection of National Minorities.}, language = {en} } @article{GronauSchaefer2021, author = {Gronau, Norbert and Schaefer, Martin}, title = {Why metadata matters for the future of copyright}, series = {European Intellectual Property Review}, volume = {43}, journal = {European Intellectual Property Review}, number = {8}, publisher = {Sweet \& Maxwell}, address = {London}, issn = {0142-0461}, pages = {488 -- 494}, year = {2021}, abstract = {In the copyright industries of the 21st century, metadata is the grease required to make the engine of copyright run smoothly and powerfully for the benefit of creators, copyright industries and users alike. However, metadata is difficult to acquire and even more difficult to keep up to date as the rights in content are mostly multi-layered, fragmented, international and volatile. This article explores the idea of a neutral metadata search and enhancement tool that could constitute a buffer to safeguard the interests of the various proprietary database owners and avoid the shortcomings of centralised databases.}, language = {en} } @article{ZimmermannJauer2021, author = {Zimmermann, Andreas and Jauer, Nora}, title = {Possible indirect legal effects under international law of non-legally binding instruments}, series = {KFG working paper series}, volume = {48}, journal = {KFG working paper series}, publisher = {Berlin Potsdam Research Group International Law - Rise or Decline?}, address = {Berlin}, issn = {2509-3770}, pages = {24}, year = {2021}, abstract = {As part of the current overall process of de-formalization in international law States increasingly chose informal, non-legally binding agreements or 'Memoranda of Understanding' ('MOUs') to organize their international affairs. The increasing conclusion of such legally non-binding instruments in addition to their flexibility, however, also leads to uncertainties in international relations. Against this background, this article deals with possible indirect legal consequences produced by MOUs. It discusses the different legal mechanisms and avenues that may give rise to secondary legal effects of MOUs through a process of interaction with and interpretation in line with other (formal) sources of international law. The article further considers various strategies how to avoid such eventual possible unintended or unexpected indirect legal effects of MOUs when drafting such instruments and when dealing with them subsequent to their respective 'adoption'.}, language = {en} } @article{Fruhstorfer2021, author = {Fruhstorfer, Anna}, title = {Constitutional revolutions under autocracy}, series = {Constitutional studies}, volume = {7}, journal = {Constitutional studies}, number = {1}, publisher = {University of Wisconsin Press}, address = {Madison}, issn = {2474-9427}, pages = {33 -- 47}, year = {2021}, abstract = {Gary Jacobsohn and Yaniv Roznai's (2020) book Constitutional Revolution offers a sophisticated conceptual framework with a fascinating description of empirical occurrences of substantive revolutions in the practice and understanding of constitutionalism in Germany, India, Hungary, and Israel. While the conceptualization in the book and its empirical illustration clearly draw from regime transformations or substantive changes within democratic regimes, we know little about the extent to which substantive constitutional reforms are possible and meaningful in autocratic regimes. As their concept of constitutional revolution is ambiguous and requires a substantive engagement with an individual case at hand, we cannot sim- ply expect concept equivalence when expanding its use beyond a transitory or democratic context. Hence, in this contribution I ask, What constitutes a constitutional revolution in an autocratic regime? To shed light on this question, I rely on the expectation that we do not find important differences in the substance of autocratic constitutions compared to democratic constitutions. Autocratic elites, also, under- stand the possibilities of constitutional change and respond to them as they offer regime stability and simply more power, but that is not a revolution. Therefore, I argue that the substantive meaning of an amendment must be a departure from the inherent logic of the constitution, especially outside the standard procedures for autocratic ruling. Thus, in this paper I discuss the theoretical implications of a constitutional revolution under autocracy without a regime transition and provide empirical evidence from various constitutional amendments and de facto reforms in Russia. I show that a constitutional revolution is not always the most important or most discussed constitutional change—at least, not in an autocratic context. This discussion has important implications for understanding constitutionalism and autocratic stability and the largely overlooked relationship between substance and process in nondemocratic settings.}, language = {en} } @article{Reiners2021, author = {Reiners, Nina}, title = {Despite or because of contestation?}, series = {Human rights quarterly : a comparative and international journal of the social sciences, humanities, and law}, volume = {43}, journal = {Human rights quarterly : a comparative and international journal of the social sciences, humanities, and law}, number = {2}, publisher = {Johns Hopkins Univ. Press}, address = {Baltimore}, issn = {0275-0392}, doi = {10.1353/hrq.2021.0021}, pages = {329 -- 343}, year = {2021}, abstract = {Almost twenty years after its recognition in international human rights law, the human right to water continues to spark discussions about its scope and meaning. This article revisits the evolution and contestation of the right's first international legal framework, General Comment No. 15 from the Committee on Economic, Social and Cultural Rights. The analysis highlights the contestation of economic and social rights as a universal phenomenon at multiple levels, but argues that these meaning-making practices can support their validation and recognition.}, language = {en} } @article{KuhlmannBouckaertGallietal.2021, author = {Kuhlmann, Sabine and Bouckaert, Geert and Galli, Davide and Reiter, Renate and van Hecke, Steven}, title = {Opportunity management of the COVID-19 pandemic}, series = {International review of administrative sciences}, volume = {87}, journal = {International review of administrative sciences}, number = {3}, publisher = {Sage}, address = {Los Angeles, California}, issn = {0020-8523}, doi = {10.1177/0020852321992102}, pages = {497 -- 517}, year = {2021}, abstract = {This article provides a conceptual framework for the analysis of COVID-19 crisis governance in the first half of 2020 from a cross-country comparative perspective. It focuses on the issue of opportunity management, that is, how the crisis was used by relevant actors of distinctly different administrative cultures as a window of opportunity. We started from an overall interest in the factors that have influenced the national politics of crisis management to answer the question of whether and how political and administrative actors in various countries have used the crisis as an opportunity to facilitate, accelerate or prevent changes in institutional settings. The objective is to study the institutional settings and governance structures, (alleged) solutions and remedies, and constellations of actors and preferences that have influenced the mode of crisis and opportunity management. Finally, the article summarizes some major comparative findings drawn from the country studies of this Special Issue, focusing on similarities and differences in crisis responses and patterns of opportunity management.}, language = {en} } @article{HickmannWiderbergLedereretal.2021, author = {Hickmann, Thomas and Widerberg, Oscar and Lederer, Markus and Pattberg, Philipp H.}, title = {The United Nations Framework Convention on Climate Change Secretariat as an orchestrator in global climate policymaking}, series = {International review of administrative sciences : an international journal of comparative public administration}, volume = {87}, journal = {International review of administrative sciences : an international journal of comparative public administration}, number = {1}, publisher = {Sage}, address = {Los Angeles, Calif. [u.a.]}, issn = {0020-8523}, doi = {10.1177/0020852319840425}, pages = {21 -- 38}, year = {2021}, abstract = {Scholars have recently devoted increasing attention to the role and function of international bureaucracies in global policymaking. Some of them contend that international public officials have gained significant political influence in various policy fields. Compared to other international bureaucracies, the political leeway of the Secretariat of the United Nations Framework Convention on Climate Change has been considered rather limited. Due to the specific problem structure of the policy domain of climate change, national governments endowed this intergovernmental treaty secretariat with a relatively narrow mandate. However, this article argues that in the past few years, the United Nations Framework Convention on Climate Change Secretariat has gradually loosened its straitjacket and expanded its original spectrum of activity by engaging different sub-national and non-state actors into a policy dialogue using facilitative orchestration as a mode of governance. The present article explores the recent evolution of the United Nations Framework Convention on Climate Change Secretariat and investigates the way in which it initiates, guides, broadens and strengthens sub-national and non-state climate actions to achieve progress in the international climate negotiations.
Points for practitioners
The Secretariat of the United Nations Framework Convention on Climate Change has lately adopted new roles and functions in global climate policymaking. While previously seen as a rather technocratic body that, first and foremost, serves national governments, the Climate Secretariat increasingly interacts with sub-national governments, civil society organizations and private companies to push the global response to climate change forward. We contend that the Climate Secretariat can contribute to global climate policymaking by coordinating and steering the initiatives of non-nation-state actors towards coherence and good practice.}, language = {en} } @article{KuhlmannHellstroemRambergetal.2021, author = {Kuhlmann, Sabine and Hellstr{\"o}m, Mikael and Ramberg, Ulf and Reiter, Renate}, title = {Tracing divergence in crisis governance}, series = {International review of administrative sciences}, volume = {87}, journal = {International review of administrative sciences}, number = {3}, publisher = {Sage}, address = {Los Angeles, California}, issn = {0020-8523}, doi = {10.1177/0020852320979359}, pages = {556 -- 575}, year = {2021}, abstract = {This cross-country comparison of administrative responses to the COVID-19 pandemic in France, Germany and Sweden is aimed at exploring how institutional contexts and administrative cultures have shaped strategies of problem-solving and governance modes during the pandemic, and to what extent the crisis has been used for opportunity management. The article shows that in France, the central government reacted determinedly and hierarchically, with tough containment measures. By contrast, the response in Germany was characterized by an initial bottom-up approach that gave way to remarkable federal unity in the further course of the crisis, followed again by a return to regional variance and local discretion. In Sweden, there was a continuation of 'normal governance' and a strategy of relying on voluntary compliance largely based on recommendations and less - as in Germany and France - on a strategy of imposing legally binding regulations. The comparative analysis also reveals that relevant stakeholders in all three countries have used the crisis as an opportunity for changes in the institutional settings and administrative procedures.}, language = {en} } @article{KuhlmannHellstromRambergetal.2021, author = {Kuhlmann, Sabine and Hellstrom, Mikael and Ramberg, Ulf and Reiter, Renate}, title = {Tracing divergence in crisis governance}, series = {International review of administrative sciences : an international journal of comparative public administration}, volume = {87}, journal = {International review of administrative sciences : an international journal of comparative public administration}, number = {3}, publisher = {Sage Publ.}, address = {London}, issn = {0020-8523}, doi = {10.1177/0020852320979359}, pages = {556 -- 575}, year = {2021}, abstract = {This cross-country comparison of administrative responses to the COVID-19 pandemic in France, Germany and Sweden is aimed at exploring how institutional contexts and administrative cultures have shaped strategies of problem-solving and governance modes during the pandemic, and to what extent the crisis has been used for opportunity management. The article shows that in France, the central government reacted determinedly and hierarchically, with tough containment measures. By contrast, the response in Germany was characterized by an initial bottom-up approach that gave way to remarkable federal unity in the further course of the crisis, followed again by a return to regional variance and local discretion. In Sweden, there was a continuation of 'normal governance' and a strategy of relying on voluntary compliance largely based on recommendations and less - as in Germany and France - on a strategy of imposing legally binding regulations. The comparative analysis also reveals that relevant stakeholders in all three countries have used the crisis as an opportunity for changes in the institutional settings and administrative procedures. Points for practitioners COVID-19 has shown that national political and administrative standard operating procedures in preparation for crises are, at best, partially helpful. Notwithstanding the fact that dealing with the unpredictable is a necessary part of crisis management, a need to further improve the institutional preparedness for pandemic crises in all three countries examined here has also become clear. This should be done particularly by way of shifting resources to the health and care sectors, strengthening the decentralized management of health emergencies, stocking and/or self-producing protection material, assessing the effects of crisis measures, and opening the scientific discourse to broader arenas of experts.}, language = {en} } @article{Wanckel2021, author = {Wanckel, Camilla}, title = {Introducing a digital tool for sustainability impact assessments within the German Federal Government}, series = {International review of administrative sciences}, volume = {89}, journal = {International review of administrative sciences}, number = {2}, publisher = {Sage}, address = {Los Angeles, California}, issn = {0020-8523}, doi = {10.1177/00208523211047093}, pages = {433 -- 449}, year = {2021}, abstract = {This study examines the institutionalization of information technologies for policy formulation by investigating the case of eNAP. The digital tool was introduced in the spring of 2018 with the aim of supporting and improving sustainability impact assessments (SIAs) within the German Federal Government. Applying a neo-institutional perspective, this study shows how a tool like eNAP is embedded into prevailing regulative, normative, and cultural-cognitive structures. Findings from 10 semi-structured interviews indicate that the application of eNAP varies according to intra-ministerial coordination practices and portfolio-specific information-processing schemata. Overall, the tool serves to translate the abstract regulation to conduct an SIA, as well as to translate the vague norm of "sustainability" into a concrete assessment requirement, thereby helping increase policy officials' awareness of sustainability goals. However, consistent with previous studies, great importance is not attached to SIAs in policy formulation, and prevailing norms and routines make the implementation of eNAP to increase the use of evidence or in-depth considerations of policy alternatives and their consequences unlikely.}, language = {en} } @article{HeldtDoerfler2021, author = {Heldt, Eugenia C. and D{\"o}rfler, Thomas}, title = {Orchestrating private investors for development}, series = {Regulation \& governance}, volume = {16}, journal = {Regulation \& governance}, number = {4}, publisher = {Wiley-Blackwell}, address = {Hoboken, NJ}, issn = {1748-5983}, doi = {10.1111/rego.12432}, pages = {1382 -- 1398}, year = {2021}, abstract = {Confronted with a new wave of criticism on the in effectiveness of its development programs, the World Bank embarked on a revitalization process, turning to private investors to finance International Development Association projects and widening its mandate. To explain these adaptation strategies of the World Bank to regain relevance, this piece draws on organizational ecology and orchestration scholarship. We contend that international organizations rely on two adaptation mechanisms, orchestration and scope expansion, when they lose their role as focal actors in an issue area. We find that the World Bank has indeed lost market share and has relied on these two mechanisms to revitalize itself. We show that the World Bank responded to changes in the environment by orchestrating a private sector-oriented capital increase, prioritizing private funding for development through a "cascade approach," and expanding the scope of its mandate into adjacent domains of transnational governance, including climate change and global health.}, language = {en} }