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2061. The UN Declaration on the Rule of Law and the Application of the Rule of Law to the UN: A Reconstruction From an International Public Authority Perspective

Author:
Clemens A. Feinaugle
Publication Date:
06-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The UN Declaration on the rule of law at the national and international levels seems to open new possibilities for listed terrorist suspects claiming legal protection or those seeking damages for harm caused by UN peacekeepers because the Declaration provides that the rule of law applies to the United Nations itself. However, the Declaration raises questions regarding the elements of the rule of law, its legal basis, and binding nature. This paper attempts a reconstruction of the UN Declaration and relevant UN practice under an international public authority perspective to explain and develop elements of the rule of law applicable to the UN, to determine its legal basis, and to investigate its binding nature. It argues, that since measures under Chapter VII must be effective if the UN wants to fulfil its purpose (Article 1 (1) UN Charter), the UN is bound by the rule of law insofar as “effective” measures require that related legitimacy concerns are addressed by rule of law safeguards.
Topic:
International Law, Terrorism, United Nations, Peacekeeping, and Legitimacy
Political Geography:
Global Focus

2062. Towards a New International Law of the Atmosphere?

Author:
Peter H. Sand and Jonathan B. Wiener
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide range of different transnational institutions. Following several earlier attempts at identifying cross- cutting legal rules and principles in this field (by, inter alia, the International Law Association, the UN Environment Programme, and the Institut de Droit International), the ILC has now embarked on a new codification/restatement project led by Special Rapporteur Shinya Murase – albeit hamstrung by a highly restrictive ‘understanding’ imposed by the Commission in 2013. This article assesses the prospects and limitations of the initial ILC reports and debates in 2014 and 2015, and potential avenues for progress in the years to come.
Topic:
Climate Change, Environment, International Law, United Nations, and Space
Political Geography:
Global Focus

2063. Law as an Antidote? Assessing the Potential of International Health Law Based on the Ebola-Outbreak 2014

Author:
Robert Frau
Publication Date:
11-2016
Content Type:
Working Paper
Institution:
The Goettingen Journal of International Law
Abstract:
The Ebola-Outbreak of 2014 has put international health law in the limelight. This contribution assesses the measures taken by the international community with regard to the outbreak of 2014 with a special focus on the World Health Organization and the UN Security Council. International law provides different actors with means to cooperate in order to fight the outbreak. The list of actors does not include the UN Security Council, which has addressed the outbreak in one resolution under chapter VII without taking any effective legal remedies. In addition, the relevant human right to health has not been addressed by actors, creating leeway in further emergencies.
Topic:
International Cooperation, United Nations, World Health Organization, Ebola, Public Health, and Pandemic
Political Geography:
Global Focus

2064. The Use of Scholarship by the WTO Appellate Body

Author:
Sondre Torp Helmersen
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines the use of scholarship by the WTO Appellate Body. While it is not possible to say definitively how the Appellate Body views the legal status of scholarship in WTO dispute settlement, its use of scholarship will in practice determine its status. The article identifies three overall trends: the Appellate Body’s use of scholarship has declined, the Appellate Body uses scholarship mostly for matters of general international law (as opposed to WTO law), and the Appellate body has generally been careful in its use of scholarship. Possible explanations for these trends may include an increase in available precedents, the Appellate Body’s specialized role, criticism of the Appellate Body, and its members’ backgrounds.
Topic:
International Cooperation, International Law, International Trade and Finance, and World Trade Organization
Political Geography:
Global Focus

2065. The Evolution of Arms Control Instruments and the Potential of the Arms Trade Treaty

Author:
Tom Coppen
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Although the Arms Trade Treaty (ATT) has the potential to create an effective international legal framework for controlling the international arms trade, much depends on the subsequent development of its legal framework. This article therefore analyzes how the ATT, as a multilateral arms control treaty, can develop its own legal framework in accordance with international law and what role the organs established by it can play in that process. It will be shown that in its current form the ATT has significant shortcomings that may prevent it from achieving this goal, but there certainly is room for the lawful development of its norms, which will depend on amassing political will and the establishment of practice.
Topic:
Arms Control and Proliferation, Diplomacy, International Law, Treaties and Agreements, and Military Affairs
Political Geography:
Global Focus

2066. Combating Illegal Fishing in the Exclusive Economic Zone – Flag State Obligations in the Context of the Primary Responsibility of the Coastal State

Author:
Valentin J. Schatz
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Illegal fishing in the Exclusive Economic Zones [EEZs] of developing coastal States is an urgent problem for the marine environment, global food security, and local economies. While past academic debate has predominantly focused on obligations of flag States to tackle so called IUU-fishing in the High Seas, the recent request for an advisory opinion submitted by the Sub-Regional Fisheries Commission to the International Tribunal for the Law of the Sea (ITLOS, Case No. 21) has drawn attention to the fisheries regime of the EEZ. This article argues that the primary responsibility for fisheries management in the EEZ rests on the coastal State and that, so far, flag States have no obligation under customary international law to exercise their jurisdiction and control over vessels flying their flag which fish in the EEZ of other States. The article first gives an account of coastal State regulatory and enforcement jurisdiction. It outlines recent developments of the law by drawing on the jurisprudence of the ITLOS, particularly the recent M/V “Virginia G” Case. Further, the article undertakes to identify potential flag State obligations to combat illegal fishing in the EEZ. To that end, it provides an in-depth analysis of relevant binding and non-binding legal instruments such as the 1982 UN Convention on the Law of the Sea, other multilateral treaties, bilateral fisheries treaties, and relevant soft-law instruments of the Food and Agriculture Organization of the United Nations. The article also discusses the relevance of principles of international environmental law. Next, the article analyzes the nature and scope of potential flag State obligations, qualifying them as obligations of due diligence. Finally, the article concludes that, de lege lata, no persuasive evidence of established flag State obligations exists. The author suggests that the situation should be remedied by a new, fully binding legal instrument.
Topic:
International Law, United Nations, Maritime Commerce, and Fishing
Political Geography:
Global Focus

2067. A Functional Approach to Violent Radicalization. Building a Systemic Model Based on a Real Case

Author:
Miguel Peco
Publication Date:
06-2016
Content Type:
Journal Article
Journal:
Journal on International Security Studies (RESI)
Institution:
International Security Studies Group (GESI) at the University of Granada
Abstract:
A paradox in the study of violent radicalization is that while each of the empirical findings can be explained with multiple theories, very few theories can explain a relevant number of these findings simultaneously. This paper conducts a functional behavior assessment of violent radical behavior, investigating the factors responsible for its initial learning and subsequent maintenance. Specifically, a model of radicalization is proposed that can explain a wide range of observed phenomena, accommodate apparent exceptions, and obtain testable consequences. It also challenges some firmly rooted ideas, as the alleged existence of aggressive influence practices, or brainwashing. Finally, the model can also provide valuable predictions for subsequent research, such as those related to the reversibility of the process of radicalization.
Topic:
Terrorism, Violent Extremism, and Radicalization
Political Geography:
Global Focus

2068. What Does New Momentum For UN Peace and Security Really Mean

Author:
Gustavo De Carvalho and Jonathan Rozen
Publication Date:
05-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
A famous maxim of uncertain origin defines insanity as doing the same thing repeatedly, but expecting different results. In her opening statement at the United Nations (UN) High-Level Thematic Debate on Peace and Security, Nobel Peace laureate Leymah Gbowee used this definition to describe challenges faced by UN engagements in peace operations and peacebuilding. The 10-11 May meeting, called by the president of the UN General Assembly (UNGA) and themed In a world in risks: a new commitment for peace, provided a platform to reflect on current challenges to international peace and security. These focused, in particular, on responses to the 2015 reviews on peace operations, peacebuilding, and women, peace and security.
Topic:
Security, International Cooperation, United Nations, and Peace
Political Geography:
Global Focus

2069. Demystifying Intelligence in UN Peace Operations: Toward An Organizational Doctrine

Author:
Alexandra Novosseloff
Publication Date:
07-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
n a way, the title of our research paper “Demystifying Intelligence in UN Peace Operations: Toward an Organizational Doctrine”, speaks for itself. We all know that the UN secretariat has been walking on eggs with this issue of intelligence for years; doing it without saying it and without realizing it. But with peace operations involved in increasing complex and demanding situations and one senses that this “fog about intelligence” can no longer be sustainable. This report complements other earlier attempts to “demystify” that charged term of intelligence and to define what “intelligence” means in the UN context and its peace operations.
Topic:
Intelligence, International Cooperation, United Nations, and Peace
Political Geography:
Global Focus

2070. The Challenges of Full Deployment of UN Peace Operations

Author:
Ryan Rappa
Publication Date:
09-2016
Content Type:
Working Paper
Institution:
Global Peace Operations Review
Abstract:
he UN has always had problems deploying its largest, infantry-heavy missions. The 2015 Leaders’ Summit on Peacekeeping and this week’s 2016 UN Peacekeeping Defence Ministerial in London are Member State driven initiatives to do better. Broader participation in contributing to missions is a key part of rapid deployment as well as reaching full strength. A Global Peace Operations Review analysis of data from UN peacekeeping operations over the last 25 years indicates that modern UN peacekeeping missions, on average, take just over ten months to reach their peak deployment. In Africa, where countries on the continent are often left to the take the lead, average time to deploy is worse -- almost twelve months to reach peak deployment. In fact, the average non-African mission in our analysis reached peak deployment in less than seven months, the fastest of any grouping.
Topic:
International Cooperation, United Nations, Peacekeeping, and Conflict
Political Geography:
Global Focus