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Since 2013, the Committee on Economic, Social and Cultural Rights can examine individual communications under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). This opens up the possibility to interpret Covenant provisions in a thorough manner. With regard to forced evictions and the right to housing under Article 11 ICESCR, one can discern a fast-developing approach concerning the proportionality analysis of evictions, entailing the establishment of specific criteria that may guide such analysis. This paper seeks to delineate these developments and will also shed light on possible general trends on the topic of limitations within the Committee’s emerging jurisprudence. In doing so, the paper will address if, and how, the developing proportionality analysis under the individual complaints procedure takes into consideration multi-discriminatory dimensions of State measures and how it specifically relates to or incorporates other ICESCR-concepts, such as minimum core obligations or the reasonableness review under Article 8(4) OP ICESCR.
The article analyses whether the Palestinian-Israeli conflict has served as a catalyst for the development of international law, as well as whether international law has been instrumental in attempting to find solutions for the said conflict.
In several ways, this conflict has made a significant contribution to understanding and interpreting the UN Charter. It also brought along important developments about the role of third parties, both under the Geneva Conventions and under the law of state responsibility, which provides for an obligation of not recognizing as legal, or not rendering aid or assistance to situations caused by serious violations of jus cogens.
International judicial institutions (and also domestic ones) play a rather limited role in this respect, due both to a lack of courage to address fundamental questions, and/or a disregard of the outcome of the proceedings by at least one of the parties to the conflict. Other reasons are Israel's reluctance of accepting the jurisdiction of either the ICJ or the ICC, and its view on the non-applicability of human rights treaties outside of its territory, as well as Palestine's uncertain status in the international community limiting its access to international courts. However, the ICJ's 2004 (formally non-binding) advisory opinion on the Israeli Wall provided answers to some of the most fundamental questions related to the conflict, unfortunately without having any immediate impact on the situation on the ground. Given Palestine's accession to the Rome Statute in early 2015, time has yet to show which role in the process will be played by the ICC.
Other issues arising from the conflict, and examined by this article, are that of (Palestinian) statehood, going beyond the traditional concept of statehood and including the consequences of the jus cogens-character of the right of self-determination, as well as questions of treaty succession and succession in matters of State responsibility with regard to acts committed by the PLO.
The international covenant on civil and political rights : cases, materials, and commentaries
(2004)
The Forgotten War: Yemen
(2019)
The conflict in Yemen seems forgotten considering the worldwide severe humanitarian catastrophes. Nevertheless, since the conflict escalated around four years ago, it became one of the worst humanitarian crises in recent history and has no end in sight. Thousands of people were killed even more displaced and the country is facing tremendous food insecurity as well as the world’s largest cholera outbreak. It is no longer just a civil war between the Houthi- and Hadi-Faction. International interests play a major role and made it a proxy war between Saudi Arabia (and its allies) on one side and Iran on the other. This all happens at the expense of the civilian population. Therefore, it is urgent to analyse the actors involved, their interests within the conflict and furthermore searching for possibilities to overcome it.
On 21 April 2021, the European Commission presented its long-awaited proposal for a Regulation “laying down harmonized rules on Artificial Intelligence”, the so-called “Artificial Intelligence Act” (AIA). This article takes a critical look at the proposed regulation. After an introduction (1), the paper analyzes the unclear preemptive effect of the AIA and EU competences (2), the scope of application (3), the prohibited uses of Artificial Intelligence (AI) (4), the provisions on high-risk AI systems (5), the obligations of providers and users (6), the requirements for AI systems with limited risks (7), the enforcement system (8), the relationship of the AIA with the existing legal framework (9), and the regulatory gaps (10). The last section draws some final conclusions (11).
State sucession in treaties
(2012)
Should the binding effect of the judgements of the European Court of Human Rights be extended?
(2000)
As part of the current overall process of de-formalization in international law States increasingly chose informal, non-legally binding agreements or ‘Memoranda of Understanding’ (‘MOUs') to organize their international affairs. The increasing conclusion of such legally non-binding instruments in addition to their flexibility, however, also leads to uncertainties in international relations. Against this background, this article deals with possible indirect legal consequences produced by MOUs. It discusses the different legal mechanisms and avenues that may give rise to secondary legal effects of MOUs through a process of interaction with and interpretation in line with other (formal) sources of international law. The article further considers various strategies how to avoid such eventual possible unintended or unexpected indirect legal effects of MOUs when drafting such instruments and when dealing with them subsequent to their respective ‘adoption’.
In 2009, 'Palestine' lodged a declaration recognizing the jurisdiction of the ICC under Article 12(3). However, in April 2012, the OTP determined that this declaration had not brought about the result, of providing for the ICC's jurisdiction, pending clarification from the political organs of the UN concerning the legal status of Palestine within the organization. On 29 November 2012, the General Assembly granted Palestine the status of a non-member observer state within the UN framework, thereby fulfilling the condition mentioned by the OTP in April 2012. It is against this background that the article considers the current legal effects of the 2009 Palestinian declaration. In particular, it addresses the issue of whether the declaration, when read in conjunction with the 29 November 2012 decision, possesses retroactive effect, i.e. whether it provides, as claimed, for the Court's temporal jurisdiction from 1 July 2002 onwards or rather starting only from 29 November 2012.
... the current status granted to Palestine by the United Nations General Assembly is that of 'observer', not as a 'Non-member State'. ... [T]his... informs the current legal status of Palestine for the interpretation and application of article 12 [Rome Statute]. ... The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations... resolve the legal issue relevant to an assessment of article 12. ... International Criminal Court, Office of the Prosecutor, 'Situation in Palestine', 3 April 2012
The anniversaries of the 1970 Warsaw and the 1990 2+4 Treaties give occasion to revisit the matter of minority protection in German-Polish relations. The interwar system established a problematic unevenness that tainted its acceptance, particularly from the Polish perspective. After 1990 the minority issues achieved an increased, albeit moderate, relevance in German-Polish relations. To some extent the 1991 Polish-German Treaty on Good Neighbourly Relations and Friendly Co-operation retains the unevenness of the inter-war period, as Art. 20(1) recognizes a German minority in Poland, but refuses to acknowledge a Polish minority in Germany. However, currently the thorniest issues concern various situations related to the “Silesians” in Poland, which the Polish government does not recognize as a protected minority under the European Council Framework Convention for the Protection of National Minorities.
Legal shades of grey?
(2021)
As part of the current process of de-formalization in international law, States increasingly chose informal, non-legally binding agreements or 'Memoranda of Understanding' ('MOUs') to organize their international affairs. The increasing conclusion of such legally non-binding instruments in addition to their flexibility, however, also leads to uncertainties in international relations. Against this background, this article deals with possible indirect legal consequences produced by MOUs. It discusses the different legal mechanisms and avenues that may give rise to such secondary legal effects of MOUs through a process of interaction with, and interpretation in line with, other (formal) sources of international law. The article further considers various strategies how to avoid such eventual possible unintended or unexpected indirect legal effects of MOUs when drafting such instruments and when dealing with them subsequent to their respective 'adoption'.
Jurisdiction
(2022)
Over the years, the Security Council has on several occasions dealt with humanitarian assistance issues. However, it is Security Council Resolution 2165(2014), related to the situation in Syria, that has brought the role of the Security Council to the forefront of the debate. It is against this background that the article discusses the legal issues arising from Security Council action facilitating humanitarian assistance to be delivered in situations of non-international armed conflict.
Following a brief survey of relevant practice of the Security Council related to humanitarian assistance, the article considers the relevance, if any, of Article 2(7) of the Charter of the United Nations (UN) to humanitarian assistance to be delivered in such situations. It then moves on to analyse whether a rejection by the territorial state of humanitarian aid to be delivered by third parties may amount to a situation under Article 39 of the UN Charter. It then considers in detail whether (at least implicitly) Resolution 2165 has been adopted under Chapter VII and, if this is not the case, whether it can be still considered to be legally binding.
The article finally considers what impact the adoption of Security Council Resolution 2165 might have on the interpretation of otherwise applicable rules of international humanitarian law and, in particular, the right of third parties to provide humanitarian assistance in a situation of a non-international armed conflict in spite of the absence of consent by the territorial state, and the obligations that members of the Security Council, permanent and non-permanent, have under Common Article 1 of the Geneva Conventions when faced with a draft resolution providing for the delivery of humanitarian assistance, notwithstanding the absence of consent by the territorial state.
Human Rights Conventions : CESCR - International Covenant on Economic, Social and Cultural Rights
(2002)
Human Rights Committee
(2002)
Human Dignity in German Law
(2002)
This chapter consists of three parts. In the first part, I will give a short overview about the integration of the protection of the environment into German constitutional law. This section will start with the presentation of the relevant provision, Art. 20a BL. Then, I will elaborate on its legal character. In the second part, I will make some brief remarks on the practical implications of Art. 20a BL. Finally, I will present some preliminary conclusions.
The armed conflict in Afghanistan since 2001 has raised manifold questions pertaining to the humanitarian rules relative to the conduct of hostilities. In Afghanistan, as is often the case in so-called asymmetric conflicts, the geographical and temporal boundaries of the battlefield, and the distinction between civilians and fighters, are increasingly blurred. As a result, the risks for both civilians and soldiers operating in Afghanistan are high. The objective of this article is to assess whether - and if so how much - the armed conflict in Afghanistan has affected the application and interpretation of the principles of distinction, proportionality, and precaution - principles that form the core of legal rules pertaining to the conduct of hostilities.
While public–private partnerships (PPPs) have surged worldwide since the 1990s, they have been met with growing skepticism during the last years. A recent revision of Germany’s constitutional rules on motorway construction and observations on the use of PPPs published by both the German and the European Courts of Auditors illustrate this new caution. These two examples fit into a general trend towards a revival of the public sector, which can be summarized under the cross-level umbrella term “publicization.” It would, however, be remiss to replace the uncritical euphoria that once surrounded privatization with a similarly undifferentiated euphoria regarding publicization. Rather, it is crucial to identify the most appropriate solution for the fulfilment of each public task from the “toolbox” of publicization on the one hand and privatization on the other hand in order to ensure the most effective completion of public functions.
Germany
(2006)
Filling in for Governments?
(2020)
The 2015 Paris Agreement on climate change abandons the Kyoto Protocol's paradigm of binding emissions targets and relies instead on countries' voluntary contributions. However, the Paris Agreement encourages not only governments but also sub-national governments, corporations and civil society to contribute to reaching ambitious climate goals. In a transition from the regulated architecture of the Kyoto Protocol to the open system of the Paris Agreement, the Agreement seeks to integrate non-state actors into the treaty-based climate regime. In 2014 the secretariat of the United Nations Framework Convention on Climate Change Peru and France created the Non-State Actor Zone for Climate Action (and launched the Global Climate Action portal). In December 2019, this portal recorded more than twenty thousand climate-commitments of private and public non-state entities, making the non-state venues of international climate meetings decisively more exciting than the formal negotiation space. This level engagement and governments' response to it raises a flurry of questions in relation to the evolving nature of the climate regime and climate change governance, including the role of private actors as standard setters and the lack of accountability mechanisms for non-state actions. This paper takes these developments as occasion to discuss the changing role of private actors in the climate regime.
This paper consists of two parts: In the first part, some of the challenges with which the Internationaal Criminal Court is currently confronted are being presented. First of all, the article will describe the current state of the International Criminal Court and the Rome Statue. Afterwards, the article analyses the Court’s efforts to deal with cases against third-country nationals and the challenges it is facing in that regard. In addition, the Court’s case law will be analyzed in order to determine an increasing ‘emancipation’ of the case law of the International Criminal Court from international humanitarian law. The second part of the paper will briefly discuss the role of domestic international criminal law and domestic courts in the further development and enforcement of international criminal law. As an example of the role that domestic courts may have in clarifying classic issues in international law, the judgment of the German Supreme Court of January 28, 2021 (3 StR 564/19), which deals with the status of costumary international law on functional immunity of State officials before domestic courts, shall be assessed.
Cyber warfare is a timely and relevant issue and one of the most controversial in international humanitarian law (IHL). The aim of IHL is to set rules and limits in terms of means and methods of warfare. In this context, a key question arises: Has digital warfare rules or limits, and if so, how are these applicable? Traditional principles, developed over a long period, are facing a new dimension of challenges due to the rise of cyber warfare. This paper argues that to overcome this new issue, it is critical that new humanity-oriented approaches is developed with regard to cyber warfare. The challenge is to establish a legal regime for cyber-attacks, successfully addressing human rights norms and standards. While clarifying this from a legal perspective, the authors can redesign the sensitive equilibrium between humanity and military necessity, weighing the humanitarian aims of IHL and the protection of civilians-in combination with international human rights law and other relevant legal regimes-in a different manner than before.
Continuity of states
(2012)
Compliance with EU biofuel targets in South-Eastern and Eastern Europe: Do interest groups matter?
(2015)
The European Union requires its member states to establish national targets for the biofuel content of all diesel and petrol supplies for transport placed on the market. This study explores the adoption of this European Union policy across South-Eastern and Eastern Europe between 2003 and 2012. In theoretical terms, we are specifically interested in examining the role of interest groups for policy adoption. We argue that the oil industry in general and the producers of biofuels in particular will support the establishment of national biofuel targets because they expect economic gains. By contrast, we expect environmental groups with international and regional ties to oppose such targets because biofuels have come under attack for their potential environmental impact including deforestation, a loss in biodiversity, and food insecurity. Empirically, we concentrate on policy adoptions in 21 South-Eastern and Eastern European states with varied relations to the European Union and the Energy Community. Our analysis supports our main arguments in suggesting that a stronger presence of environmental groups decreases the chances of adopting national biofuel targets across our country sample while producer interests tend to increase adoptions. This finding holds true also when controlling for a country's European Union membership and accession perspective, membership in the Energy Community, and additional domestic-level factors. These results add more generally to our understanding about compliance with European Union policies and environmental governance.
In its Burmych and Others v. Ukraine judgment of October 2017 the European Court of Human Rights dismissed more than 12,000 applications due to the fact that they were not only repetitive in nature, but also mutatis mutandis identical to applications covered by a previous pilot judgment rendered against Ukraine. This raises fundamental issues as to the role of the Court within the human rights protection system established by the European Convention on Human Rights, as well as those concerning the interrelationship between the Court and the Committee of Ministers.
Draft Article 15 of the International Law Commission’s project on crimes against humanity — dealing with the settlement of disputes arising from a proposed convention — attempts to strike a balance between state autonomy and robust judicial supervision. It largely follows Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination, which renders the jurisdiction of the International Court of Justice (ICJ) conditional upon prior negotiations. Hence, the substance of the clause can be interpreted in light of the recent case law of the ICJ, especially in the case Georgia v. Russia. In addition, this contribution discusses several issues regarding the scope ratione temporis of the compromissory clause. It advances several proposals to improve the current draft, addressing its relationship with state responsibility — an explicit reference to which is currently missing — as well as the relationship between the ICJ and a possible treaty body. It also proposes to recalibrate the interplay of the requirement of prior negotiations with, respectively, the possibility of seizing a future treaty body and the indication of provisional measures by the ICJ.
Article 33, para. 2
(2011)
Article 22
(2011)
Article 1 F
(2011)
The adoption, in Kampala in June 2010, of amendments to the Rome Statute on the crime of aggression was hailed as a historic milestone in the development of the international Criminal Court (ICC). However, the manner in which these amendments are supposed to enter into force runs the risk of undermining the rules of the international law of treaties, as well as the legality and acceptability of the Kampala compromise itself The author examines the relevant amendment procedures provided for in the ICC Statute and the compatibility with them of the amendment procedure chosen in Kampala and ultimately warns of the legal consequences which may follow from the Review Conference's somewhat-Alexandrian solution.