CIAO DATE: 04/2013
Volume: 4, Issue: 3
2013
Editorial (PDF)
Once again, the Editorial Board of the Goettingen Journal of International Law is looking back at a highly successful year ending with this last issue of the fourth volume. The highlight of the past year was the symposium “German Precursors to International Constitutionalism” held in Göttingen in March 2012, which was organized in cooperation with the Institute of International and European Law of the University of Göttingen and the Minerva Institute for Human Rights, Hebrew University, Jerusalem. The research papers discussed at the conference were published in the previous issue of the GoJIL. The Editorial Board of the GoJIL also welcomed several new editors during the last year and integrated them into a now younger Editorial Board. Despite these personnel changes, the Editorial is looking forward to a promising year 2013.
Acknowledgments (PDF)
Without the incredible support and help of the following people, we would not have been able to accomplish this ambitious project. We would like to thank: The Joachim Herz Stiftung, All members of the GoJIL Advisory Board and Scientific Advisory Board, External Reviewers: KATJA GÖCKE, MATTHIAS LIPPOLD, The Göttingen Institute for Public International Law and European Law, The University and Law Faculty of Göttingen, The Göttinger Vereinzur Förderung des Internationalen Rechts, e.V, The Universitätsverlag Göttingen
Georg Jellinek and the Origins of Liberal Constitutionalism in International Law (PDF)
Jochen von Bernstorff
At the end of the 19th century, Georg Jellinek developed a new theoretical foundation of international law, which he termed a "positivist" approach to international law. It became by far the most influential theory of international law developed in the 19th century in Europe. The structural ingredients of his attempt to construct a "scientific" foundation of international law as a binding and objective law of an "international community" continue to encapsulate the cornerstones, paradoxes and limits of liberal constitutionalist thinking in international law. In the 20th century reception of his international law works, Jellinek's concept of "auto-limitation" was often portrayed as a staunch apotheosis of German (hegelian) notions of absolute State sovereignty (by Kelsen and Lauterpacht). Although this somewhat distorted reception during the interwar period seems to have buried a more nuanced understanding of Jellinek's sophisticated theory of a "proto-constitution" of international law, it has after all had an arguably lasting impact on our modern concept of international law.
Lando Kirchmair
For many years, the ECJ has postulated the autonomy of the EU legal order. At the same time, it has also stressed the importance of noting that the UN and the EU are distinct legal orders. In light of this situation, we have one and the same international organization applying two diametrically opposed theoretical doctrines. Regarding the inner relationship with its Member States, the ECJ proclaims a unified legal order based on the monistic doctrine. Dualistic arguments, in contrast, serve to separate the EU legal order from international law. This paper intends to clarify whether this obvious contradiction is due to a simple misinterpretation by the ECJ or is grounded in flaws within the almost 100 year old theories of monism and dualism which can no longer serve to explain the relationship between legal orders satisfactorily. The paper concludes that the situation cannot be characterized as black and white. However, in order to establish fundamental foundations, a clear theoretical line is essential.
The Supplement of Deficiencies in the Complaint Within the WTO Dispute Settlement Mechanism (PDF)
Ana Constanza Conover
This paper analyzes the underprivileged status of developing countries as complainants in the WTO dispute settlement mechanism. After addressing the existing special and differential treatment provisions under the DSU, the competences of WTO panels, the role of complaints and the experience of developing countries as complainants within the WTO DSM, the author proposes an amendment to Article 7 of the DSU that would allow panels to supplement deficiencies in the complaints of developing-country and least-developed country Members, to compensate for a general lack of financial and human resources in these countries. Such amendment, as a means to correct defective or incomplete motions filed by the complainant party to a dispute, would enable panels to correct mistakes in the citation of legal authority and to remedy any deficiency found in the requests for the establishment of WTO panels, as well as the complainants' first written submissions.
Britta Lisa Krings
The concepts of complementarity and Universal Jurisdiction as such raise various concerns, just in themselves. The combination of these concepts may be a very reasonable one, however, it tends to cause confusion and renunciation within the international community. The objective of the present work is to present very briefly the two different legal concepts and provide an analysis on their compatibility. In order to come to a result, the principle of complementarity is evaluated as both, an admissibility criterion and a State obligation and right, to primarily be able to deal with a case in their national legal system, acknowledging that criminal jurisdiction is situated in the heart of State's sovereignty. Universal Jurisdiction is brought into a relation with these two ideas of complementarity. This paper addresses possible solutions.
Modes of International Criminal Justice and General Principles of Criminal Responsibility (PDF)
Hiromi Sato
International criminal justice now functions via two systems - a direct one led by the international tribunals and an indirect one driven by national courts. The difference between the two systems inevitably brings about further differentiation with respect to the substantive aspect of these laws. It is especially noteworthy that the indirect system has not been equipped with customary international rules on several topics relating to general principles of criminal responsibility, so it relies heavily on the national laws of States that prosecute serious international crimes. Meanwhile, customary international law applying irrespective of judicial forums has more or less been developed with regard to other topics of general principles of criminal responsibility. Thus, two types of customary international law would be observed in this field - the one peculiar to international proceedings and the other applying to both international and national proceedings. It should also be noted that the law of the International Criminal Court sometimes differs from either type of customary international law, which has partially been caused by the difference between the normative characteristics of conventional and customary laws.
Patricia Tarre Moser
This paper examines whether the non-recognition of State Immunity, as a response to jus cogens violations committed by the wrong-doing State against its own citizens, can be a valid countermeasure. First, the paper clarifies the hypothesis being examined. Second, the paper considers what the conditions the according countermeasures have to comply with, are. Finally, the paper examines whether the non-recognition of State Immunity can be a lawful solidarity countermeasure. The paper concludes that non-recognition of State Immunity can also be lawful and valid. Nonetheless, it must comply with certain important conditions. Additionally, an opportunity for the victims to have a remedy as well as to maintain the most important values of the international community arises when the non-recognition of State Immunity is properly accomplished.
National Investigations of Human Rights Between National and International Law (PDF)
Roee Ariav
This essay will examine the interplay between international and national law with regards to investigations of human rights violations. The duty to investigate violations of international law touches upon issues that up until recently were considered beyond the reach of international law. Since its recognition by the European Court of Human Rights in 1995, the procedural aspect of the right to life, i.e. the duty to investigate, has developed rapidly. In turn, also due to the unique legal relationship between the ECtHR and national courts, these developments have affected, and are still affecting, national law. This ongoing process of dialogue between national courts and international tribunals has greatly contributed to the development of the duty to investigate certain violation of international law, and the manner in which these investigations should be conducted.
Semahagn Gashu Abebe
In the last few years, large agricultural investment ventures in Sub-Saharan Africa have brought their own opportunities and risks. On the one hand, large-scale land investments can offer opportunities for development, given their potential for creating infrastructures and employment, transfer of capital and technology as well as improving food security in the region. On the other hand, uncontrolled agricultural investment ventures primarily undermine the rights related to rural livelihood such as the right to property, development, and the right to self-determination as well as having adverse impacts on the environment. Though there is no easy way out of the paradox related to international agricultural investment ventures, there are a number of things to be done to alleviate the problem. At the international level, international human rights groups and organizations need to highlight the importance of access to land as a human right, work on the coming into effect of an international agreement that stipulates standards and obligations with respect to international agricultural investment ventures, as well as exposing illicit land dealings and making an effort to promote the rights of indigenous groups that have been threatened by ‘land grab' activities. At the national level, the most important steps that need to be undertaken to minimize the impact of land grab activities include improving good governance, ensuring the security of rural communities to land entitlement, payment of appropriate compensation, and allowing freedom of association at local the level.