A key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global... Show moreA key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global governance capabilities. A project to significantly upgrade the existing international legal architecture should be launched upon the occasion of the UN’s 75th anniversary, making good on core UN Charter and related international commitments. In this paper, we propose an ambitious, yet realizable “International Rule of Law Package” of reforms meant to substantially enhance the integrity of the international governance system. Key international justice institutions the International Court of Justice, the International Criminal Court, and the UN’s Human Rights architecture should be strengthened in terms of both their jurisdiction and effectiveness. In addition, the UN75 anniversary represents an opportunity to pave the way for new bodies to fill existing institutional gaps. Hence, we support the creation of an international anti-corruption court as well as an international judicial training institute to ensure the requisite capacity, skills, and knowledge across international courts. The international community, on this historic occasion, should begin focused discussion on such an international rule of law reform package with the goal of modernizing and making more robust and legitimate the core international governance architecture, fit for the range of global challenges it now confronts. Show less
The withdrawal of the United Kingdom from the European Union has prompted a global recalibration of treaty relations. Due to the Withdrawal Agreement and its transition period, the UK is expanding... Show moreThe withdrawal of the United Kingdom from the European Union has prompted a global recalibration of treaty relations. Due to the Withdrawal Agreement and its transition period, the UK is expanding its international treaty-making powers as it is gradually released from the constraints of EU law. Practice to date shows the creation of many new international legal instruments through which governments have sought to address the novel questions that Brexit raises for the international law of treaties. Show less
The Inter-American Court’s negative reputation as a judicial activist is often contrasted with its influence in the Inter-American Human Rights System. Despite often issuing broad judgments, the... Show moreThe Inter-American Court’s negative reputation as a judicial activist is often contrasted with its influence in the Inter-American Human Rights System. Despite often issuing broad judgments, the Court has remained a reference and a standard for human rights in the region. This article aims to examine this phenomenon by examining the Court’s institutional powers. The article claims that the Court’s tendency towards judicial activism does not contradict its functions, but rather reflects domestic judicial tendencies and cultures. Domestic judicial cultures and states’ interactions with the Court provide context for the interpretation of its powers and its role in the Inter-American System. The article, therefore, suggests that argumentative legal exchange engaged by the Court and Member States is a healthy way of promoting mutual accountability, while maintaining flexibility for adaptations by both parties and preserving the internal coherence of the regional system. Show less
This Article reviews major categories of existing procedure guiding the transition from armed conflict to peace. It introduces the concept of peace agreement procedural law. It reviews questions of... Show moreThis Article reviews major categories of existing procedure guiding the transition from armed conflict to peace. It introduces the concept of peace agreement procedural law. It reviews questions of amnesty and aut dedere aut judicare (Latin for “extradite or prosecute”) in the context of jus post bellum. It addresses the nature of United Nations Security Council resolutions having a bearing on procedural justice and jus post bellum. It covers trusteeship and accountability procedures. It notes the law of state succession. It concludes with reflections on peace as the foundation of procedural justice. The Article seeks to bring a new perspective to the often sterile debate on “peace versus justice.” Peace versus justice is often effectively a euphemism for the question of whether or not to proceed with international criminal law investigations and prosecutions if such criminal law mechanisms may reduce the possibility of achieving a negative peace. This question is unlikely to be universally resolved in the abstract. That said, approaching peace as the foundation of procedural justice widens the scope of considering what “justice” means, not only criminal accountability for those credible accused of international crimes, but also establishing the application of legal procedure for building the post-conflict environment. All of the areas discussed in this Article navigate the difficult tension between establishing a new beginning for justice, while recognizing that the context of recent armed conflict inevitably is a flawed foundation from which to proceed. The Article builds on Lawrence Solum’s emphasis of the value of participation in procedural justice, citing it as essential for legitimacy. Allowing the meaningful participation of affected communities is important not only for the laws governing the formation of peace, but the nature of any criminal accountability for conduct related to the armed conflict. Legitimacy and procedural justice is a cross-cutting issue, not limited to one side or the other in the reified peace versus justice debate. A transition from armed conflict judged to be more procedurally just and legitimate is more likely to sustain a more robust post-conflict criminal law effort. Show less
A historical analysis of the regulation of propaganda and obligations on states to prevent its dissemination reveals competing origins of the protection (and suppression) of free expression in... Show moreA historical analysis of the regulation of propaganda and obligations on states to prevent its dissemination reveals competing origins of the protection (and suppression) of free expression in international law. The conflict between the ‘marketplace of ideas’ approach favoured by Western democracies and the Soviet Union’s proposed direct control of media outlets have indirectly contributed to both the fake news crisis and engineered polarisation via computational propaganda. From the troubled League of Nations to the Friendly Relations Declaration of 1970, several international agreements and resolutions limit state use of propaganda to interfere with ‘malicious intent’ in the affairs of another. Yet state and non-state actors continually use a variety of methods to disseminate deceptive content sowing civil discord and damaging democracies in the process. In Europe, much of the discourse about the regulation of ‘fake news’ has revolved around the role of the European Union’s General Data Protection Regulation and the role of platforms in preventing ‘online manipulation’. There is also a common perception that human rights frameworks limit states’ ability to constrain political speech; however, using the principle of subsidiarity as a mapping tool, a regulatory anomaly is revealed. There is a significant lack of regulatory oversight of actors responsible for, and the flow of, computational propaganda that is disseminated as deceptive political advertising. The article examines whether there is a right to disseminate propaganda within our free expression rights and focusses on the harms associated with the engineered polarisation that is often the objective of a computational propaganda campaign. The article concludes with a discussion of the implications of maintaining this status quo and some suggestions for plugging the regulatory holes identified. Show less
Natural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important... Show moreNatural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important trigger for a relapse into armed conflict. For these reasons, it is of the utmost importance, both from a security and a development perspective, to address natural resources as an integral part of the peace process. This article aims to assess how provisions in peace agreements addressing natural resource governance are embedded in the international legal framework. It inquires into the particularities and legal nature of peace agreements and examines the various functions of natural resource arrangements as part of peace agreements. Finally, as each category of natural resources comes with distinct legal questions and peacebuilding challenges, the article zooms in on water governance as a case study to explore the different ways in which natural resource arrangements in peace agreements and international law interact. The analysis is based on a study of 40 intra‐State agreements, including the 2015 South Sudan agreement, the 2015 Mali agreement and the 2016 Colombian agreement. Show less
With the proliferation of advanced military and information technologies, growing ease of movement, increasing climate instability, and the rise of violent extremism, conflict and state fragility... Show moreWith the proliferation of advanced military and information technologies, growing ease of movement, increasing climate instability, and the rise of violent extremism, conflict and state fragility have increased since reaching a twenty-year low in 2010. In 2017, the latest year with complete data, nearly ninety-two thousand individuals lost their lives in various forms of violent conflict.Countries also face many cross-border economic threats and challenges—including weaknesses in cyberspace infrastructure, loss of tax revenues to illicit financial flows, illegal exploitation of natural resources, and other corrupt practices—that inhibit the growth of economies and the ability of governments to enhance economic resilience, especially in the Global South. Even more alarming, if humankind cannot find its way to limit average global warming to less than 1.5°C (looming as soon as 2030), further severe climatic changes are anticipated, including intensified biodiversity loss, storm surges, drought, desertification, and sea level rise of up to one meter by 2100.In the face of these global challenges, “we the peoples” are currently a house divided. In addition to “the West versus the rest” or “Global North versus Global South,” there are numerous divisions and discrepancies within and across societies along racial, gender, socioeconomic, and other lines. And as the discourse of recent years has shown, perceived injustices are at least as divisive as measurable discrepancies. The feeling of not benefitting (enough) from globalization is coupled with a desire to redefine national identities as incompatible with global citizenship and attempts to close states off from the outside world by putting up walls and fences, denouncing international agreements, and leaving common institutions.The roots of current discontents with global governance lie in the actual and perceived lack of justice and human security for many individuals in a globalized world. The current crisis of global governance undermines international support mechanisms intended to build resilience, reduce corruption, combat extremism, and ensure regional stability in global trouble spots.Therefore, global action by governments, international organizations, and global civil society— underpinned by a new global ethic—to reverse these dangerous trends has become the moral and practical imperative of the present era. Since the launch, in 2015, of the Report of the Commission on Global Security, Justice & Governance, Confronting the Crisis of Global Governance, a concerted effort has been made to promote urgently needed global governance innovations, looking toward and continuing through the United Nations’ seventy-fifth anniversary in 2020.After much hard work by many parties, in June 2019 the UN General Assembly (A/RES/73/299) set into motion multilateral and multi-stakeholder negotiations on a “concise, substantive, forward-looking and unifying declaration that captures Member States’ collective commitment to multilateralism and to the United Nations and their shared vision for a common future” for consideration at a Heads of State Summit that is to gather in New York in September 2020, just one month before the seventy-fifth anniversary of the UN’s founding (“UN 75”). Detailed in this study, we offer an updated Twenty Global Ideas for 2020, based on the Albright- Gambari Commission’s original analysis, broader reform recommendations, and worldwide consultations. Show less
The withdrawal of the United Kingdom from the European Union (Brexit) is not only a source of political and legal upheaval in Europe but will also prompt a recalibration of transatlantic treaty... Show moreThe withdrawal of the United Kingdom from the European Union (Brexit) is not only a source of political and legal upheaval in Europe but will also prompt a recalibration of transatlantic treaty relations. This Article argues that it is a gross oversimplification to conceive of the latter as sets of old and new bilateral relationships. Instead, Brexit affects many existing and interdependent triangular relationships that the United States maintains with the EU and its Member States, which are conditioned also by the foreign relations laws of these polities. Perhaps counterintuitively, recalibration in the “high politics” area of security and defense will be easier than in the “low politics” of trade and regulation. In elaborating on these arguments, this Article delves into three levels of complexity: First, the empirical challenge of determining the treaties in force between the EU and United States and by which the UK will cease to be covered; second, the transatlantic implications of available alternative models to EU membership for the UK; and third, the way forward in ensuring continuity and bringing about future agreements and cooperation in the EU-UK-U.S. triangle, seeing that the EU itself is a moving target due to ongoing reform efforts. Show less
Natural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important... Show moreNatural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important trigger for a relapse into armed conflict. For these reasons, it is of the utmost importance, both from a security and a development perspective, to address natural resources as an integral part of the peace process. This article aims to assess how provisions in peace agreements addressing natural resource governance are embedded in the international legal framework. It inquires into the particularities and legal nature of peace agreements and examines the various functions of natural resource arrangements as part of peace agreements. Finally, as each category of natural resources comes with distinct legal questions and peacebuilding challenges, the article zooms in on water governance as a case study to explore the different ways in which natural resource arrangements in peace agreements and international law interact. The analysis is based on a study of 40 intra‐State agreements, including the 2015 South Sudan agreement, the 2015 Mali agreement and the 2016 Colombian agreement. Show less
This chapter takes a closer look at the productive partnership between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and asks whether the existing... Show moreThis chapter takes a closer look at the productive partnership between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) and asks whether the existing legal framework guarantees the endurance of the cooperative dialogue between both courts. First, it summarizes the ground rules of their symbiosis, going over the status of the European Convention on Human Rights in EU law and the ECtHR’s recognition of the EU’s legal personality. Then, it briefly addresses the impact of the CJEU's Opinion 2/13 on the EU’s accession to the Convention before exploring, in section 3, the many forms that the judicial dialogue between the CJEU and the ECtHR has taken over the years and discussing the influence of the jurisprudence of one over the other. A final part asks whether it is possible to move beyond labels of comity and identify a legal duty for both courts to cooperate. Show less
Natural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important... Show moreNatural resources are strongly connected to the onset, duration and recurrence of armed conflicts. However, even after an armed conflict has formally ended, natural resources can be an important trigger for a relapse into armed conflict. For these reasons, it is of the utmost importance, both from a security and a development perspective, to address natural resources as an integral part of the peace process. This article aims to assess how provisions in peace agreements addressing natural resource governance are embedded in the international legal framework. It inquires into the particularities and legal nature of peace agreements and examines the various functions of natural resource arrangements as part of peace agreements. Finally, as each category of natural resources comes with distinct legal questions and peacebuilding challenges, the article zooms in on water governance as a case study to explore the different ways in which natural resource arrangements in peace agreements and international law interact. The analysis is based on a study of 40 intra‐State agreements, including the 2015 South Sudan agreement, the 2015 Mali agreement and the 2016 Colombian agreement. Show less
This case note analyses the French Conseil constitutionnel's CETA decision of 31 July 2017 (ECLI:FR:CC:2017:2017.749.DC). The Conseil was the first national court to reach a substantive judgment on... Show moreThis case note analyses the French Conseil constitutionnel's CETA decision of 31 July 2017 (ECLI:FR:CC:2017:2017.749.DC). The Conseil was the first national court to reach a substantive judgment on whether CETA was compatible with an EU Member State’s constitution, concluding that there was nothing in CETA that was at odds with French constitutional law. Given that CETA will also be subject to ex ante review at the European Court of Justice requested by Belgium, the Conseil constitutionnel’s decision is another milestone in the judicial saga surrounding CETA, but not the end of the road. The note argues that the Conseil employed a dynamic and cooperative interpretation of sovereignty and showed a strong attitude of deference both to France’s political branches and to the EU in terms of international treaty-making. There are, however, some aspects where the decision would have benefited from greater clarity. Nonetheless, instead of undermining France’s constitutional order, the Conseil confirmed the fundamental commitment of France to European integration and international cooperation. More particularly, it refrained from unduly interfering with the ability of the EU and its Member States to continue operating as a collective international actor. Show less
Maritime conflict management is the regulation of conflict in relation to the sea. It comprises conflict enforcement, conflict resolution and conflict avoidance. How did victims of maritime... Show moreMaritime conflict management is the regulation of conflict in relation to the sea. It comprises conflict enforcement, conflict resolution and conflict avoidance. How did victims of maritime conflicts claim and obtain damages or demand compensation or reparation? The articles in this issue aim to shed light on this question from two distinct yet related perspectives: that of the aggressor and the victim, on the one hand, and that of the political entities to which they belonged, on the other. The articles, covering seven centuries, reveal connections and entanglements between private parties and public authorities, demonstrating the importance of both for the development of maritime conflict management. Taken together these contributions provide evidence for the gradual development of maritime conflict management, diplomacy and norms for international law. Show less
Dit hoofdstuk gaat in op de verschillende initiatieven die op internationaal niveau zijn ontwikkeld om de handel in conflictgrondstoffen tegen te gaan. Hierbij zal worden toegespitst op het... Show moreDit hoofdstuk gaat in op de verschillende initiatieven die op internationaal niveau zijn ontwikkeld om de handel in conflictgrondstoffen tegen te gaan. Hierbij zal worden toegespitst op het Afrikaanse Grote Merengebied, waar enkele van de belangrijkste mineralen voor de elektronische industrie vandaan komen. Show less
Buitelaar, T.; Larik, J.E.; Matta, A.; Vos, B. de 2016
Executive Summary In June 2016, High Representative Mogherini presented the EU’s new Global Strategy on Foreign and Security Policy (EUGS) to the European Council. With the Strategy now... Show moreExecutive Summary In June 2016, High Representative Mogherini presented the EU’s new Global Strategy on Foreign and Security Policy (EUGS) to the European Council. With the Strategy now finalized, attention needs to turn to its implementation in an environment mired by crises both within Europe and the wider world. In September 2016, The Hague Institute for Global Justice and Europe House—the European Parliament Information Office and the Representation of the European Commission in The Netherlands—organized an expert meeting and a public panel discussion, which inform the present document as a first appraisal of the Global Strategy. Focusing on three areas of particular salience in EU foreign policy—the EU as a security actor, developing rules-based global governance in new areas, and the ‘joined-up’ approach in pursuing the UN’s Sustainable Development Goals (SDGs)— the following recommendations for the implementation of the EUGS can be made: The EU as a security actor The EU needs a pragmatic and flexible approach in order to solve the crises around Europe and to improve its credibility in the short and long term, for example by using ad hoc coalitions. Moreover, a possible withdrawal of the United Kingdom from the EU could open up political space for deepened defense cooperation. The EU would need to find ways to make use of this political space in order to generate political will in the capitals for deepening defense cooperation. More broadly speaking, the EU should devise plans to connect with its citizens as a security actor and communicate the message that EU defense cooperation tangibly benefits the security of all citizens. Developing rules-based global governance Using the area of cyber governance as an example given its cross-cutting importance, the EU should fully embrace the role of ‘agenda-shaper, connector, coordinator and facilitator within a networked web of players’ by investing in multistakeholder initiatives and, together with the Member States, showing coordinated political leadership in this area. The EU, furthermore, needs to take its internal normative innovations (such as the “right to be forgotten”) to the global stage, where they can serve as inspiration to other actors. It should also use regional approaches and coalitions of like-minded countries as building blocks for working towards a global consensus. In addition, the EU should bolster its credibility as a cyber power by capacity-building, both within the EU Member States and third countries, to fight criminal activities and strengthen cooperation between law enforcement agencies. Capacity-building as part of a ‘joined-up approach’ in the case of the SDGs For SDGs to be progressively realized through ‘joined-up’ EU action, they need to be translated and concretized into measurable goals, which should be pursued through already existing policies and strategies and be taken into account during the framing of new ones. Moreover, the EU should invest, in tandem with the Member States, in communicating to the public that the SDGs are a global commitment with implications, both positive and negative, in the daily lives of citizens. For the EU, the most important next step is to translate the EUGS into prioritized and coherent sub-strategies with a view to maintaining the SDGs as a central element of the follow-up of the EUGS. The Global Strategy will remain the core guidance for EU external action for years to come. However, the period until the first yearly progress report in June 2017 will be crucial for establishing the traction and first concrete results produced by the Strategy. As the calendars of the EU institutions and Member State policymakers are filling up with more milestones for its implementation, existing sectorspecific strategies will be updated and new ones developed. Implementing the Global Strategy will be a momentous endeavor by any standard, both for the EU and its Member States. How well they will work together, use their resources, build political momentum and voice their common message will ultimately determine the role of the EU in the world. Show less
Cyberspace permeates global social and economic relations in the 21st Century. It is an integral part of the critical infrastructure on which modern societies depend and has revolutionized how we... Show moreCyberspace permeates global social and economic relations in the 21st Century. It is an integral part of the critical infrastructure on which modern societies depend and has revolutionized how we communicate and socialize. The governance of cyberspace is, therefore, an indispensable component of global governance, and a testing ground for new models of cooperation that could be adapted for effective governance in other areas. The purpose of this policy brief is to provide policymakers with insights on how to improve the effectiveness of cyber governance institutions and processes. These insights could also inform efforts to improve global governance institutions and processes more broadly. The brief considers two principal questions: Who should govern cyberspace, and how? In response to the former question, the authors review multistakeholder models of governance and provide recommendations for their improvement. These include: greater transparency of decision-making processes, with a prohibition on vetoes; dedicating financial resources to the empowerment of disadvantaged stakeholders; and allocating leadership positions in an equitable manner. In response to the latter question, the authors assess formal and informal approaches to governance in cyberspace, concluding that cyberspace should be governed through a combination of both. That is, a flexible, incremental and sectoral approach to strengthening the rule of law in cyberspace through international treaty-making should be complemented by efforts to build trust and consensus through the development, diffusion and institutionalization of norms for responsible behavior in cyberspace, as well as related confidence- and capacity-building measures. Taken together, these recommendations aim to foster common understanding and enhance security and the rule of law in cyberspace. This policy brief draws on The Hague Institute’s work on the Global Governance Reform Initiative (GGRI) project and the Global Conference on Cyberspace (GCCS), hosted by the Kingdom of the Netherlands in April 2015. The GGRI project is a collaborative effort between The Hague Institute, The Ministry of Foreign Affairs of the Netherlands, and the Observer Research Foundation (New Delhi). Show less
