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Chair in Public International Law, European Law and Public Law

Professor Bardo Fassbender

ICC Moot Court Competition 2022

The University of St.Gallen once again participated in the "International Criminal Court Moot Court" this year. The team, consisting of the students Alina Metzger, Viviane Dubacher, Fabienne Trümpy, Marco Rudin and Luca Bohnenblust, dealt intensively with issues of international criminal law in the fall term of 2021 and the spring term of 2022. The fictional case before the International Criminal Court in The Hague dealt, inter alia, with the status and role of child soldiers in an non-international armed conflict and with the admissibility of certain evidence. A total of 102 teams from all over the world took part in the Moot Court 2022, which was organised by the Grotius Center for International Legal Studies at Leiden University. The HSG team almost made it into the quarter finals. More information on the competition of 2022 can be found in the team's 2022 experience report. The Chair in International and European Law (Prof. Fassbender) will participate again with a team of students in next year's competition.


A new book on the reform of the UN Security Council


Since the beginning of the 1990s, member states of the United Nations have been discussing a fundamental reform of the UN Security Council which aims at making the Council more representative and more effective. Discussions have focused on the membership of the Council and on its decision-making process. The Council's membership is unaltered since 1965 when the number of non-permanent members was raised from six to ten. The category of permanent members of the Council has even not been changed since the United Nations was founded in 1945. With regard to the decision-making process of the Council, what has mostly been challenged is the so-called right of veto which enables each of the permanent members to hinder the adoption of a resolution.

A new book with the title "Key Documents on the Reform of the UN Security Council 1991-2019", edited by Prof. Bardo Fassbender, now brings together the most important primary source documents and texts reflecting the political, legal and academic discussions of a reform of the Council as they haven taken place since 1991. Earlier discussions from the late 1940s through 1991 are covered insofar as they offer a useful contribution to the current debate. This extensive collection is intended to be representative of the debate as a whole without bias, faithfully reflecting the positions of UN member states, groups of states, international organizations and civil society. The work also takes into consideration proposals and comments by individual scholars and think tanks. In a comprehensive introduction, the editor gives an outline of the discussions of three decades and their core themes. In a number of annexes, the positions of states and groups of states are presented in lists and tables. It is to be hoped that the work will be a resource helping scholars, diplomats and politicians better to understand the long-lasting and intricate debate, and a tool facilitating future negotiations on the important issue of the future of the Security Council.


New OUP book on "The Limits of Human Rights"

Together with his colleague Prof. Knut Traisbach (University of Barcelona), Prof. Bardo Fassbender edited the volume "The Limits of Human Rights". The book was published in December 2019 by Oxford University Press and is available both in hardback and paperback, and also as an Ebook. The editors and twenty-six authors try to identify, conceptualise and analyse contemporary "limits of human rights", for instance inherent, functional, pragmatic, or ideological limits. The authors use different disciplinary understandings from anthropology, history, international relations theory, law, legal and political theory, philosophy, and (political) sociology, as well as different professional perspectives from advocacy and legal practice. The book thus wants to make an original contribution to the present academic debate on the importance of human rights, without denying that importance or deconstructing the idea of human rights. Each contribution is supplemented by an engaging comment which furthers this important discussion. This combination of perspectives paves the way for further thought for scholars, practitioners, students, and the wider public. The volume seeks to provide a rich spectrum of viewpoints and arguments across disciplines to offer fresh insights into human rights and its limitations. Among the renowned authors of the volume, we find Hilary Charlesworth (Melbourne Law School), Christine Chinkin (London School of Economics), Andrew Clapham (Graduate Institute of International and Development Studies, Geneva), Mireille Delmas-Marty (Collège de France, Paris), David Dyzenhaus (University of Toronto), Conor Gearty (London School of Economics), Lynn Hunt (University of California in Los Angeles), Douglas A. Johnson (Harvard Kennedy School), Jan Klabbers (University of Helsinki), Martha C. Nussbaum (University of Chicago), Jeremy Perelman (Sciences Po Paris), Yuval Shany (Hebrew University Jerusalem), Kathryn Sikkink (Harvard Kennedy School), and Henry J. Steiner (Harvard Law School).

A table of contents of the book, together with notes on contributors, is available here.


New edition of the commentary on the ICJ Statute

Andreas Zimmermann & Christian J. Tams (eds.), The Statute of the International Court of Justice: A Commentary. Third Edition. Oxford University Press, 2019

The leading commentary on the Statute of the International Court of Justice (ICJ) in The Hague was published in a new, third edition, edited by Professor Andreas Zimmermann (University of Potsdam) and Professor Christian J. Tams (University of Glasgow) in collaboration with Dr. Karin Oellers-Frahm (Max Planck Institute of Public International Law Heidelberg) and Professor Christian Tomuschat (Humboldt University Berlin). The first edition of this comprehensive commentary on the legal framework of the work of the principal legal organ of the United Nations came out in 2006, the second revised edition in 2012. Seven years later, another thorough update and revision had become necessary. The work includes detailed explanations of all seventy articles of the ICJ Statute, as well as of the articles of the United Nations Charter which address the Court. Further, a “General Introduction” and a “Historical Introduction”, placed at the beginning of the commentary, offer the reader an analysis of the development and context of the judicial work of the ICJ since its establishment in 1945. As the editors write in the Preface, “[the] third edition is true to the aims of the first and the second. It is meant to serve as a guide to the daily work of the United Nations’ principal judicial organ, offering context, background, critical analysis, and assessment. By analysing the legal regime governing proceedings before the Court, the Commentary seeks to facilitate the work of practitioners and scholars working in, at, or on the ICJ.”

Professor Fassbender contributed to the work commentaries on six articles, namely Articles 9, 10, 11, 12, 54 and 55 of the Statute. The most extensive of those commentaries (on Article 9) relates to the election of the ICJ judges who, as a whole, shall represent “the main forms of civilization” and “the principal legal systems of the world”. Articles 10, 11 and 12 address the procedure of the election of ICJ judges by the UN General Assembly and the UN Security Council, while Articles 54 and 55 include rules about the deliberations of the Court after the closure of the oral hearing, about the secrecy of the Court’s deliberations, and the majorities by which the Court makes its decisions.


The status and role of the “sovereign state” in the universal legal order

In a new article, published in the “International Journal of Constitutional Law” (ICON) (The state’s unabandoned claim to be the center of the legal universe, in: ICON vol. 16 (2018), pp. 1207-14), Professor Fassbender examines the status and role of the “sovereign state” in the contemporary universal legal order, and presents reasons accounting for the fact that the state could maintain its central place in the “legal universe”, in spite of many academic and political efforts to relativize that position.

Abstract:  Since the period following World War I, the science of international law has endeavored to “relativize” the importance and role of the “sovereign state” in international law, understanding the state as a partial legal order in the framework of a universal legal order. However, until today positive international law hardly reflects that transformation. Instead, it has perpetuated the centrality of the sovereign state in the world of law. The present article points to a number of features concerning the legal relationships between that state and other legal communities, both subnational and supranational, in which the continued central role of the state is manifesting itself. The article concludes by reflecting on possible reasons accounting for the center stage still assumed by the sovereign state, in spite of developments like the expansion of the scope of international law or the growth of international institutions.


The ”rule of law” and the United Nations Charter

The “Chinese Journal of International Law” has published a new article written by Professor Fassbender (What’s in a Name? The International Rule of Law and the United Nations Charter, in: Chinese Journal of International Law, vol. 17 (2018), pp. 761-97) which analyses the correlations between the contemporary concept of an “international rule of law” and the Charter of the United Nations as adopted in 1945 and developed in the work of the principal organs of the UN, in particular the General Assembly and the Security Council.

Abstract:  In the past twenty years or so, the concept of the rule of law, cherished for centuries as a constitutional principle in a domestic legal context, has attracted much attention from international lawyers and international organizations. In particular, the United Nations has devoted substantial effort and time to studying and defining the international dimension of the concept, to concretizing specific legal consequences, and to applying the concept to its own mandate and work, especially in the area of the maintenance of international peace and security. Against this background, the present article enquires into the relationship between the concept of an international rule of law as advanced by the United Nations and the UN Charter. To what extent can the concept be said to be inherent in the Charter, although the term itself does not appear in its text? Comparing the original design of the Charter with the rule of law as developed by the UN, the article observes a progressive expansion of the concept in several dimensions, but at the same time its persistent vagueness.


ICC Moot Court Competition 2017-18

As in the previous years, a team of the University of St. Gallen successfully participated in the ICC Moot Court Competition in The Hague, The Netherlands. Once again, student teams from law schools around the world (this year, 65 in total) were challenged to argue a fictitious case according to the rules of the International Criminal Court (ICC). You can find more information about the course of this year's competition in the following report of the St. Gallen team:

ICC Moot Court Competition 2018 report


International Constitutional Law: Written or Unwritten?

In a new article published in the Chinese Journal of International Law, Prof. Fassbender analyses the question of whether there exists an “unwritten” constitution of the international community.

Abstract: Today, concepts of constitutionalism are widely used in international legal scholarship, both to describe and to promote changes in the international legal order in support of the rule of law, the protection of human rights and other common values of the international community. Against this background, the present article deals with a question so far addressed only cursorily—the “writtenness” of international constitutional law. Can we assume the existence of an “unwritten” international constitution, or does the very concept of a constitution in the modern sense require that a constitution is laid down in written form? The article discusses the importance of “writtenness” in modern constitutionalism and addresses the “English exception”, that is the absence, in the United Kingdom, of a document called “the constitution”. The paper concludes with a plea for taking the constitutional character of the UN Charter more seriously, arguing that the idea of an unwritten constitution of the international community does not provide a viable alternative.

Full text of the article


International Conference on issues of the UN Security Council in Ascona, May 2016

Following an invitation by the Chair in International Law and European Law of the University of St. Gallen, an international group of academics gathered from May 22nd to May 25th, 2016, at Monte Verità in Ascona, Switzerland, with the aim of critically taking stock of, and further developing, the debates of the last twenty years regarding the work and a possible reform of the United Nations Security Council. Among the speakers of the conference were Professors Antony Anghie (University of Utah), Christine Chinkin (LSE), David Kennedy (Harvard Law School), Jan Klabbers (University of Helsinki), Anne Orford (University of Melbourne), Daniel Thürer (Zürich) and Neil Walker (Edinburgh).


Report Monte Verità Conference May 2016
Monte Verita Conference Programme and Abstracts

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