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Gojil Goettingen Journal of International Goettingen Journal of GoJIL International Law Vol. 8, No. 1 (2017) Universal Jurisdiction in Absentia Before Domestic Courts Prosecuting International Crimes: A Suitable Weapon to Fight Impunity? Tim Kluwen The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules Ezequiel Heffes & Brian E. Frenkel Three Manifestations of Transparency in International Investment Law: A Story of Sources, Stakeholders and Structures Esmé Shirlow Modification of Renewable Energy Support Schemes Under the Energy Charter Treaty: Eiser and Charanne in the Context of Climate Change Tomás Restrepo Goettingen Journal of GoJIL International Law Goettingen Journal of International Law (GoJIL) c/o Institute for International and European Law Platz der Göttinger Sieben 5 37073 Göttingen Germany [email protected] www.gojil.eu ISSN 1868-1581 The Goettingen Journal of International Law is published Open Access and two times per year by Goettingen Law School students. Submissions: The General Call for Papers focuses on topics of international law including related fields such international criminal law, international humanitarian law and international economic law. A submission’s eligilibility is not contingent upon its specific legal methodology, meaning that e.g. historical or economic approaches are welcome. Submissions are classified as a general article consisting of about 15,000 words, an article on current developments consisting of about 6,000 to 15,000 words, or a report (e.g. on judgments or recent case law). The views expressed in all contributions to the GoJIL are those of the individual authors and do not necessarily represent the views of the Board of Editors. Except where otherwise noted, all contributions are licensed under the Creative Commons Licence Attribution – No Derivative Works 3.0 Germany and protected by German Intellectual Property Law (UrhG). Advisory Board Prof. Dr. Dr. h.c. Kai Ambos (University of Paulus (Judge at Federal Constitutional Court, Goettingen, Judge at Kosovo Specialist Chambers, University of Goettingen), Prof. Dr. Dr. h.c. Judge at the District Court), Prof. Dr. Thomas mult. Dietrich Rauschning (University of Buergenthal, LL.M. (George Washington Goettingen), Prof. Dr. Walter Reese-Schäfer University, former Judge of the International (University of Goettingen), Prof. Dr. Frank Court of Justice), Prof. Dr. Christian Calliess, Schorkopf (University of Goettingen), Prof. Dr. LL.M. (Freie Universität Berlin), Prof. Dr. Anja Seibert-Fohr, LL.M. (UN Human Rights Georg Nolte (International Law Commission, Committee, University of Heidelberg), Prof. Dr. Humboldt University of Berlin), Prof. Dr. Dr. Bruno Simma (University of Michigan, former h.c. Angelika Nussberger, M.A. (Vice-President Judge at the International Court of Justice), of the European Court of Human Rights, Prof. Dr. Peter-Tobias Stoll (University of University of Cologne), Prof. Dr. Andreas L. Goettingen) Scientific Advisory Board Prof. Dr. Stefanie Bock (University of Marburg), Ministry of Education and Research, Bonn), Anne Dienelt, Maîtrise en Droit (University of Annika Poschadel (University of Freiburg), Hamburg), Dr. Christian Djeffal (Alexander Jakob Quirin (WHO, Geneva), Maja Smrkolj, von Humboldt Institute for Internet and Society), LL.M. (European Commission), Dr. Ignaz Sué González Hauck (University of St. Gallen), Stegmiller (University of Gießen), Torsten Dr. Till Patrik Holterhus, MLE (University Stirner (University of Goettingen), Dr. Tobias of Goettingen), Johann Ruben Leiss (University Thienel, LL.M. (Weissleder Ewer, Kiel), Associate of Oslo), Matthias Lippold, LL.M. (University Prof. Markus Wagner, J.S.M. (University of of Goettingen), Dr. Sven Missling (Federal Warwick) Editorial Board Editors-in-Chief: Maximilian Heinze, Daniel Anna Gödde, Victoria Guijarro, Carolin Polej, Nils Schlüter Jaquemoth, Isabel Kaiser, Katharina Kalinke, Jessica Klebe, Fabian Kohansal, Leonie Managing Editors: Katharina Creemer, Gesche Köster, Morgaine Jelitko, Alexandra Lorek, Butenschön, Jule Johannsen, Sören Wolf Sarah-Jane Messerschmidt, Marie Metz, Markus Meyer, Nadine Mötzung, Jennifer Editors: Nazli Aghazadeh, Denise Amini, Noth, Johann von Pachelbel, Leon Pätsch, Juljana Battenberg, Franziska Berg, Jennifer Reh, Philipp Schmitz, Vanessa Hilger Bielefeld, Katharina Blaschkowski, Schobek, Linnéa Schomborg, Elif Sener, Charlotte Degro, Jasmin Evers, Marlene Philipp Stellet, Yakub Vaysert, Franziska Fehling, Johannes Fenchel, Daniel Friedrich, Voigt, Jonathan Wrede, Oskar de Wyl Native Speaker Board NEELA BADAMI, ELIZABETH CAMPBELL, DEEPALOKE CHATTERJEE, RAHUL MENON, PAUL PRYCE Goettingen Journal of GoJIL International Law Vol. 8, No. 1 (2017) Contents Editorial ......................................................................................................... 3 Acknowledgments .......................................................................................... 5 Universal Jurisdiction in Absentia Before Domestic Courts Prosecuting International Crimes: A Suitable Weapon to Fight Impunity? Tim Kluwen .................................................................................................... 7 The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules Ezequiel Heffes & Brian E. Frenkel .................................................................39 Three Manifestations of Transparency in International Investment Law: A Story of Sources, Stakeholders and Structures Esmé Shirlow .................................................................................................73 Modification of Renewable Energy Support Schemes Under the Energy Charter Treaty: Eiser and Charanne in the Context of Climate Change Tomás Restrepo .............................................................................................101 Editorial 3 Goettingen Journal of GoJIL International Law Vol. 8, No. 1 (2017) Editorial Dear Readers, Our current issue spots different fields of international law: Non-State Armed Groups, Universal Jurisdiction in absentia, Transparency in International Investment Law and Renewable Energy. With the uprising of non-state armed groups (NSAG) in recent years the world community requires regulations and means to deal with those specific threats. While this challenge is not a new one, it remains unclear or insufficiently explored.1 After courses of pacification were successful it is essential to proceed with transparent investigations in front of capable courts – be it national or international ones to strengthen the compliance with international law, to protect human rights and fight impunity. The following selected articles give a renewed approach by analyzing existing and theoretical concepts and rules, thus giving an insight into current challenges the respective areas of international law are facing. Tim Kluwen combines in his article “Universal Jurisdiction in Absentia Before Domestic Courts Prosecuting International Crimes: A Suitable Weapon to Fight Impunity” the concepts of universal jurisdiction and the concept to prosecute international crimes in absentia before the national courts. He analyzes the legal and the normative implications and argues why it would be a desirable tool to fight impunity. 1 J. d’Aspremont ‘The Articles on the Responsibility of International Organizations: Mag- nifying the Fissures in the Law of International Responsibility’, 9 International Organiza- tions Law Review (2012) 1, 15. 4 GoJIL 8 (2017) 1, 3-4 In “The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules” – Ezequiel Heffes and Brian E. Frenkel evaluate existing rules in dealing with NSAGs and their applicability to NSAGs that have not reached a certain threshold of organization. This article highly contributes to the ongoing studies and fosters enhanced compliance with IHL entities. In “Three Manifestations of Transparency in International Investment Law: A Story of Sources, Stakeholders and Structures” – Esmé Shirlow charts the three different forms of “transparency” in international investment law, in norm of creation, in content of substantive investment obligations and as a procedural requirement for investment arbitration proceedings. She highlights the sources of international investment law and the stakeholders which shape its development. Tomás Restrepo presents the latest development in Renewable Energy Support Schemes in “Modification of Renewable Energy Support Schemes under the Energy Charter Treaty: Eiser and Charanne in the context of climate change” by breaking down the only two published decisions: Charanne and Eiser. In doing so he distilled the arguments of both the investors and the host states concerning modifications, enabling him to find a pragmatic approach of “less harmful measure” and proportionality in the context of climate change. We hope our readers will find our thorough selection worthwhile to read. At this point, we would also like to express our heartfelt gratitude to Prof. Dr. Helmut Aust, Dr. Thomas Kleinlein and Prof. Dr. Niels Petersen, who decided to step down as members of GoJIL’s Scientific Advisory Board. Helmut Aust and Thomas Kleinlein were members since the very first Issue 1.1, Niels Petersen joined soon after with Issue 1.2. Without the support of the SAB, GoJIL could not conduct a double-blind-peer-review and without it, we would not be able to offer the quality we aim to achieve. We were very fortunate to work with these three remarkable scholars of international law and
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