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101. Normative Heterogeneity and International Responsibility: Another View on the World Trade Organization and its System of Countermeasures

Author:
Ranieri Lima Resende
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
As legal subjects, international organizations are seen as apt for both active and passive participation in the international judicial area and, in this regard, are regulated according to a specific responsibility regime, as established by the United Nations International Law Commission, in its latest reports on this matter. The challenge here lies on testing this regime as to its applicability in relation to the World Trade Organization, in view of the fact that this organization's conduct may potentially produce internationally illicit acts. After asserting the WTO's juridical nature, normative parameters to which the entity is submitted are established in the general international law based on the acknowledgement of its horizontal and vertical relations with the so-called WTO Law. From this point onwards, it is possible to assert that international illicitness in the World Trade Organization's practice becomes legally verifiable through an institutional performance capacity analysis of its organs and agents, with special focus on its countermeasures system.
Topic:
International Organization, United Nations, and World Trade Organization

102. A System of Collective Defense of Democracy: the Case of the Inter-American Democratic Charter

Author:
Vasiliki Saranti
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the years that followed the end of the Cold War, the international community showed a growing interest in the democratic legitimacy of governments. With regard to the Western Hemisphere, the Organization of American States has been particularly pioneering in this respect, since it initiated a mechanism of intervention by peaceful means, once the democratic stability in a state was threatened, a process which culminated with the approval of the Inter-American Democratic Charter.
Topic:
Cold War
Political Geography:
America

103. Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem

Author:
Killian S. O'Brien
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Following in the aftermath of the Arab Spring, Europe's southern marine borders have been the showplace of human tragedies previously unseen on this scale and the issue of refugees on the high seas has assumed a newfound importance. This article examines the flawed system provided by the 'Constitution of the Oceans', the UN Convention on the Law of the Sea for the protection of the lives of migrants at sea. It submits that international refugee law is well-equipped to assume a greater responsibility in ensuring the protection of those involved. Although the concept of non-refoulement cannot be stretched ad absurdum, it may still be reasonably interpreted as providing a temporary right to disembark for the purpose of processing possible asylum applications. In the long-term, a system of burden-sharing and permanent, yet flexible, reception agreements remain the only sustainable solution.
Topic:
United Nations and Law
Political Geography:
Europe and Arabia

104. Rights at the Frontier: Border Control and Human Rights Protection of Irregular International Migrants

Author:
Julian M. Lehmann
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In light of recent events causing people's movement into Europe, continued misuse of the term “migrant” in policy making and public discourse, and at the occasion of events celebrating the international regime of refugee protection, the human rights protection of irregular migrants is explored in relation to irregular migrants' entry/admission and expulsion/deportation. The term “migrant” has, in contrast to the term “refugee”, no bearing on whether or not an international migrant has a need for international protection. While many irregular migrants have no such need, other migrants may be refugees or be in need of international protection “outside” the framework of the 1951 Convention relating to the Status of Refugees. The paper analyses the international human rights law framework applying to individuals with and without need for international protection, when their claims have a socio-economic dimension. The principle of non-refoulement remains the most important source of protection for irregular migrants; it is not concerned with the irregular status of a migrant and also has a bearing on procedural rights in status determination. Socio-economic motivations for flight are not a bar to being a refugee within the meaning of the 1951 Convention, if their underlying cause is persecution, or if motives are mixed. Refugee law can accommodate such claims and overcome a strict dichotomy but is currently only rarely and restrictively applied in this regard. In expulsion cases, virtually only the prohibition of torture, inhuman or degrading treatment is relevant. For individuals that have no need for international protection there are mitigating individual circumstances which a state has to take into account. All pertinent norms of international human rights law apply without distinction and irregular migrants may have, just as refugees may have, humanitarian needs that states should meet.
Topic:
Human Rights
Political Geography:
Europe

105. Complementary Protection for Victims of Human Trafficking under the European Convention on Human Rights

Author:
Vladislava Stoyanova
Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The international legal framework regulating the problem of human trafficking contains the presumption that the return of victims of human trafficking to their countries of origin is the standard resolution for their cases. However, victims might have legitimate reasons for not wanting to go back. For those victims, resort to the legal framework of the European Convention on Human Rights could be a solution. I elaborate on the protection capacity of Article 3 when upon return victims face dangers of re-trafficking, retaliation, rejection by family and/or community and when upon return to the country of origin victims could be subjected to degrading treatment due to unavailability of social and medical assistance. In light of the Rantsev v. Cyprus and Russia case, I develop an argument under Article 4 that states cannot send victims to those countries which do not meet the positive obligations standard as established in the case. Article 8 could be relevant: first, when the level of feared harm in the country of origin does not reach the severity of Article 3 but is sufficiently grave to be in breach of the right to private life and engage the non-refoulement principle, and second, when the victim has developed social ties within the receiving state and the removal will lead to their disruption.
Topic:
Human Rights
Political Geography:
Russia and Europe

106. Editorial

Publication Date:
09-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Since our last issue in May 2011 several events with global impact have filled the newspapers and confronted us with the need for new judicial and political solutions. In the meantime, Hosni Mubarak's trial has begun and it raises again important questions on how to handle trials of ex- dictators. The trial may foreshadow the future stance to the rule of law of Egypt's new politic system. The events in Libya and also Syria sparked a new discussion about the concept of responsibility to protect.
Political Geography:
Syria and Egypt

107. The Legal Status of the Holy See

Author:
Cedric Ryngaert
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The Holy See enjoys rights under international law that few, if any, non-State actors (excluding intergovernmental organizations) enjoy: it has joined various intergovernmental organizations, it is a party to a substantial number of bilateral and multilateral treaties, it sends and receives diplomatic representatives, is said to enjoy immunity from jurisdiction, and has been granted permanent observer status at the United Nations. However, unlike the Vatican City State, the Holy See is not to be characterized as a State, given that it has a global spiritual remit and that it can act internationally without a territorial base. Instead, it is a sui generis non-State international legal person which borrows its personality from its 'spiritual sovereignty' as the center of the Catholic Church.
Topic:
International Law, Bilateral Relations, and Non State Actors
Political Geography:
United Nations

108. Protecting in Libya on Behalf of the International Community

Author:
Marie-José Domestici-Met
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Here is the third issue of a series of three, under the global title "Humanitarian Action – A Scope for the Responsibility to Protect?". The first issue dealt with "Humanitarian Assistance Looking for a Legal Regime Allowing its Delivery to Those in Need under any Circumstances" and ended with the conclusion that humanitarian action protagonist had hitherto failed to find the adequate regime. The second issue questioned whether R2P was a legal tool ready to use; it ended with the conclusion that it was not yet really the case.
Political Geography:
Libya, Arabia, and United Nations

109. The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?

Author:
Sebastian Wuschka
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The regulation of the employment of combat drones in current conflicts is a central issue of recent discussions in international law. Contrary to misinterpretations in the media, this article claims that the legal framework regarding today's drone systems is settled. The author first provides an assessment of unmanned combat drones as a new technology from the perspective of international law. He then proceeds to the vital point of the legality of targeted killings with remotely operated drones. Further, he discusses the preconditions for applicability of humanitarian law and human rights law to such operations. In conclusion, the author holds the view that the legal evaluation of drone killings depends on the execution of each specific strike. Assuming that targeted killings with drones will generally only be legal under the law of armed conflict, states might be further tempted to label their struggle against terrorism as 'war'.
Topic:
International Law and Terrorism
Political Geography:
United States

110. Completing the ICTY Project Without Sacrificing its Main Goals. Security Council Resolution 1966 – A Good Decision?

Author:
Donald Riznik
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Almost two decades after having established the ad-hoc criminal tribunal for the former Yugoslavia, this institution is about to fulfill its mandate and will close its doors in the near future. Looking back on 20 years of legal and political struggle, the overall result of this institutional project is positive. This article analyses the way the Security Council and the ICTY have chosen to bring the tribunal to an end by implementing the Completion. The problematic aspect, the Security Council was faced with before its final Resolution 1966, adopted on 22 December 2010, has been outlined together with the chosen path to avoid commitments, especially with regard to its major goal to end impunity for serious breaches of international law, and to bring justice and peace to the people living on the territory of the former Yugoslavia. This (so far) last resolution, which implemented the International Residual Mechanism for Criminal Tribunals (IRMCT), was adopted at a time, when the last two remaining fugitives, Ratko Mladic and Goran Hadzic were still at large. Only a few months ago, the two were caught and transferred to the tribunal. The author argues that not shutting the institutional doors entirely until all remaining fugitives are arrested, was a complex situation in a legal and practical sense. Facing and solving this problem through Resolution 1966 was the best choice at that time. This article will give a brief description about the practical impact of the IRMCT on the ICTY's further work, and the relation between these two judicial institutions during their coexistence.
Topic:
Security and International Law
Political Geography:
Yugoslavia and United Nations