Search results

Filters

  • Journals
  • Date

Search results

Number of results: 150
items per page: 25 50 75
Sort by:

Abstract

This Article investigates how the European Court of Human Rights becomes competent to make decisions in cases concerning (or taking roots in) “historical situations” preceding the ratifi cation of the European Convention by a given Member State or even the enactment of the Convention. “Historical situations” refer to events that occurred in the period of Second World War or shortly thereafter. In all such cases, the preliminary question arises whether the Court is competent temporally (ratione temporis) to deal with the application. This group of cases concerned usually allegations touching upon the right to life and the right to property. The Court had to decide if the allegation in question related to a temporally closed event (making the Court not competent) or rather to a continuous violation (where the Court could adjudicate). A specifi c set of legal questions arose vis-à-vis the right to life, fi rst of all that of the autonomy of the procedural obligation to conduct an effi cient investigation. The Strasbourg case law did not provide a clear answer. However, following two crucial judgements rendered by the Grand Chamber, the Court has established an interesting legal framework. Article analyses also two other situations having a historical dimension: bringing to justice those accused of war crimes or other crimes under international law (in light of the alleged confl ict with the principle of nullum crimes sine lege) and pursuing authors of pro-Nazi statements or speech denying the reality of Nazi atrocities.
Go to article

Abstract

Historic title is just one of many legal instruments which may be raised by parties and used by judges to decide a territorial dispute. If a claim of historic title in given circumstances may be deemed to have been extinguished as a result of its relative weakness, the elements advanced in support of its construction, for example uti possidetis or eff ective occupation, may be used to support other types of legal claims. Taking into account its construction and its systemic conditional criteria, historic title gains maximum eff ectiveness when conditions exist which would support a fi nding of its incremental consolidation. This involves a multi-dimensional interpretation in reliance on particular elements which, taken together, create a complicated factual state in a particular territorial dispute. On the other hand, consolidation of historic title is not an argument which can be used by the indigenous native inhabitants of a territory, since their arguments are not based on claims of sovereignty.
Go to article

Abstract

States and individuals are the essential building blocks of international law. Normally, their identity seems to be solidly established. However, modern international law is widely permeated by the notion of freedom from natural or societal constraints. This notion, embodied for individuals in the concept of human rights, has enabled human beings to overcome most of the traditional ties of dependency and being subjected to dominant social powers. Beyond that, even the natural specificity of a human as determined by birth and gender is being widely challenged. The law has made far-going concessions to this pressure. The right to leave one’s own country, including renouncing one’s original nationality, epitomizes the struggle for individual freedom. On the other hand, States generally do not act as oppressive powers but provide comprehensive protection to their nationals. Stateless persons live in a status of precarious insecurity. All efforts should be supported which are aimed at doing away with statelessness or non-recognition as a human person through the refusal to issue identity documents. Disputes about the collective identity of States also contain two different aspects. On the one hand, disin tegrative tendencies manifest themselves through demands for separate statehood by min ority groups. Such secession movements, as currently reflected above all in the Spanish provin ce of Catalonia, have no basis in in ternational law except for situations where a group suffers grave structural discrimin ation (remedial secession). As the common homeland of its citizens, every State also has the right to take care of its sociological identity. Many controversies focus on the distin ction between citizens and aliens. This distin ction is well rooted in domestic and in ternational law. Changes in that regard cannot be made lightly. At the universal level, international law has not given birth to a right to be granted asylum. At the regional level, the European Union has put in to force an extremely generous system that provides a right of asylum not only to persons persecuted in dividually, but also affords “subsidiary protection” to persons in danger of bein g harmed by military hostilities. It is open to doubt whether the EU in stitutions have the competence to assign quotas of refugees to in dividual Member States. The relevant judgment of the Court of Justice of the European Union of 6 September 2017 was hasty and avoided the core issue: the compatibility of such decisions with the guarantee of national identity established under Article 4(2) of the EU Treaty.
Go to article

Abstract

Article 51 of the UN Charter, in affi rming the inherent right of self-defence of each UN Member State “against which an armed attack has occurred”, clearly indicates that the concept of armed attack plays a key role in delineating the right of self-defence. The concept in question was not, however, defi ned in the UN Charter, and no universally acceptable defi nition has yet emerged either in practice or in doctrine. One of the fundamental questions to be addressed in this context is who must engage in armed activity for it to qualify as an armed attack. This question is of particular relevance today because of the threat of international terrorism and the expansion of the concept of armed attack through the inclusion of an act of terrorism. The article discusses in some detail the emerging legal framework for attribution of actions undertaken by non-state actors to states.
Go to article

Abstract

This article is in tended to provide a legally sound explanation of why and how the contemporary International Humanitarian Law and International Human Rights Law legal frameworks offer tools to address the uncertain ty, lack of in formation, and the consequences thereof in relation to missin g persons and victims of enforced disappearances in the context of armed conflicts which predated the adoption of such frameworks. To this end, three scenarios will be examin ed: the contemporary claims of the families of those who were killed in the Katyń massacre in 1940; the claims for in formation and justice of the families of thousands who were subjected to enforced disappearances durin g the Spanish Civil War between 1936 and 1939; and the identification efforts concernin g those reported missin g while in volved in military operations in the context of the 1944 Kaprolat/Hasselmann in cident which took place durin g the Second World War. The analysis of these scenarios is conducive to the development of more general reflections that would feed in to the debate over the legal relevance of the distant past in light of today’s in ternational legal framework.
Go to article

Abstract

In light of contemporary circumstances, on the 30th anniversary of the Nicaragua judgment it is worth revisiting and considering again certain legal problems decided by – and raised by – the ICJ judgment. This article addresses the importance of the judgment in terms of international legal regulations on the use of force. First and foremost, the article examines the concept of armed attack based on the “gravity” criterion elaborated by the Court and the exercise of the right of self-defence. Moreover, the relationship between customary international law and treaty law, as well as forcible counter-measures and military actions against non-State actors are also discussed in the article. It is argued that the “gravity” criterion used by the ICJ seems controversial and, consequently, may limit the right of self-defence. On the other hand, however, the judgment established a strong barrier to the realization of individual political interests by militarily powerful States. This is the Nicaragua judgment’s long-lasting legacy. In this sense the judgment has stood the test of time.
Go to article

Abstract

This article explores the legal principles that govern the interpretation of “secondary instruments” in international law. A “secondary instrument” under international law is, for the purposes of this article, a written document adopted by a body empowered by a treaty to take action with respect to the treaty, but which is not itself a treaty. Such instruments find increasing application in international law. The article specifically examines the interpretation of secondary instruments arising in five settings in international practice: the United Nations Security Council, the International Maritime Organization, the International Seabed Authority, the International Whaling Commission, and conferences/meetings of the parties under multilateral treaties. This selection of practice will serve to illustrate principles of interpretation across a range of international institutional settings for the purpose of determining the rights and obligations of state-parties to a treaty regime.
Go to article

Abstract

This article aims to investigate the phenomenon of the rule of law promotion exercised by the EU through the Deep and Comprehensive Free Trade Agreements (DCFTAs). First, the article emphasizes the unique combination of normative and market power the EU uses to diffuse its norms through trade liberalization. Next, it provides an insight into the particularities of the European Neighbourhood Policy as a policy context for the conclusion and implementation of the Association Agreements, including the DCFTAs with Ukraine, Moldova and Georgia, as well as the conceptual problematic and scope of the rule of law as a value the EU seeks to externalize. Using the DCFTAs with Ukraine, Moldova, and Georgia) as a single group case study of the transparency dimension of the rule of law, the central part of the article analyzes the DCFTAs substantive requirements, directed toward promoting transparency in the partner states (while categorizing the requirements into the most general ones; cooperation-related; and discipline-specific) and the legal mechanisms that make these clauses operational (e.g., the institutional framework of the AAs, gradual approximation and monitoring clauses, and the Dispute Settlement Mechanism). In concluding, the article summarizes the state-of-the-art of the rule of law promotion through the DCFTAs, distinguishes the major challenges the respective phenomenon faces, and emphasizes the prospects for and difficulties of using the DCFTAs as an instrument of rule of law promotion.
Go to article

This page uses 'cookies'. Learn more