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Jurisdiction
(2022)
Nils-Hendrik Grohmann beschäftigt sich mit dem noch andauernden Stärkungsprozess der UN-Menschenrechtsvertragsorgane. Er analysiert, welche rechtlichen Befugnisse die Ausschüsse haben, ob sie von sich aus Vorschläge einbringen können und inwieweit sie ihre Verfahrensweisen bisher aufeinander abgestimmt haben. Ein weiterer Schwerpunkt liegt auf der Zusammenarbeit zwischen den verschiedenen Ausschüssen und der Frage, welche Rolle das Treffen der Vorsitzenden bei der Stärkung spielen kann.
We welcome you to the 53rd Hawaii International Conference on System Sciences (HICSS) conference. After joining with Intentional Forgetting Minitrack last year, this is the fourth year of the Organizational Learning Minitrack. We add Unlearning, and Intentional Forgetting to proudly bring you the latest research focused on organizational learning issues within the Knowledge Innovation and Entrepreneurial Systems Track. The ability to update, change and use current knowledge effectively, especially in light of the ongoing knowledge explosion, can be costly for any organization. Organizations that consider themselves “learning” or “knowledge-based” organizations must develop a competent workforce using KM strategies. Success in organizations involves developing a variety of human factors for changing competencies. With technological change, modification and revisions, many skills require updating for a competitive advantage in the marketplace. The focus on new techniques and insights into how individuals and organizations use their knowledge is our focus for the improvement of organizational learning in this Minitrack.
Advancing digitalization is changing society and has far-reaching effects on people and companies. Fundamental to these changes are the new technological possibilities for processing data on an ever-increasing scale and for various purposes. The availability of large and high-quality data sets, especially those based on personal data, is crucial. They are used either to improve the productivity, quality, and individuality of products and services or to develop new types of services. Today, user behavior is tracked more actively and comprehensively than ever despite increasing legal requirements for protecting personal data worldwide. That increasingly raises ethical, moral, and social questions, which have moved to the forefront of the political debate, not least due to popular cases of data misuse. Given this discourse and the legal requirements, today's data management must fulfill three conditions: Legality or legal conformity of use and ethical legitimacy. Thirdly, the use of data should add value from a business perspective. Within the framework of these conditions, this cumulative dissertation pursues four research objectives with a focus on gaining a better understanding of
(1) the challenges of implementing privacy laws,
(2) the factors that influence customers' willingness to share personal data,
(3) the role of data protection for digital entrepreneurship, and
(4) the interdisciplinary scientific significance, its development, and its interrelationships.
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. <br /> Points for practitioners <br /> 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.
Private international law (PIL) might seem disconnected from peacebuilding and peacekeeping efforts. However, this perception falls short. PIL, contrary to public international law’s direct peacekeeping potential, indirectly contributes to peace by fostering mutual respect between states. The relationship between PIL and peace stems from the recognition and respect states show for each other’s legal systems. PIL operates on the principle of comity, where states acknowledge the applicability of foreign laws to resolve cases. In essence, while PIL’s impact on peace is indirect and modest, its emphasis on mutual respect and fair treatment contributes to peaceful relations between states, making it an important element in the broader context of peacebuilding and peacekeeping efforts. Private international law (PIL) does not determine substantive fairness for parties but focuses on localizing cases at a meta-level of conflict-of-laws. This localization is guided by party, trade, and regulatory interests, and is rooted in neutrality and respect for other legal systems. While the principle of equivalence and neutrality remains foundational in PIL, exceptions and limitations have been established over time to address specific scenarios, ensuring a balanced approach that respects both foreign legal systems and fundamental legal principles.
Cross-national variation in the relationship between welfare generosity and single mother employment
(2022)
Reform of the U.S. welfare system in 1996 spurred claims that cuts to welfare programs effectively incentivized single mothers to find employment. It is difficult to assess the veracity of those claims, however, absent evidence of how the relationship between welfare benefits and single mother employment generalizes across countries. This study combines data from the European Union Labour Force Survey and the U.S. Current Population Survey (1992-2015) into one of the largest samples of single mothers ever, testing the relationships between welfare generosity and single mothers’ employment and work hours. We find no consistent evidence of a negative relationship between welfare generosity and single mother employment outcomes. Rather, we find tremendous cross-national heterogeneity, which does not clearly correspond to well-known institutional variations. Our findings demonstrate the limitations of single country studies and the pervasive, salient interactions between institutional contexts and social policies.
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.
Activating norm collisions
(2020)
This article puts forward a constructivist-interpretivist approach to interface conflicts that emphasises how international actors articulate and problematise norm collisions in discursive and social interactions. Our approach is decidedly agency-oriented and follows the Special Issue’s interest in how interface conflicts play out at the micro-level. The article advances several theoretical and methodological propositions on how to identify norm collisions and the conditions under which they become the subject of international debate. Our argument on norm collisions, understood as situations in which actors perceive two norms as incompatible with each other, is threefold. First, we claim that agency matters to the analysis of the emergence, dynamics, management, and effects of norm collisions in international politics. Second, we propose to differentiate between dormant (subjectively perceived) and open norm collisions (intersubjectively shared). Third, we contend that the transition from dormant to open – which we term activation – depends on the existence of certain scope conditions concerning norm quality as well as changes in power structures and actor constellations. Empirically, we study norm collisions in the area of international drug control, presenting the field as one that contains several cases of dormant and open norm collisions, including those that constitute interface conflicts. For our in-depth analysis we have chosen the international discourse on coca leaf chewing. With this case, we not only seek to demonstrate the usefulness of our constructivist-interpretivist approach but also aim to explain under which conditions dormant norm collisions evolve into open collisions and even into interface conflicts.
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.
This introduction and the special issue are a contribution to comparative intergovernmental studies and public administration. This introduction provides an analytical overview of the intergovernmental relations policy responses to the Covid-19 pandemic across ten European countries, focussing on the early waves of the disease. These policy responses are analysed in terms of three types of IGR process: (1) a predominantly multi-layered policy process involving limited conflict, (2) a centralised policy process as the central government attempts to suppress conflict and (3) a conflicted policy process where such attempts are contested and tend to contribute to poor policy outcomes. The conclusion, then, reviews the difficulties and trade-offs involved in attaining a balanced multi-layered, intergovernmental process.
This article is aimed at analysing local and intergovernmental responses to the COVID-19 pandemic in Germany during the ‘first wave’ of the pandemic. It will answer the question of how the intergovernmental system in Germany responded to the crisis and to what extent the pandemic has changed patterns of multi-level governance (MLG). The article argues that the coordination of pandemic management in Germany shifted between two ideal types of multi-level governance. While in the first phase of the pandemic the territorially defined multi-level system with the sub-national and local authorities as key actors of crisis management was predominant, in the second phase a more functional orientation with increased vertical coordination gained in importance. Later on, more reliance was given again on local decision-making. Based on this analysis, we will draw some preliminary conclusions on how effective MLG in Germany has been for coordinating pandemic management and point out the shortcomings.
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.
European coronationalism?
(2020)
The COVID-19 crisis has shown that European countries remain poorly prepared for dealing and coping with health crises and for responding in a coordinated way to a severe influenza pandemic. Within the European Union, the response to the COVID-19 pandemic has a striking diversity in its approach. By focusing on Belgium, France, Germany, and Italy—countries that represent different models of administrative systems in Europe—the analysis shows that major similarities and convergences have become apparent from a cross-country perspective. Moreover, coping with the crisis has been first and foremost an issue of the national states, whereas the European voice has been weak. Hence, the countries’ immediate responses appear to be corona-nationalistic, which we label “coronationalism.” This essay shows the extent to which the four countries adopted different crisis management strategies and which factors explain this variance, with a special focus on their institutional settings and administrative systems.
Structural duration conveys stability but also resilience in central government and is therefore a key issue in the debate on the structure and organization of government. This paper discusses three core variants of structural duration to study the explanatory relevance of politics. We compare these durations across ministerialunits in four European democracies (Germany, France, The Netherlands, and Norway) from 1980 to 2013, totaling over 17,000 units. Our empirical analyses show that cabinets’ ideological turnover and extremism are the most significant predictors of all variants of duration, whereas polarization in parliament as well as new prime ministers without office experience yield the predicted significant negative effects for most models. We discuss these findings and avenues for futureresearch that acknowledge the definition and measures for structural change as well as temporal aspects of the empirical phenomenon more explicitly.
In this article, we examine the effects of political change on name changes of units within central government ministries. We expect that changes regarding the policy position of a government will cause changes in the names of ministerial units. To this end we formulate hypotheses combining the politics of structural choice and theories of portfolio allocation to examine the effects of political changes at the cabinet level on the names of intra-ministerial units. We constructed a dataset containing more than 17,000 observations on name changes of ministerial units between 1980 and 2013 from the central governments of Germany, the Netherlands, and France. We regress a series of generalized estimating equations (GEE) with population averaging models for binary outcomes. Finding variations across the three political-bureaucratic systems, we overall report positive effects of governmental change and ideological positions on name changes within ministries.
Creativity is a crucial part of policy capacity in governments. Existing studies on creative behavior in the public sector assess employees' openness to new ideas and creative solutions, and they confirm the relevance of organizational and individual determinants for pro-creativity attitudes. Yet we lack systemic evidence on the explicit level of work-related creativity among policy officials in government organizations. At the same time, novel technologies and particularly social networking services change the working environment of policy officials radically, alter organizational features, and may also yield crucial individual effects. Our study analyses “policy creativity” of policy officials in three European governments. We demonstrate the importance of organizational and individual features, including the stress triggered by using social networking services. Our study captures officials' creativity explicitly and adds to debates on creativity and innovation in the public sector as well as the micro-level foundations of the digital transformation in the public sector.
Worldwide, governments have introduced novel information and communication technologies (ICTs) for policy formulation and service delivery, radically changing the working environment of government employees. Following the debate on work stress and particularly on technostress, we argue that the use of ICTs triggers “digital overload” that decreases government employees’ job satisfaction via inhibiting their job autonomy. Contrary to prior research, we consider job autonomy as a consequence rather than a determinant of digital overload, because ICT-use accelerates work routines and interruptions and eventually diminishes employees’ freedom to decide how to work. Based on novel survey data from government employees in Germany, Italy, and Norway, our structural equation modeling (SEM) confirms a significant negative effect of digital overload on job autonomy. More importantly, job autonomy partially mediates the negative relationship between digital overload and job satisfaction, pointing to the importance of studying the micro-foundations of ICT-use in the public sector.
In recent years, governments have increased their efforts to strengthen the citizen-orientation in policy design. They have established temporary arenas as well as permanent units inside the machinery of government to integrate citizens into policy formulation, leading to a “laboratorization” of central government organizations. We argue that the evolution and role of these units herald new dynamics in the importance of organizational reputation for executive politics. These actors deviate from the classic palette of organizational units inside the machinery of government and thus require their own reputation vis-à-vis various audiences within and outside their parent organization. Based on a comparative case study of two of these units inside the German federal bureaucracy, we show how ambiguous expectations of their audiences challenge their organizational reputation. Both units resolve these tensions by balancing their weaker professional and procedural reputation with a stronger performative and moral reputation. We conclude that government units aiming to improve citizen orientation in policy design may benefit from engaging with citizens as their external audience to compensate for a weaker reputation in the eyes of their audiences inside the government organization. Points for practitioners: many governments have introduced novel means to strengthen citizen-centered policy design, which has led to an emergence of novel units inside central government that differ from traditional bureaucratic structures and procedures ; this study analyzes how these new units may build their organizational reputation vis-à-vis internal and external actors in government policymaking. ; we show that such units assert themselves primarily based on their performative and moral reputation.
Recent debates in international relations increasingly focus on bureaucratic apparatuses of international organizations and highlight their role, influence, and autonomy in global public policy. In this contribution we follow the recent call made by Moloney and Rosenbloom in this journal to make use of “public administrative theory and empirically based knowledge in analyzing the behavior of international and regional organizations” and offer a systematic analysis of the inner structures of these administrative bodies. Changes in these structures can reflect both the (re-)assignment of responsibilities, competencies, and expertise, but also the (re)allocation of resources, staff, and corresponding signalling of priorities. Based on organizational charts, we study structural changes within 46 international bureaucracies in the UN system. Tracing formal changes to all internal units over two decades, this contribution provides the first longitudinal assessment of structural change at the international level. We demonstrate that the inner structures of international bureaucracies in the UN system became more fragmented over time but also experienced considerable volatility with periods of structural growth and retrenchment. The analysis also suggests that IO's political features yield stronger explanatory power for explaining these structural changes than bureaucratic determinants. We conclude that the politics of structural change in international bureaucracies is a missing piece in the current debate on international public administrations that complements existing research perspectives by reiterating the importance of the political context of international bureaucracies as actors in global governance.
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.
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.
The term “persecution” pertains to both international criminal law and refugee law. In light of the fact that displacement is often a result of large scale human rights deprivation, it seems likely that intersections and possibilities of cross-referencing exist. This paper analyses the correlation of persecution as an international crime and as the core element of the refugee definition. On the one hand, persecution is a crime against humanity pursuant to Art. 7 (1) (h) ICC Statute and is defined as “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity” (Art. 7 [2] [g] ICC Statute). On the other hand, persecution is part of the refugee definition of Art. 1 A (2) Refugee Convention. Art. 1 A (2) Refugee Convention defines as a refugee a person who, “owing to well-founded fear of being persecuted […] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. In this paper, the term “persecution” is interpreted in both contexts in order to detect similarities and differences. It is argued that a refugee phenomenon implies the existence of the crime of persecution and that respective authorities should engage in cross-referencing and information exchange.
The sequence of isomorphism—
(2022)
Isomorphism has been widely used to describe why trends penetrate entire organizational fields. However, research so far has neglected the temporal aspects of such diffusion processes and the organizational reasons underlying the introduction of new management tools. We argue that during reform waves, the reasons for adopting the new tools differ over time. Using comparative data from two surveys on quality management in the field of higher education and the health sector, we show that early adopters are more likely to be motivated by instrumental reasons, while late adopters will more likely be motivated by institutional reasons.
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. <br /> Points for practitioners <br /> 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.
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.
In the past decades, scholars and courts have paid considerable attention to the extraterritorial applicability of human rights treaties. By contrast, the extraterritorial application of constitutional rights has received comparable scholarly attention only in the United States. Specifically, there is a paucity of comparative research in this area, which contributes to the prevailing view that human rights law provides the proper framework under which domestic courts should examine extraterritoriality questions under constitutional law.
This article argues that domestic constitutional regimes and their judicial enforcers can and should provide an important counterweight to the deadlocked extraterritoriality debate at the international level. Using two case studies from Germany and the United States, it shows that domestic constitutional courts are sometimes better suited than treaty bodies to guard the normative values of human dignity and universality in an extraterritoriality context. This is most apparent in the case of Germany, which has a long tradition of integration into international multi-level governance systems and "bottom-up" resistance based on fundamental rights within such systems. Recent cases from the Federal Constitutional Court (Bundesverfassungsgericht) about the extraterritorial application of the Basic Law (Grundgesetz) to foreign intelligence gathering and climate change support this theory. However, an independent constitutional approach can also achieve some normative effects in domestic systems that are more isolated from the international human rights system. Thus, the US Supreme Court likewise used domestic constitutional doctrine to sidestep the American government's strictly territorial interpretation of the ICCPR and employ a functional approach to the extraterritorial applicability of fundamental rights in the case of detention of suspected terrorists in the Guantánamo Bay naval base.
The study of these two examples does not purport to be comprehensive or even representative of the world’s diverse array of constitutions and their relationships with international human rights law. However, the independent power of constitutional frameworks in these two disparate cases should all the more provide an impetus for increased comparative research into constitutional extraterritoriality regimes and their value for the project of human rights.
Although hate speech is widely recognized as an online phenomenon, very few studies have investigated hate speech among adolescents in offline settings (e.g., schools). At the same time, not much is known about countering hate speech (counterspeech) among adolescents and which factors are associated with it. To this end, the present study used the socio-ecological framework to investigate the direct and indirect links among one contextual factor (i.e., classroom climate) and two intrapersonal factors (i.e., empathy for victims of hate speech, self-efficacy regarding intervention in hate speech) to understand counterspeech among adolescents. The sample is based on self-reports of 3,225 students in Grades 7 to 9 (51.7% self-identified as female) from 36 schools in Germany and Switzerland. Self-report questionnaires were administered to measure classroom climate, empathy, self-efficacy, and counterspeech. After controlling for adolescents' grade, gender, immigrant background, and socioeconomic status (SES), the 2-(1-1)-1 multilevel mediation analysis showed that classroom climate (L2), empathy for victims of hate speech (L1), and self-efficacy toward intervention in hate speech (L1) had a positive effect on countering hate speech (L1). Classroom climate (L2) was also positively linked to empathy for victims of hate speech (L1), and self-efficacy toward intervention in hate speech (L1). Furthermore, classroom climate (L2) was indirectly associated with countering hate speech (L1) via greater empathy (L1) and self-efficacy (L1). The findings highlight the need to focus on contextual and intrapersonal factors when trying to facilitate adolescents' willingness to face hate speech with civic courage and proactively engage against it.
This article examines public service resilience during the COVID-19 pandemic and studies the switch to telework due to social distancing measures. We argue that the pandemic and related policies led to increasing demands on public organisations and their employees. Following the job demands-resources model, we argue that resilience only can arise in the presence of resources for buffering these demands. Survey data were collected from 1,189 German public employees, 380 participants were included for analysis. The results suggest that the public service was resilient against the crisis and that the shift to telework was not as demanding as expected.
Manufacturing companies still have relatively few points of contact with the circular economy. Especially, extending life time of whole products or parts via remanufacturing is an promising approach to reduce waste. However, necessary cost-efficient assessment of the condition of the individual parts is challenging and assessment procedures are technically complex (e.g., scanning and testing procedures). Furthermore, these assessment procedures are usually only available after the disassembly process has been completed. This is where conceptualization, data acquisition and simulation of remanufacturing processes can help. One major constraining aspect of remanufacturing is reducing logistic efforts, since these also have negative external effects on the environment. Thus regionalization is an additional but in the end consequential challenge for remanufacturing. This article aims to fill a gap by providing an regional remanufacturing approach, in particular the design of local remanufacturing chains. Thereby, further focus lies on modeling and simulating alternative courses of action, including feasibility study and eco-nomic assessment.
Thus far, research into reservations to treaties has often overlooked reservations formulated to both European Social Charters (and its Protocols) and the relevant European Committee of Social Rights practices. There are several pressing reasons to further explore this gap in existing literature. First, an analysis of practices within the European Social Charters (and Protocols) will provide a fuller picture of the reservations and responses of treaty bodies. Second, in the context of previous landmark events it is worth noting the practices of another human rights treaty monitoring body that is often omitted from analyses. Third, the very fact that the formulation of reservations to treaties gives parties such far-reaching flexibility to shape their contractual obligations (à la carte) is surprising. An important outcome of the research is the finding that, despite the far-reaching flexibility present in the treaties analysed, both the States Parties and the European Committee of Social Rights generally treat them as conventional treaties to which the general rules on reservations apply. Consequently, there is no basis for assuming that the mere fact of adopting the à la carte system in a treaty with no reservation clause implies a formal prohibition of reservations or otherwise discourages their formulation.
Purpose Paradoxical leadership (PL) is an emerging perspective to understand how leaders help followers deal with paradoxical demands. Recently, the positive relationship between PL and follower performance was established. This paper builds on and extends this research by interpreting PL as sensegiving and developing theory about mediation in the relationship between PL and adaptive and proactive performance. Design/methodology/approach The paper develops a new measure for PL as sensegiving and provides a test of the mediation model with data from two different sources and two measurement times in a German company. Findings Multilevel mediation analysis (N = 154) supports the mediation model. Originality/value The paper presents sensegiving about paradox as a core element of PL, which informs the choice of change-readiness as mediator. This study also develops and validates a scale to measure PL in future research.
At the beginning of 2020, with COVID-19, courts of justice worldwide had to move online to continue providing judicial service. Digital technologies materialized the court practices in ways unthinkable shortly before the pandemic creating resonances with judicial and legal regulation, as well as frictions. A better understanding of the dynamics at play in the digitalization of courts is paramount for designing justice systems that serve their users better, ensure fair and timely dispute resolutions, and foster access to justice. Building on three major bodies of literature —e-justice, digitalization and organization studies, and design research— Designing for Digital Justice takes a nuanced approach to account for human and more-than-human agencies.
Using a qualitative approach, I have studied in depth the digitalization of Chilean courts during the pandemic, specifically between April 2020 and September 2022. Leveraging a comprehensive source of primary and secondary data, I traced back the genealogy of the novel materializations of courts’ practices structured by the possibilities offered by digital technologies. In five (5) cases studies, I show in detail how the courts got to 1) work remotely, 2) host hearings via videoconference, 3) engage with users via social media (i.e., Facebook and Chat Messenger), 4) broadcast a show with judges answering questions from users via Facebook Live, and 5) record, stream, and upload judicial hearings to YouTube to fulfil the publicity requirement of criminal hearings. The digitalization of courts during the pandemic is characterized by a suspended normativity, which makes innovation possible yet presents risks. While digital technologies enabled the judiciary to provide services continuously, they also created the risk of displacing traditional judicial and legal regulation.
Contributing to liminal innovation and digitalization research, Designing for Digital Justice theorizes four phases: 1) the pre-digitalization phase resulting in the development of regulation, 2) the hotspot of digitalization resulting in the extension of regulation, 3) the digital innovation redeveloping regulation (moving to a new, preliminary phase), and 4) the permanence of temporal practices displacing regulation. Contributing to design research Designing for Digital Justice provides new possibilities for innovation in the courts, focusing at different levels to better address tensions generated by digitalization. Fellow researchers will find in these pages a sound theoretical advancement at the intersection of digitalization and justice with novel methodological references. Practitioners will benefit from the actionable governance framework Designing for Digital Justice Model, which provides three fields of possibilities for action to design better justice systems. Only by taking into account digital, legal, and social factors can we design better systems that promote access to justice, the rule of law, and, ultimately social peace.
Law of raw data
(2021)
Law of Raw Data gives an overview of the legal situation across major countries and how such data is contractually handled in practice in the respective countries. In recent years, digital technologies have transformed business and society, impacting all sectors of the economy and a wide variety of areas of life. Digitization is leading to rapidly growing volumes of data with great economic potential. Data, in its raw or unstructured form, has become an important and valuable economic asset, and protection of raw data has become a crucial subject for the intellectual property community. As legislators struggle to develop a settled legal regime in this complex area, this invaluable handbook will offer a careful and dedicated analysis of the legal instruments and remedies, both existing and potential, that provide such protection across a wide variety of national legal systems.
What’s in this book:
Produced under the auspices of the International Association for the Protection of International Property (AIPPI), more than forty active specialists of the association from twenty-three countries worldwide contribute national chapters on the relevant law in their respective jurisdictions. The contributions thoroughly explain how each country approaches such crucial matters as the following:
if there is any intellectual property right available to protect raw data; the nature of such intellectual property rights that exist in unstructured data; contracts on data and which legal boundaries stand in the way of contract drafting; liability for data products or services; and questions of international private law and cross-border portability.
Each country’s rules concerning specific forms of data – such as data embedded in household appliances and consumer goods, criminal offence data, data relating to human genetics, tax and bank secrecy, medical records, and clinical trial data – are described, drawing on legislation, regulation, and case law.
How this will help you:
A matchless legal resource on one of the most important raw materials of the twenty-first century, this book provides corporate counsel, practitioners and policymakers working in the field of intellectual property rights, and concerned academics with both a broad-based global overview on emerging legal strategies in the protection of unstructured data and the latest information on existing legislation and regulation in the area.
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.
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.
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.
Back in 1949, and thus only one year after the 1948 Universal Declaration of Human Rights, the four Geneva Conventions were adopted, providing a strong signal for a new world order created after 1945 with the United Nations at their centre and combining as their goals both the maintenance of peace and security and the protection of human rights, but also recognising, realistically, that succeeding generations had so far not yet been saved from the scourge of war. Hence, the continued need for rules governing, and limiting, the means and methods of warfare once an armed conflict has erupted. At the same time, the international community has unfortunately not been able so far to fully safeguard individual human rights, its efforts to that effect and the continuous development of international human rights law over the years notwithstanding.
Article 15ter Exercise of jurisdiction over the crime of aggression (Security Council referral)
(2022)
Article 15bis. Exercise of jurisdiction over the crime of aggression (State referral, proprio motu)
(2022)
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’.
This book provides empirical evidence that all States have a universally binding obligation to adopt national laws and international treaties to protect the marine environment, including the designation of Marine Protected Areas. Chapter by chapter this obligation is detailed, providing the foundation for holding States responsible for fulfilling this obligation. The fundamentals are analysed in a preliminary chapter, which examines the legally binding sources of the Law of the Sea as well as its historical development to help readers understand the key principles at hand.
The Law of the Sea provides more than 1000 instruments and more than 300 regulations concerning marine protection. While the scope of most treaties is limited either regarding species, regions or activities, one regulation addresses States in all waters: the obligation to protect and preserve the marine environment as stipulated under Art. 192 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). As this ‘Constitution of the Ocean’ not only contains conventional laws but also very broadly reflects pre-existing rules of customary international law, an extensive analysis of all statements made by States in the UN General Assembly, their practices, national laws and regulations as well as other public testimonials demonstrates that Art. 192 UNCLOS indeed binds the whole community of States as a rule of customary international law with an erga omnes effect. Due to the lack of any objections and its fundamental value for humankind, this regulation can also be considered a new peremptory norm of international law (ius cogens).
While the sovereign equality of States recognises States’ freedom to decide if and how to enter into a given obligation, States can also waive this freedom. If States accepted a legally binding obligation, they are thus bound to it. Concerning the specific content of Art. 192 UNCLOS, a methodical interpretation concludes that only the adoption of legislative measures (national laws and international agreements) suffices to comply with the obligation to protect and preserve the marine environment, which is confirmed by the States’ practices and relevant jurisprudence. When applied to a specific geographical area, legislative measures to protect the marine environment concur with the definition of Marine Protected Areas. Nonetheless, as the obligation applies to all waters, the Grotian principle of the freedom of the sea dictates that the restriction of activities through the designation of Marine Protected Areas, on the one hand, must be weighed against the freedoms of other States on the other. To anticipate the result: while all other rights under the UNCLOS are subject to and contingent on other regulations of the UNCLOS and international law, only the obligation to protect and preserve the marine environment is granted absolutely – and thus outweighs all other interests
Would the world be a better place if one were to adopt a European approach to state immunity?
(2021)
This chapter argues not only that there is no European Sonderweg (or ‘special way’) when it comes to the law of state immunity but that there ought not to be one. Debates within The Hague Conference on Private International Law in the late 1990s and those leading to the adoption of the 2002 UN Convention on Jurisdictional Immunities of States, as well as the development of the EU Brussels Regulation on Jurisdiction and Enforcement, as amended in 2015, all demonstrate that state immunity was not meant to be limited by such treaties but ‘safeguarded’. Likewise, there is no proof that regional European customary law limits state immunity when it comes to ius cogens violations, as Italy and (partly) Greece are the only European states denying state immunity in such cases while the European Court of Human Rights has, time and again, upheld a broad concept of state immunity. It therefore seems unlikely that in the foreseeable future a specific European customary law norm on state immunity will develop, especially given the lack of participation in such practice by those states most concerned by the matter, including Germany. This chapter considers the possible legal implications of the jurisprudence of the Italian Constitutional Court for European military operations (if such operations went beyond peacekeeping). These implications would mainly depend on the question of attribution: if one where to assume that acts undertaken within the framework of military operations led by the EU were to be, at least also, attributable to the troop-contributing member states, the respective troop-contributing state would be entitled to enjoy state immunity exactly to the same degree as in any kind of unilateral military operations. Additionally, some possible perspectives beyond Sentenza 238/2014 are examined, in particular concerning the redress awarded by domestic courts ‘as long as’ neither the German nor the international system grant equivalent protection to the victims of serious violations of international humanitarian law committed during World War II. In the author’s opinion, strengthening the jurisdiction of international courts and tribunals, bringing interstate cases for damages before the International Court of Justice, as well as providing for claims commissions where individual compensation might be sought for violations of international humanitarian law would be more useful and appropriate mechanisms than denying state immunity.
Legal shades of grey?
(2021)
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'.
This paper consists of two parts: In the first part, some of the challenges with which the Internationaal Criminal Court is currently confronted are being presented. First of all, the article will describe the current state of the International Criminal Court and the Rome Statue. Afterwards, the article analyses the Court’s efforts to deal with cases against third-country nationals and the challenges it is facing in that regard. In addition, the Court’s case law will be analyzed in order to determine an increasing ‘emancipation’ of the case law of the International Criminal Court from international humanitarian law. The second part of the paper will briefly discuss the role of domestic international criminal law and domestic courts in the further development and enforcement of international criminal law. As an example of the role that domestic courts may have in clarifying classic issues in international law, the judgment of the German Supreme Court of January 28, 2021 (3 StR 564/19), which deals with the status of costumary international law on functional immunity of State officials before domestic courts, shall be assessed.
This introductory essay is structured as follows: First of all, several forms of urbanisation (I.) are introduced and the processes of urbanisation and dis-urbanisation (II.) are defined. Then four fields of law which are deeply affected by urbanisation are put into the focus. These are, local government law (III.), but also public building law (IV.), civil service law (V.) and public finance law (VI.). Afterwards the effects of the corona pandemic on these fields of law are contemplated, taking account of the process of urbanisation (VII.). Finally, the main results are summarised (VIII.).
Smend, Rudolf
(2021)
This paper shows that the law, in subtle ways, may set hitherto unrecognized incentives for the adoption of explainable machine learning applications. In doing so, we make two novel contributions. First, on the legal side, we show that to avoid liability, professional actors, such as doctors and managers, may soon be legally compelled to use explainable ML models. We argue that the importance of explainability reaches far beyond data protection law, and crucially influences questions of contractual and tort liability for the use of ML models. To this effect, we conduct two legal case studies, in medical and corporate merger applications of ML. As a second contribution, we discuss the (legally required) trade-off between accuracy and explainability and demonstrate the effect in a technical case study in the context of spam classification.
This chapter aims to analyse whether and how democracy is actually threatened by big-data-based operations and what role international law can play to respond to this possible threat. It shows how big-data-based operations challenge democracy and how international law can help in defending it. The chapter focuses on both state and non-state actors may undermine democracy through big data operations; although democracy as such is a rather underdeveloped concept in international law, which is often more concerned with effectivity than legitimacy – international law protects against these challenges via a democracy-based approach rooted in international human rights law on the one hand, and the principle of non-intervention on the other hand. Thus, although democracy does not play a major role in international law, international law nevertheless is able to protect democracy against challenges from the inside as well as outside.
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.
COP 25
(2020)
The 25th session of the Conference of the Parties (COP-25) of the United Nations Framework Convention on Climate Change (UNFCCC) became the longest COP on record - but yielded few results. It appears that four years after the adoption of the Paris Agreement, enthusiasm has waned and political bargaining and bean-counting have taken over. Countries, for even the slightest chance to keep temperatures 'well below' 2 degrees Celsius, must do much more than they have previously committed to and accelerate the shift towards a zero-carbon economy. However, the conference largely failed to heed the rallying cry of the Chilean presidency. The flagship decisions (grouped under the banner "Chile-Madrid Time for Action") neither produced new commitments - enhancing ambition or finance for developing countries - nor new rules that would nudge countries closer to the climate action targets needed. The leftover pieces from last year's negotiations of the "Paris Rulebook" were also not resolved, in particular the unfinished decisions on Article 6 on market- and non-market mechanisms. The procrastination shows that the new architecture of the Paris Agreement, while addressing several of the shortcomings of the Kyoto Protocol, suffers from its own weaknesses. The meager results of Madrid give reason to pause and reflect on the conditions that may hold countries back from fully embracing the Paris Agreement, but also to consider the future and nature of carbon markets and what is making the issue so difficult to resolve.
Filling in for Governments?
(2020)
The 2015 Paris Agreement on climate change abandons the Kyoto Protocol's paradigm of binding emissions targets and relies instead on countries' voluntary contributions. However, the Paris Agreement encourages not only governments but also sub-national governments, corporations and civil society to contribute to reaching ambitious climate goals. In a transition from the regulated architecture of the Kyoto Protocol to the open system of the Paris Agreement, the Agreement seeks to integrate non-state actors into the treaty-based climate regime. In 2014 the secretariat of the United Nations Framework Convention on Climate Change Peru and France created the Non-State Actor Zone for Climate Action (and launched the Global Climate Action portal). In December 2019, this portal recorded more than twenty thousand climate-commitments of private and public non-state entities, making the non-state venues of international climate meetings decisively more exciting than the formal negotiation space. This level engagement and governments' response to it raises a flurry of questions in relation to the evolving nature of the climate regime and climate change governance, including the role of private actors as standard setters and the lack of accountability mechanisms for non-state actions. This paper takes these developments as occasion to discuss the changing role of private actors in the climate regime.
This study examines whether incentives affect public employees' intention to share knowledge. Tested incentives satisfy needs for either achievement or appreciation. Both treatments were tested on implicit as well as explicit knowledge sharing. A 2 x 3 factorial survey experiment was designed to observe within-person and between-person effects. Data were collected from public employees in the core administration and healthcare sector (n = 623) in 2018. The analysis indicates that both treatments positively affect knowledge-sharing intention if it is explicit knowledge that ought to be shared. However, no effects of either treatment can be found in either type of knowledge sharing. No negative effect of the tested incentives on knowledge sharing was observed. Hence, incentives might not harm knowledge sharing but also do not pay off in organizational practice. In contrast to these motivation-enhancing human resource practices, ability and opportunity-enhancing practices should be tested to foster knowledge sharing.
Draft Article 15 of the International Law Commission’s project on crimes against humanity — dealing with the settlement of disputes arising from a proposed convention — attempts to strike a balance between state autonomy and robust judicial supervision. It largely follows Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination, which renders the jurisdiction of the International Court of Justice (ICJ) conditional upon prior negotiations. Hence, the substance of the clause can be interpreted in light of the recent case law of the ICJ, especially in the case Georgia v. Russia. In addition, this contribution discusses several issues regarding the scope ratione temporis of the compromissory clause. It advances several proposals to improve the current draft, addressing its relationship with state responsibility — an explicit reference to which is currently missing — as well as the relationship between the ICJ and a possible treaty body. It also proposes to recalibrate the interplay of the requirement of prior negotiations with, respectively, the possibility of seizing a future treaty body and the indication of provisional measures by the ICJ.
Territorial reform is the most radical and contested reorganisation of local government. A sound evaluation of the outcome of such reforms is hence an important step to ensure the legitimation of any decision on the subject. However, in our view the discourse on the subject appears to be one sided, focusing primarily on overall fiscal effects scrutinised by economists. The contribution of this paper is hence threefold: Firstly, we provide an overview off territorial reforms in Europe, with a special focus on Eastern Germany as a promising case for cross-country comparisons. Secondly, we provide an overview of the analytical classifications of these reforms and context factors to be considered in their evaluation. And thirdly, we analyse the literature on qualitative performance effects of these reforms. The results show that territorial reforms have a significant positive impact on functional performance, while the effects on participation and integration are indeed ambivalent. In doing so, we provide substantial arguments for a broader, more inclusive discussion on the success of territorial reforms.
The steadily rising number of investor-State arbitration proceedings within the EU has triggered an extensive backlash and an increased questioning of the international investment law regime by different Member States as well as the EU Commission. This has resulted in the EU's assertion of control over the intra-EU investment regime by promoting the termination of bilateral intra-EU investment treaties (intra-EU BITs) and by opposing the jurisdiction of arbitral tribunals in intra-EU investor-State arbitration proceedings. Against the backdrop of the landmark Achmea decision of the European Court of Justice, the book offers an in depth analysis of the interplay of international investment law and the law of the European Union with regard to intra-EU investments, i.e. investments undertaken by an investor from one EU Member State within the territory of another EU Member State. It specifically analyses the conflict between the two investment protection regimes applicable within the EU with a particular emphasis on the compatibility of the international legal instruments with the law of the European Union. The book thereby addresses the more general question of the relationship between EU law and international law and offers a conceptual framework of intra-European investment protection based on the analysis of all intra-EU BITs, the Energy Charter Treaty and EU law, as well as the arbitral practice in over 180 intra-EU investor-State arbitration proceedings. Finally, the book develops possible solutions to reconcile the international legal standards of protection with the regionalized transnational law of the European Union
The objective of this book is to provide ICAO, States, competent authorities and aerodrome operators with a comprehensive overview of legal challenges related to international aerodrome planning. Answers to derived legal questions as well as recommendations thereafter shall help to enhance regulatory systems and to establish a safer aerodrome environment worldwide. Compliant aerodrome planning has an immense impact on the safety of passengers, personnel, aircraft – and of course the airport. Achieving a high safety standard is crucial, as many incidents and accidents in aviation happen at or in the vicinity of airports. Currently, more than 40% of the ICAO Member States do not fully comply with international legal requirements for aerodrome planning. Representatives of ICAO and States, as well as aerodrome and authority personnel, will understand why compliance with the different legal facets of aerodrome planning is challenging and learn how shortcomings can be solved.
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.
Das Werk analysiert umfassend das Verbrechen der Aggression im Sinne des Römischen Statuts. Ausgehend von der Rechtsgeschichte, werde die einschlägigen Artikel 8bis, 15bis und 15ter des Römischen Statuts, also die Definition des Verbrechens der Aggression, analysiert.
Ebenso behandelt das Buch weiterführende Entwicklungen des Verbrechens der Aggression über das Jahr 2017 hinaus – das Jahr, in dem es, wahrscheinlich, zu einer Entscheidung über die Aktivierung der Gerichtsbarkeit kommt
In ihren Beiträgen verbinden die Autoren grundsätzliche philosophische Überlegungen zur grundlegenden Bedeutung von Menschenwürde für die Menschenrechte mit konkreteren Forderungen, wie mit der Befriedigung lebensnotwendiger Bedürfnisse umzugehen und was zur Beendigung von Armut notwendig ist. Ihre rechtlichen und politischen Argumente stützen sich auf jüngere Rechtsprechung regionaler Gerichtshöfe und internationaler Menschenrechtsorgane. Sie berufen sich auf die Verpflichtungsdimensionen der Menschenrechte und fragen nach der Verantwortlichkeit für deren Umsetzung. Die Autorinnen kommen aus Universitäten in Deutschland, der Schweiz, den Niederlanden und dem Vereinigten Königreich.
While public–private partnerships (PPPs) have surged worldwide since the 1990s, they have been met with growing skepticism during the last years. A recent revision of Germany’s constitutional rules on motorway construction and observations on the use of PPPs published by both the German and the European Courts of Auditors illustrate this new caution. These two examples fit into a general trend towards a revival of the public sector, which can be summarized under the cross-level umbrella term “publicization.” It would, however, be remiss to replace the uncritical euphoria that once surrounded privatization with a similarly undifferentiated euphoria regarding publicization. Rather, it is crucial to identify the most appropriate solution for the fulfilment of each public task from the “toolbox” of publicization on the one hand and privatization on the other hand in order to ensure the most effective completion of public functions.
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.
Addressing both scholars of international law and political science as well as decision makers involved in cybersecurity policy, the book tackles the most important and intricate legal issues that a state faces when considering a reaction to a malicious cyber operation conducted by an adversarial state. While often invoked in political debates and widely analysed in international legal scholarship, self-defence and countermeasures will often remain unavailable to states in situations of cyber emergency due to the pervasive problem of reliable and timely attribution of cyber operations to state actors. Analysing the legal questions surrounding attribution in detail, the book presents the necessity defence as an evidently available alternative. However, the shortcomings of the doctrine as based in customary international law that render it problematic as a remedy for states are examined in-depth. In light of this, the book concludes by outlining a special emergency regime for cyberspace.
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.
International women’s rights
(2019)
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-à-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.
Underpinning a legal system with certain values and helping to resolve norm conflicts is in domestic legal systems usually achieved through hierarchical superiority of certain norms of a constitutional nature. The present paper examines the question whether jus cogens can discharge this function within the traditionally horizontal and decentralized international legal order. In so doing, it commences with an overview of the historical origins of peremptory norms in legal scholarship, followed by its endorsement by positive law and courts and tribunals. This analysis illustrates that there are lingering uncertainties pertaining to the process of identification of peremptory norms. Even so, the concept has been invoked in State executive practice (although infrequently) and has been endorsed by various courts. However, such invocation thus far has had a limited impact from a legal perspective. It was mainly confined to a strengthened moral appeal and did in particular not facilitate the resolution of norm conflicts. The contribution further suggests that this limited impact results from the fact that the content of peremptory obligations is either very narrow or very vague. This, in turn, implies a lack of consensus amongst States regarding the content (scope) of jus cogens, including the values underlying these norms. As a result, it is questionable whether the construct of jus cogens is able to provide meaningful legal protection against the erosion of legal norms. It is too rudimentary in character to entrench and stabilize core human rights values as the moral foundation of the international legal order.
Matters of Interpretation
(2018)
This article analyses, from a methodological and theoretical perspective, how international legal method deals with change. Section 2 sets the stage, develops a legal perspective on change of norms and values in the international legal order and distinguishes between structural change and norm change. This is followed in sections 3 and 4 by an examination of doctrinal categories that provide techniques to process change in international legal practice. International legal method is equipped with several techniques to process—and to conceptualize and evaluate—change: ‘Formal’ norm change is a matter of the doctrine of sources. International law can also change ‘informally’ through the shifting meaning of norm texts. Both formal and informal change is a matter of interpretation. Therefore, section 5 aims at theorizing interpretive change. It examines the relationship between the sources of law and legal interpretation as categories of change and analyses theoretical perceptions of interpretive change.
This paper assesses, both quantitatively and qualitatively, the work of the Peace and Security Council (PSC) of the African Union (AU) with respect to peace support operations. It seeks to know whether the establishment of the PSC in 2002 is leading or has led to a rise or a decline of collective security in Africa. It is demonstrated that in regard to its relative legal and institutional robustness, the PSC can be perceived as a rise of collective security compared with its predecessor, the Central Organ of the Organisation of African Unity (OAU). However, it stagnates in terms of quantity and quality of actions on the ground. The main problem lies in the lack of sufficient operational autonomy from member states and international partners, such as the United Nations. Therefore, the PSC’s contribution to the maintenance of peace and security, and so the rise of the international rule of law in Africa is limited. The continent is still a war-torn region, affected by political crises and the expansion of terrorism in many countries. To solve this problem, AU member states should strengthen the PSC’s capacity, starting with the quick operationalisation of the African Standby Force. The implementation of the 2016 decision on alternative sources of financing AU’s institutions and activities is also a priority. In this regard, the political will of African states that may show that they want to take their organisation more seriously is required. This can further the AU self-reliance policy in collective security though the promotion of African solutions to African problems, and reduce the burden of the United Nations and other non-African actors’ interventions in the continent.
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.
Seeming consensus has formed among legal scholars and practitioners that a rising China seeks changes in rules and institutions of international law. Yet, attendant accounts of how such changes may and already do restructure global legal order remain relatively underdeveloped. An observed rise in the international rule of law during immediate post-Cold War years has now been disrupted by a confluence of regional shifts in geopolitical power and contestation of law’s normative foundations by newly empowered states. In these circumstances, advocates for stability and continuity in variations of the “liberal international order” or “rules-based order” have sought to defend the authority and resilience of universally defined international legal norms against various regional challenges to the boundary between law and politics. Yet, as both global power and universal conceptions of law fragment, so too will the presumed equilibrium between international law’s political and normative foundations. Signs of fragmentation are now conspicuously playing out in East and Southeast Asia, where the relative rise of China is amplified by alternative Chinese conceptions of foundations and purposes of global legal order. This working paper introduces the concept of “geolegal power” to describe the competitive logic of a territorially bounded leading state restructuring interpretation and development of legal rules and institutions, which is emerging more explicitly within regional subsystems. Fragmentation of the international rule of law by a rising Chinese “geolegal order” is demonstrated by contested maritime rules in three key areas: freedom of navigation; third-party and judicial settlement; and, territorial claims under UNCLOS. Evidence that China is carving out an effective subsystem of rules designated as “law” in the most consequential of security and geopolitical domains poses a critical challenge to the structure of a unified and universal system of international law. Legal scholars and practitioners must better grasp reconfiguring foundations of international law in order to address rising orders of “geolegal power”, in which the regional meaning and operation of law is no longer reconcilable within the terms of an “international” rule of law.
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.
Challenging the Paris Peace Treaties, State Sovereignty, and Western-Dominated International Law
(2018)
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.
In light of current efforts at addressing the dangers of fake news, this article will revisit the international law relevant to the phenomenon, in particular the prohibition of intervention, the 1936 International Convention on the Use of Broadcasting in the Cause of Peace, and the 1953 Convention on the International Right of Correction. It will be argued that important lessons can be learned from the League of Nations’ (LON) efforts in the interwar period and the UN’s activities in the immediate post-WWII era, while taking into account the new challenges that arise from modern communication technology.
Taking up the LON’s and UN’s distinction between false and distorted news, the international legal framework will be tested, in particular, against the coverage of the 2016 ‘Lisa case’ by Russian Government-funded media. This coverage is widely considered to be fake news aimed at destabilizing Germany’s society and institutions.
The article argues that false news can be subject to repressive regulation in a sensible manner. Distorted news, however, will have to be tolerated legally, since prohibitions in this regard would be too prone to abuse. A free and pluralist media, complemented by an appropriate governmental information policy, remains the best answer to fake news in all its forms. Due diligence obligations to fact-check, transparency, and remedies that are effective despite difficulties in attribution, and despite a lack of universal acceptance, could likewise be conducive.
This paper illustrates the functional and conceptual variances of law in different contexts. Whereas legal actors on the international level might normatively aim for law to have a similar effect to that of domestic law, the way in which international and supranational law can fulfil these potential functions is different. Accordingly, this paper argues that an awareness with regard to the particularities and challenges that the potential functions of law encounter in the international and supranational context is needed. Moreover, it suggests an analytical lens to conceptually frame and locate current developments, offering a broader perspective on, or even an element of explication for, the apparent crisis that law is currently facing on the international and supranational scale. After describing the potential functions of law on an abstract scale and grouping them into analytical categories, the paper uses these categories as a lens in order to assess in which way international law can fulfil these potential functions, where priorities regarding certain functions might differ and where some aspects of these functions are challenged when law is made and applied in the international and supranational sphere.
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.
The German-Italian dispute over the scope of sovereign immunities and claims of reparations for war crimes committed by German armed forces during World War II in Italy is in many ways specific and historically contingent. At the same time, it touches upon a number of fundamental challenges which the international community has to address in the interest of furthering the international rule of law. In this working paper both authors address the question whether the current law of sovereign immunities should be changed or interpreted in a manner as to allow for exceptions from State immunities in cases of grave violations of human rights. While the first part of the paper focusses on the perspective of general international law the second part addresses the question through the lense of European law. Both authors agree that unilateral efforts to push for what many consider a progressive development of international law actually may entail adverse effects for the international rule of law and thus may even contribute to a broader crisis of the international legal order.
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.
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.
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.
Berlin – New York
(2018)
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.