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91. Can Religious Human Rights Discourses Help Integrating Muslim Migrant Communities Across Europe?

Author:
Sonia Boulos
Publication Date:
05-2020
Content Type:
Journal Article
Journal:
Journal on International Security Studies (RESI)
Institution:
International Security Studies Group (GESI) at the University of Granada
Abstract:
The perception of Islam as antithetical to European human rights values is widespread in Europe. Such perceptions complicate the task of integrating Muslim minorities across Europe. While incrementing respect to human rights norms among migrant communities is an important element of any integration policy, this goal should not be perused by forcing migrant communities to adhere to human rights norms based on purely secular grounds. The drafting history of the Universal Declaration of Human Rights is the ultimate proof that human rights can be justified from different political, philosophical and religious perspectives. While European States cannot compromise their commitment to human rights, even in relation to migrant communities, still, they must allow other narratives on the importance and the meaning of human rights to emerge. Muslim migrant communities must be allowed to engage in intra-group religion-based dialogues to reevaluate their stance on human rights and to debate their meaning. After being given the opportunity to engage in internal debates on the significance of human rights, Muslim migrant communities should also be engaged in cross-cultural dialogues with the rest of community to generate a wider agreement on the meaning and the application of human rights. This two-fold strategy is consistent with the principle of subsidiarity, which suggests that for human rights be effective they must be seen as legitimate by all those small groups that are close to the individual. Such legitimacy cannot be imposed from the outside, it must emerge from within these small groups. However, for these intra-group and cross-cultural dialogues to succeed, the separation of religion and State cannot be understood as the complete exclusion of religion from the public sphere. Individuals of different philosophical or religious convictions must have an equal access to public debates on the centrality of human rights in the European legal order.
Topic:
Human Rights, Islam, Religion, Culture, and Integration
Political Geography:
Europe

92. Enhancing the Protection of the Environment in Relation to Armed Conflicts – the Draft Principles of the International Law Commission and Beyond

Author:
Britta Sjostedt and Anne Dienelt
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
n 2011, the UN International Law Commission (ILC) took up the topic Protection of the Environment in Relation to Armed Conflicts.1 The decision was triggered by a joint report issued by the UN Environment Programme and the Environmental Law Institute in 2009 recommending the ILC to “[...] examine the existing international law for protecting the environment during armed conflicts [...] [including] how it can be clarified, codified and expanded [...]”.2 Since the inclusion of the item on the ILC’s agenda, the Commission has published five reports3 by the two special rapporteurs, Dr. Marie Jacobsson (2011-2016) and Dr. Marja Lehto (2017-). In 2019, the plenary adopted 28 Draft Principles on first reading.4 The ILC has touched on highly controversial issues such as reprisals,5 corporate liability,6 indigenous peoples’ rights,7 among others. Nevertheless, it was clear from the beginning that the ILC would not be able to exhaustively deal with the topic for two main reasons. First, the Commission has a limited mandate that is restricted to “[...] initiate studies and make recommendations for the purpose of [...] encouraging the progressive development of international law and its codification [...]”.8 Enhanced legal protection of the environment, as one of the purposes of the Draft Principles,9 must therefore be based on existing customary international law and its progressive development. The Commission decided to also include recommendations to account for the uncertain legal status of some of the Draft Principles.10 Second, some related issues touch upon controversial and political matters, as mentioned earlier. Consequently, the ILC has been reluctant to include some of these issues in its workflow.11 Therefore, the adoption of the Draft Principles should be regarded as a starting point for shaping and developing the legal framework for environmental protection in relation to armed conflicts. As a part of that process, Hamburg University and Lund University organized an international workshop in March 2019 in Hamburg. Several members of the ILC, including two special rapporteurs, academic legal experts, and practitioners, attended the workshop to discuss the Draft Principles. The discussion also focused on some issues not covered by the ILC, such as the implications for gender and climate security. The engaging dialogue in Hamburg has inspired the publication of this Special Issue of the Goettingen Journal of International Law (GoJIL) to ensure that the outcomes and ideas of the workshop reach a wider audience. It has also contributed to maintaining the momentum of this topical area of international law by inviting contributions from researchers not present during the workshop in Hamburg.12
Topic:
Environment, International Law, and Non State Actors
Political Geography:
Global Focus

93. Reflections on the Legality of Attacks Against the Natural Environment by Way of Reprisals

Author:
Stavros-Evdokimos Pantazopoulos
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The paper examines the concept of belligerent reprisals and assesses the legality of attacking the environment by way of reprisals. The law of belligerent reprisals, which is linked to the principle of reciprocity, allows one belligerent State unlawfully injured by another to react by means of what under normal circumstances would constitute a violation of the jus in bello, so as to induce the violating State to comply with the law. The instances of lawful recourse to reprisals have been considerably limited, since their application is either explicitly prohibited against certain protected persons and objects, including against the natural environment, or is subject to stringent conditions according to customary International Humanitarian Law (IHL). Despite its narrowing scope, the doctrine of reprisals remains a valid concept under the existing legal framework. For one, the state of affairs under customary international law with respect to reprisals directed at civilian objects (including against parts of the environment), subject to certain rigorous conditions, remains unclear. To complicate matters even further, any proposition on the status of reprisals in the context of a non-international armed conflict (NIAC) is shrouded in controversy, as there is no relevant treaty provision. In this regard, the present author endorses the approach espoused in the International Committee of the Red Cross (ICRC) Study on Customary IHL, namely to altogether prohibit resort to reprisals in the context of a NIAC. Turning to the status of reprisals against the natural environment under customary IHL, it is argued that a prohibition of attacks against the natural environment by way of reprisals is in the process of formation with respect to the use of weapons other than nuclear ones. All things considered, the International Law Commission (ILC) was confronted with an uncomfortable situation in the context of its work on the ‘Protection of the Environment in Relation to Armed Conflicts’. By sticking to the verbatim reproduction of Article 55(2) of Additional Protocol I, the ILC chose the proper course of action, since any other formulation would not only undercut a significant treaty provision, but might also result in the normative standard of conduct being lowered.
Topic:
Environment, International Law, Humanitarian Intervention, and Red Cross
Political Geography:
Global Focus

94. Protecting Protected Areas in Bello: Learning From Institutional Design and Conflict Resilience in the Greater Virunga and Kidepo Landscapes

Author:
Elaine (Lan Yin) Hsiao
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
It has often been cited that major armed conflicts (>1,000 casualties) afflicted two-thirds (23) of the world’s recognized biodiversity hotspots between 1950 and 2000.1 In 2011, the International Law Commission (ILC) included in its long-term work program Protection of the Environment in Relation to Armed Conflict.2 This led to the adoption of twenty-eight Draft Principles, including designation of protected zones where attacks against the environment are prohibited during armed conflict.3 Protected zone designations apply to places of major environmental and cultural importance, requiring that they “[...] shall be protected against any attack, as long as it does not contain a military objective.”4 Most research on armed conflict and protected areas has focused on impacts to wildlife and less on how to protect these natural habitats from the ravages of armed conflict.5 This article highlights some of the gaps in the ILC Draft Principles towards protecting protected zones in bello. It uses transboundary protected areas (TBPAs) formalized through multilateral agreements to illustrate challenges on the ground. TBPAs are internationally designated “[...] protected areas that are ecologically connected across one or more international boundaries [...]” and sometimes even established for their promotion of peace (i.e., Parks for Peace).6 There is little legal research on how to design TBPA agreements for conflict resilience, conflict sensitivity, and ultimately positive peace.7 The research draws from two case studies in Africa’s Great Rift Valley: the Greater Virunga Landscape (GVL) between the Democratic Republic of the Congo (DRC), Rwanda, and Uganda, and the Kidepo Landscape, which forms part of the broader Landscapes for Peace initiative between South Sudan and Uganda. Both suffer from armed conflicts of various types and present two of the only TBPAs in the world that have incorporated environmental peacebuilding into their transboundary agreements.8 The case studies illustrate different approaches to TBPA design and the pros and cons of each modality in the context of conflict resilience and conflict sensitivity. This guides us on how to better protect protected areas in bello, ensuring that protected zones endure on the ground and not just in principle.
Topic:
Environment, Culture, and Conflict
Political Geography:
Africa, Democratic Republic of the Congo, and Rwanda

95. Through the Looking Glass: Corporate Actors and Environmental Harm Beyond the ILC

Author:
Daniella Dam-de Jong and Saskia Wolters
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Corporate activities take place in a variety of social contexts, including in countries affected by armed conflict. Whether corporations are physically present in these regions or merely do business with partners from conflict zones, there is an increased risk that their activities contribute to egregious human rights abuses or serious environmental harm. This is especially so for corporations active in or relying on the extractives sector. It is against this background that the ILC included two principles addressing corporate responsibility for environmental harm in its Draft Principles on the protection of the environment in relation to armed conflict. Both principles explicitly call on the home States of these corporations to give effect to their complementary role in regulating and enforcing corporate social responsibility. Draft Principle 10 addresses the responsibility of home States to regulate multinational corporations under the heading of “corporate due diligence”, while Draft Principle 11 addresses the responsibility of home States to hold multinational corporations liable for environmental damage caused in conflict zones. The current contribution engages with the potential normative foundations underpinning extraterritorial responsibilities for the home States of multinational corporations with respect to the prevention and remediation of environmental harm in conflict zones, focusing on international humanitarian law and international human rights law. It concludes that the Draft Principles are certainly indicative of the direction in which the law is evolving, but that no firm obligations beyond treaty law can be discerned as of yet. It was therefore a wise decision to phrase the respective Draft Principles as recommendations instead of obligations. At the same time, there are sufficient indications to conclude that it seems a matter of time before it is accepted that States have distinct obligations under customary international law for which their responsibility may be engaged. It is argued that the ILC Draft Principles provide an important impetus to these developments, not in the least because they provide a reference to States regarding the state-of-the-art and guidance for future action.
Topic:
International Law, Conflict, and Multinational Corporations
Political Geography:
Global Focus

96. Business, Armed Conflict, and Protection of the Environment: What Avenues for Corporate Accountability?

Author:
Marie Davoise
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In July 2019, the International Law Commission (ILC) provisionally adopted, on first reading, a series of draft principles on the protection of the environment in relation to armed conflict (the Draft Principles). The role of businesses in armed conflict is addressed in Draft Principle 10 and Draft Principle 11. The latter, in particular, requires States to implement appropriate measures to ensure that corporations operating in or from their territories can be held accountable for environmental harm in the context of armed conflict. The inclusion of those two Draft Principles reflects increasingly vocal calls for corporate accountability, which has been the focus of the growing field of Business and Human Rights (BHR), an umbrella term encompassing a variety of legal regimes from tort law to criminal law. This contribution will look at the link between businesses, the environment, and armed conflict. Using the newly adopted Draft Principle 11 as a starting point, it explores three major liability regimes through which businesses could be held accountable for damage to the environment in armed conflict: State responsibility, international criminal law, and transnational tort litigation. Using case studies, the article discusses some of the challenges associated with each of those regimes, before concluding that the cross-fertilization phenomenon observed in this article (between public/private law, domestic/international level, and across various jurisdictions) is making BHR an increasingly salient discipline and useful tool in the fight against impunity for corporate environmental harm in armed conflict.
Topic:
Human Rights, International Law, Business, and Conflict
Political Geography:
Global Focus

97. Enhancing Environmental Protection During Occupation Through Human Rights

Author:
Karen Hulme
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Environmental protection is not specifically included in treaty law relating to State obligations during situations of occupation. While clearly not of the same scale as damage caused to the environment during armed conflict, damage caused during occupation is often similar in nature – largely due to those who seek to exploit any governance vacuum and a failure to restore damaged environments. What can human rights offer in helping to protect the environment during occupations? What protection can be offered by an analysis of environmental human rights law?
Topic:
Environment, Human Rights, Governance, and Conflict
Political Geography:
Global Focus

98. The Martens Clause and Environmental Protection in Relation to Armed Conflicts

Author:
Dieter Fleck
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The existing treaty law on the protection of the natural environment during armed conflicts is less than adequate. Treaty provisions relating to international armed conflicts are limited to the prohibition of damage of an extreme kind and scale that has not occurred so far and may hardly be expected from the conduct of hostilities unless nuclear weapons would be used. Even in such a scenario, States possessing nuclear weapons have explicitly objected to the applicability of that treaty law. For internal wars, no pertinent treaty provisions exist in the law of armed conflict. Yet multilateral environmental agreements concluded in peacetime stand as an alternative approach to enhance environmental protection during war. As a civilian object, the environment may not be targeted nor attacked in an armed conflict, but this does not exclude collateral damage, nor does this principle as such offer specific standards for proportionality in attacks. In an effort to close these apparent gaps of treaty law, the present contribution looks into other sources of international law that could be used. In this context, the author revisits the role of the famous Martens Clause in the interplay of international humanitarian law, international environmental law, and human rights law. The role of the Clause in closing gaps caused by the indeterminacy of treaty law is reviewed and customary rules, general principles, and best practices are considered to this effect. For the protection of the natural environment during armed conflicts, the Martens Clause may, indeed, be used as a door opener to facilitate the creation and application of uncodified principles and rules. Particular standards for proportionality in attacks can be derived from the Martens Clause. Pertinent soft law instruments need to be developed in international practical cooperation and by academia. Yet it deserves further study to explore whether, and to what extent, the Martens Clause, which was adopted in the law of armed conflict, may also apply in post-conflict peacebuilding as a case of interaction between the jus in bello and the jus post bellum, at least as far as the protection of the natural environment is concerned.
Topic:
International Law, Treaties and Agreements, Humanitarian Intervention, and Conflict
Political Geography:
Global Focus

99. Precaution in International Environmental Law and Precautions in the Law of Armed Conflict

Author:
Michael Bothe
Publication Date:
07-2020
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The protection of the environment in relation to armed conflict, in particular during armed conflict is a complex problem as it involves at least two different fields of international law, the law of armed conflict (international humanitarian law) and international environmental law. Their mutual relationship is a delicate issue. International humanitarian law is not necessarily lex specialis. Three principles deserve particular attention in this connection: as to general international environmental law, the principle of prevention and the precautionary principle, as to international humanitarian law the duty to take precautions. The terms prevention and precaution are used in different contexts in environmental law (both national and international) and in the law of armed conflict. The duty, imposed by international humanitarian law, to take precautions has much in common with, but must be distinguished from, the precautionary approach of general environmental law. This paper shows what these principles mean and how they relate to each other. It answers the question to what extent the rules based on these concepts are effective in restraining environmental damage being caused by military activities. The application of these principles in peace and war serves intergenerational equity and is thus an important element of sustainable development.
Topic:
Environment, International Law, Humanitarian Intervention, and Conflict
Political Geography:
Global Focus

100. Ulysses Syndrome: Immigrant Limit Stress / El Síndrome de Ulises: el estrés límite del inmigrante

Author:
Juan Carlos Fernández-Rodríguez, Neidy Zenaida Domínguez Pineda, and Fernando Miralles Muñoz
Publication Date:
05-2020
Content Type:
Journal Article
Journal:
Journal on International Security Studies (RESI)
Institution:
International Security Studies Group (GESI) at the University of Granada
Abstract:
In the development of this work, a presentation has been made of the current conditions that can be found in the migratory process and that have the possibility of giving rise to the appearance of the so-called Ulysses Syndrome or Limit Stress Syndrome, in the immigrant population. In this article, special reference is made to the conditions that can be found today in our country, quantitative data are offered that can form a very approximate idea of ​​the enormous magnitude and importance of this migratory phenomenon. Next, a description of the characteristics of the so-called Ulysses Syndrome or Immigrant Syndrome with Chronic and Multiple Stress has been made. In the development of this work, these main characteristics have been shown, with special emphasis on the appearance of a mourning process and on the stress that Ulysses Syndrome can entail. Likewise, the different areas of personal functioning that may be impaired in immigrants and their similarity to a process of mourning (with the possibility of up to seven different types of mourning) have been commented, mainly due to the different personal issues and the different social factors that immigrants leave in their various countries of origin. Next, the symptoms of Ulysses Syndrome are described and the different areas of involvement of people suffering from this disorder are also described. Lastly, a brief reference is made to the possible therapeutic intervention in people affected by the problems described, both if they are in an adult age or if they are in a young infantile age. As it cannot be otherwise, the Syndrome requires preventive intervention, both at the individual and community level.
Topic:
Migration, Immigrants, and Stress
Political Geography:
Europe and Global Focus