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1. Dogmatik and International Criminal Law: Approximations in the Realm of ‘Language’ and ‘Grammar’

Author:
Morten Boe
Publication Date:
08-2023
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Starting from the assertion of George Fletcher that there could never be an effective International Criminal Law (ICL) without a corresponding ICL Dogmatik – understood as a supporting culture of ideas and general principles – the article attempts to retrace and critically assess the connection made between the domestic concept and the international realm; to give a first approximation of what ‘ICL Dogmatik’ is supposed to mean. While not being definable in a conclusive way, Dogmatik – as understood in the German legal system – represents a specific habitus and mindset when approaching law, providing for an autonomous legal discourse fueled by the aspiration of a coherent normative system based on argumentative rationality and close cooperation of legal scholarship and legal practice. The article argues that, while the term Dogmatik is a specific cultural expression, the substance of the concept more generally refers to and echoes universal challenges of law and legal scholarship. The urge for an ICL Dogmatik should therefore not be (mis-)understood to argue for an authoritative rule of scholars or the adoption of German legal theories on the international level. Instead, the statement enunciates the necessity to establish ICL as an autonomous normative framework of concepts and terms. Dogmatik merely stands for an abstract vision, which may help to organize legal thinking in ICL, to structure and systemize the field, and most importantly to raise awareness for the necessity to develop a shared and coherent (legal) language, which enables productive discourse between all legal families.
Topic:
International Law and International Criminal Law (ICL)
Political Geography:
Global Focus

2. The Settlement of EEZ Fisheries Access Disputes under UNCLOS: Limitations to Jurisdiction and Compulsory Conciliation

Author:
Valentin J. Schatz
Publication Date:
08-2023
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article revisits the scope of the limitation to jurisdiction ratione materiae under Article 297(3) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in the context of Exclusive Economic Zone (EEZ) fisheries access disputes in the light of recent jurisprudence of UNCLOS tribunals. It first provides an overview over general aspects of Article 297(3) of UNCLOS in the compulsory dispute settlement mechanism of Section 2 of Part XV of UNCLOS. Next, it briefly considers the relationship between Article 297(3) and Article 297(1) of UNCLOS in order to clarify the former limitation’s role in the complex internal logic of Article 297 of UNCLOS. Thereafter, this article addresses the sometimes-overlooked function of Article 297(3) of UNCLOS as a confirmation of jurisdiction with respect to fisheries disputes that are not related to the EEZ. It then analyzes the scope of the limitation to jurisdiction ratione materiae of Article 297(3) of UNCLOS in the context of fisheries access disputes. Next, this article examines the potential and limits of the compulsory conciliation procedure under Article 297(3)(b) and Annex V of UNCLOS with a focus on the scope of the procedural mandate and subject-matter competence of such conciliation commissions.
Topic:
Economics, International Law, and Fishing
Political Geography:
Global Focus

3. Compulsory Settlement of EEZ Fisheries Enforcement Disputes under UNCLOS: “Swallowing the Rule” or “Balancing the Equation”?

Author:
Camille Goodman
Publication Date:
08-2023
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
While there is a widely held view that disputes concerning fisheries in the exclusive economic zone (EEZ) are largely exempt from the compulsory jurisdiction of courts and tribunals as a result of far-reaching exceptions in Part XV of the 1982 United Nations Convention on the Law of the Sea (LOSC), this is not the case for all EEZ fisheries disputes. This article examines the specific question of disputes concerning the enforcement of fisheries laws and regulations in the EEZ, and considers how the Part XV framework has been – or could be – used and interpreted for the compulsory settlement of EEZ fisheries enforcement disputes. It examines the obligation of prompt release established in Article 292, the option to exclude compulsory jurisdiction with respect to law enforcement activities concerning EEZ fisheries by written declaration under Article 298(1)(b), and the opportunity to bring disputes concerning EEZ fisheries enforcement within the scope of compulsory jurisdiction under Article 297(1) by characterising them as relating to the freedom of navigation or the protection and preservation of the marine environment. Framing its enquiry by reference to the question posed in this special issue, the article argues that, rather than “swallowing the rule” of compulsory jurisdiction, the jurisdictional scheme established for EEZ fisheries enforcement disputes helps to “balance the equation” and support the effectiveness of Part XV in protecting the compromises that are embodied in the LOSC.
Topic:
International Law, Territorial Disputes, Fishing, and Jurisdiction
Political Geography:
Global Focus

4. The Many Facets of EEZ Fisheries Disputes and their Resolution under UNCLOS

Author:
Natalie Klein
Publication Date:
08-2023
Content Type:
Working Paper
Institution:
The Goettingen Journal of International Law
Abstract:
The core question being posed for this symposium was whether the ‘exception swallows the rule’ in relation to disputes concerning fishing in the exclusive economic zone (EEZ). This question emerges because of the starting point that disputes relating to the interpretation or application of the UN Convention on the Law of the Sea (UNCLOS)1 may be subject to compulsory procedures entailing binding decisions – arbitration or adjudication – at the request of a party to the Convention. However, while this ‘rule’ is the start, it is immediately important to point our that there are exceptions and limitations to this proposition; the grant of compulsory jurisdiction in UNCLOS is limited in significant ways.2 The ‘exception’ of concern to this symposium is set out in Article 297(3) of UNCLOS, which excludes fisheries disputes from adjudication or arbitration in the following situation: “the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.“3 Pursuant to Article 298(1)(b), States also have the option to exclude ‘disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal’ under Article 297(3).4 The symposium papers that follow seek to improve our understanding of these exceptions to compulsory jurisdiction; do they swallow the ‘rule’ of compulsory jurisdiction? This introduction aims to explain the relevance of the exception (Part B), situate the papers that are part of the symposium (Part C) and indicate what has been jurisprudentially achieved despite the exception (Part D).
Topic:
International Law, Sovereignty, Fishing, and Disputes
Political Geography:
Global Focus

5. An Unlikely Duo? Regionalism and Jus Cogens in International Law

Author:
Carlos Lima Lima and Loris Marotti
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Recent years have witnessed a renewed interest in peremptory norms of international law (jus cogens) in the international legal discourse.  e ongoing works of the International Law Commission (ILC or Commission) on the topic1 , also prompted by the increasing relevance such norms have gained in the case law of national and international courts, is refreshing the long-standing debate about the scope, nature and content of peremptory norms2 . Against this background, less attention is being paid to the possible relations between jus cogens and regionalism, as well as to the legal and political implications such relations may have in the international realm.
Topic:
International Law, Law, and Regionalism
Political Geography:
Global Focus

6. Is the International Law Commission Taking Regionalism Seriously (Enough)?

Author:
Janina Barkholdt
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Regionalism poses a challenge to the work of the International Law Commission (ILC). The Commission, entrusted by the United Nations General Assembly (UNGA) with the “progressive development of international law and its codification”, is tasked with identifying and elaborating universally accepted and acceptable rules of international law. The challenge posed by regionalism lies in its ambivalent role precisely in relation to the mandate of the ILC: on the one hand, a significant share of practice in international law is generated at the regional level. Since regional practice thus constitutes a substantial part of State practice, the ILC cannot avoid taking regional practice into account if it is to identify and develop common rules. On the other hand, regionalism often involves claims for special legal treatment based on the affiliation with a region; thus, deviations from precisely those general legal rules which the ILC seeks to codify and develop. The present contribution analyses how the Commission has approached regionalism in its previous work and identifies four approaches. It shows that each of these approaches suffers from shortcomings. At the same time, the current projects on General principles of law (GPL) and Sea-level rise in relation to international law possibly indicate the emergence of a more fruitful fifth approach. Based on this analysis, the present contribution shows that the practice of the ILC evinces two methodological challenges arising from regional plurality –, the challenge of equal regional representation and the challenge of regional exceptionalism, – and makes suggestions as to how to address these in the future.
Topic:
International Law, United Nations, and Regionalism
Political Geography:
Global Focus

7. Military Intervention on Request in Jus Ad Bellum and Jus In Bello and the question of recognition of governments

Author:
Chiari Redealli
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Over the past decades, foreign interventions in internal conflicts upon the request of host governments have turned into a common practice. These instances have proved to be particularly challenging both from a jus ad bellum and a jus in bello point of view. On the one hand, it is often unclear whether the intervention is lawful; on the other hand, the classification of these armed conflicts is equally problematic. In both cases, the key to answer these questions is the identification of the organ capable of speaking on behalf of the state: who is the government? Considering the pivotal relevance of the identification of the government both in jus ad bellum and jus in bello, it is crucial to determine the criteria for identifying the authority capable of issuing a valid invitation. This article seeks to clarify these criteria. Ultimately, it will demonstrate that jus ad bellum and jus in bello reach different conclusions on the matter and it will argue that this should not be the case.
Topic:
International Law, Humanitarian Intervention, Military Intervention, Conflict, and International Humanitarian Law (IHL)
Political Geography:
Global Focus

8. Missed Communications and Miscommunications: International Courts, the Fragmentation of International Law and Judicial Dialogue

Author:
Francis Maxwell
Publication Date:
11-2022
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The increase in the number of international judicial bodies has led to different international courts deciding similar issues of international law. There is the real possibility that these international judicial bodies, not subject to the supervision of a common appeal court, may rule differently on similar questions before them. While this fragmentation of decision-making may undermine the coherency and certainty of the international legal system, it may in some cases be in the interests of the international community, including where divergences in decision-making are the result of specialized regimes or where there is progressive development of the law. So that fragmentation is limited to what is beneficial and necessary for the international community, it is essential that international judicial bodies are in open and structured dialogue with one another. This analysis considers three scenarios of overlapping decision-making, over the course of the lives of two sets of international courts: the International Court of Justice, and the international criminal courts and tribunals. It also considers the recent decision of the International Criminal Court with respect to Palestine and the Court’s refusal to weigh in on questions of general international law, in apparent departure from the previous three examples. It is submitted that these examples demonstrate that insufficient attention is given by these international judicial bodies to the issue of judicial dialogue and its importance. This may undermine the legitimacy of the system and introduce the risks of fragmentation without its benefits.
Topic:
International Law, International Court of Justice (ICJ), International Criminal Court (ICC), Dialogue, Fragmentation, and Customary International Law
Political Geography:
Global Focus

9. The Soft Touch of International Financial Regulation: Status, Flaws and Future

Author:
Niall O'Shaughnessy
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The 2008 global financial crisis focused attention on the relationship between the behaviour of international financial institutions and the rules they follow. Many banks in the US and Europe failed, in part, due to their inability to absorb the fallout of the US mortgage market collapse. If international financial institutions could not protect themselves from the cycles of the market, how come regulators were unable to do so either? The most relevant instrument of international financial regulation for understanding the 2008 crisis is the Basel Accords, the rules that specify how much capital a bank should always hold in reserve. However, these rules are ‘soft law’ and so, non-binding. It is a myth of course that soft law is the only way to regulate international finance, as many scholars argue. Despite numerous rounds of reform, the Basel Accords have always been inadequate. The purpose of this paper is to account for the flaws of the Basel Accords and the role that soft law plays in creating those flaws. This paper also analyses the competing theories behind the rise of soft law within financial regulation and the ‘political economy’ explanation is endorsed. The final section of the paper discusses the future of financial regulation and soft law, as well as highlighting innovations from outside the hard/soft law dichotomy and outside the Global North. This paper concludes by stating that the theory behind soft law does not play out in practice within finance and that it remains in place because it suits the interests of large institutions and powerful states. At the same time, a return to Bretton Woods or a new World Financial Organization is problematic and, as such, we must look beyond the hard/soft law debate and embrace the work of the Global South and East.
Topic:
Markets, Financial Crisis, Regulation, Capital, and Banking
Political Geography:
Global Focus

10. The Evolution of the Prohibition of Genocide: From Natural Law Enthusiasm to Lackadaisical Judicial Perfunctoriness – And Back Again?

Author:
Julia Klaus
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
International legal scholarship and practice have reached a point where it is undisputed that the prohibition of genocide has the status of jus cogens and entails erga omnes obligations. It is, however, astonishing how little academic focus has been dedicated to the normative development leading to this extraordinary rank. In a legal regime with as little hierarchical structure as public international law, examining the birth process of such a norm promises considerable insights into normative formation in general and may inform jurisprudential theories on the nature of international law. This article illustrates the evolution of the prohibition of genocide by outlining the way to the 1948 UN Genocide Convention and the later interpretations of the norm. It traces the origin of the genocide prohibition to naturalistic ideas of overarching laws of humanity in international law and follows its development into the early 21st century. An analysis of international jurisprudence reveals that, after the jus cogens status of the prohibition of genocide and its erga omnes dimension had been settled, international judges handled the norm in a surprisingly lackadaisical and perfunctory manner. The very recent ICJ order on provisional measures in the Myanmar Genocide case potentially marks a return towards a deeper focus on moral facts determining the prohibition that point to naturalistic theories persisting, notwithstanding the positivistic mainstream approaches to international law. The article contributes to a more accurate picture of and greater academic interest in these naturalistic undercurrents.
Topic:
Genocide, International Cooperation, International Law, International Court of Justice (ICJ), and Humanitarian Crisis
Political Geography:
Global Focus