Book ReviewResponse

Heroes and theories

A response to Raphael Schäfer

In his post, Raphael Schäfer provides a considerate, careful and kind re-reading of my dissertation on Hermann Mosler and West German international legal scholarship after 1945. Raphael makes, by and large, three critical remarks. First, he indicates that my exploration of alternative conceptions to the practice-oriented method might be a misfit. Second, he wonders whether I overemphasize Mosler’s formative influence on German international legal scholarship. And third, he suggests that I …

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Book ReviewKick-off

Practice as method

Germany’s rehabilitation in and through international law

‘International law is what international lawyers do.’ This statement slightly abridged taken from Martti Koskenniemi’s seminal Gentle Civilizer of Nations, points forthright to one of international law’s key characteristics: it is shaped by practice. This practice – not being a source of international law in itself without supporting opinio juris – is of course first and foremost set by states. On a second layer state practice is to a certain …

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BofaxeCurrent Developments

Keeping it clean (part II)

On the protection of outer space as part of the environment

This Bofax is the second part of a two-part series – inspired by India successfully testing an anti-satellite (ASAT) missile against an Indian satellite and thereby causing space debris – that deals with selected issues revolving around the use of ASAT missiles against satellites of other states. When space objects such as satellites are destroyed, a cloud of particles of different sizes, known as space debris, remains. This debris can …

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BofaxeCurrent Developments

Keeping it clean (part I)

On the prohibition on the use of force in an ASAT context

On March 27th India successfully tested an anti-satellite (ASAT) missile against one of its own test satellites, creating a cloud of space debris which might collide with the International Space Station (see the post of last week here). Since ASAT weapons are ultimately designed to be used against satellites of other states, scenarios in which space debris is caused through international hostilities become more realistic. As the conflict in the Indo-Pakistani Kashmir …

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Current Developments

The CLOUD Act

A new way for international tribunals to access digital evidence

From violent protests in Sudan to airstrikes in Syria, access to online open source material and digital information is becoming essential for the fight against impunity. Open Source Information is publicly available information that anyone can lawfully obtain by request, purchase, or observation. Today’s international criminal and human rights investigations increasingly rely on digital data, such as content posted on social media platforms, to support criminal proceedings and ultimately hold …

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BofaxeCurrent Developments

New peak in the dispute concerning the Golan Heights

On the recognition of the Golan Heights as Israeli territory by Donald Trump

On Monday, 25 March 2019, US President Donald Trump accepted Israel’s sovereignty over the Golan Heights by stating that “the United States recognizes that the Golan Heights are part of the State of Israel” (see here). The Golan Heights are an area located in Syria close to the Israeli border and are of strategic importance, given their location in between the two states. The Six-Day War in 1967 resulted in …

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Current Developments

India’s anti-satellite missile test

Another reminder of the gaps in the 1967 Outer Space Treaty

In a much-publicized address on 27th March, India’s Prime Minister Narendra Modi announced that the country successfully tested its anti-satellite (ASAT) missile by destroying a live mini-satellite placed in Low Earth Orbit (LEO), 300 kilometres from the earth’s surface. Codenamed “Operation Shakti”, the ASAT missile has been developed indigenously by the Defence Research and Development Organisation (DRDO). Reportedly, an interceptor missile was used, which was part of the DRDO’s ongoing …

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Current Developments

The alleged seizure of the El Hiblu 1 by rescued migrants

Not a case of piracy under the law of the sea

On 28 March 2019, a Maltese patrol vessel intercepted the Palau-flagged tanker vessel El Hiblu 1 (IMO: 9753258) at the outer limit of Malta’s territorial sea, and the ship was subsequently boarded and secured by a Maltese special operations team using a helicopter. The reason for this operation was that the El Hiblu 1 had allegedly been hijacked by members of a group of migrants it had rescued earlier, and that these migrants had …

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Current Developments

Filtering fundamental rights

The European Union’s balancing of intellectual property and the freedom to receive information

The legislation process of the “Directive on Copyright in the Digital Single Market” has been accompanied by many unusual events, such as a – later removed – communication by the Commission containing insults of the opponents of the reform; a video published by the social media account of the Parliament defending the draft (before an actual vote by the parliament and created by one of the firmest lobbyist groups for the …

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BofaxeCurrent Developments

Responsibility to punish

Zur Verantwortung Deutschlands für deutsche IS-Kämpfer

Über 1000 deutsche Staatsangehörige haben sich dem sogenannten Islamischen Staat (IS) angeschlossen, davon befinden sich mittlerweile gut 40 im syrischen Kurdengebiet in Gefangenschaft. Einige von ihnen werden verdächtigt, sich wegen Völkermord, Verbrechen gegen die Menschlichkeit und Kriegsverbrechen strafbar gemacht zu haben. Schon im Koalitionsvertrag vereinbarten SPD, CDU und CSU zu regeln, dass „Deutsche, die eine weitere Staatsangehörigkeit besitzen, die deutsche Staatsangehörigkeit verlieren können, wenn ihnen die konkrete Beteiligung an Kampfhandlungen …

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Current Developments

Judicial imperialism and the PCIJ’s interpretation of the 1923 Treaty of Lausanne (Part II)

This is the second part of a two-part analysis of the PCIJ’s Advisory Opinion concerning the Interpretation of the 1923 Treaty of Lausanne. The first part reviewed the opinion’s background and the drafting history of article 3 of the 1923 Treaty of Lausanne which the Advisory Opinion focussed on. Article 3 concerned the delimitation of the boundary between Turkey and Iraq following the collapse of the Ottoman Empire. The key …

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Current Developments

Judicial imperialism and the PCIJ’s interpretation of the 1923 Treaty of Lausanne (Part I)

It is commonly accepted that the contemporary instability in certain areas of the Middle East is attributable, at least in part, to the arbitrary manner in which many boundaries were drawn by the victorious powers after the end of the First World War. Less often discussed is the role that international law and, in particular, the Permanent Court of International Justice (the ‘PCIJ’) played in this context. By scrutinising the …

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Current Developments

Gender Inclusive Trade and the Limits of Liberal Feminism

The 11th Ministerial Conference of the WTO saw the coming together of 121 WTO members to support the Buenos Aires Declaration on Trade and Women’s Economic Empowerment (hereinafter ‘Gender Declaration’). Members went on to endorse a liberal feminist strategy to promote gender equality within the international trading system. Pursuant to the Gender Declaration, the WTO has convened a series of conferences and workshops to deliberate upon ways to promote women’s participation in …

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Customary International LawSymposium

Religious Freedom and Customary International Law

The struggle for religious freedom is the oldest of all movements for international human rights. Nonetheless, religious freedom remains the most problematic of all human rights. Despite treaty protections for religious rights stretching from the Treaty of Westphalia (1648) to the European Convention on Human Rights (1950) and beyond, the role of customary international law remains considerable. For example, how does one define such rights as the freedom to establish …

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Customary International LawSymposium

The principle of responsibility-sharing in refugee protection

An emerging norm of customary international law

In December 2018, the Global Compact on Refugees was adopted. Especially over the last year, its drafting and negotiations could appear in odd contrast to the surrounding world, in which conditions for seeking asylum continued to harshen. Is the compact a step towards countering these conditions, or mere window-dressing without much effect on refugees’ rights? The compact is non-binding and one widely shared view is that all will depend on …

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BofaxeCurrent Developments

Trading Blows

On the military tensions between India and Pakistan

On Wednesday, February 27th 2019 Pakistan reportedly shot down two Indian warplanes, after India conducted airstrikes on the Pakistani side of the disputed border region of Kashmir against training camps of the Jaish-e Mohammed group which claims responsibility for a terror attack against Indian soldiers earlier in February. India confirmed the loss of one plane and claims to have shot down a Pakistani warplane as a response itself. The Kashmir region …

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