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31. Breakfast Talk by Thuli Madonsela (former Public Protector of South Africa)

Author:
Rosalie Dieleman and David Lando
Publication Date:
11-2016
Content Type:
Working Paper
Institution:
Public International Law Policy Group
Abstract:
Ms. Madonsela is the former Public Protector of South Africa, Chairperson of the African Ombudsman Research Center in South Africa, and one of the drafters of the South African post-Apartheid constitution. She has been in the spotlight during the last year for a report she filed before leaving the Office of the Protector regarding the connection between South African President Zuma and Indian-South African lucrative businessmen Ajay, Atul, and Rajesh Gupta. The report “details a disturbing web of influence exerted over parts of the South African state by a powerful family of Mr. Zuma’s chums”,[1] the Gupta family. The report indicates that the Gupta family was involved in political appointment, including that of the South African finance minister.
Topic:
Apartheid, Corruption, Law, and Legal Theory
Political Geography:
Africa, South Africa, and Southern Africa

32. Research Spotlight: Beth A. Simmons

Author:
Meg Murphy
Publication Date:
03-2016
Content Type:
Working Paper
Institution:
Weatherhead Center for International Affairs, Harvard University
Abstract:
The International Criminal Court is saving civilian lives in multiple countries, according to research that provides the first quantitative evidence. The study by professors at Harvard University and Texas A&M, which will be featured in the summer issue of the journal International Organization, has drawn widespread attention from people on either side of a polarized debate about the ICC’s role in international justice. Vocal critics have long claimed the ICC is an ineffective obstacle to peace processes while enthusiasts believe it useful in advancing global peace and security. The underlying question: is the ICC irreparably flawed or an institution worth investing in? Now researchers Beth A. Simmons and Hyeran Jo have contributed a systematic study that can impartially inform this pressing debate in international affairs.
Topic:
United Nations, Legal Theory, Peace, and International Criminal Court (ICC)
Political Geography:
Global Focus

33. General Principles Regarding the Legal Validity of RUD

Author:
Eric Chung
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper examines the legal validity of reservations, understandings, and declarations (RUDs) in both U.S. and international courts. The analysis is based on 46 U.S. cases discussing RUDs as a general category and 26 U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis is also based on 13 cases from international courts out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the United Nations Convention on the Law of the Sea (UNCLOS) tribunal and arbitral bodies, the European Court of Human Rights, and the Inter- American Court of Human Rights. In the U.S. cases, RUDs are nearly always recognized as valid. For example, non-self- execution reservations in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) are usually treated as legally controlling. The same is true for the reservation to the ICCPR that reserves the right to use capital punishment on juveniles despite treaty prohibitions, as well as interpretative understandings and declarations defining specific terms used in the CAT. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, did not support a contrary interpretation, or focused on issues of wholly domestic concern (although the only case on this point was vacated and is not precedential). In addition, individual circuit judges, writing in dissent, have examined whether RUDs violate the separation of powers principle or are inconsistent with the treaty language and international law. With few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the Vienna Convention on the Law of the Treaties. Yet the ICJ has only invalidated a RUD when it determined that a reservation was in fact an interpretative declaration (as opposed to a reservation modifying the state’s legal obligations under the treaty). This has been particularly important in cases where the treaty in question prohibits reservations, such as the UNCLOS. Rules stipulated by a treaty also shape how other courts review RUDs. The European Court of Human Rights, for instance, applies treaty rules to invalidate RUDs that are of a general character or fail to include a statement of the law concerned. Following a number of practices can reduce a RUD’s vulnerability to invalidation in U.S. and international courts. For U.S. courts, a RUD is extremely unlikely to be questioned if it is documented clearly at the time of ratification and communicated to all treaty parties at the time of ratification. For international courts, a RUD is unlikely to be questioned if, in addition to the above factors, it is not counter to the “object and purpose” of a treaty, it is not objected to by other parties, and it is not a reservation masquerading as an interpretive declaration in a situation where reservations are prohibited by the relevant treaty.
Topic:
Human Rights, Law, Legal Theory, and Courts
Political Geography:
United States of America and North America

34. The Individual Sovereignty: Conceptualization and Manifestation

Author:
Nikola Lj. Ilievski
Publication Date:
09-2015
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
This paper is qualitative and theoretical research of the concept of sovereignty and the libertarian theory, particularly the concept of individual liberty. It represents a concept developing study, with a specific accent laid on the individual liberty, and the theoretically established concept of sovereignty. The research focus could be identified with the conceptualization and manifestation of the individual sovereignty, as a theoretical phenomenon that is not fully conceptualized and strictly defined. In the scope of this paper, content analysis method and comparative method are used. The analysis, comparison and synthesis refer to the theories of sovereignty and the theory of libertarianism, resulting in developing the concept of individual sovereignty and its socio-political manifestation.
Topic:
Sovereignty, Legal Theory, International Relations Theory, State, and Civil Liberties
Political Geography:
Global Focus

35. 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

36. Opening the Forum to the Others: Is There an Obligation to Take Non-National- Interests Into Account Within National Political and Juridical Decision-Making-Processes?

Author:
Sergio Dellavalle
Publication Date:
08-2015
Content Type:
Working Paper
Institution:
The Goettingen Journal of International Law
Abstract:
Decisions taken in a national forum affect the interests of individuals who, as non-citizens, are excluded from the decision-making-process. In the contemporary world, individuals and social groups can be severely harmed as a result of decisions taken far away from the place where they live and often even without any direct intervention. The issue of the consideration of non- national interests within national decision-making-processes is thus becoming increasingly important. The contribution begins with a brief analysis of the concept of solidarity, as the legal obligation to take into account non-national interests has been labelled in the international law scholarship. In contemporary international law, solidarity is a principle to be interpreted and further developed, rather than a right articulated in firm rules. Yet, from the epistemological point of view the legal system is always based on extra-legal concepts and reasoning. Thus, the reference in legal principles to non-legal arguments should not be regarded as a disadvantage but as a precious contribution to the inescapable link between legal and extra-legal discourses. On the basis of this assumption, the article concentrates on the main extra-legal reasons that have been brought into the debate in order either to deny both the existence of a duty of solidarity within the lex lata as well as the necessity to introduce it de lege ferenda; or, on the contrary, to maintain the paramount importance of such a duty. The analysis will end with some considerations on how the political and juridical forum could be concretely opened up, through proper legal and institutional arrangements, to a deliberation that gives access to the arguments of the others.
Topic:
International Law, National Security, and Legal Theory
Political Geography:
Global Focus

37. 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

38. 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

39. Global Remittances: Update on the UK-Somali Corridor

Author:
Mohamed Aden Hassan and Giulia Liberatore
Publication Date:
01-2015
Content Type:
Journal Article
Journal:
Bildhaan: An International Journal of Somali Studies
Institution:
Macalester College
Abstract:
In May 2013 Barclays Bank in the UK announced it was shutting down the accounts of four Somali Money Service Businesses (MSBs) includ- ing Dahabshiil, the largest remittance company operating in the Somali regions. Following international uproar, and a Somali diaspora-led grassroots campaign, the UK government took on the task of setting up an Action Group on Cross Border Remittances and a Somali-UK Safer Corridor Pilot Project with the aim of finding a durable solution to the problem. Two years later, however, the Safer Corridor Project has collapsed. Legal remittance flows persist, albeit in a fragile and precarious environment. This paper provides a brief update on the Safer Corridor Initiative, its challenges, and how the money transfer sector has been adapting to the process.
Topic:
International Cooperation, International Trade and Finance, Diaspora, and Legal Theory
Political Geography:
Africa, United Kingdom, Europe, and Somalia

40. The Prospects for Peace in Burundi: Some Policy Options

Author:
George Omondi
Publication Date:
07-2015
Content Type:
Working Paper
Institution:
Social Science Research Council
Abstract:
The current crisis in Burundi stems from an insistence by incumbent president Pierre Nku- runziza that he is eligible to run in the coming elections to retain his office. Despite a consti- tutional court ruling in May 2015 that upheld the president’s position, opposition parties, civil society groups, religious leaders, and a section of the ruling party—the National Council for the Defense of Democracy–Forces for the Defense of Democracy (CNDD-FDD)—disagree. Their view is that President Nkurunziza has served the two terms allowed him by the consti- tution and the Arusha agreement, which was signed in August 2000 to end the civil war that began in 1993. If he runs, it will be for a third term, which is unconstitutional. A recent wave of protests rallying around a movement against a third presidential term crystallized and intensified after the president made his plan official and the National Elections Commission (CENI) subsequently cleared him to run alongside other candidates. Violent repression of protestors by police and the intimidation of citizens by a militia group linked to the ruling party have led to scores of deaths and an increasing number of refugees fleeing the country. A humanitarian catastrophe looms, internally and in neighboring countries, especially the Democratic Republic of Congo (DRC), Rwanda, and Tanzania, which are receiving refugees from Burundi. Even worse, a return to civil war, with all the costs associated with such instability, could greatly undermine efforts to attain stability in the Great Lakes Region, where several conflicts are underway in countries around Burundi, notably the DRC, the Central African Republic, South Sudan, and Uganda. Worst of all, militant ethnic solidarities between pro- regime groups in Burundi and a predominantly Hutu militia opposed to the Rwanda govern- ment based in the DRC could further escalate conflict in the region.
Topic:
Social Movement, Legal Theory, Protests, Peace, and Humanitarian Crisis
Political Geography:
Africa, Burundi, and East Africa