Dialogues Between International and Public Law
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Constitution Unit Monitor 63 / June 2016
1 Constitution Unit Monitor 63 / June 2016 In addition, important questions relate to the referendum The EU referendum: process itself. Democracy requires that referendums be conducted fairly, but the rules surrounding referendums in a fair process? the UK remain deeply contested. As reported in Monitor 61 (page 12) and 62 (page 11), the legislation enabling the The forthcoming referendum on whether the UK referendum passed through parliament last year amidst should remain a member of the European Union or leave much controversy and only after multiple government – to be held on 23 June – has raised many important concessions. Since David Cameron announced the date constitutional questions. of the vote on 20 February, five important aspects of referendum conduct have received particular attention. In part, these concern the implications that a vote for Brexit would have for the constitution and the First, in line with the Prime Minister’s announcement distribution of power in the UK and the EU. As reported in January, ministers have been allowed to campaign elsewhere in this edition of Monitor, these issues have against the government’s position of supporting a been addressed in a series of Constitution Unit seminars vote to remain in the EU. Five full members of cabinet and briefing papers in recent weeks (see page 14). The have done so (one of whom – Iain Duncan Smith – has briefing papers, as well as videos of the seminars, are subsequently resigned), as have a number of junior available online. The process of Brexit has also been ministers. This is only the third time that ministers examined in detail on the Constitution Unit blog by from the same party have been allowed to disagree so Alan Renwick. -
Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict
Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict Commissioned by the United Nations Office for the Coordination of Humanitarian Affairs Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict Foreword In armed conflicts across the world, millions of civilians require emergency assistance to survive. Despite the challenges and dangers of operating in armed conflict, humanitarian organizations respond with life-saving assistance by distributing food and life-saving medical supplies, and by providing access to shelter, water and sanitation. Tragically, civilians continue to live in areas where parties to armed conflict withhold consent to humanitarian relief operations or impose onerous and time-consuming bureaucratic restrictions on assistance, such that humanitarian organizations can only reach a small fraction of those in need. Such impediments and delays of humanitarian relief operations further compound civilian suffering. A firm understanding of the legal framework regulating humanitarian relief operations in situations of armed conflict is essential for all those with a role to play in ensuring that people in need have the best chance of accessing and receiving life-saving assistance. While the parties have clear legal obligations, the day-to-day reality is that humanitarian access is a matter for negotiation between parties to an armed conflict and those seeking to conduct humanitarian relief operations, and is not achieved simply by making demands. The present Guidance will assist a variety of actors concerned with humanitarian relief operations, including parties to armed conflict, other states, international and non- governmental organisations seeking to provide humanitarian assistance, the United Nations Security Council and General Assembly and other relevant bodies, legal practitioners, scholars and the media. -
Special Rules of Attribution of Conduct in International Law
Special Rules of Attribution of Conduct in International Law Marko Milanovic 96 INT’L L. STUD. 295 (2020) Volume 96 2020 Published by the Stockton Center for International Law ISSN 2375-2831 Special Rules of Attribution Vol. 96 Special Rules of Attribution of Conduct in International Law Marko Milanovic CONTENTS I. Introduction ......................................................................................................... 296 II. Scope of the Inquiry ............................................................................................ 299 A. The Distinction between Primary and Secondary Rules Revisited ....... 299 B. Special Rules of Attribution Defined ......................................................... 301 C. Positive and Negative Special Rules of Attribution ................................. 305 D. “Clearly Expressed” Lex Specialis ............................................................... 310 E. Actions and Omissions, Negative and Positive Obligations .................. 315 F. Conclusion ...................................................................................................... 316 III. International Humanitarian Law ....................................................................... 317 A. The “Overall Control” Test ........................................................................ 317 B. Belonging to a Party and Membership in its Armed Forces .................. 324 C. Conclusion on Special Rules of Attribution in IHL ................................ 329 IV. Jus ad Bellum, Non-State -
High Court Judgment Template
Appeal No: SC/116/2012 Hearing Date: 13 and 14 February 2014 Date of Judgment: 15 April 2014 SPECIAL IMMIGRATION APPEALS COMMISSION Before: THE HONOURABLE MR JUSTICE IRWIN “D2” APPELLANT and SECRETARY OF STATE FOR THE HOME DEPARTMENT RESPONDENT JUDGMENT ON PRELIMINARY ISSUE: DISCLOSURE For the Appellant: Mr H Southey QC and Mr Edward Grieves Instructed by: Wilson Solicitors LLP For the Respondent: Mr Tim Eicke QC and Mr Robert Wastell Instructed by: The Treasury Solicitor Mr Justice Irwin : 1. In this judgment I address a preliminary issue in the appeal, namely what is required as a minimum by way of disclosure in these proceedings. The Appellant seeks to establish, by one or both of two discrete legal routes, that there is an obligation imposed on the Respondent to disclose “an irreducible minimum” of the national security case against the Appellant. Mr Hugh Southey QC for the Appellant argues firstly that by reason of developing jurisprudence of the European Court of Human Rights, the decisions of the English Court of Appeal in IR(Sri Lanka) and others v SSHD [2012] 1 WLR 232 and R(BB) v SIAC and SSHD [2013] 1 WLR 1568 are wrongly decided. As a further argument, Mr Southey submits that the decisions of the Court of Justice of the European Union in ZZ(France) v SSHD [2013] 3 WLR 813 (Case C – 300/11) and the Court of Appeal in ZZ v SSHD [2014] EWCA Civ 7 have the effect of importing an obligation of an “irreducible minimum” of disclosure of the national security case, effectively the same as that which has been held to arise where the facts of a case engage the prohibition on arbitrary detention contrary to Article 5(4) of the ECHR, as decided by the Strasbourg Court in A v United Kingdom (2009) 49 EHRR 29 and confirmed by the House of Lords in AF(No.3) v SSHD [2010] 2 AC 269. -
OSJI-Strengthening from Within.Indd
STRENGTHENING from WITHIN LawLaw andand PracticePractice in thethe SSelectionelection ofof HumanHuman RightsRights JudgesJudges andand CommissionersCommissioners OPEN SOCIETY JUSTICE INITIATIVE Strengthening from Within Law and Practice in the Selection of Human Rights Judges and Commissioners Strengthening from Within Law and Practice in the Selection of Human Rights Judges and Commissioners A report of the Open Society Justice Initiative and the International Commission of Jurists Copyright © 2017 Open Society Foundations. This publication is available as a pdf on the Open Society Foundations website under a Creative Commons license that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. The Open Society Institute Budapest Foundation constitutes a foreign financed organi- zation under the par. 1.1 of the Act LXXVI of 2017. ISBN: 978-1-940983-75-2 Published by Open Society Foundations 224 West 57th Street New York, NY 10019, USA www.opensocietyfoundations.org For more information, please contact: Christian M. De Vos Advocacy Officer Open Society Justice Initiative [email protected] Róisín Pillay Director, Europe Programme International Commission of Jurists [email protected] Cover designed by Judit Kovács l Createch Ltd. Text layout and printing by Createch Ltd. Table of Contents Acknowledgments 9 Abbreviations 11 Executive Summary and Recommendations 13 I. Introduction 23 II. Judicial Selections and Appointments: The International Legal Framework 29 III. Law, Standards, and Procedures for Regional Human Rights Courts and Commissions 35 A. European Court of Human Rights 35 1. -
WTI Working Paper No. 03/2020
The Use and Abuse of the National Security Exception under Article XXI(b)(iii) of the GATT 1994 | downloaded: 2.10.2021 Peter Van den Bossche and Sarah Akpofure https://doi.org/10.7892/boris.147028 source: WTI Working Paper No. 03/2020 Beijing Conference on the New Global Economic Order University of International Business and Economics, Beijing Beijing, 26 and 27 September 2019 The Use and Abuse of the National Security Exception under Article XXI(b)(iii) of the GATT 1994 Peter Van den Bossche1 and Sarah Akpofure2 Introduction Economic nationalism and anti-globalist unilateralism have been on the rise in recent years. The most obvious and consequential examples of this trend are the trade policy measures taken by the United States which undermine the rules-based multilateral trading system. Among these measures, one type stands out as being particularly troublesome, namely trade restrictive measures allegedly taken for the protection of national security. Other WTO Members have in recent years also taken trade restrictive measures which they sought or seek to justify on national security grounds. Whereas for 70 years, first GATT Contracting Parties and then WTO Members showed much self-restraint in invoking national security as a justification for trade restrictive measures, such self-restraint now seems a thing of the past. The invocation of the national security exception, in particular the national security exception under Article XXI of the General Agreement on Tariffs and Trade 1994, has proliferated. Against this background, this paper explores the nature and the scope of the national security exception under Article XXI, and examines the role the WTO, and in particular its dispute settlement system, can play in containing the abuse of this exception.3 National security exceptions in international trade agreements National security exceptions are a common provision in international trade agreements and for good reasons. -
Jurisdictional Conflicts Between the ICC and the African Union: Solution to the Dilemma
Denver Journal of International Law & Policy Volume 44 Number 1 Article 5 April 2020 Jurisdictional Conflicts between the ICC and the African Union: Solution to the Dilemma Jacky Fung Wai Nam Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation Jacky Fung Wai Nam, Jurisdictional Conflicts between the ICC and the African Union: Solution ot the Dilemma, 44 Denv. J. Int'l L. & Pol'y 41 (2015). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. JURISDICTIONAL CONFLICTS BETWEEN THE ICC AND THE AFRICAN UNION - SOLUTION TO THE DILEMMA JACKY FUNG WAI NAM* 1. INTRODUCTION Any fragmentation of jurisdiction has a deleterious effect on international criminal law as it may create jurisdictional confusion, conflicts of laws, forum shopping, and can ultimately lead to impunity for perpetrators. Recently, this confusion was further aggravated when the South American Government refused to extradite Omar Al-Bashir to the International Criminal Court ("ICC") upon issuance of a South African Court Order and a warrant issued by the ICC in order to preserve the relationship with the African Union ("AU").' This paper discusses the fragmentation of jurisdiction of international criminal law, and discusses the basic jurisdictional mechanism of the ICC and African Court of Justice and Human Rights ("ACJHR"). In January 2013, a proposal ("ACJHR Draft Protocol") was submitted to expand the jurisdiction of the ACJHR. -
The Crime of Aggression in the ICC and State Responsibility
VOLUME 58, ONLINE JOURNAL, SPRING 2017 The Crime of Aggression in the ICC and State Responsibility Dapo Akande* & Antonios Tzanakopoulos** In a contribution to the debate regarding the Kampala Amendments on the Crime of Aggression, we argued that the jurisprudence of the International Court of Justice (ICJ) on use of force questions can be relevant in interpreting the now-defined international crime that will fall within the jurisdiction of the International Criminal Court (ICC).1 This is in part because the crime of aggression, as defined in Kampala, requires the commission of an “act of aggression” that “by its character, gravity and scale constitutes a manifest violation of the United Nations Charter.”2 The fact, however, that the finding of a state’s responsibility for such a manifest breach is required for a conviction of the crime of aggression raises questions about the involvement of the ICC in making determinations of state responsibility. The jurisdiction of the ICC extends only to the determination of the criminal responsibility of individuals.3 When those individuals are also officials or agents of states, questions may also be raised about the responsibility of the state to which the acts of the individual are attributable. Indeed, where an international crime within the jurisdiction of the ICC is committed by a state organ or person whose acts are otherwise attributable to the state, there will usually also be a case of state responsibility for breach of international law. This is because all the crimes within the jurisdiction of the ICC reflect the concept of “dual obligations.” That is to say, the prohibitions that underlie those “core crimes” are not addressed merely to individuals but are also related to the same (or substantially similar) obligations imposed on states.4 The prohibition on genocide is addressed both to individuals and to states; war crimes are serious violations of international humanitarian law, which is clearly binding on states; and crimes against humanity are derived essentially from human rights law. -
The Government's Independent Review of the Human Rights
House of Commons House of Lords Joint Committee on Human Rights The Government’s Independent Review of the Human Rights Act Third Report of Session 2021–22 Report, together with formal minutes relating to the report Ordered by the House of Commons to be printed 23 June 2021 Ordered by the House of Lords to be printed 23 June 2021 HC 89 HL Paper 31 Published on 8 July 2021 by authority of the House of Commons and House of Lords Joint Committee on Human Rights The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders. The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House. Current membership House of Commons Harriet Harman QC MP (Labour, Camberwell and Peckham) (Chair) Karen Buck MP (Labour, Westminster North) Joanna Cherry QC MP (Scottish National Party, Edinburgh South West) Angela Richardson MP (Conservative, Guildford) Dean Russell MP (Conservative, Watford) David Simmonds MP (Conservative, Ruislip, Northwood and Pinner) House of Lords Lord Brabazon of Tara (Conservative) Lord Dubs (Labour) Lord Henley (Conservative) Baroness Ludford (Liberal Democrat) Baroness Massey of Darwen (Labour) Lord Singh of Wimbledon (Crossbench) Powers The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. -
Trade Multilateralism and US National Security
Michigan Journal of International Law Volume 41 Issue 1 2020 Trade Multilateralism and U.S. National Security: The Making of the GATT Security Exceptions Mona Pinchis-Paulsen Stanford Law School Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the International Trade Law Commons, National Security Law Commons, and the Transnational Law Commons Recommended Citation Mona Pinchis-Paulsen, Trade Multilateralism and U.S. National Security: The Making of the GATT Security Exceptions, 41 MICH. J. INT'L L. 109 (2020). Available at: https://repository.law.umich.edu/mjil/vol41/iss1/4 https://doi.org/10.36642/mjil.41.1.trade This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. TRADE MULTILATERALISM AND U.S. NATIONAL SECURITY: THE MAKING OF THE GATT SECURITY EXCEPTIONS Mona Pinchis-Paulsen I. Introduction The General Agreement [on Tariffs and Trade] has been in effect for a period of over 10 years, including such crises as the Berlin airlift, the Korean War, and the Closing of the Suez Canal, but there has never been an invocation of this exception based on the existence of an emergency in international relations.1 [I]f the WTO were to undertake to review an invocation of Article XXI, this would undermine the legitimacy of the WTO’s dispute settlement system and even the viability of the WTO as a whole.2 In a time of complex economic interdependence and rapid technological innovation, the global trading system is confronted by the entanglement of “trade multilateralism”3 and “national security.”45 Most problematic from a * Teaching Fellow for the LLM in International Economic Law, Business, and Poli- cy, Stanford Law School. -
Speakers / Panelists 9 December 2020 10:00 A.M. – 5:30 P.M. 70 Years of the European Convention on Human Rights Safeguarding H
Speakers / Panelists 9 December 2020 10:00 a.m. – 5:30 p.m. 70 Years of the European Convention on Human Rights Safeguarding Human Rights in Germany and Europe Heiko Maas Federal Foreign Minister Born in Saarlouis on 19 September 1966. Heiko Maas was appointed Federal Minister for Foreign Affairs on 14 March 2018. Before that, he served as Federal Minister of Justice and Consumer Protection in the previous government from 2013 until 2018. Before he was appointed Federal Minister in 2013, Heiko Maas had been a member of the Saarland State Government and a member of the Saarland Landtag (State Parliament) since 1994. In the Saarland, he served as Minister of Environment, Energy and Transport between 1998 and1999 and as Minister of Economics, Labour, Energy and Transport as well as Deputy Minister-President of Saarland from 2012 until 2013. He holds a law degree from the University of Saarland. Christine Lambrecht Federal Minister of Justice and Consumer Protection Christine Lambrecht has held the office of German Federal Minister of Justice and Consumer Protection since June 2019. She completed her law degree in 1995 and has been a Member of the German Bundestag since 1998. Among other positions, she has served as Member of the Bundestag’s Council of Elders and as Parliamentary State Secretary at the Federal Ministry of Finance. 1 Dr. Bärbel Kofler Federal Government Commissioner for Human Rights Policy and Humanitarian Assistance at the Federal Foreign Office Dr. Bärbel Kofler has been the Federal Government Commissioner for Human Rights Policy and Humanitarian Assistance since 2016. Her mandate includes advising the Federal Government on Germany’s human rights and humanitarian aid policies. -
Conflict-Induced Food Insecurity and the War Crime of Starvation Of
BSG Working Paper Series Providing access to the latest policy-relevant research Conflict-induced food insecurity and the war crime of starvation of civilians as a method of warfare The underlying rules of international humanitarian law BSG-WP-2019/030 November 2019 Dapo Akande, Oxford Institute for Ethics, Law & Armed Conflict, Blavatnik School of Government, University of Oxford Emanuela-Chiara Gillard, Oxford Institute for Ethics, Law & Armed Conflict, Blavatnik School of Government Copyright for all BSG Working Papers remains with the authors. Conflict-induced food insecurity and the war crime of starvation of civilians as a method of warfare – the underlying rules of international humanitarian law Dapo Akande* and Emanuela-Chiara Gillard** Abstract This article examines the rules of international humanitarian law (IHL) relevant to avoiding or minimising conflict-induced food insecurity. It is important to consider these rules in order to appreciate the range of protections to which civilians are entitled. Understanding these rules is also essential for interpreting the relevant provisions of international criminal law, including, most notably, the war crime of starvation of the civilian population. After providing a brief outline of the general rules of IHL respect of which can reduce the risk of food insecurity, the article focuses on two sets of rules of direct relevance to food insecurity: the prohibition of starvation of civilians as a method of warfare and the rules regulating humanitarian relief operation. With regard to the former, the article considers whether, under IHL, the prohibition requires that the party that has engaged in the conduct must act with the purpose of causing starvation.