Volker Röben

International law today : new challenges and the need for reform?

Responsibility, Sovereignty and Cooperation - Reflections on the Responsibility to Protect.- Sovereignty and the Responsibility to Protect in International Criminal Law.- Managing Risks to Global Stability: the UN Security Councils New-found Role Post Iraq.- Comment on the Contribution by Volker Roben.- Promoting the Unity of International Law: Standard-Setting by International Tribunals.- Where Unity Is at Risk: When International Tribunals Proliferate.- Genetic Resources of the Deep Sea - How Can They Be Preserved?.- The Liability Annex to the Protocol on Environmental Protection to the Antarctic Treaty.- The Strange Case of Human Rights and Intellectual Property: Is There a Way to Reconcile Dr. Jekyll with Mr. Hyde?.- The Struggle for Minority Rights and Human Rights: Current Trends and Challenges.- Minority Rights as Group-Protective Rights: A Challenge for the International Law of Human Rights.

The Enforcement Authority of International Institutions

One of the most striking features of international institutional law that emerges from the several case studies collected in this issue is that enforcement authority is now vested in international institutions alongside the more familiar types of public authority almost as a matter of course. Enforcement of international law by international institutions needs to be distinguished from other closely related concepts of public authority that are in turn the subject of closer studies collected in this issue. As discussed by von Bogdandy, Dann and Goldmann, international institutions often dispose of an implementation authority which in turn is subject to a branch of international institutional law. The responsibilities and indeed the authority of international institutions do not stop at the mere implementation of their legal base. However, enforcement involves a categorically different exercise of public authority. It concerns the interaction with another subject of law. Insofar as enforcement essentially empowers an international institution to confront States it deeply interferes with the sovereign’s conduct, and its very existence may seem counterintuitive.

Legitimacy of UN Member States

Rudiger Wolfrum has long been a champion of international organisation, and the UN in particular, emphasizing its instrumentality in developing an internationalised approach to matters of common concern to the international community. International law in general can be normatively evaluated against a number of standards such as peace, security, prosperity, or solidarity. The standards that the UN has recently been formulating for the institutional set up of its member states apply across its membership, and, in the last instance, they are enforceable by the Security Council operating in conjunction with regional organisations and-through the UN Human Rights Council-the UN General Assembly. A state or government failing to fulfil its primary responsibility by using force will be deemed to have lost the consent of the governed and thereby open itself up to collective enforcement action by the UN Security Council. Keywords:international organisation; legitimate institutions; UN member states

Responsibility in International Law

International legal materials refer to “common but differentiated responsibility”, the “responsibility to protect”, or the “responsibility for the global economy”. These terms are manifestations of a single institution of international responsibility, which undergirds much international law development since the 1990s. Institutions combine an idea and a legal reality. The idea of responsibility is that it establishes a relation between the vectors of moral agent, object, addressee to which the agent is accountable, and criteria of assessment.In the context of international law, states are the primary agents of responsibility, with international organisations being assigned secondary responsibility. Accountability generally lies to the international community, acting through appropriate bodies which assess whether actors meet their assigned responsibility according to defined standards. This matrix of international responsibility is normatively guaranteed and concretised through an international law-making process that proceeds from the recognition in a non-binding document of responsibility as foundational principle for an area of law to the development of binding treaty law and alternative forms of international law-making. The thus conceptualised institution of international responsibility is then shown to manifest itself in three reference areas of international law: sustainable development, international financial markets, and stateinternal peace and stability including the Responsibility to Protect civilians. The article concludes by drawing normative implications for the development and interpretation of international law that falls within the ambit of the institution of international responsibility.

What About Hobbes? Legitimacy as a Matter of Inclusion in the Functional and Rational Exercise of International Public Power

Inspired by Professor Bodansky’s powerful analysis of legitimacy and its discussion at this conference and reciprocating his compliment, I should like to address his brilliant ad hoc contribution to the conference. The starting point of the following brief remarks will be Professor Bodansky’s intriguing insight that the heart of the matter of legitimacy and our worrying about it is the question why should I obey (public) power? This very question points to the paradox of making collectively binding decisions of the political or the legal variety, in the words of the late Niklas Luhmann. My remarks are thus concerned with the positive theory of legitimacy.