German Yearbook of International Law / Jahrbuch für Internationales Recht
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German Yearbook of International Law / Jahrbuch für Internationales Recht
Vol. 61 (2018)
Editors: Arnauld, Andreas von | Decken, Kerstin von der | Matz-Lück, Nele
German Yearbook of International Law / Jahrbuch für Internationales Recht, Vol. 61
(2019)
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The German Yearbook of International Law, founded as the ›Jahrbuch für Internationales Recht‹, provides an annual report on new developments in international law and is edited by the Walther Schücking Institute for International Law at the Kiel University. Since its inception in 1948, the Yearbook has endeavored to make a significant academic contribution to the ongoing development of international law. Over many decades the Yearbook has moved beyond its origins as a forum for German scholars to publish their research and has become a highly-regarded international forum for innovative scholarship in international law. In 1976, the Yearbook adopted its current title and began to publish contributions written in English in order to reach the largest possible international audience. This editorial decision has enabled the Yearbook to successfully overcome traditional language barriers and inform an international readership about current research in German academic institutions and, at the same time, to present international viewpoints to its German audience. Fully aware of the paramount importance of international practice, the Yearbook publishes contributions from active practitioners of international law on a regular basis. The Yearbook also includes critical comments on German state practice relating to international law, as well as international reactions to that practice.
Table of Contents
Section Title | Page | Action | Price |
---|---|---|---|
Table of Contentsr | 5 | ||
Forum:rThe Trump Administration and International Law | 9 | ||
Jack Goldsmith and Shannon Togawa Mercer: International Law and Institutions in the Trump Era | 11 | ||
I. The Trump Onslaught | 12 | ||
A. Trade | 12 | ||
B. Investment | 17 | ||
C. Climate | 19 | ||
D. Arms Control | 20 | ||
E. Diplomacy and Recognition | 22 | ||
F. War | 23 | ||
G. Human Rights | 25 | ||
H. Performance at International Conferences | 28 | ||
II. Trump’s Impact | 29 | ||
A. Much Remains Unchanged | 30 | ||
B. Particular International Law Regimes | 31 | ||
C. The Bigger Picture | 35 | ||
Focus: International Health Lawr | 41 | ||
Lena Matz-Lück: rIntroduction | 43 | ||
Pedro A. Villarreal: rPublic International Law and Human Health: Bridging Conceptual Gaps Through Governance | 45 | ||
I. Introduction: The Birth of a Specialised Field? | 45 | ||
II. International Health Law: An Autonomous or a Subsidiary Field? | 48 | ||
A. Health Law: Global or International | 49 | ||
B. Main Legal Instruments of International Health Law | 50 | ||
C. Limits of the Legal Instruments of International Health Law | 52 | ||
III. Human Health and Other Fields of Public International Law: Conflict, Parallelism, and Harmony | 54 | ||
A. Human Health and International Economic Law | 55 | ||
1. Tobacco Control and International Investment Law | 56 | ||
a) Philip Morris v. Australia | 57 | ||
b) Philip Morris v. Uruguay | 58 | ||
2. Tobacco Control and International Trade Law | 60 | ||
3. Problems With the Multiplicity of Fora: The FCTC’s Divergent Legal Status | 62 | ||
B. Health and International Environmental Law: Mirror Fields? | 64 | ||
C. International Health Law and Human Rights Law | 66 | ||
IV. Bridging the Gaps in Health Law Through Governance | 67 | ||
V. Conclusions: Coupling Human Health and Public International Law Through Governance | 70 | ||
Anika Klafki: rInternational Health Regulations and Transmissible Diseases | 73 | ||
I. The Underestimated Threat of Infectious Diseases | 73 | ||
II. International Health Regulations 2005 – A First Step Towards the Establishment of a Global Health Regime | 76 | ||
A. Covering All Future Health Threats With the Notion 'Public Health Emergency of International Concern’ | 77 | ||
B. New Investigation Rights of the WHO | 80 | ||
C. Obligation to Build and Maintain Core Capacities | 81 | ||
III. Continuing Weaknesses of the International Health Regulations in Fighting Transmissible Diseases and Reactionsto the Ebola Outbreak | 81 | ||
A. Pandemic Prevention: Ineffectiveness of Notification Obligations | 81 | ||
B. Pandemic Preparedness: Sluggish Development of Medical Core Capacities | 84 | ||
C. Pandemic Response: Lack of Emergency Competencies | 85 | ||
IV. Current Approaches to Advance Global Health Security | 87 | ||
A. Preparedness at the National Level | 87 | ||
1. WHO Joint External Evaluation Tool | 87 | ||
2. Further Public and Private Initiatives | 88 | ||
B. Emergency Response | 89 | ||
1. WHO Health Emergencies Programme | 89 | ||
2. Emergency Response Systems Within the UN | 91 | ||
3. Pandemic Emergency Financing Facility of the World Bank | 93 | ||
C. Research and Development | 93 | ||
1. WHO Research and Development Blueprint for Action to Prevent Epidemics | 93 | ||
2. Further Public and Private Initiatives | 94 | ||
V. Need of a Revised Legal Framework rfor the New Global Health Regime | 95 | ||
A. Transaction Costs and Lack of Leadership | 96 | ||
B. Legitimacy Issues | 98 | ||
C. Outline of a Reform of the IHR | 99 | ||
VI. Conclusion | 101 | ||
Valentin Aichele: Taking out the Magnifier’: Groups in Vulnerable Situations Under Global Health Law | 103 | ||
I. Introduction | 103 | ||
II. Proposition and Working Definitions Applied Here | 105 | ||
III. Vulnerability in Global Health Law: Taking Stock | 106 | ||
A. Human Rights Law Related to Health | 107 | ||
B. Vulnerability in WHO Law and Policy Standards | 109 | ||
C. Vulnerability in International Standards Focusing on Ethics | 112 | ||
D. Vulnerability in Multilateral Development | 112 | ||
E. Human Rights Principles and Guidelines | 113 | ||
F. United Nations Special Mechanisms | 114 | ||
G. Other Sources of Global Health Law | 114 | ||
IV. Groups in Vulnerable Situations and Situations in Which Groups Must be Viewed as Potentially Vulnerable | 116 | ||
A. Groups | 116 | ||
B. Situations | 119 | ||
V. A Meaningful Setting: The Human Rights Framework | 120 | ||
VI. Foundational Issues | 123 | ||
A. The Two-Fold Concept of ‘Groups in Vulnerable Situations’ | 123 | ||
B. Language Used | 124 | ||
C. Prevailing Discrimination and an Envisaged Violation of the Human Right to Health | 126 | ||
D. Threshold | 127 | ||
VII. Conclusions | 128 | ||
Silja Vönekey: Biomedicine – rFoundations and New Challenges | 131 | ||
I. Introduction | 132 | ||
II. Foundations and Current Questions of Legitimate Standard Setting | 134 | ||
A. Human Rights Treaties | 134 | ||
B. International Environmental Law: Treaties, Soft Law Rules, and a Proposal for a ‘Humanisation’ of International Environmental Law | 137 | ||
C. Key Elements of Legitimate Standard Setting in Biomedicine | 142 | ||
D. UNESCO Soft Law | 143 | ||
1. Procedural Aspects | 144 | ||
2. Substantive Rules | 145 | ||
3. UNESCO as Future Actor | 146 | ||
III. First Results and Open Questions | 147 | ||
IV. Private Rule-Making and Codes of Conduct | 148 | ||
V. Pressing Problems in Biomedicine – the Need for New International Legitimate Standard Setting | 148 | ||
Philippe Cullet and Hu Yuanquiong: rMedical Patents and the Right to Health –From Monopoly Control to Open Access Innovation and Provision of Medicines | 153 | ||
I. Introduction | 153 | ||
II. Legal Frameworks to Ensure the Development, Manufacture and Access to Medicines | 157 | ||
A. Patents and Regulatory Framework Governing Medicines | 157 | ||
1. TRIPS Flexibilities and TRIPS-Plus | 159 | ||
2. Exclusivity Derived From Regulatory Laws on Medicines | 160 | ||
B. Human Right to Health and Access to Medicines | 161 | ||
C. Limited Options for Reconciling the Different Options | 163 | ||
III. Regulatory Developments Since the Beginning of the Century | 165 | ||
A. From the TRIPS Agreement to the Doha Health Declaration and Beyond: Limited Attempts to Tame the Patent Regime | 165 | ||
B. Steps to Foster the Realisation of the Right to Health | 168 | ||
C. Authors’ Rights, Right to Benefit from Science and the Right to Health: New Battlegrounds in Human Rights | 170 | ||
D. Shortcomings of Medical Innovation and Alternative Pathways | 173 | ||
IV. Towards Prioritising Access and Innovation to Realise the Right to Health | 175 | ||
A. Right to Health: Rethinking the Obligations of the Duty Holders | 175 | ||
1. Duty of State to Fund Research, Manufacture, or Regulate Prices | 175 | ||
2. Sharing Duties and the Private Sector: Rethinking Obligations of Duty Holders in International Law | 177 | ||
B. Redefining Openness in Medical Innovation to Ensure Access to Medicines for All | 178 | ||
C. Preferential Treatment: Ensuring Provision of Necessary Medicines in the Global South | 179 | ||
V. Conclusion | 181 | ||
Walther Schücking Lecturer | 183 | ||
Christine Chinkin: rWomen, Peace, and Security: Tackling Violence Against Womenin the Contemporary World? | 185 | ||
General Articlesr | 207 | ||
Riccardo Pisillo Mazzeschi: rCoordination of Different Principles andValues in International Law | 209 | ||
I. Introduction | 209 | ||
II. Resolving Conflicts of Normsin the General Theory of Law | 211 | ||
A. The General Question of Antinomies Between Norms | 212 | ||
B. The Specific Question of Antinomies Between Principles | 212 | ||
III. Dealing With Conflicts of Norms in International Law | 214 | ||
A. Is There a Contrast Between ‘Old’ and ‘New’ International Law? | 214 | ||
B. Examples of Conflict Between Principles | 218 | ||
C. Three Methods to Coordinate Conflicting Principles | 221 | ||
IV. The Traditional Positivist Method | 221 | ||
A. Views That Tend to Deny or Avoid Conflicts | 222 | ||
B. Conservative Views on International Sources | 225 | ||
1. Traditional Concept of Custom | 225 | ||
2. Traditional Concept of General Principles of Law Recognised In Foro Domestico | 228 | ||
3. Traditional Concept of General Principles of International Law | 229 | ||
4. Sceptical Views About Jus Cogens | 231 | ||
C. Results of the Traditional Positivist Method | 233 | ||
V. The Modern Positivist Method | 233 | ||
A. Modern Concept of Custom | 234 | ||
B. Modern Concept of General Principles of Law Recognised In Foro Domestico | 236 | ||
C. Jus Cogens as a Hierarchical Criterion | 237 | ||
D. Results of the Modern Positivist Method | 240 | ||
VI. The Value-Based Method | 241 | ||
A. The Growing Role of General Principles of International Law | 242 | ||
B. Balancing Conflicting Principles or Values | 245 | ||
C. Results of the Value-Based Method | 247 | ||
VII. Conclusion | 248 | ||
Annalisa Ciampi: rThe Divide Between Human Rights, International Trade, Investment and Development Law | 251 | ||
I. Introduction | 251 | ||
II. The Aftermaths of WWII and the Cold War | 253 | ||
A. The Failure of the Unitary Design of the UDH Rand the Split into ‘Generations’ of Rights | 253 | ||
B. The Failure of the Havana Charter and the ‘Isolation’of International Trade Law | 256 | ||
III. The Decolonisation Period and the End of the Cold War | 258 | ||
A. The Failure of the NIEO and the ‘Divorce’ Between the Furtherance of Development and International Cooperation in Economic Matters | 258 | ||
B. The ‘Influence’ of International Human Rights Law | 261 | ||
IV. The Last Decade of the XX Century | 262 | ||
A. The Divide Between the Theory and Practice of International Human Rights | 262 | ||
B. The ‘Divorce’ Between Trade and Investment | 268 | ||
V. The New Century | 271 | ||
A. Human Rights Law, Institutions, and Practice | 272 | ||
B. FTAs and SDGs as Attempts at Reuniting Trade, Investment, and Development | 277 | ||
VI. Efforts at Bridging Existing Divides from Within the Human Rights Regime | 282 | ||
A. The Doctrine of the Universality and Indivisibility of Human Rights | 282 | ||
B. China’s New International Human Rights Diplomacy | 285 | ||
VII. Conclusions | 290 | ||
A. The ‘Effectiveness’ of International Human Rights Law | 290 | ||
B. The Need to Overcome the Divides | 292 | ||
Patrizia Vigni: rState Responsibility for the Destruction of Cultural Property | 295 | ||
I. Introduction | 295 | ||
II. The Substantive Aspects of State Responsibility for Wrongful Acts Resulting in the Destruction of Cultural Property | 300 | ||
A. Defining Cultural Property | 300 | ||
B. Illicit Conducts Entailing the Destruction of Cultural Property | 304 | ||
1. General Remarksr | 304 | ||
2. The Relevance of Time and Place | 305 | ||
3. The Intentional Destruction of Cultural Property | 309 | ||
4. Military Necessity | 315 | ||
5. The Element of Damage | 317 | ||
6. Conclusive Remarks | 318 | ||
III. The Attribution of Wrongful Conducts Entailing the Destruction of Cultural Property to States | 319 | ||
A. State Responsibility for the Wrongful Conducts of State Organs | 319 | ||
B. State Responsibility Arising from the Wrongful Conducts of Private Persons | 321 | ||
C. The Attribution of Responsibility for the Illicit Conducts of Insurrectional Movements | 325 | ||
D. Joint Responsibility of States | 327 | ||
IV. Circumstances Precluding State Responsibility | 329 | ||
V. Consequences Arising from State Responsibility | 333 | ||
A. Invocation of Responsibility and Injured States | 333 | ||
B. The Right of a State Other than the Injured State to Invoke Responsibility | 336 | ||
C. Reparation for Damage to the Cultural Property | 339 | ||
D. Countermeasures as Response to State Wrongful Acts | 343 | ||
VI. Conclusions | 344 | ||
Viljam Engström: Regulating the Baltic Sea – A Showcase of Normative Pluralism | 347 | ||
I. The Baltic Sea Region Regulatory Scene | 347 | ||
II. On Post-National Rulemaking | 349 | ||
III. ‘Actorness’ in the BSR | 351 | ||
A. General | 351 | ||
B. Global Actors | 353 | ||
C. Regional Actors | 356 | ||
D. The EU as a BSR Actor | 359 | ||
IV. Legislative Acts | 363 | ||
A. Variations in ‘Softness’ | 363 | ||
B. HELCOM Recommendations and Monitoring | 365 | ||
C. Normative Impact Through Institutional Interaction | 368 | ||
D. Legislating Through Framework Instruments | 370 | ||
E. Implementation Through Strategic Planning | 373 | ||
V. Conclusion | 375 | ||
Katayoun Hosseinnejad: rInterpretation in Light of Which ‘Object and Purpose’? | 377 | ||
I. Introduction | 377 | ||
II. Reception of the Teleological Approach in International Law | 380 | ||
III. Current Literature on the Meaning of the Object and Purpose | 383 | ||
IV. Object and Purpose; Reconsidered | 388 | ||
A. Anchoring Purpose in Principle Arguments | 389 | ||
B. ‘Not One, Not Two’ | 392 | ||
1. International Jurisprudence | 394 | ||
2. The Emergent Purpose | 397 | ||
V. Conclusion | 401 | ||
Sophie Papadileris: rProtection of Peacekeepers Resortingto Armed Force – A Current Dilemma | 403 | ||
I. Dilemma of Peace Missions in Today's Conflicts | 403 | ||
A. Conflicts and Peace Actions in Transition | 405 | ||
B. Interlinking of Protection Rules with IHL | 406 | ||
1. General Applicability of IHL to UN Personnel | 407 | ||
2. Protection of Peacekeepers Through IHL – General Status Qualification | 408 | ||
II. Protection and Legal Restrictions of the ‘Special Protection Rules’ | 411 | ||
A. Safety Convention | 411 | ||
1. Enforcement Action Under Chapter VII UN Charter | 411 | ||
2. Combatant Status of UN Personnel: the ‘Key Restriction Element’ | 413 | ||
a) Actual Use of Force and its Required Intensity | 415 | ||
b) Threshold of Permissible Self-Defence | 417 | ||
c) Loss of Protection on a Collective Basis | 419 | ||
3. Applicability in Non-International Armed Conflicts | 419 | ||
4. Achievements and Weaknesses of the Safety Conventionr | 421 | ||
B. Article 8(2)(b)(iii) ICC Statute | 422 | ||
1. The Safety Convention’s Impact on the Scope of Application of Article 8 ICC-Statute | 422 | ||
2. Analysis of Jurisprudence: Determining Loss of Protection in the Event of Participation in Hostilities by ‘Continuous Evaluation of the Overall Circumstances’ | 424 | ||
3. Remaining Uncertainties Concerning the ‘Double as long as Clause’ | 428 | ||
C. Achievements and Weaknesses of the ICC Statute Compared to the Safety Convention | 431 | ||
III. The Revers Synergy Effect and the Future of the Protection of Personnel of UN Peace Operations | 433 | ||
Germanr Practice | 437 | ||
Guido Hildner: rThe Activation of the International Criminal Court’s Jurisdiction over the Crime of Aggression: The Edifice is Completed | 439 | ||
I. Introduction | 439 | ||
II. Background | 440 | ||
III. Germany’s Position | 443 | ||
IV. The New York Meeting | 445 | ||
V. Outlook | 449 | ||
Helmut Philipp Aust and Mehrdad Payandeh: rGerman Practice With Regard to the Use of Force in Syria | 451 | ||
I. Introduction | 451 | ||
II. The German Participation in the AllianceAgainst the Islamic State | 453 | ||
A. The Position of the German Government | 453 | ||
B. The Debate Within the German Parliament | 456 | ||
III. Germany’s Reaction to the Military Strike Against Syria in April 2017 | 458 | ||
IV. Germany’s Reaction to the Military Strike Against Syria in April 2018 | 459 | ||
A. The Position of the German Government | 460 | ||
B. The Debate in the German Parliament | 461 | ||
V. Concluding Remarks | 462 | ||
SararJötten and Felix Machts: Ban on Strike Action for Civil Servants is Constitutional: The Judgment of the Federal Constitutional Courtof 12 June 2018 | 465 | ||
I. Introduction | 465 | ||
II. Case History | 466 | ||
III. Judgment by the Federal Administrative Cour tof 27 February 2014 | 467 | ||
IV. Judgment by the Federal Constitutional Court of 12 June 2018 | 468 | ||
V. Evaluation | 470 | ||
VI. Concluding Remarks | 473 | ||
Liv Christiansen: rTurkish Politicians’ Political Campaigns in Germany –The Legality of Public Appearances Under German Law | 475 | ||
I. Introduction | 475 | ||
II. Factual Background | 477 | ||
III. Legal Assessment of Restrictive Measures Against Turkish Politicians | 480 | ||
A. The Competence of the Federal Government | 480 | ||
1. The Question Whether or Not the Legal Assessment Would Change if the Politician Wants to Enter the State as a Private Person | 482 | ||
2. The Possibility to Tie the Permission to Carry Out Campaigns to Certain Conditions | 483 | ||
3. The Current Rule Governing Campgaings of Foreign Politicians | 485 | ||
B. The Competence of the Federal States | 485 | ||
IV. The Relevance to the Fundamental Rights of the Basic Law | 487 | ||
A. The Fundamental Rights of Foreign State Representatives | 487 | ||
B. The Fundamental Rights of the Organisers of a Campaign Event | 488 | ||
V. Conclusion | 489 | ||
Henning Büttner: rMuch Ado About Nothing vs. the Opening of Pandora’s Box? –Some (Normative) Aspects of the Migration Compact Regarding its Impact on Germany | 491 | ||
I. Introduction | 491 | ||
II. The History of the Migration Compact | 493 | ||
III. A Brief Overview of the Migration Compact | 494 | ||
A. Aim, Structure, and Content of the Migration Compact | 494 | ||
B. The Understanding of (International) Migration in the Migration Compact | 496 | ||
IV. Normative Analysis of the Migration Compact | 498 | ||
A. Why the Migration Compact is not an International Treaty in the Sense of Article 38(1)(a) ICJ Statute | 499 | ||
B. The Hybrid Nature of the Content of the Migration Compact | 501 | ||
C. The Migration Compact and the Fear of Emerging New Customary Rules of International Migration Law | 504 | ||
D. The Migration Compact Influencing Decision-Making? | 509 | ||
V. Questions of Policy Regarding the Migration Compact | 512 | ||
A. Why All the Fuss? | 512 | ||
VI. Conclusion | 519 | ||
Maximilian Jacob and Clemens J. Dorsel: rThe Case of the Lifeline – A German Perspective on the Dilemma of Private Sea Rescuing in the Mediterranean | 523 | ||
I. Introduction | 523 | ||
II. The Law of the Sea | 529 | ||
A. The High Seas | 530 | ||
B. Exclusive Economic Zone | 530 | ||
C. Contiguous Zone | 531 | ||
D. The Territorial Sea | 531 | ||
E. Internal Waters | 532 | ||
F. Ships in Distress at Sea | 533 | ||
III. Legal Analysis of the Case of the Lifeline | 536 | ||
IV. Conclusion | 539 | ||
Thesis Summariesr | 541 | ||
Andreas von Arnauld, Kerstin von der Decken, and Nele Matz-Lück: rEditors’ Note | 543 | ||
Stefan Martini: rComparative Constitutional Justice | 545 | ||
Andreas Orator: rProspects for and Limits to Establishing Union Agencies | 549 | ||
Jochen Rauber: rChange of International Law’s Foundational Principles | 553 | ||
Hubertus Reinbach:rThe Monopoly of Trade Unions in German Strike Law: The Strike Between Constitution and International Law | 557 | ||
Philipp Tamme: rThe Enforcement of EU Law by the European Court of Human Rights: Vicarious Constitutional Jurisdiction for Improving the Protectionof Individual Rights | 561 | ||
Johann Justus Vasel: rThe Emancipation of Regional Human Rights Protection Mechanisms | 565 | ||
Ferdinand Weber:rNationality and Status: Static and Dynamic in Political Community-Building | 569 | ||
Book Reviewsr | 573 | ||
Edward Chukwuemeke Okeke, Jurisdictional Immunities of States and International Organizations | 575 | ||
Benoit Mayer, The International Law on Climate Change | 579 | ||
Henri Decoeur, Confronting the Shadow State: An International Law Perspective on State Organized Crime | 582 | ||
Leonardo Borlini, Il Consiglio di sicurezza e gli individui | 585 | ||
Birgit Spiesshofer, Responsible Enterprise: The Emergence of a Global Economic Order | 591 | ||
Astrid Kjeldgaard-Pedersen, The International Legal Personality of the Individual | 594 | ||
James Harrison, Saving the Oceans Through Law: The International Legal Framework for the Protection of Marine Environment | 597 | ||
Paolo Lobba and Triestino Mariniello (eds.), Judicial Dialogue on Human Rights: The Practice rof International Criminal Tribunals | 599 | ||
Stefanie Schmahl and Marten Breuer (eds.), The Council of Europe – Its Law and Policies | 602 |