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11. Americanization of the BIT Universe: The Influence of Friendship, Commerce and Navigation (FCN) Treaties on Modern Investment Treaty Law

Author:
Wolfgang Alschner
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Friendship, Commerce and Navigation (FCN) treaties are more than a historical precursor to international investment agreements (IIA) and continue to influence and inspire modern investment treaty design. Until the 1960s, FCN treaties were the American conceptual alternative to the European BIT Model. FCN treaties were comprehensive and complex agreements covering trade, intellectual property, and even human rights in addition to investment disciplines. BITs, in contrast, were short, simple, and focused on investment protection only. Furthermore, while FCN treaties were designed to govern symmetrical investment relations between like-minded developed countries, BITs targeted an asymmetrical relationship between developed capital exporting States and developing capital importers. Even after the U.S. shifted from FCN to BITs in the early 1980s, FCN treaties continued to impact investment policy-making. First, key FCN features such as pre-establishment commitments, non-conforming measures, and investor rights survived the U.S. policy-shift and have since found their way into IIAs around the world. Second, as a conceptual alternative to simple and specialized European BITs, FCN treaties have inspired a new generation of IIAs that are complex and comprehensive in nature, containing a fine-tuned mix of rights and obligations, and treating investment alongside other policy concerns. Third, the spread of FCN-inspired treaties coincides with the demise of European-style BITs. As policy-makers turn to the United States instead of Europe for investment policy innovation, we observe an Americanization of the IIA universe.
Political Geography:
United States and Europe

12. The Possible Future of Promoting and Protecting European Investments in Sub-Saharan Africa

Author:
Lars Schonwald
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Sub-Saharan Africa (SSA) represents an interesting target market for European investors. However, the level of investment protection in SSA is rather outdated. Considering that Article 207 of the Treaty on the Functioning of the European Union confers upon the European Union (EU) the exclusive competence to negotiate and conclude new investment treaties, the scope of this article is to determine what a possible future treaty aiming at protecting foreign investments concluded between the EU and SSA could look like. Following a brief introduction and after determining the potential parties of a new investment treaty between the EU and SSA, it will be examined whether the current standard clauses can be introduced into the new treaty as well, and to what extent new concepts can, should or even have to be included in a respective new agreement.
Political Geography:
Africa and Europe

13. Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law Introduction

Author:
Tomer Broude and Andreas L. Paulus
Publication Date:
11-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Over the last decade, international constitutionalism has been the focal point of contemporary international legal debate and practice, as evidenced inter alia by the Kadi-Jurisprudence of the European Courts and the burgeoning literature that employs constitutional as well as fragmentation terms with respect to modern international law. The discourse deals with the pluralistic structure of modern international law, post-national law and constitutional diversity, as well as the quest for an international rule of law, the shifting allocation of authority in international law and the possible demise of general international law. This seemingly new discourse is all- pervasive, with implications in international politics, law, trade, human rights and, global environmental law.
Topic:
International Law
Political Geography:
Europe and Germany

14. European Asylum Law and the ECHR: An Uneasy Coexistence

Author:
Laurens Lavrysen
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
During the last two decades the European Union has become a major actor in the field of asylum law. Meanwhile, human rights law, in particular the European Convention on Human Rights (ECHR), has become of paramount importance in this field. This paper highlights certain areas of concern in the European Asylum System from the viewpoint of the ECHR. It particularly focuses on the Dublin II Regulation, the reception conditions and the detention of asylum seekers.
Topic:
Human Rights and Law
Political Geography:
Europe and Dublin

15. They Entered without any Rumor. Human Rights in the Belgian Legal Periodicals

Author:
Sebastiaan Vandenbogaerde
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Legal periodicals offer an opportunity to gaze on the daily pursuits of legal practitioners. By measuring the attention on a certain topic, it is possible to retrace to what extent it was deemed to be important for Belgian jurists. In this particular paper, a closer look will be taken at human rights and their relevance for Belgian legal practice. Therefore, research will be done in one of the most influential periodicals in Flanders: the Rechtskundig Weekblad. The attention on human rights, and more specific the European Convention of Human Rights, can give an impression of the importance of these rights for Belgian, and more specific, Flemish legal practice. As this periodical was preoccupied with the Flemish movement, its 'ideology' also affected its reporting of human rights. Thus, legal periodicals can be found at the crossroads of all actors in the legal world.
Topic:
Human Rights
Political Geography:
Europe

16. The EU Charter of Fundamental Rights and its Impact on Labor Law: a Plea for a Proportionality-Test "Light"

Author:
Herman Voogsgeerd
Publication Date:
06-2012
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading 'solidarity'. In this article two basic questions will be addressed. The first question will address the 'old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test 'light' in order to limit the interference of EU law with the essence of fundamental rights.
Topic:
Economics, Human Rights, and Law
Political Geography:
Europe

17. Resource Conflicts over Arable Land in Food Insecure States: Creating an United Nations Ombudsman Institution to Review Foreign Agricultural Land Leases

Author:
Anastasia Telesetsky
Publication Date:
06-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In the last decade of globalization, States in the Middle East, East Asia, Europe, and North America have looked towards Africa and Southeast Asia for opportunities to lease for 30-50 years large tracts of arable land for production of commodity crops and biofuels in order to meet the needs of home markets. Facing their own governance challenges, States in Africa and Southeast Asia have leased land to private foreign investors without requiring any environmental review or mitigation of the proposed land leases. This paper argues that in food insecure states the recent flurry of land leasing activity to foreign agribusiness is likely to lead to unintended long term consequences for the ecology in land-leasing States by depleting the already fragile environment through monocropping, chemical pesticide and fertilizer applications, and large scale irrigation. This paper argues that international investment law may provide foreign investors with legal protection if land leasing States in the future decide to regulate the leases in a manner that discriminates against large agribusiness. The current proposals for self-regulatory voluntary codes of conduct do not provide sufficient oversight over the leasing process to protect the public's interest in a healthy and productive environment against foreign investors who have under the current lease structure no incentive to improve the land that they are leasing. The creation of an United Nations based ombudsman to provide legal and technical oversight and support for States making long-term leases has greater potential than a voluntary code for ensuring a balanced negotiation among the interests of host State governments for investment, investors for arable land, and the public for long-term sustainability.
Topic:
United Nations
Political Geography:
Africa, Europe, Middle East, East Asia, North America, and Southeast Asia

18. 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

19. 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

20. 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