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Would the world be a better place if one were to adopt a European approach to state immunity?
(2021)
This chapter argues not only that there is no European Sonderweg (or ‘special way’) when it comes to the law of state immunity but that there ought not to be one. Debates within The Hague Conference on Private International Law in the late 1990s and those leading to the adoption of the 2002 UN Convention on Jurisdictional Immunities of States, as well as the development of the EU Brussels Regulation on Jurisdiction and Enforcement, as amended in 2015, all demonstrate that state immunity was not meant to be limited by such treaties but ‘safeguarded’. Likewise, there is no proof that regional European customary law limits state immunity when it comes to ius cogens violations, as Italy and (partly) Greece are the only European states denying state immunity in such cases while the European Court of Human Rights has, time and again, upheld a broad concept of state immunity. It therefore seems unlikely that in the foreseeable future a specific European customary law norm on state immunity will develop, especially given the lack of participation in such practice by those states most concerned by the matter, including Germany. This chapter considers the possible legal implications of the jurisprudence of the Italian Constitutional Court for European military operations (if such operations went beyond peacekeeping). These implications would mainly depend on the question of attribution: if one where to assume that acts undertaken within the framework of military operations led by the EU were to be, at least also, attributable to the troop-contributing member states, the respective troop-contributing state would be entitled to enjoy state immunity exactly to the same degree as in any kind of unilateral military operations. Additionally, some possible perspectives beyond Sentenza 238/2014 are examined, in particular concerning the redress awarded by domestic courts ‘as long as’ neither the German nor the international system grant equivalent protection to the victims of serious violations of international humanitarian law committed during World War II. In the author’s opinion, strengthening the jurisdiction of international courts and tribunals, bringing interstate cases for damages before the International Court of Justice, as well as providing for claims commissions where individual compensation might be sought for violations of international humanitarian law would be more useful and appropriate mechanisms than denying state immunity.
This introductory essay is structured as follows: First of all, several forms of urbanisation (I.) are introduced and the processes of urbanisation and dis-urbanisation (II.) are defined. Then four fields of law which are deeply affected by urbanisation are put into the focus. These are, local government law (III.), but also public building law (IV.), civil service law (V.) and public finance law (VI.). Afterwards the effects of the corona pandemic on these fields of law are contemplated, taking account of the process of urbanisation (VII.). Finally, the main results are summarised (VIII.).
Addressing both scholars of international law and political science as well as decision makers involved in cybersecurity policy, the book tackles the most important and intricate legal issues that a state faces when considering a reaction to a malicious cyber operation conducted by an adversarial state. While often invoked in political debates and widely analysed in international legal scholarship, self-defence and countermeasures will often remain unavailable to states in situations of cyber emergency due to the pervasive problem of reliable and timely attribution of cyber operations to state actors. Analysing the legal questions surrounding attribution in detail, the book presents the necessity defence as an evidently available alternative. However, the shortcomings of the doctrine as based in customary international law that render it problematic as a remedy for states are examined in-depth. In light of this, the book concludes by outlining a special emergency regime for cyberspace.
Since 2015, the European Union has struggled to deal with the influx of refugees coming into its territories. The number of institutions involved in designing a competent response approach, com-bined with the unilateral and uncoordinated state reactions, have left unclear where to look for when searching for answers and new alternatives. Can the United Nations High Commissioner for Refugees (UNHCR) take a leading role in solving this and future crises? After a brief recapitulation of the crisis, an analysis of UNHCR’s statue, relationship to international law, and doctrine will put this question to the test while exploring options that are not only available but also feasible in a system where politics trump both legality and morality. If UNHCR is to play an active role in fu-ture refugee policies and become the lead agency it once was, a new daring and innovative approach has to emerge in order to readapt to the power relations that prevail in the twenty-first century.
Transitional Justice
(2022)
This publication deals with the topic of transitional justice. In six case studies, the authors link theoretical and practical implications in order to develop some innovative approaches. Their proposals might help to deal more effectively with the transition of societies, legal orders and political systems.
Young academics from various backgrounds provide fresh insights and demonstrate the relevance of the topic. The chapters analyse transitions and conflicts in Sierra Leone, Argentina, Nicaragua, Nepal, and South Sudan as well as Germany’s colonial genocide in Namibia. Thus, the book provides the reader with new insights and contributes to the ongoing debate about transitional justice.
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.
Die Arbeit untersucht bewaffnete Konfliktszenarien, in denen an multinationalen Militäroperationen beteiligte Staaten während einer Gewahrsamsoperation gegnerische Kräfte oder andere Personen in Gewahrsam nehmen und diese dann an die Kräfte eines anderen Staates, oftmals der Hostnation mit zweifelhafter Menschenrechtsreputation, überstellen. Gewahrsamspersonen laufen dann Gefahr, Opfer erheblicher Rechtsverletzungen zu werden
This paper evaluates the construction of the rights of human rights defenders within international law and its shortcomings in protecting women. Human rights defenders have historically been defined on the basis of their actions as defenders. However, as Marxist-feminist scholar Silvia Federici contends, women are inherently politicised and, moreover, face obstacles to political action which are invisible to and untouchable by the law. Labour rights set an example of handling such a disadvantaged political position by placing vital importance on workers’ right to association and collective action. The paper closes with the suggestion that transposing this construction of rights to women would better protect women as human rights defenders while emphasising their capacity for self-determination in their political actions.
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.