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After intervention and occupation lasting for two decades, the US and their allies left Afghanistan hastily and precipitately. Afghanistan is again ruled by the Taliban who do not seem to be able to provide minimum guarantees of stability and basic human rights protection. These events put into question pivotal international law concepts, such as the Responsibility to Protect or the requirement to provide for transitional justice, brought forward as a justification for intervention and occupation in the first place. This article aims to evidence that these concepts, independently from the terminology chosen, are expression of overarching aims of the State community. Interventions directed at these goals are associated with broader responsibilities both by the interveners as by the State community as a whole. In view of limited intervention and administration capacity, it is crucial to return ownership to the affected populations as soon as possible. Protracted intervention and foreign rule undermines self-determination and the capacity to find a self-reliant way to justice. More attention has also to be devoted to the long-term effects of measures of intervention and the reciprocal interaction between rebuilding activities in the larger sense. It is submitted that attempts to re-engineer a societal fabric as a fighting tool in an ideological struggle creates enhanced responsibility as it undermines self-determination and ownership. A glaring example is the purposeful radicalization of students in Afghan refugee camps.

Human rights are perceived more and more as a set of norms of all-encompassing effects determining all international action, in particular also those by the United Nations. The recent icj Opinion in the Chagos case seems to suggest, however, that the field of self-determination is not yet really affected by this development. The icj has dealt with this case in a very traditional manner declaring, as it was foreseeable, that the de-colonisation process of the Chagos Islands has not been lawfully completed. At the same time, the icj widely ignored the direful lot of the Chagossians. This article investigates whether it is still tenable to deal with a decolonisation case exclusively from the perspective of ‘classic colonial self-determination’ while barely considering the lot of the people directly affected by these events. The main proposition of this article is that the process of humanization of international law must not stop short from affecting also the law of self-determination. It is suggested, on the contrary, that in the 21th century the law of self-determination has to set the individuals composing the people in the forefront.

The judgment by the German Constitutional Court (‘BVerfG’) of 5 May 2020 has caused a stir all over Europe. The relationship between the BVerfG and the European Court of Justice (‘ECJ’) has never been an easy one, especially after the Solange judgment of 1974. The Solange jurisprudence has, however, not only been synonymous with conflict and rivalry but also for dialogue and, eventually, mutual respect. With the PSPP judgment, this dialogue seemed to have found an end, while by the order of 29 April 2021 the BVerfG appears to have returned to a more conciliatory tone. Nonetheless, the disruption between Karlsruhe and Luxembourg persists.In this article, the PSPP judgment will be examined in detail, presenting it as the last step of long, contorted jurisprudence. It will be shown that the rupture that occurred in May 2020 was technically unnecessary and rather the result of deep-rooted cultural conflict with a clear economic background. The legal reasoning on both sides—that of the BVerfG and that of the PSPP judgment's most outspoken critics—is problematic at best. While for the time being the BVerfG seems to have learnt the lesson from the conflict provoked by its own judgment, the underlying, substantive conflict is still unresolved.It will be shown that this conflict can only be solved on a political level. Thereby, cultural pre-concepts will have to be overcome. Uncompromising reliance on a national ‘popular spirit’ (Volksgeist) will not offer a way out but neither will, for the time being, exclusive reference to a European Volksgeist ignoring Member State realities. The ‘weighing and balancing’ the BVerfG has missed in the previous Weiss ECJ preliminary ruling (again on the PSPP programme) will have to take place on a far broader scale.

The provisions on EU citizenship have been introduced in EU law by the Treaty of Maastricht (Articles 8 to 8c EC). These provisions have been subject to some minor revisions by the subsequent Treaties of Amsterdam (1997), Nice (2001) and Lisbon (2007). The Treaty of Amsterdam clarified that citizenship of the Union “shall be additional to and not replace national citizenship” while by the Treaty of Lisbon Union citizenship was regulated not only in the TFEU (Articles 20 to 25) but additionally in the TEU (Articles 3 and 9 TEU), thereby emphasising the high symbolic and inspirational value of this concept.

The chapter “What Are and to What Avail Do We Study European International Law Traditions?” written by Peter Hilpold was originally published as a non-open access chapter, but is hereby changed to an open access publication under a CC BY 4.0 license. The indication of the copyright holder has been adjusted accordingly to “©The Author(s)”. The book has also been updated with the changes.

Starting with the year 2015 Europe has come under unprecedented migratory pressure that put into question the very structure of the Common European Asylum System (CEAS). In fact, according to the so-called Dublin regime the country of first entrance is responsible for carrying out the asylum procedure leaving it open how the burden the granting of asylum involves should eventually be shared between the EU Member States (MS). Both the Geneva Convention on the Rights of Refugees of 1951 (GCR) as the CEAS are built upon the implicit assumption that refugee protection should be of a temporary nature but in reality protection has most often become permanent. In order to avoid excessive burdens for frontline states in Europe and for Europe as a whole the call for the introduction of burden-sharing mechanisms is becoming ever louder. In this context, quota systems have been presented as ideal problem solution instruments. The European Union has tried to establish such mechanisms but so far all these attempts proved to be insufficient and they met with considerable resistance by some EU MS. As a consequence, the insufficiencies of the GRC and the CEAS become evident and the international asylum system as a whole becomes imperilled. The growing resistance in Europe against the uncontrolled immigration both by asylum seekers and by economic migrants is strongly opposed by considerable parts of the population. Some countries like Austria consider therefore the unilateral introduction of a quota system for asylum seekers. Such a system would violate international and EU law but on the other hand the respective discussion has triggered a necessary debate about a reform of the international refugee system involving some form of a fairer burden-sharing.

In the last years, the traditional dichotomy in international law between jus ad bellum and jus in bello has been more and more abandoned in favour of a system comprising also norms designed to create fair and sustainable peace. It has been recognized that post-war societies need help in order to avoid a relapse into conflict and chaos. But what is the essence of this jus post bellum? What are its sources? Did the introduction of a Responsibility to Protect (r2p) change the rather sceptical attitude by most governments towards peace-building activities that were often considered intrusive? Particular attention will be given to two recent post conflict countries, Kosovo and Libya, where the Responsibility to Rebuild was of considerable importance, but the State community only partially considered (Kosovo) or did not consider at all (Libya). In this contribution it will be shown that the contours of the jus post bellum are still rather unclear but that nevertheless it is very likely that this concept is here to stay.

The principle of solidarity has informed the whole European integration process but with the Treaty of Lisbon, this concept has become centre-stage. A number of provisions within the European Union (EU) treaties refer directly or indirectly to this concept. It has, however, also to be remarked that in the past solidarity has often meant different things to different people and the financial crisis which was accompanied by loud cries for and against solidarity has again given proof to this fact. In Article 222 TFEU (Treaty on the Functioning of the European Union) a broad provision on solidarity is to be found: ‘The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made-disaster.’ Although not addressing solidarity in an all-encompassing way it refers to important fields of solidarity action. By the Decision of 24 June 2014 the main aspects of this Solidarity Clause were implemented. Although the Union has chosen a prudent approach it will be shown that this approach was the most appropriate one to make solidarity manageable. Within the present attempts to keep the Economic and Monetary Union (EMU) on track, important insights can be obtained from this discussion.

In the 19th century neutrality was a highly appreciated concept. In the 20th century it widely lost relevance and in principle it should be incompatible with UN membership. However, also under the UN system, some States have opted for neutrality and it can be argued that there is still space for this status within the universal peace order. In fact, this peace order is far from perfect. There are several lacunae in the prohibition of the use of force and this concept is open to different interpretations. New threats, such as international terrorism, are emerging that could threaten the absolute prohibition of the use of force. It is contended here that neutrals could play an important role when it comes to finding an interpretation of this prohibition that best could reconcile the goals of peace and security with the overall—still imperfect—structure of the UN system. These questions are analysed with primary reference to Austrian neutrality which on the one hand seems obsolete but on the other is forcefully looking for a new meaning.

After World War I the far-reaching border changes in Europe created a large number of new minorities. As a consequence, special protection measures had to be introduced. With the League of Nations’ minority protection system an extraordinary experiment was started. After World War II this system was largely ignored and fell into oblivion. In the past all too easily the minorities themselves were held responsible for the failure of this system. In this context it is often said that minorities behaved in a disloyal manner and therefore it was at least understandable that minority states over the years treated their minorities badly and finally denounced their obligations. In reality, however, such an attitude rests on a radical misinterpretation of the loyalty principle and on a denial of historic facts. All in all, the ideas and concepts of these times live on and are shaping modern human rights thinking.

On 22 July 2010 , the International Court of Justice (ICJ) issued the muchawaited opinion on Kosovo’s declaration of independence. The general reaction to the opinion was mostly disappointment.In fact, in 2008, the question referred by the United Nations General Assembly (UN GA) to the ICJ had the ingredients to pave the way for some of the most controversial questions of modern international law, inter alia, on the meaning of self-determination in the 21st century. Some hoped that the ICJ would decline jurisdiction for this case; others hoped to receive allencompassing guidance on the many thorny subjects the question touched upon. The ICJ sought for a compromise, declaring that it had jurisdiction, but shied away from addressing the substance of the question. Acting in this manner, it appears doubtful as to whether the ICJ has measured up to its ‘duty to cooperate’ within the UN system. In fact, the line of arguments the ICJ presented is too shaky and as a consequence, status and function of the ICJ end up damaged from this proceeding. On the other hand, the ICJ deserves praise for having handled a thoroughly political issue with a great sense of responsibility. It is argued here, that notwithstanding all the ambiguities surrounding the distinction between the legal and the political, this distinction still matters – judges should not be asked to do the undone jobs of politicians.

The introduction of the Responsibility to Protect (R2P) concept is an example for a very successful case of norm entrepreneurship in international law. Seemingly against all odds, a vague political slogan has gained, within a decade, nearly a worldwide support. After the success of NATO-led Libya intervention 'Unified Protector' the bulk of the critics with regard to this concept appear to have been muted. In this article, it will be examined what are the ingredients for success for such a norm creation initiative. It will be evidenced that, equally as was the case with regard to the crafting of the self-determination norm, political rhetoric can solidify to legal principle. With regard to R2P, at the beginning of the 21st century, time was very propitious for such a development as there was a wide- spread conviction that international law had to be 'humanized'.

In comparison to GATT law, WTO law is characterized by a notably expanded coverage. Since its inception in 1995, its material density and reach has been further extended. It was only a question of time until the demand would come up for this branch of law to fulfil objectives laying outside the traditional borders of International Economic Law. In particular, it was recognized that WTO law touches in many way upon human rights issues. Vigorous claims were made to transform the WTO order into a human rights organization. Some authors were of the opinion that human rights law could be integrated into WTO law via the interpretative rules of the Vienna Convention on the Law of Treaties. This contribution tries to evidence that such attempts are inherently flawed. There is no possibility and not even a perceptible need to transform the WTO system into a human rights instrument. After examining the many areas of interaction between Human Rights Law and International Economic Law it is evidenced that the many common ends of each branch of International Law are best served if both masses of law are mutually coordinated but at the same time maintain their autopoietic nature. At the same time this is to demonstrate that fragmentation as a so-called problem of International Law is overrated.

There is surely no dearth of studies on genocide, but Mark Levene, a reader in history at the University of Southampton and an expert in genocide research, has demonstrated that it is still possible to add a thorough study to the enormous library already existing on this subject. True, some of Levene's basic assumptions may be contested in academia but this does not detract from the value of his enormous research project�s outcome. Already on the first page of his monumental study he clearly states its basic assumption: according to Levene, genocide is not an aberrant phenomenon in modern history but "integral to a "mainstream" historical trajectory of development towards a single, global, political economy composed of nation states" (vol. I, at 1). He sees the cases of genocide as a consequence of a more general Great Power conflict and the breakdown of the great multinational states, the Ottoman Empire, the Habsburg Empire, and the Russian Empire of the Romanovs. Levene concentrates on geographical areas that he qualifies as "rimlands", or Europe's semi-periphery, where a new nation-building process took place which was based on radical nationalist ideas that led to widespread ethnic cleansing in a region that was known before for its multicultural richness. The rimlands examined offer a threefold delineation: the Balkans, a Caucasus�Black Sea�eastern Anatolia zone and "the Land Between", "a giant sliver of territory running from the Baltic southwards, to include Belorussia and right-bank Ukraine in the east, and as far as the Crimea in its western reaches embracing the lands of historic Poland, with an approximate north-west, south-east line running from Silesia through the Carpathians and sub-Carpathian ranges towards an intersection with the Danube at its deltaic point of entry into the Black Sea" (vol. I, at 7). No doubt, there is a conspicuous territorial overlap

The points of criticism advanced by Orakhelashvili can be confuted easily. Secession is a fact. A rule according to which secession can produce legal effects only to the extent these are allowed, as identified by Orakhelashvili, cannot be found in International Law. On a whole, the right to self-determination is a far more complex concept than portrayed by Orakhelashvili. Finally, Orakhelashvili seems to attribute a very limited role to the academic writer in norm interpretation: the straightforward choice between “right” and “false” interpretations. However, a more nuanced position must be taken.

The Kosovo problem represents a formidable occasion to re-examine some basic tenets of international law, such as the so-called right to humanitarian intervention, the right to self-determination and the right of recognition. It will be shown here, however, that many proposals suggesting the need of a radical departure from traditional positions are ill-conceived. Nonetheless, it is the uniqueness of many facets of the Kosovo problem that requires the analyst to look for new solution. It is now up to the International Court of Justice to show the way in a politically much loaded case. In particular, the right to self-determination should find a re-interpretation corresponding to the needs of the twenty-first century.

Resolution 1368 of 12 September 2001 qualified international terrorism as a ‘threat to the peace’, and emphasized at the same time the ‘inherent right to individual and collective self-defence’ with regard to such acts. As a consequence, the question arose whether this resolution was a watershed allowing the recourse to article 51 of the UN Charter in cases of terrorism. The subsequent practice is inconclusive in this regard as the State community has been extremely reluctant to extend the purview of the right to self-defence to attacks by Non-State actors. In view of these legal uncertainties academics and members of civil society have sought to provide greater clarity on the topic. The ‘Chatham House Principles of International Law on the Use of Force by States in Self Defence’ of 2005, the ‘Leiden Policy Recommendations on Counter-Terrorism and International Law’ of 2010 and the ‘Principles on Self-Defence against an Imminent or Actual Armed Attack by Non-State Actors’ presented by Daniel Bethlehem in 2012, while not fully coincident, as a whole convincingly argue for a more extensive interpretation of article 51 of the UN Charter that would allow the countering of international terrorism more effectively.

The International Economic Order and — in particular — article XXIV GATT, the most important legal provision in this regard, reflects very impressively the broad dissent and conflict of opinion prevailing in this field. The author exposes that this provision is in many ways inconclusive. Its underlying tendency may be favourable towards regional integration zones but the main reason for this attitude seems to lie in the fact that regionalism as such cannot be impeded and therefore the primary goal should be to rein in its most detrimental effects.

Looking more closely at Responsibility to Protect (R2P) it is not possible to deny the strong conceptual and historical relationship with humanitarian intervention. Compared to present international law doctrine that of early times could refer only to a very limited extent to positive norms. This chapter shows that the roots of the concept of humanitarian intervention go far back to the past, to ancient times, and were closely connected with the idea of the "just war". Greece's fight for independence between 1821 and 1830 was a precedent evidencing many elements that were characteristic also of later cases of humanitarian intervention. The philosophy underlying the Greek intervention was further elaborated upon in the Lebanon intervention of 1860/1861. The modern concept of R2P certainly presents a milestone of epochal dimensions in international law, but it also cannot be denied that this approach builds on developments and experiences of the past. Keywords: Greek intervention; humanitarian intervention; international law; just war; Lebanon intervention; Responsibility to Protect (R2P)

Thirteen years ago the International Commission on Intervention and State Sovereignty published its voluminous report on the Responsibility to Protect (R2P). As international law knows no central legislator and state practice is often contradictory and inconsequential, doctrine may fill an important lacuna by devising overarching structures in an otherwise largely disordered legal reality. This may at least partly explain why in this field the conceiving of new concepts and approaches is so popular. R2P is presented as a wholly new instrument that is equivalent to an epochal step of development in international law. R2P applies to grave human rights breaches with "large scale loss of life or large scale ethnic cleansing". R2P is now a firmly established concept, and therefore it should be fairly unproblematic to look back, even if a strong relationship with humanitarian intervention thereby becomes evident. Keywords: ethnic cleansing; human rights; humanitarian intervention; international law; Responsibility to Protect (R2P)

SC Res. 2249 of 20 November 2015 was intended to open up a new chapter in the fight against terrorism in general and against ISIS in particular. However, in academia this Resolution was received with criticism and stupor. First attempts to interpret this Resolution ended up in inconclusiveness. In this article, after an analysis of SC Resolution 2249, it will be shown that the criteria developed for assessing jus ad bellum in inter-state relations are of no easy application in the relationship between states and non-state actors and in particular in regard to terrorists. If the prohibition of the use of force applies at all in this field this has to happen in a largely modified way. Fears that a lowered threshold for the use of force against terrorists will introduce a new “Hobbesian” element in international law do not appear to be justified. On the contrary, it is argued here that a state community showing more solidarity in the fight against terrorism will reinforce their Kantian traits. Res. 2249 can offer an important contribution for such a development to take place.

The breakdown of Yugoslavia and the ensuing war has called into question many formerly uncontested principles of international law. Perhaps the most far-reaching challenge to the traditional international law doctrine was brought about by the NATO intervention in Kosovo. Many authors cite this event as a proof that a new right to humanitarian intervention is evolving or has already come into being. The aim of this article is to show that conventional positions have been abandoned far too easily in this context. Not only is this change of position unwarranted on legal grounds but it is also counterproductive on the factual level. Despite all its shortcomings the prohibition of the use of force may constitute in the end a better protection for the weak than its abandonment prompted by an over-enthusiastic belief in the virtues of the intervenor.

In the last years, the traditional dichotomy in International Law between jus ad bellum and jus in bello has been more and more abandoned in favour of a system comprising norms designed to create fair and sustainable peace. It has been recognized that post-war societies need help in order to avoid a relapse into conflict and chaos. But what is the essence of this just post bellum? What are its sources? Did the introduction of a Responsibility to Protect (R2P) change the rather sceptical attitude by most governments towards peace-building activities that were often considered as intrusive?In this contribution it will be shown that the contours of the jus post bellum are still rather unclear but on the other hand it is very likely that this concept is here to stay.

The coming into force of the Lisbon Treaty is considered to be an important step in the further development of EU law. The Common Commercial Policy (CCP), long held to be immune from any EU parliamentarian interference, also came within the Parliament's orbit. The EU is faced with an extraordinary challenge. It may be in a position to demonstrate that the "post-Lockean" era has dawned, thereby giving an enormous boost also to the reach and the value of democracy as such. It can therefore be stated that the newly conceived CCP offers enormous opportunities but also contains a series of dangers that should be addressed in a timely and effective fashion. It is up to all the institutions involved, and in particular to European Parliament, to demonstrate that in the "post-Lockean" era democracy in Europe has entered a new stage of advancement. Keywords: Common Commercial Policy (CCP); democracy; EU law; European parliament; Lisbon Treaty; post-Lockean era

Humanitarian intervention and R2P are two concepts intimately related and yet so far apart. R2P seems to be a concept without history and all about the future, while humanitarian intervention appears to be all history and with not future. At the same time, the impression is given that the humanitarian intervention community and the R2P community are speaking essentially about the same thing using a different language. How to bridge this communicational gap? It is to be shown here that both concepts can be brought together by the adoption of a historical perspective. Thereby it becomes clear that R2P has a far longer history than commonly held, even though the terminology was widely different. On the other hand, many elements of the idea of humanitarian continue to live on in the concept of R2P. It will be shown that the present idea of protection is not only the result a discussion lasting a little bit more than a decade but finds its roots in ancient history. What has changed is the way we define a community, how we develop a feeling of belonging and how human beings find the resolve to intervene in favour of others. These changes have to do with fundamental alterations in the relationship between the individual and society as a whole as well as with broader technological modifications that contribute to make the international human society a real life experience. Behind all these mutations in human society an array of truths become apparent if we look at specific situations in which men intervened in favour of other people abroad. If we look far back at such situations we see that the present discussion about the need for intervention and its limits has a long history. We see that next to no problem that haunts the relevant discussion today is really new and the same is true for the solutions proposed. The relevant discussion presents a surprising modernity and this is not only the case for academic writings of the 19th century but also for a variety of contributions that date back to the Middle Ages and even to ancient history.

This introductory chapter analyzes the concept of responsibility to protect. The responsibility to protect has three dimensions: a commitment to prevention; a commitment to respond to serious human rights violations and a commitment to reconstruction. Application of the responsibility to protect should be when there is a serious human rights violations with numerous killings or extensive ethnic cleansing. These incidents should be investigated by the UN Security Council at a special rail, and the permanent Security Council members were encouraged not to make use of their right of veto. The responsibility to protect the States for what happened in their jurisdictions puts this concept into the nearby traditional human rights. The original text of the chapter is in German. Keywords: human rights; responsibility to protect; UN Security Council

This chapter presents the Kosovo report from 22 July 2010: Historical, Political and Legal Requirements. It aims to analyze essential aspects encountered in this context. The chapter starts by an examination of the historical starting point. The chapter is in German. Keywords: historical requirements; Kosovo report; legal requirements; political requirements