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  • Author: Leora Bilsky, Rachel Klagsbrun
  • Publication Date: 04-2018
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Cultural genocide, despite contemporary thinking, is not a new problem in need of normative solution, rather it is as old as the concept of genocide itself. The lens of law and history allows us to see that the original conceptualization of the crime of genocide – as presented by Raphael Lemkin – gave cultural genocide centre stage. As Nazi crime was a methodical attempt to destroy a group and as what makes up a group’s identity is its culture, for Lemkin, the essence of genocide was cultural. Yet the final text of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) does not prohibit cultural genocide as such, and it is limited to its physical and biological aspects. What led to this exclusion? In this article, we examine the various junctures of law, politics and history in which the concept was shaped: the original conceptualization by Lemkin; litigation in national and international criminal courts and the drafting process of the Genocide Convention. In the last part, we return to the mostly forgotten struggle for cultural restitution (books, archives and works of art) fought by Jewish organizations after the Holocaust as a countermeasure to cultural genocide. Read together, these various struggles uncover a robust understanding of cultural genocide, which was once repressed by international law and now returns to haunt us by the demands of groups for recognition and protection.
  • Topic: Genocide, International Law, History, Culture, Courts, Holocaust
  • Political Geography: Europe, Germany
  • Author: Tanisha M. Fazal
  • Publication Date: 01-2015
  • Content Type: Journal Article
  • Journal: Political Science Quarterly
  • Institution: Academy of Political Science
  • Abstract: Isabel Hull's analysis of international law during World War I is a welcome and valuable contribution to an emerging body of scholarship on the laws of war. This is not to undercut its place in the historiography of World War I. Hull rightly points out that most histories of the war have tended to gloss over or even dismiss the role of international law in the war. Hull corrects this bias by delving into British, French, and particularly German archives to show that international law was very much on the minds of all parties to the conflict. Indeed, she argues that preserving the existing structure of international law was a major reason for the outbreak of war. - See more at: http://www.psqonline.org/article.cfm?IDArticle=19345#sthash.HizIRkHF.dpuf
  • Topic: International Law, War
  • Political Geography: France, Germany
  • Author: Robert Howse
  • Publication Date: 04-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: This rich and erudite work provides a valuable scholarly apparatus for understanding the writing and teaching of four important figures in international law and international relations. Three of them, Hans Kelsen, Hans Morgenthau and Hersch Lauterpacht, are well known; the fourth, Erich Kaufmann, much less so. The general thesis of the book is that to understand fully the personal and intellectual trajectories of all of these figures, one needs to appreciate the specific German–Jewish experience, from emancipation through the Shoah, the particular situation of the Jews in the legal profession and the academy in Germany, and the responses of these thinkers to experiences of persecution, discrimination and exile due to their Jewish family backgrounds as well as to the establishment of the State of Israel.
  • Topic: International Relations, International Law, Judaism, History , Intellectual History, Zionism
  • Political Geography: Europe, Germany, Israel
  • Author: Mikko Rajavuori
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: State ownership is thriving. Emerging economies are extending their growing economic power outward through sovereign wealth funds. State-owned multinationals have become top sources of foreign direct investment. Bailouts have recreated powerful state ownership structures in regions where private ownership has traditionally prevailed. The state is back – in shareholder capacity. Approaching the rise of state ownership from a human rights perspective, this article submits that a new conceptualization of state ownership function is emerging. State ownership provides a strong link connecting corporate actions with the international human rights system. Yet the conventional methods used to integrate state ownership in human rights treaty bodies’ discretion seem unable to grasp the changing economic role of governments in the global economy. The article suggests that the notion of the ‘public shareholder’, introduced by the European Court of Human Rights in Heinisch v. Germany (2011), provides a useful lens for interrogating how states should govern the human rights performance of corporations through ownership. When exposed to the recent practice of a range of United Nations treaty bodies, internationalizing state ownership activity becomes framed in human rights terms. In this vision, the whole ownership function becomes a site for turning companies in the state’s portfolio into responsible corporate citizens who take the impact of human rights seriously. Specifically, treaty bodies should advise states to seek human rights governance through private mechanisms in the capacity of the shareholder. In the process, human rights’ checks and balances should constitute a counterweight for market-based initiatives that regulate state activity in the capacity of the shareholder.
  • Topic: Human Rights, International Law, Treaties and Agreements, Foreign Direct Investment, Economies, Courts
  • Political Geography: Europe, Norway, Germany
  • Author: Jan Klabbers
  • Publication Date: 07-2015
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: Isabelle Ley, in her exemplary dissertation defended at Humboldt University, takes the emergence of regulatory international law as her starting point and aims to investigate how its democratic legitimacy could be enhanced. For her, democracy is not just a matter of particular institutions or practices but, rather, of open and possibly oppositional politics. Building on the work of Claude Lefort and, in particular, Hannah Arendt, she develops a framework for discussing democracy in international law conceptualized as the possibility for opposition. A democratic polity is one where every participant has the possibility of helping to take care of the common world, as Arendt might have put it, and presupposes open politics. This politics is, so to speak, politics for the sake of politics or politics in the Olympic spirit: what matters is not so much winning but taking part; what matters is not so much which policies will be adopted but the political process itself. Following Aristotle, taking part in public affairs is viewed as the most salient manifestation of human excellence: man being a political animal, he can do no better than take part in the political process – this is where individual happiness is achieved and, therewith, the ultimate justification of democracy.
  • Topic: International Law, International Organization, Political Theory, Democracy
  • Political Geography: Europe, Germany
  • Author: Matthias Goldmann
  • Publication Date: 06-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Sovereign debt crises might significantly decrease the level of socioeconomic rights enjoyment for the population in the affected state. According to recent data, they even increase the risk of civil unrest. However, the resolution of sovereign debt crises is compromised by legal obstacles which result from the absence of a statutory, obligatory bankruptcy procedure for states. On the one hand, creditors might refuse to accept an exchange of their debt instrument in the frame of a workout and choose to litigate against the state. On the other hand, states might worsen their situation by unnecessarily delaying inevitable workouts. This article explores whether and to what extent the powers UN Security Council could be deployed in order to mitigate these problems. This requires a reconsideration of the concept of peace in Article 39 UN Charter. The article concludes that, at the request of the International Monetary Fund (IMF), the Security Council might put a stay on the enforcement of creditors' claims or order workout negotiations.
  • Topic: Security, International Law, War, International Monetary Fund
  • Political Geography: Germany, United Nations
  • Author: Nicolas Klein
  • Publication Date: 06-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Legal research conceptualized the relationship between International Investment Law (IIL) and International Human Rights Law (IHRL) until recently rather as opposing fields of law with colliding policy interests as well as contradictory rules and regulations. However, lately a new approach is gaining increasing support in the academic community: Investment protection could be understood as being part of human rights law. Such a conclusion may be perceived as highly controversial, however, from a conceptual perspective IIL and IHRL share more common ground than differences. This article will argue, first, that certain material standards of IIL can be conceptualized to be human rights-like guarantees of a minimum standard of protection and second, that such an understanding does not lead to a neoliberal proliferation of economic rights but, to the contrary, may serve as an important conceptual tool to prevent overly extensive interpretations of investment treaties and to balance economic rights with other human rights in case of norm conflict. After all, IIL could prove to be not more, but also not less, than “One Out of a Crowd” of all other fundamental human rights.
  • Topic: Economics, Human Rights, International Law
  • Political Geography: Pakistan, Germany, Guinea
  • Publication Date: 11-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Once more the Goettingen Journal of International Law was involved in organizing an international conference and publishing the contributions. On 9 and 10 March 2012 scholars from Germany, Israel and Norway assembled in the “Paulinerkirche” in Goettingen to present their research on “Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law”. The symposium was the final step of a research project organized by the Institute of International and European Law of the Georg-August University Goettingen and the Minerva Center for Human Rights, Hebrew University, Jerusalem. Its central idea is that international constitutionalism is not only a topic contemporarily much discussed, but finds its precursors in earlier “German” constitutional approaches.
  • Topic: International Law
  • Political Geography: Israel, Germany
  • Author: Tomer Broude, 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, Germany
  • Author: Dirk Hanschel
  • Publication Date: 11-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: This paper examines the explanatory and the prescriptive value of German (and related) federalist ideas with regard to the constitutionalization of international law. The author contends that respective scholars have, on the one hand, developed federalist thought with regard to the national constitutional level which may help to explain or shape international processes of constitution-building. On the other hand, they have themselves promoted international federalism as a natural extension of their national constitutional doctrine, hence partially weakening the classical dichotomy between national and international law.
  • Topic: International Law
  • Political Geography: Germany
  • Author: Reut Yael Paz
  • Publication Date: 11-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: This article seeks to contextualize the international legal contributions of Hersch (Zvi) Lauterpacht (1897-1960) against his specific historical conditions. It therefore begins with an overview of his biography. The intention is to emphasize his Jewish background in the context of the overlapping cultural and social influences of his time. The article then moves to deal with the three main pillars of Lauterpacht's theoretical approach to international law – his 'Kelsenian twist', the individual and nation State sovereignty. The purpose here is review them in light of his Jewish affinity and German-speaking legal education. The article is concluded with the argument that our understanding of Lauterpacht's international legal contributions could be infinitely richer when and if they are reread against a Babylonian Talmudic text, which is used below in an analogical fashion.
  • Topic: International Law
  • Political Geography: Germany
  • Author: Ole Spiermann
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Institution: European Journal of International Law
  • Abstract: In 1930, it was seen as critical by many to have a German jurist elected to the bench of the Permanent Court of Justice, and this was indeed achieved by the election of Walther Schücking. It may seem a paradox that in the following years where, in many cases, the Permanent Court exercised self-restraint and embraced arguments based on state sovereignty, probably the greatest supporter of notions of international organization and community to be associated with the work of the Permanent Court, namely Walther Schücking, occupied a permanent position on the bench. But then his 'optimism' was simply an extrapolation of the state on to the international level, leaving key values such as state sovereignty essentially unaffected. The interest in Schücking's contributions to the work of the Permanent Court lies not least in the fact that, even today, many lawyers approach international law in manners similar to his.
  • Topic: International Law, International Organization
  • Political Geography: Germany
  • Author: Pierre-Emmanuel Dupont
  • Publication Date: 04-2009
  • Content Type: Journal Article
  • Journal: The Caucasian Review of International Affairs
  • Institution: The Caucasian Review of International Affairs
  • Abstract: In the Handbook\'s Introduction, Dieter Fleck mentions that the first edition, published in German in 19941, was built upon the German Armed Forces\'s (Bundeswehr) Manual of international humanitarian law (IHL), an account of Germany\'s long-standing involvement in the implementation of IHL2. Yet the present edition, \'no longer connected to a single national manual, […] aims at offering a best practice manual to assist scholars and practitioners worldwide\' (p. xiv).
  • Topic: International Law
  • Political Geography: Germany
  • Author: Laura Tate Kagel
  • Publication Date: 12-2007
  • Content Type: Journal Article
  • Journal: German Politics and Society
  • Institution: German Politics and Society Journal
  • Abstract: As investigative journalists and nongovernmental organizations (NGOs) increasingly uncover the nature and scope of a U.S. government program known for transferring terrorist suspects outside of normal legal and administrative channels, the role of European states has come under scrutiny. To a large degree, these states have erected a “wall of fog,” as a report from the German Institute of Human Rights describes it, blocking access to information that would allow for independent assessments of the human rights implications of the counterterrorism practice known as “extraordinary rendition.”
  • Topic: International Law, Terrorism
  • Political Geography: United States, Europe, Germany, Egypt