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61. Why Global Constitutionalism Does not Live up to its Promises

Author:
Christian Volk
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This paper argues that cosmopolitan constitutionalism suffers from a liberal bias when it comes to comprehend the challenges and conflicts of international politics. This liberal bias becomes obvious in the way cosmopolitan constitutionalism conceives the meaning and function of democracy in global governance. For the cosmopolitan constitutionalism, democracy is mainly thought of as a mechanism to guarantee a political process that brings about reasonable, sustainable and fair compromises between the diverging interests of states and individuals.
Topic:
International Law
Political Geography:
America

62. The Relationship Between Constitutionalism and Pluralism

Author:
Geir Ulfstein
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.

63. Overcoming Dichotomies: A Functional Approach to the Constitutional Paradigm in Public International Law

Author:
Markus Kotzur
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The article discusses the potential of a constitutional matrix to conceptualize public international law. Next to criteria of constitutional quality the very functions of a constitution are analyzed. The constitutional reading of public international law is seen not in contrast to obvious fragmentations but as a means to deal with fragmental legal orders.

64. Constitutionalism as a Cipher: On the Convergence of Constitutionalist and Pluralist Approaches to the Globalization of Law

Author:
Lars Viellechner
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Global constitutionalism still remains an essentially contested concept. While both its descriptive and normative usages remain unclear, the possibility and the desirability of framing the postnational constellation in constitutionalist terms meet equally strong objection. Yet, recently, even pluralist approaches to the globalization of law which call for a more radical departure from the statist legacy explicitly or implicitly refer to the notion of constitutionalism. Animated by democratic concerns for the inclusion of all those concerned by a rule as well as legal certainty and equality, they envisage a new kind of conflicts law that allows for a mutual recognition and reconciliation of the different legal orders and regimes emerging in world society. Hence, constitutionalism, when employed in a global context, appears but as a reminiscence of an historical achievement. It serves as a cipher under which the reconstruction of law under conditions of globalization has begun and will continue until more adequate concepts will be discovered.

65. The System Theory of Niklas Luhmann and the Constitutionalization of the World Society

Author:
Clemens Mattheis
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The article takes a critical look at the current 'constitutionalization vs. fragmentation' debate and examines it on a system theory-based outlook. The historical background deals with Niklas Luhmann's system theory and analyses whether his move 'from territoriality to functionality' is applicable to modern international law. The contribution analyses a possible constitutionalization in Luhmann's “world society” in form of structural couplings and beyond a societal constitutionalism or a postnational order. The essential argument is that there is a constitutional system-theoretical element in modern, state-centered international law: a value-based, 'structural coupling' between the political system and the law system in terms common values such as core human rights and basic principles.

66. The Constitutional Function of Contemporary International Tribunals, or Kelsen's Visions Vindicated

Author:
Tomer Broude
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In this article the author makes two complementary arguments, one deceptively simple, the other deceptively esoteric. First, contemporary international courts and tribunals (most, though not necessarily all) are increasingly requested, or required (often, though not always), to adjudicate issues in ways that are tantamount to international constitutional judicial review of national acts and domestic measures, rather than traditional interstate dispute resolution. This is a point that seems to have so far evaded most of the contemporary literature on the continually enhanced judicialized system of international law, and its constitutionalization. Second, in order to understand the emergence of this current predilection towards constitutional judicial review at the international level, it is instructive to look back to Hans Kelsen's post-World War II visionary approach towards the (then) prospective constitutional role of the international judiciary. This approach is analogous to (and has its roots in) Kelsen's Weimar-era positions on the preferred role of courts as constitutional guardians in domestic legal systems. These arguments are demonstrated through analyses of recent jurisprudence of the ICJ, the WTO, and the ECtHR.

67. Editorial

Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
We are proud to present the Goettingen Journal of International Law's first issue of 2012. After the successful three issues of last year, GoJIL can now turn to its new and exciting projects of 2012! Since our last issue in January 2012, several events of global importance have filled the newspapers, confronting the global community with the need for new judicial and political solutions. The Arab Spring movement still continues, with the situation in Syria aggravating further, which has led to the UN Security Council to authorize the establishment of the United Nations Supervising Mission in Syria (UNSMIS).
Topic:
Security and International Law
Political Geography:
Arabia and Syria

68. The Status and Future of International Law after the Libya Intervention

Author:
Pierre Thielbörger
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article uses the case of the Libya intervention to address three general claims about international law. Firstly, it examines whether the reliance of the intervention on the mechanisms of collective security under the UN Charter suggests that international law relating to peace and security has finally overcome its post-9/11 crisis. It concludes that the resolution's vague wording – which makes the distinction between what is “legal” under the resolution, and what is not, hard to draw – undermines such an assumption. Secondly, it explores whether the Libya intervention has put new emphasis on what has been termed the “emerging right of democratic governance”. In spite of the underlying democracy-enhancing spirit of the execution of the intervention, Resolution 1973 was exclusively written in the language of human rights. It did little to indicate a changed attitude of States towards a norm of democratic governance. Finally, the article examines whether the case of Libya shows a renewed international attitude towards States which violate the most fundamental human rights of their citizens. The article concludes by suggesting that, in this third respect, a more muscular liberalism is indeed on the rise again in international law, challenging the formerly almighty concept of State sovereignty. In contributing to this subtle transformation, the Libyan case has made a genuine contribution to the development of the international legal order.
Topic:
Security, Human Rights, and International Law
Political Geography:
America, Libya, and United Nations

69. The Responsibility to Protect and the Role of Regional Organizations: An Appraisal of the African Union's Interventions

Author:
Tom Kabau
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines the dilemmas and opportunities of the African Union, a regional organization, in implementing the responsibility to protect concepts in respect to forceful intervention to prevent or stop the occurrence of genocide, crimes against humanity and war crimes. Article 4(h) of the Constitutive Act of the African Union specifically mandates the Union to forcefully intervene in a Member State in such circumstances. Although the African Union has successfully resolved some situations where peaceful negotiations or consensual military intervention was sufficient, there has also been failure by the Union where such means fail or are inadequate. Such instances include the Darfur conflict where peacekeeping was insufficient, and recently in Libya where the African Union openly opposed enforcement of no fly zones to protect civilians. This article is of the view that the African Union's failure to implement Article 4(h) of the Constitutive Act, even in deserving situations, may have been aggravated by the failure to institutionalize the concept of responsible sovereignty within the Union's legal framework and processes. Despite the forceful intervention mandate, there are also provisions that affirm the principles of non-interference. The AU system therefore fails to resolve the dilemma between sovereignty and intervention. Sovereignty preservation remains as an effective legal and political justification for non-intervention by the AU. This has promoted a subsequent trend of greater sovereignty concerns by the Union. Institutionalization of the concepts postulated under the emerging norm of responsibility to protect within the AU framework and processes can contribute to the elimination of the legal and political dilemmas of forceful intervention by the Union.
Topic:
Crime and War
Political Geography:
Africa and Libya

70. The Continuing Functions of Article 98 of the Rome Statute

Author:
Jens M. Iverson
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
According to the current jurisprudence of the International Criminal Court, Article 98 of the Rome Statute does not forbid the issuance of an arrest warrant for a sitting head of state. The African Union Commission vehemently objects to this reading of Article 98. Because it viewed the function of Article 98 as forbidding such arrest warrants, it views the current jurisprudence as effectively reading Article 98 out of the Statute, with no continuing function. This article demonstrates the continuing function of Article 98. This continuing function includes immunities resulting from agreements under Article 98(2), as well as customary immunities pertaining to property, persons, diplomatic immunity, and state immunity. Countering the rhetoric and providing a close analysis of the current state of Article 98 in ICC jurisprudence is useful, both with respect to understanding the current operation of Article 98 and to reflect on balancing multiple maximands of criminal law, human rights law, and the international law of immunity.
Topic:
Human Rights and International Law
Political Geography:
Africa and Rome