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1. Between Evolution and Stagnation – Immunities in a Globalized World

Author:
Heike Krieger
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Immunities here have, on the one hand, been calls for the limitation or even the abolition of immunities, in particular based on the argument of a lack of responsibility for grave violations of human rights. Contrarily, opposed tendencies can be observed which raise ideas such as the extension of the scope of persons to be protected by immunities, resting upon the pluralization of actors in the globalized world. This article examines these two contradictory aspects of development of immunities in public international law and how they might interrelate with each other. It analyses how the simultaneous evolution and stagnation of immunities can be explained. For that purpose the contribution evaluates at first the current state of the legal development. Further, it takes a look at a certain stagnation of legal development and clarifies the structural parameters within public international law which have led to such a stagnation. In this context, it is critically dealt with the question, whether immunities meet the demands of a globalized world. Lastly, this article addresses the development regarding a denial of immunity in cases of grave human rights violations and asks how it could be more cautiously brought forward.
Topic:
Globalization, Human Rights, and Legal Theory
Political Geography:
Global Focus

2. The ‘Bonn Powers’ of the High Representative in Bosnia Herzegovina: Tracing a Legal Figment

Author:
Tim Banning
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The article traces the legal basis of the so-called ‘Bonn Powers’ that are claimed by the Office of the High Representative (OHR) in Bosnia and Herzegovina (BiH) as the basis for its extensive legislative, judicative, and executive decisions. The OHR’s presence in BiH offers a very controversial example of how international institutions may exercise international public authority. The OHR has attracted far-reaching criticism and it has in fact been argued that its practice of adopting binding decisions runs contra to the main purpose of the civilian international presence in BiH. The contribution offers an analysis that substantiates such criticism on legal grounds. It discusses exemplary OHR decisions that reach far into the legislative, the executive, and the judicial domain of BiH and analyses possible legal sources for the broad powers claimed by the OHR. It explores the limits of the OHR’s original mandate in light of the Vienna Convention on the Law of Treaties and it looks at the implied powers doctrine as a basis for the OHR’s claims. It also considers a conferral of the ‘Bonn Powers’ on behalf of the United Nations Security Council. The article concludes that the ‘Bonn Powers’ do not qualify as a legal power and that their existence is merely a powerful, but delusive legal fiction.
Topic:
Diplomacy, International Cooperation, Legal Theory, UN Security Council, and Authority
Political Geography:
Europe and Bosnia and Herzegovina

3. Determining the Relationship Between International and Domestic Laws Within an Internationalized Court: An Example From the Cambodian Extraordinary Chambers’ Jurisdiction Over International and Domestic Crimes

Author:
Melanie Vianney-Liaud
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Internationalized criminal tribunals such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) differ from traditional international criminal tribunals by a lesser degree of internationality. The ECCC emerged through an international agreement but their mixed composition and operating rules are also defined in Cambodian Law. The relationship between the ECCC’s Agreement and Law has not been clearly stated, which generates questions since both texts are not always consistent. This paper proposes, through the study of the provisions of the ECCC Law relating to the ECCC’s subject-matter jurisdiction, to determine the impact of such discrepancies on the activity of the Chambers. The decisions of their judicial bodies on the application of Articles 3, 4 and 5 which provide for the ECCC’s jurisdiction over crimes against humanity, genocide and certain domestic crimes have allowed to cope with the uncertainty generated by those differences. However, a bigger issue remains which is due to the ECCC’s particular hybrid structure. Composed of national judges in the majority, ECCC’s decisions may only be taken if the required qualified majority is reached, which implies the need for an agreement with their international counterparts.
Topic:
International Law, Sovereignty, Legal Theory, and Jurisdiction
Political Geography:
Asia and Cambodia