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71. Sovereign Debt Crises as Threats to the Peace: Restructuring under Chapter VII of the UN Charter?

Author:
Matthias Goldmann
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Sovereign debt crises might significantly decrease the level of socioeconomic rights enjoyment for the population in the affected state. According to recent data, they even increase the risk of civil unrest. However, the resolution of sovereign debt crises is compromised by legal obstacles which result from the absence of a statutory, obligatory bankruptcy procedure for states. On the one hand, creditors might refuse to accept an exchange of their debt instrument in the frame of a workout and choose to litigate against the state. On the other hand, states might worsen their situation by unnecessarily delaying inevitable workouts. This article explores whether and to what extent the powers UN Security Council could be deployed in order to mitigate these problems. This requires a reconsideration of the concept of peace in Article 39 UN Charter. The article concludes that, at the request of the International Monetary Fund (IMF), the Security Council might put a stay on the enforcement of creditors' claims or order workout negotiations.
Topic:
Security, International Law, War, and International Monetary Fund
Political Geography:
Germany and United Nations

72. Have Measures Adopted by States to Cope With the Global Financial Crisis Been in Accordance With Their Obligations Under International Investment Law?

Author:
Maximilian Hocke
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
International investment law guarantees broad protection. The following article examines how measures against the Global Financial Crisis, e.g. the acquisition of shares or the refusal to help particular financial institutions, affected those standards. However, the article argues that due to public policy reasons the measures have been in accordance with all protection standards.
Topic:
Financial Crisis
Political Geography:
China, Germany, and Switzerland

73. Human Rights and International Investment Law: Investment Protection as Human Right?

Author:
Nicolas Klein
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Legal research conceptualized the relationship between International Investment Law (IIL) and International Human Rights Law (IHRL) until recently rather as opposing fields of law with colliding policy interests as well as contradictory rules and regulations. However, lately a new approach is gaining increasing support in the academic community: Investment protection could be understood as being part of human rights law. Such a conclusion may be perceived as highly controversial, however, from a conceptual perspective IIL and IHRL share more common ground than differences. This article will argue, first, that certain material standards of IIL can be conceptualized to be human rights-like guarantees of a minimum standard of protection and second, that such an understanding does not lead to a neoliberal proliferation of economic rights but, to the contrary, may serve as an important conceptual tool to prevent overly extensive interpretations of investment treaties and to balance economic rights with other human rights in case of norm conflict. After all, IIL could prove to be not more, but also not less, than “One Out of a Crowd” of all other fundamental human rights.
Topic:
Economics, Human Rights, and International Law
Political Geography:
Pakistan, Germany, and Guinea

74. European Asylum Law and the ECHR: An Uneasy Coexistence

Author:
Laurens Lavrysen
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
During the last two decades the European Union has become a major actor in the field of asylum law. Meanwhile, human rights law, in particular the European Convention on Human Rights (ECHR), has become of paramount importance in this field. This paper highlights certain areas of concern in the European Asylum System from the viewpoint of the ECHR. It particularly focuses on the Dublin II Regulation, the reception conditions and the detention of asylum seekers.
Topic:
Human Rights and Law
Political Geography:
Europe and Dublin

75. Re-thinking the Role of Indigenous Peoples in International Law: New Developments in International Environmental Law and Development Cooperation

Author:
Maria Victoria Cabrera Ormaza
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Indigenous Peoples have classically been defined in terms of their situation of vulnerability and discrimination traceable back to colonialism. The first international legal instruments addressing indigenous peoples are based on such an understanding, and emphasize special protection for indigenous peoples in order to preserve their cultural identity. This article describes this approach a human rights-based one, even though, at the national level, the label “indigenous” is sometimes also interpreted as a synonym of political power. Meanwhile, international environmental law has introduced what this author calls a “functional approach” recognizing the participatory role of indigenous communities in supporting environmental conservation and use of biodiversity. From a functional perspective, it is a logical consequence to include other local communities, albeit not “indigenous” in the classical sense. Thirdly, in the sector of development cooperation, international financial institutions (IFIs) have designed policies with the aim of assuring indigenous peoples the opportunity to be consulted when IFIfunded projects could entail a negative impact on indigenous communities. At first glance, it could be said that those policies were inspired by a human rights-based approach. However, from a holistic perspective, the role of indigenous peoples becomes a more functional one. This paper contributes a critical analysis of the role of indigenous peoples from these two approaches: the human rights-based approach and the functional approach. The author argues that a definition of indigenous peoples based on a humanrights approach should be understood as encompassing also other groups living in similarly vulnerable situations. Even though a functional approach to indigenous peoples responds better to the principle of equality, this approach should be more respectful to the cultural and social values of indigenous or local communities, from whom a particular behavior is expected in order to achieve certain goals.
Topic:
Human Rights and International Law
Political Geography:
North America

76. They Entered without any Rumor. Human Rights in the Belgian Legal Periodicals

Author:
Sebastiaan Vandenbogaerde
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Legal periodicals offer an opportunity to gaze on the daily pursuits of legal practitioners. By measuring the attention on a certain topic, it is possible to retrace to what extent it was deemed to be important for Belgian jurists. In this particular paper, a closer look will be taken at human rights and their relevance for Belgian legal practice. Therefore, research will be done in one of the most influential periodicals in Flanders: the Rechtskundig Weekblad. The attention on human rights, and more specific the European Convention of Human Rights, can give an impression of the importance of these rights for Belgian, and more specific, Flemish legal practice. As this periodical was preoccupied with the Flemish movement, its 'ideology' also affected its reporting of human rights. Thus, legal periodicals can be found at the crossroads of all actors in the legal world.
Topic:
Human Rights
Political Geography:
Europe

77. The EU Charter of Fundamental Rights and its Impact on Labor Law: a Plea for a Proportionality-Test "Light"

Author:
Herman Voogsgeerd
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading 'solidarity'. In this article two basic questions will be addressed. The first question will address the 'old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test 'light' in order to limit the interference of EU law with the essence of fundamental rights.
Topic:
Economics, Human Rights, and Law
Political Geography:
Europe

78. Kosovo's Chances of UN Membership: A Prognosis

Author:
David Ighojohwegba Efevwerhan
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The International Court of Justice has ruled that Kosovo.'s unilateral declaration of independence neither violated general rule of international law nor the lex specialis. As of the time of writing, 86 UN Member States have recognized Kosovo as a State. With the judicial pronouncement in their favour, the authorities in Kosovo are likely to apply for membership in the United Nations. This paper reviews the rules and practice of UN membership admission and assesses Kosovo.'s chances of success should it apply to the world body for admission. It argues that ordinarily, Kosovo meets the requirements for admission into the UN but political considerations of the permanent members of the Security Council would constitute a clog in Kosovo.'s ambition to become the 194th member of the United Nations. However, four options are proffered as ways out of the political logjam that is sure to surface if and when, Kosovo puts in an application for admission into the membership of the UN.
Topic:
Security and International Law
Political Geography:
Kosovo and United Nations

79. Editorial

Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
“Conflicts over resources have been responsible for disputes and even wars both among, and within, many countries. They cause suffering for millions today, and continue to hold back important progress for many, many more. This conference doesn't just accept these terrible facts. It actively considers how the law can help to break the vicious cycle, bringing resolution and sustainable development to those who most need it”.

80. Keynote Speech: Resources of Conflict – Conflicts over Resources

Author:
Marie-Claire Cordonier Segger
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
I am honored, esteemed colleagues and scholars, to assist you in opening this conference. We are gathered here to consider a crucial and timely problem, the linkages between two impossible challenges facing over a billion people in our world today. Conflicts over resources have been responsible for disputes and even wars both among, and within, many countries. They cause suffering for millions today, and continue to hold back important progress for many, many more. This conference doesn't just accept these terrible facts. It actively considers how the law can help to break the vicious cycle, bringing resolution and sustainable development to those who most need it. I congratulate the organizers, and also all of you as speakers and participants, for your fore sight and your intellectual courage.