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101. Scientific Reason and the Discipline of International Law

Author:
Anne Orford
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
International law emerged as a professional academic specialization in a 19th century European context of wide-ranging public debates about the nature and cultural significance of science. Ever since, the status of international law as an academic discipline has been intimately connected with the capacity of international lawyers to demonstrate that our discipline is properly scientific. Yet the ideals of science upon which international lawyers have drawn in seeking to demonstrate the scientific nature of our work have not remained static. This article explores how those shifting ideals of science have shaped the concerns, questions, methods, and theories adopted by professional legal scholars in different times and places, including the 19th century Cambridge of Whewell, the 20th century Vienna of Kelsen, the post-war New Haven of McDougal and Lasswell, and the globally networked university of the 21st century. In returning to the historical debates out of which today's highly stylized versions of positivist and policy-oriented international law emerged, the article shows that while scholars of international law have shared a commitment to scientific values of rationality, progress, and objectivity, they have understood those commitments as requiring different forms of conduct, different means of producing knowledge, and different relations to the state.
Topic:
International Law
Political Geography:
Europe

102. Kevin Jon Heller and Gerry Simpson (eds). The Hidden Histories of War Crimes Trials

Author:
Milan Kuhli
Publication Date:
05-2014
Content Type:
Journal Article
Abstract:
The book The Hidden Histories of War Crimes Trials – edited by Kevin Jon Heller and Gerry Simpson – is a compilation of 21 contributions to a conference convened in Melbourne at the end of 2010. The project aims at a scholarly recovery of accounts of war crimes trials that were ‘either neglected or under-rehearsed’ (at 1) in the discipline of international criminal law. Accordingly, the contributions tell ‘stories about familiar but under-explored and misunderstood landmarks in the conventional history of international criminal law’ as well as about trials that have been less analysed in this field (at 1). Gregory S. Gordon’s illustrative chapter on the trial of Peter von Hagenbach (chapter 2) is a story of the first kind, whereas Benjamin E. Brockman-Hawe’s comprehensive account of the Franco-Siamese tribunal for the Colonial Era (chapter 3) exemplifies the latter type.
Topic:
International Law and War
Political Geography:
Europe

103. The Worlds of European Constitutionalism, Gráinne de Búrca and J.H.H. Weile

Author:
Bertil Emrah Oder
Publication Date:
10-2014
Content Type:
Journal Article
Journal:
Insight Turkey
Institution:
SETA Foundation for Political, Economic and Social Research
Abstract:
This edited volume on European constitutionalism is a compendium of essays with different interpretations on the constitutional authority and nature of the European Union (EU). This issue has faced various challenges in the last decade not only by national courts and referenda, but also vis-à-vis other international and regional actors, such as United Nations (UN) and European Court of Human Rights (ECHR).
Topic:
Human Rights, International Law, and United Nations
Political Geography:
Europe

104. Rule of law or rule of thumb? A New Copenhagen Mechanism for the EU

Author:
Sergio Carrera, Elspeth Guild, and Nicholas Hernanz
Publication Date:
11-2013
Content Type:
Policy Brief
Institution:
Centre for European Policy Studies
Abstract:
The European Union, and its Area of Freedom, Security and Justice (AFSJ), is founded on a set of common principles of rule of law, democracy and human rights. This has been officially enshrined in the body of Article 2 of the Treaty on European Union (TEU) which lists "respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities" as the shared values on which the Union is rooted. One of the current modalities of action to ensure that all member states of the EU respect Article 2 TEU is to filter their compliance with these values before they accede to the Union. The so-called 'Copenhagen criteria' have been established in 1993 to ensure that all new EU member states are in line with the Union's common principles before crossing the bridge towards membership.
Topic:
Democratization, Human Rights, International Law, and Regional Cooperation
Political Geography:
Europe

105. "By What Right?": The Contributions of the Peninsular School for Peace to the Basis of the International Law of Indigenous Peoples

Author:
Silvia Maria da Silveira Loureiro
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This paper aims to investigate the Peninsular School for Peace's contributions in the sixteenth and seventeenth centuries to the establishment of international law for indigenous peoples within a proper collective dimension. The recognition of collective rights of indigenous peoples is part of a phenomenon which occurred in the transition to the twenty-first century and is known as the collectivization of the international law of human rights. The first section of this article will discuss the inadequacy of modern human rights sources to recognize indigenous peoples as subjects of collective rights. This inadequacy stems from the lack of legal mechanisms that are able to reach the collective dimension of claimed international human rights in the context of contemporary indigenous movements. Thus, the second section will defend a pre-Westphalian conception of international law and support the return to its historic origins – in the Jus Gentium condition in an earlier view of the consolidation of the Modern NationState – in order to understand how the theorists from the Peninsular School for Peace faced questions of conscience generated by the collision between the Luso-Spanish kingdoms and indigenous sovereignty in the New World. For this purpose, the works of theologians Francisco de Vitória (1492-1546), Luis de Molina (1531-1600), and Francisco Suárez (1548-1617) provide insight. In this context, this paper endeavors to redeem the democratic peninsular doctrine towards a new reasoning for the international law of indigenous peoples.
Topic:
International Law
Political Geography:
Europe

106. Romanticization Versus Integration?: Indigenous Justice in Rule of Law Reconstruction and Transitional Justice Discourse

Author:
Padraig McAuliffe
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
There is great optimism in transitional justice literature that indigenous legal processes can capture the meaning of conflict in ways that more remote, state- or international-based processes cannot. However, if the innovations in terms of inclusiveness, gender, and fairness that transitional justice invariably promote when employing indigenous justice processes are to make a long-term, sustainable impact beyond the transitional moment, greater attention must be given to how their employment as a form of transitional justice might interact with the usually simultaneous process of rule of law reconstruction. If transitional justice actors are to interact productively with justice sector reformers and national governments to establish traditional dispute resolution mechanisms in post-conflict States, they will have to abandon some of their more romantic notions evident in the literature and policy documents of indigenous justice as something inherently restorative, as an antidote to the shortcomings of legal formalism or as a site of resistance to the State Leviathan. Enthusiasts for the employment of indigenous mechanisms in transitional justice can learn lessons from the processes of de-romanticization that legal pluralism went through and the experiences of peace building missions in recent decades.
Topic:
International Law
Political Geography:
Europe

107. How EU sanctions work: a new narrative

Author:
Francesco Giumelli
Publication Date:
05-2013
Content Type:
Working Paper
Institution:
European Union Institute for Security Studies
Abstract:
The European Union has devoted growing attention to sanctions since the entry into force of the Maastricht Treaty.1 In total, the Council has imposed Common Foreign and Security Policy (CFSP) sanctions targeting countries, economic sectors, groups, individuals and entities on 27 different occasions. The novelty in the area of sanctions is that targets are not only states, as in the recent cases of Iran and Syria, but they are also individuals and non-state entities, e.g. anti-terrorist lists, President Robert Mugabe and his associates, and several companies connected with the military junta in Burma/Myanmar. Additionally, the contexts in which sanctions are utilised can be diverse, ranging from the protection of human rights to crisis management and non-proliferation. Despite the fact that the effectiveness of sanctions has been much debated, the EU has developed a sanctioning policy and intensified its adoption of sanctions. Sanctions were traditionally seen as a way to impose economic penalties as a means of extracting political concessions from targets, but EU sanctions do not always impose a cost nor do they always seek to induce behavioural change. To this extent, a new narrative may be needed.
Topic:
Foreign Policy, Economics, Human Rights, International Cooperation, International Law, and Sanctions
Political Geography:
Europe, Burma, and Myanmar

108. Challenges facing Researchers on Roma Minorities in contemporary Europe: Notes towards a Research Program

Author:
Aidan McGarry and Annabel Tremlett
Publication Date:
01-2013
Content Type:
Working Paper
Institution:
European Centre for Minority Issues
Abstract:
European institutions are now developing two new initiatives that are significant in their scope and outlook. First, a common 'EU Framework for National Roma Integration Strategies' is underway for 2020, aimed at creating a set of common policy aims and outcomes for all member states. This Framework is attempting to place the responsibility for Roma integration in the hands of member state governments, who have been hitherto unwilling or unable to address the socio-economic and political disadvantage of Roma. Second, the Council of Europe and the EU (in a joint action) have established a new; 'European Academic Network on Romani Studies' (2011-2013), recognizing the importance of quality research in understanding the complexities of such historically disadvantaged and heterogeneous communities. These initiatives provide the opportunity to draw on our experiences as researchers in this field and highlight the gaps in our knowledge along with methodological and theoretical caveats and challenges that still need to be addressed.
Topic:
Human Rights, International Law, Socialism/Marxism, Governance, and Minorities
Political Geography:
Europe

109. The Future of the European Convention on Human Rights after the Brighton Conference

Author:
Antonio Bultrini
Publication Date:
09-2012
Content Type:
Working Paper
Institution:
Istituto Affari Internazionali
Abstract:
It is widely recognized that the European Convention on Human Rights has led to the most advanced human rights protection system to date - and represents an important benchmark for several other international bodies. The individual right of application to the European Court, which unlike other human rights treaties is compulsory for State parties, is a unique feature and pillar of the system. However, the European Court is presently overwhelmed by an abnormal caseload: about 150,000 applications are currently pending in Strasbourg. Recent reforms have increased the Court’s efficiency. Yet the British Government has just tried to promote a new reform of the system. This attempt was not entirely disinterested and has led to an unprecedented mobilization by international civil society. The British move has nonetheless triggered a debate on the real challenges facing the European system.
Topic:
Human Rights, Human Welfare, International Law, and Treaties and Agreements
Political Geography:
United Kingdom and Europe

110. 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