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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.
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.
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.