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Recent publications

A human rights perspective on religious fundamentalism

Wolfgang Benedek, 'A human rights perspective on religious fundamentalism' (2021) 4(1) LIMINA Grazer theologische Perspektiven 41-65 <DOI: 10.25364/17.4:2021.1.3> (open access)

Religious fundamentalism and human rights have always been locked in tension. This article investigates the complex relationship in three steps: First, the term fundamentalism and its different manifestations will be discussed from the position of international law and international relationships. Then follows an analysis of the threat religious fundamentalism poses for human rights and in particular for freedom of religion. Finally, light will be shed on the role human rights play in the face of fundamentalism. On the one hand, fundamentalism threatens human rights, but on the other hand, human rights need to be upheld in the response to fundamentalism. Taking ‘political Islam’ as an example, this article examines the problematic consequences of widening the scope of what is understood as fundamentalism and how this affects the social inclusion of Muslims. The findings of this research also show that any measures to counter fundamentalism have to be aligned with human rights, otherwise they risk reinforcing fundamentalist ideas instead. Read the open access contribution on the official LIMINA Homepage!

 

Moscow Mechanism: Establishing Accountability for Grave Human Rights Violations in Belarus

Wolfgang Benedek, 'Establishing Accountability for Grave Human Rights Violations in Belarus: Case Study on the OSCE Moscow Mechanism' (The Defence Horizon Journal Special Edition, May 2021, No.2) open access. 

The Moscow Mechanism of the human dimension allows for producing a fact-finding report with recommendations on serious human rights and/or democracy problems in one of the OSCE participating states, within a relatively short period. Such problems usually also affect a wider concept of security. This case study of the most recent use of the Moscow meachnism for the alleged election fraud and the very serious human rights violations in Belarus in 2020 first introduces the rules governing the use of this mechanism and then informs about its findings, recommendations and the follow-up to the report. It shows that although the mechanism faces difficulties, due to the short period of implementation and the possible lack of cooperation of the country under investigation, it still is capable of producing a substantive result and serves in a catalytic role for the efforts of interested actors. Read the open access contribution on the official website of the The Defence Horizon Journal!
 

The Effectiveness of the Tools of the Council of Europe against Democratic Backsliding

Wolfgang Benedek, 'The Effectiveness of the Tools of the Council of Europe Against Democratic Backsliding: What Lessons Can be Learned from the “Greek Case”?' (2021) 7(1) Austrian Law Journal 1-21 <https://unipub.uni-graz.at/alj/periodical/titleinfo/5679728> (open access). 

The “Greek Case” which led to the de facto suspension of Greece in 1969 was a very particular part of the history of the Council of Europe in the protection of human rights and democracy. This contribution, based on a keynote given at a pertinent conference in Athens, will ask whether the spirit and political will to confront major human rights violations existing at that time can still be found in the Council of Europe of today. It will investigate the impact on the work of the Council of Europe at the time and draw some conclusions on lessons learned for today. In this context it will highlight the role of personalities acting on behalf of the Council of Europe at the time. It will also analyse the impact of its enlarged membership on the upholding of its values today. The institutions and tools at the disposal of the Council of Europe as the democratic conscience of Europe against democratic backsliding then and today will be compared with a view to the question of their effectiveness. In this context the examples of the Russian Federation and of Turkey regarding the challenges from anti-liberal forces and authoritarianism for democracy and human rights will be addressed as will be the use of the state of emergency. Which factors influence the “socialization” of member states to become guardians of common European values? Is the Council of Europe able to meet its accountability towards the citizens of Europe? This will lead to some conclusions on the legacy of the “Greek Case” for a proper response to the challenges of democratic backsliding and a shrinking space for human rights and the rule of law in the Council of Europe today as well as some recommendations for the future. Read the open access article on the official Austrian Law Journal homepage!
 

The African Union’s Struggle Against ‘Unconstitutional Change of Government’

Erika de Wet, 'The African Union’s Struggle Against ‘Unconstitutional Change of Government’: From a Moral Prescription to a Requirement under International Law?' (2021) EJIL 1-28.

In 1992 Thomas Franck proclaimed an emerging right to democratic governance in international law. With reference to developments in the Organization of American States (OAS) and the Commission on Security and Cooperation in Europe, he identified free and fair elections as the core benchmark of this right, possessing significant legitimacy in terms of its pedigree, determinacy, coherence and adherence. The current contribution examines Franck’s understanding of the right to democratic governance within the African context, notably in relation to those institutional developments that have occurred since the adoption of the Constitutive Act of the African Union (AU) in 2000. Specifically, the article assesses the benchmarks of the notion of ‘unconstitutional changes of government’ in Article 4(p) of the AU Constitutive Act and their inter-linkage with free and fair elections. In so doing, it critically questions the response of the AU to unconstitutional changes of government and its implications for the normative maturity of the benchmark in question. It places the analysis in a broader context by drawing some parallels with the current back-sliding in democratic governance that is occurring also within the Council of Europe (CoE) and the European Union. To read the full open-access article, please visit the European Journal of International Law Homepage!

 

Contribution on military assistance based on ex ante approval

Erika de Wet, 'Militärische Unterstützung aufgrund einer Ex-ante-Zustimmung: Verstoß gegen Artikel 2 (4) der UN Charta?' (2020) 93 Die Friedens-Warte 413-429. 

The current contribution of Univ.-Prof. Dr. Erika de Wet explores one specific legal controversy pertaining to military assistance on request, a construct with significant political and legal implications for collective security. It examines whether general international law requires a temporal proximity between the consent issued by the inviting state and military assistance provided. In particular, it explores whether the prior consent has to be ad hoc to the specific intervention, or whether it may also be given ex ante through a so-called pro-invasion treaty clause. In Africa in particular, requests for military assistance since the end of the Cold War have at times been extended to regional or sub-regional organisations on the basis of their treaty frameworks that facilitate ad hoc as well as ex ante military assistance to member states. In as far as ex ante pro-invasion clauses are concerned, two articles within regional security frameworks merit attention. These respectively include Article 4 (h) of the Constitutive Act of the African Union (AU) of 2000 and Article 25 of the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security of 1999 of Economic Community of West African States.

Contribution on ‘The Minority Protection Regime of the Treaty of St. Germain’

Christian Pippan, St. Germain und der Minderheitenschutz, in Andreas Raffeiner (ed.), 100 Jahre Staatsvertrag von St. Germain – Der Rest ist Österreich! (Vienna: Facultas 2020) 135–150.

On 16 July 1920 the Treaty of St. Germain between Austria and 27 Allied and Associated States finally entered into force. It was one of the Paris Peace Treaties, which formally ended the First Word War. Like all other treaties between the Allied and Associated Powers and the former Central Powers that emerged from the Paris Peace Conference of 1919/20, the Treaty of St. Germain contained important and, at the time, novel provisions on the protection of persons belonging to minorities. A particularly innovative feature of the Treaty’s minority protection regime was the so-called “guarantee clause”, which was to be executed by the League of Nations. As Christian Pippan explains in his contribution to the recently published collection „100 Jahre Staatsvertrag von St. Germain“ (Facultas), adherence to traditional notions of state sovereignty mostly prevented the effective implementation of the clause during the subsequent inter-war period. For more information on the volume (edited by A. Raffeiner), please click here!

 

Contribution on Territorial Referenda in International Law

Christian Pippan, Volksabstimmungen über territoriale Statusfragen im Lichte des Völkerrechts, in: Claudia Fräss-Ehrfeld (ed.), Volksabstimmungen und andere Grenzlösungen nach dem Ersten Weltkrieg (Klagenfurt: Verlag des Geschichtsvereins für Kärnten 2020) 207-223.

In September 2020, a symposium on “Referenda and Other Solutions to Territorial Conflicts after World War I” took place in Klagenfurt to commemorate the 100th anniversary of the Carinthian “Volksabstimmung” (Plebiscite) of 10 October 1920. The presentations given during the event by scholars from various parts of Europe have now been published. In his contribution, Christian Pippan sheds light on the historical development of territorial referenda from an international law perspective. He then addresses two pertinent dogmatic questions regarding such referenda: 1. Does international law, as it today stands, legally require the holding of a referendum – at least under certain circumstances? 2. Irrespectively of whether the first question is answered in the positive or in the negative: Does international law require states to comply with certain principles and rules pertaining to the organization of a referendum? For more information please click << here >>

 

Article on 'The Issues of Loss and Damage Within the International Climate Law'

Yvonne Karimi-Schmidt, “The Issues of Loss and Damage Within the International Climate Law” (2020),  Graz Law Working Paper No 06-2020, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3732980

Climate change has become an important element on the international political agenda and presents the international community with new legal challenges. Some consensus was reached at the 1992 Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC). Since COP 16 (Cancun 2010) Loss and Damage (L&D) was accepted in international climate negotiations and on COP 19 (Warsaw 2013) the Warsaw International Mechanism (WIM) for loss and damage related to climate change impacts was established. At COP 21 (Paris 2015) with Article 8 of the Paris Agreement (PA), the topic of loss and damage officially entered a new international legal system. However, in paragraph 51 of Decision 1 / COP 21 to accept the PA any liability or compensation is expressly excluded from Article 8. Nevertheless, the concept of loss and damage has become an independent third pillar of the international climate regime and points to the negative effects of climate change, which cannot be avoided by adaptation and mitigation. The concept of loss and damage is expected to address the inevitable impacts of climate change, particularly affecting the most vulnerable least-developed countries (LDCs), low-lying developing countries and small island developing states (SIDS). The purpose of this article is to give an insight into the L&D discourse.

 

New edition of the Casebook 'Space Law Essentials'

Christian Brünner, Yvonne Karimi-Schmidt, Karolina Klemm, Hannes Mayer and Anite Rinner, 'Space Law Essentials - Volume 2: Casebook' (2nd edn, Austria: NWV Verlag, 2020).

Assoc.-Prof. Dr. Yvonne Karimi-Schmidt and other editiors published the new edition of the Casebook 'Space Law Essentials' on 05.10.2020. For more information please consult the LexisNexis Online Shop!

 

 

New Volume on „Democracy and International Law"

Gregory H. Fox and Brad R. Roth, Democracy and International Law (Edward Elgar Publishing, 2020)

With contributions by Professor Erika de Wet and Assistant Professor Christian Pippan

At the end of the Cold War, international law scholars engaged in a furious debate over whether principles of democratic legitimacy had entered international law. Those debates, while still ongoing, have not been comprehensively revisited in almost twenty years. Together with an original introduction, the recently published volume by Gregory H. Fox und Brad R. Roth (editors) collects the leading scholarship of the past two decades on some of the most pertinent questions linked to the overall debate. The volume is published as Issue No. 24 of Edward Elgar’s renowned “International Law Series“ and includes three contributions by members of the Institute of International Law and International Relations at the University of Graz: In an article originally published in 2015, Erika de Wet addresses the potential consequences of the ideal of democratic legitimacy on the public international law institute of recognition of governments. Christian Pippan, for his part, deals – in an article first published in 2012 – with the general issue of the current place of a (purported) democratic legal entitlement in international law. A further contribution by Christian Pippan, originally published in 2015 (together with Kalkidan N. Obse), addresses the attempts at establishing a collective mechanism for the protection of democracy and constitutional order within the regional framework of the African Union.  For more information about the volume, please consult Edward Elgar’s official website: https://www.e-elgar.com/shop/gbp/democracy-and-international-law-9781788114745.html

 

Freedom of expression and the internet (Updated and revised 2nd edition)

Wolfgang Benedek and Matthias C. Kettemann (eds.)

(Strasbourg: Council of Europe, 2020)

Human rights matter on the internet. Without freedom of expression, people cannot participate in everything that the information society has to offer. Yet online free speech is in danger. Between state laws, private rules and algorithms, full participation in the online communicative space faces many challenges. This publication explores the profound impact of the internet on free expression and how it can be effectively secured online.

The second, updated edition of this introduction into the protection of freedom of expression online answers essential questions regarding the extent and limits of freedom of expression online and the role of social networks, courts, states and organisations in online communication spaces. In clear language, with vivid examples spanning two decades of internet law, the authors answer questions on freedom of expression in cyberspace. Addressing issues from the protection of bloggers to the right to access online information, the publication also shows the importance of the standard-setting, monitoring and promotion activities of international and non-governmental organisations and includes a chapter on relevant national practice. It pays special attention to the role of European human rights law and the Council of Europe as this region’s most important human rights organisation. For more information please consult the Online-Bookshop of the Council of Europe!

 

The Normative Order of the Internet - A Theory of Rule and Regulation Online

Matthias C. Kettemann (ed.)

(Oxford: Oxford University Press, 2020)

There is order on the internet, but how has this order emerged and what challenges will threaten and shape its future? This study shows how a legitimate order of norms has emerged online, through both national and international legal systems. It establishes the emergence of a normative order of the internet, an order which explains and justifies processes of online rule and regulation. This order integrates norms at three different levels (regional, national, international), of two types (privately and publicly authored), and of different character (from ius cogens to technical standards). Matthias C. Kettemann assesses their internal coherence, their consonance with other order norms and their consistency with the order's finality. The normative order of the internet is based on and produces a liquefied system characterized by self-learning normativity. In light of the importance of the socio-communicative online space, this is a book for anyone interested in understanding the contemporary development of the internet.

This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is offered as a free PDF download from OUP and selected open access locations.

 

Navigating Normative Orders. Interdisciplinary Perspectives

Matthias C. Kettemann (ed.)

(Frankfurt/Main: Campus, 2020) 

Whether with Kant or among conservatives, on the Internet, in environmental discourses or in Zanzibar: this book examines how people set norms for themselves, question them and legitimize them. The contributions make it clear that norms continue to play a central role in all areas of life. Together with values and narratives, they form normative orders that legitimize political authority and the distribution of rights and goods: in criminal law, in child-rearing, in the territorial state, in discourses of progress, in the Anthropocene. For more information on the book please click << here >>.

 

Contribution of Prof. Oberleitner on non-state actors in armed conflict

E. Heffes, M. Kotlik and M. Ventura (eds.), International Humanitarian Law and Non-State Actors – Debates, Law and Practice (Asser/Springer 2020). 

UNESCO Chair Gerd Oberleitner contributes a chapter on the development of international humanitarian law by human rights bodies to a new publication: E. Heffes, M. Kotlik and M. Ventura, International Humanitarian Law and Non-State Actors – Debates, Law and Practice (Asser/Springer 2020), https://www.springer.com/gp/book/9789462653382. The 15 contributions by leading scholars on international humanitarian law challenge the traditional approach to international law by placing the focus beyond States and reflect on current legal, policy and practical issues that concern non-State actors in and around situations of armed conflict.

 

The (im)permissibility of military assistance on request during a civil war

Erika de Wet, 'The (im)permissibility of military assistance on request during a civil war' (2020) 7 Journal on the Use of Force and International Law.

This contribution questions the claim often made in scholarship that the right to self-determination would prevent military assistance at the request of the recognised government during a civil war. Specifically, it argues that the absence of any explicit reliance on the right to self-determination in the reactions of states to military assistance on request of the recognised government, suggests that there is no rule in general international law prohibiting such assistance during a civil war. In so doing, the contribution first outlines the implications of such state conduct from the perspective of opinio juris. Thereafter it illuminates why this conduct can also not be convincingly explained by the existence of counter-terrorism and counter-intervention exceptions to a general prohibition of military assistance during a civil war.

For the full article (open access) see: https://www.tandfonline.com/doi/full/10.1080/20531702.2020.1773121

 

Contribution of Univ.-Prof. Gerd Oberleitner in "Menschenrechte 1948/1958"

Katharina Pabel / Markus Vasek (eds.)

(Wien: Verlag Österreich, 2020)

"Menschenrechte 1948/1958 - Die Entwicklung und Bedeutung der Menschenrechte in Österreich", with a contribution by UNESCO Chair Prof. Gerd Oberleitner on 40 Years International Covenant on Civil and Political Rights in Austria. The publication highlights the impact of international human rights treaties on the Austrian legal order since 1948.

For more information please visit the homepage of Verlag Österreich!

 

 

 

"The Controversial Role of Litigation in the Struggle to Revive Individual Access to the Tribunal of the Southern African Development Community"

Erika de Wet, 'The Controversial Role of Litigation in the Struggle to Revive Individual Access to the Tribunal of the Southern African Development Community' (2020) 17  International Organizations Law Review 1-33. 

The article examines four categories of litigation that were undertaken in the wake of the suspension of the SADC Tribunal.  The first category of proceedings concerned a claim and request for an advisory opinion under the African Charter on Human and Peoples’ Rights (African Charter); the second related to arbitration proceedings based on the SADC Protocol on Finance and Investment (FIP); the third focussed on proceedings regarding the potential unconstitutionality of a government’s participation in the suspension of the SADC Tribunal; while the fourth concerned conflicts between the SADC and employees before the Botswana High Court. In analysing these proceedings, the article assesses whether litigation thus far undertaken is likely to increase pressure on SADC member states to reinstate some form of individual complaints procedure before the SADC Tribunal.

For more information please click <<here>>! 

 

Implementation of International Human Rights Commitments and the Impact on Ongoing Legal Reforms in Ethiopia

Wolfgang Benedek, Tadesse Kassa Woldetsadik und Tesfaye Abate Abebe (eds.)

(Leiden | Boston: Brill | Nijhoff, 2020)

In February 2020 the book 'Implementation of International Human Rights Commitments and the Impact on Ongoing Legal Reforms in Ethiopia', edited by Univ.-Prof. i.R. Mag. Dr. Wolfgang Benedek,Tadesse Kassa Woldetsadik and Tesfaye Abate Abebe (eds.), was published.

'This edited volume (...) addresses key themes of contemporary interest focused on identifying the gaps between Ethiopia's human rights commitments and the practical problems associated with the realisation of human rights goals. Political and legal challenges affecting implementation at the domestic levels continue in Ethiopia - the nature and complexity of which have been thoroughly expounded in this volume. This edition uncovers the key challenges involving civil and political rights, socio-economic rights and cultural and insitutional dimensions of the implementation of human rights in Ethiopia while the country is absorbed in legal and political reforms.'

More information about this book can be found on the official website of the publication at Brill | Nijhoff.

 

Military Assistance on Request and the Use of Force

Erika de Wet (ed.) (Oxford: Oxford University Press, 2020)

 

'This book examines the extent which the proliferation of military assistance on request is changing the rules governing the use of force. The author explores the authority to make these requests, particularly during civil wars where some territorial control may be lost and there is a risk of systematic violations of international humanitarian law.'

 

 

 

 

European Yearbook on Human Rights 2019

Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak and Gerd Oberleitner (eds.)

(Cambridge:Intersentia | Vienna: NWV, 2019)

'The European Yearbook on Human Rights brings together renowned scholars, emerging voices and practitioners. Split into parts devoted to recent developments in the European Union, the Council of Europe and the OSCE as well as through reports from the field, the contributions engage with some of the most important human rights issues and developments in Europe. The Yearbook helps to better understand the rich landscape of the European regional human rights system and is intended to stimulate discussions, critical thinking and further research in this field.'

 

 

Grüne Gentechnik in Europa

Yvonne Karimi-Schmidt (Wien: NWV, 2019)

Green genetic engineering in Europe is the first scientific document with a comprehensive and reader-friendly approach that conveys the most important aspects of international and European law on genetic engineering in the agricultural and food sectors in a global context.The chapters focus on a number of areas of law that this discipline affects, like international, European and national environmental law as well as commercial and intellectual property law. With its systematic approach, this book is a valuable resource for professionals working in the field of agrotechnology and food regulation as well as for anyone who is interested in this topic. It offers an exciting basis for courses and master's programs in the areas of international environmental management, commercial and food law, guidelines and regulation as well as sustainable development in Europe.

 

European Yearbook on Human Rights 2018

Wolfgang Benedek, Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak (eds.)

(Cambridge:Intersentia | Vienna: NWV, 2018)

'Both in Europe and around the world, 2017 has been another difficult year for the protection of human rights. Split into its customary four parts, the tenth volume of the European Yearbook on Human Rights brings together renowned scholars to analyse some of the most pressing and topical human rights issues being faced in Europe today.'

 

 

 

International Human Rights Institutions, Tribunals and Courts

Gerd Oberleitner (ed.) 

(Springer: Springer Nature, 2018)

This book introduces readers to the major human rights institutions, courts, and tribunals and critically assesses their legacy as well as the promise they hold for realizing human rights globally, and the challenges they face in doing so. It traces the rationale of setting up international institutions, courts, and tribunals with the aim of ensuring respect for international human rights law and presents their historic development, and critically analyzes their contribution to the promotion and protection of human rights. At the same time, it asks which promises old and new (and envisaged) human rights institutions hold for safeguarding human rights in light of continuing violations and recent global trends in human rights and politics. The first section presents institutions created within the framework of the United Nations. The second part of the volume assesses how international criminal tribunals have reframed human rights violations as individual criminal acts. The third part of the volume is devoted to established and emerging regional human rights bodies and courts around the world.

 

Human Rights in Armed Conflict - Law, Practice, Policy

Gerd Oberleitner (Cambridge: Cambridge University Press, paperback 2018)

It is now widely accepted that international human rights law applies in situations of armed conflict alongside international humanitarian law, but the contours and consequences of this development remain unclear. This book revisits, organizes and contextualizes the debate on human rights in armed conflict and explores the legal challenges, operational consequences and policy implications of resorting to human rights in situations of inter- and intra-state violence. It presents the benefits and the drawbacks of using international human rights law alongside humanitarian law and discusses how the idea, law and policy of human rights influence the development of the law of armed conflict. Based on legal theory, policy analysis, state practice and the work of human rights bodies it suggests a human rights-oriented reading of the law of armed conflict as feasible and necessary in response to the changing character of war.

 

Blurring Boundaries: Human Security and Forced Migration

Editors: Stefan Salomon, Lisa Heschl, Gerd Oberleitner and Wolfgang Benedek (eds.) (Leiden: Brill, 2017)

In Blurring Boundaries: Human Security and Forced Migration scholars from law and social sciences offer a fresh view on the major issues of forced migration through the lens of human security. Although much scholarship engages with forced migration and human security independently, they have hardly been weaved together in a comprehensive manner. The contributions cover the issues of refugee law, maritime migration, human smuggling and trafficking and environmental migration. Blurring Boundaries critically engages boundaries produced in the law with the main ideas of human security, thus providing a much-needed novel vocabulary for a critical discourse in forced migration studies.

 

Russia and the European Court of Human Rights: The Strasbourg Effect

Lauri Mälksoo and Wolfgang Benedek (eds.), (Cambridge: Cambridge University Press 2017)

Why has there been a human rights backlash in Russia despite the country having been part of the European human rights protection system since the late 1990s? To what extent does Russia implement judgments of the Strasbourg Court, and to what extent does it resist the implementation? This fascinating study investigates Russia's turbulent relationship with the European Court of Human Rights and examines whether the Strasbourg court has indeed had the effect of increasing the protection of human rights in Russia. Researchers and scholars of law and political science with a particular interest in human rights and Russia will benefit from this in-depth exploration of the background of this subject.

 

 

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