Impeaching Remnants of the Authoritarian Past: A Constitutional Moment in South Korea

Last Friday, effective March 10 at exactly 11:21 a.m., the sitting President Park Geun-hye was removed from her office by a unanimous decision of the South Korean Constitutional Court. With public life coming to a standstill as eyes focused on TV and internet live broadcasting, the acting Chief Justice delivered the court decision. The conclusion of the constitutional impeachment procedure marked the climax of a transformative ongoing constitutional moment in South Korea. Continue reading

The Neglected Potentials of Vagueness and Ambiguity in International Law

Striving for clarity is one of the central tasks of a lawyer, at least so common wisdom tells. Whether lawyers interpret a statute, try to discern the ratio decidenci of a court judgment or seek to identify a norm of international custom, they look for a clear-cut, ideally brief and easily comprehensible underlying rule or principle, ratio or general logic that will present the solution to the legal question at hand. Continue reading

Protection and Freedom? Citizenship in Europe in the 20th and 21st Century

Book Cover Gosewinkel "Schutz und Freiheit?" Citizenship was the mark of political affiliation in Europe in the twentieth century. While estate, religion, party, class, and nation lost political significance in the century of extremes, citizenship advanced to become the decisive category of political affiliation.

In the century’s upheavals and political struggles, the legal institution of citizenship had a decisive influence on the limits of a political community, on in- and exclusion, and thus on an individual’s opportunities in life. Its enfranchisement included the obligation to risk life and limb for the survival of one’s country in exchange for the right to protection, participation in the expanding political and social rights in the democracies and welfare states of Europe and ultimately access to the new legal status of being a citizen of the European Union. Continue reading

History as a Legal Argument – The Naulilaa Case (1928)

Book Cover Zollmann "Naulila 1914" The question about the historical relation between international law and colonialism (and its legacy) has grown in relevance over the last twenty-odd years. Critical scholars speak of international law’s “complete complicity with the colonial project” – meaning the exploitation and domination of the global south. They point to the ‘dark side’ of the promises of ‘order’, ‘equality’, and ‘(world) peace’ inherent in the enlightened idea of the ius gentium europaeum.

It is important to point out that nineteenth-century contemporaries were already well aware of the relation between international law and colonialism but they did not look at it from a moral perspective. Continue reading

How is Inter-Institutional Order Possible in Global Governance?

Book Cover Faude "Von Konkurrenz zu Arbeitsteilung"Global governance consists of a multitude of international institutions. Although these institutions regulate only individual areas of transnational governance like trade, security, climate change, and financial assistance, they do not operate in isolation from each other, but overlap in their competences. With regard to international financial assistance, for example, the competences of the International Monetary Fund, the World Bank, and regional development banks overlap. In the realm of international security, NATO overlaps with the Common Security and Defense Policy of the European Union. The trade-environment-nexus features overlap between the WTO and several environmental institutions, such as the United Nations Framework Convention on Climate Change (UNFCCC), the Ozone Protection Regime, and the Biodiversity Regime. Continue reading

Taking “The Dark Side” Seriously: Constitutionalism and the Question of Constitutional Progress

It is an obvious point that the global history of constitutionalism cannot plausibly be told as a simple progress narrative. The French and American Revolutions did not trigger an ineluctable steady march of progress. And the end of the Cold War did not bring about the realization of a world made up of liberal constitutional democracies integrated by a global rule of law. Yet it is worthwhile to pause and think more closely about the different ways in which progress narratives might be misguided and in which ways they might not be. Continue reading