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The last years have been affected by Covid-19 and the international emergency mecha-nism to deal with health-related threats. The effects of this period manifested differ-ently worldwide, depending on matters such as international relations, national policies, power dynamics etc. Additionally, the impact of this time will likely have long-term effects which are yet to be known. This paper gives a critical overview of the Public Health Emergency of International Concern (PHEIC) mechanism in the context of Covid-19. It does so by explaining the legal framework for states of emergency, specifically in the context of a PHEIC, while considering its restrictions and limitations on human rights. It further outlines issues in the manifestation of global protections and limitations on human rights during Covid-19. Lastly, considering the likelihood of future PHEICs and the known systemic obstructions, this paper offers ways to im-prove this mechanism from a holistic, non-zero-sum perspective.
Under Brazil's ex-president Bolsonaro, deforestation of the Amazon increased dramatically. An Austrian NGO filed a complaint to the Prosecutor of the International Criminal Court (ICC) against Bolsonaro in October 2021, accusing him of crimes against humanity against the backdrop of his involvement in environmental destruction. This paper deals with the question of whether this initi-ative constitutes a promising means of juridification to mitigate conflicts revolving around mass deforestation in Brazil. It thematizes attempts to juridify environmental destruction in international criminal law and examines the Climate Fund Case at the Brazilian Supreme Court. Finally, emerging problems and arguments in favour of starting preliminary examinations at the ICC against Bolsonaro are illuminated. This paper provides arguments as to why the initiative might be a promising undertaking, even though it is unlikely that Bolsonaro will be arrested.
Das menschenrechtliche Prinzip des Non-Refoulement vor den Vertragsorganen der Vereinten Nationen
(2023)
Die Vertragsorgane der Vereinten Nationen können durch die Abstimmung ihrer Praxis Rechtssicherheit schaffen, und zwar sowohl für Betroffene als auch für die Vertragsstaaten. Durch den ständigen Dialog mit den Vertragsstaaten, die Beeinflussung der Vertragsorgane untereinander und das Aufgreifen der Praxis durch andere internationale Akteure lässt sich Gewohnheitsrecht identifizieren. -- Dabei ist das menschenrechtliche Prinzip des Non-Refoulement besonders geeignet, dieses Potenzial der Vertragsorgane zu veranschaulichen. Hierbei handelt es sich um ein Rechtsprinzip, das zwar dem Grunde nach allgemein anerkannt ist, dessen Reichweite im Detail jedoch kontinuierlich umstritten ist. Erstmals wird ein umfassender Überblick über die gesamte Praxis der Vertragsorgane zum Prinzip des Non-Refoulement gegeben. Es wird gezeigt, wie sich die Vertragsorgane sowohl auf prozessualer Ebene als auch bei der Bestimmung des materiellen Schutzbereichs von Refoulementverboten einander annähern.
National Action Plans (NAPs) have been increas-ingly adopted world-wide after the Vienna Dec-laration in 1993, where it was urged to consider the improvement and promotion of Human Rights. In this paper, we discuss their usefulness and success by analysing the challenges present-ed during NAP processes as well as the benefits this set of actions entails: The challenges for their implementation outweigh its actual benefits. Nevertheless, NAPs have great potential. Based on new research, we elaborate a set of recom-mendations for improving the design and imple-mentation of national action planning. In order to effectively bring NAP into practice, we consider it crucial to plan and analyse every state local circumstances in detail. The latter is important, since the implementation of a concrete set of actions is intended to directly transform and improve the local living conditions of the people. In a long-term perspective, we defend the benefit of NAP’s implementation for complying obliga-tions set up by HR treaties.
This chapter takes the ongoing conflict in South Sudan as a starting point for assessing the concept of transitional justice as such and its implementation in the country in particular. Following a brief description of the conflict and the peace processes, the author sheds light on the shortcomings of the established concept of transitional justice in the situation at hand. Then, the author outlines the alternate concept of transformational justice und takes a closer look at its implications on the situation in South Sudan. The author highlights existing initiatives of transformative justice and is very much in favour of their victim-centered approach.
At different times and places, civic engagement in nonviolent resistance (NVR) has repeatedly shown to be an effective tool in times of conflict to initiate societal change from below. History teaches us that there have been successes (Mahatma Gandhi in India) and failures (the Tiananmen Square protests in China).
Along with the recognition of the duality between transformative potential and stark consequences, the historical development of NVR was accompanied by the emergence of scholarly debate, fractured along disputes around purpose, character and effectivity of nonviolent actions taken by civil society stakeholders engaged in making their voices heard. One of the field’s current points of interest is the examination of the long-term effects of NVR movements resulting in societal transformation on the stability and adequacy of a subsequently altered or emerging democracy, suggesting that NVR contributes positively to the sustainable and representative design of an egalitarian governing system.
The conclusion of the Nepalese civil war in 2006 should pose as an unambiguous example for the illustration of this phenomenon, but simultaneously raises the question why there was no successful implementation of a transitional process focusing on the needs of the victims.
Transitional justice is conventionally theorized as how a society deals with past injustices after regime change and alongside democratization. Nonetheless, scholars have not reached a consensus on what is to be included or excluded. Recent ideas of transformative justice seek to expand the understanding of transitional justice to include systemic restructuring and socioeconomic considerations. In the context of Nicaragua — where two transitions occurred within an 11-year span — very little transitional justice took place, in terms of the conventional concept of top-down legalistic mechanisms; however, distinct structural changes and socioeconomic policies can be found with each regime change. By analyzing the transformative justice elements of Nicaragua’s dual transition, this chapter seeks to expand the understanding of transitional justice to include how these factors influence goals of transitions such as sustainable peace and reconciliation for past injustices. The results argue for increased attention to transformative justice theories and a more nuanced conception of justice.
While the concept of transitional justice and its range of measures have gained importance on an international level to come to terms with major crimes of the past, colonial crimes and mass violence committed by Western actors have not been addressed by transitional justice so far. In this chapter, the Herero’s and Nama’s struggle for justice for the genocide on their ancestors by Germany from 1904 – 1908 and the arising challenges are set in relation to conceptual debates in the field of transitional justice. Building on current debates in the field, suggesting more structural and transformative conceptualizations of transitional justice and an approach ‘from below’, it is argued that decolonial activism of formerly colonized communities and transitional justice debates can inform each other in a dialogic and fruitful form to formulate suggestions for a process towards post-colonial justice.
This paper aims to contribute a different approach to transitional justice, one in which political decisions are rocketed to the forefront of the research. Theory asserts that, after a transition to democracy, it is the constituency who defines the direction a country will take. Therefore, pleasing them should be at the fore of the responses taken by those in power. However, reality distances itself from theory. History provides us with many examples of the contrary, which indicates that the politicization of transitional justice is an ever-present event. The first section will outline current definitions and obstacles faced by transitional justice, focusing on the implicit ties between them and the aforementioned politicization. An original categorization of Transitional Justice as a method of analysis will also be introduced, which I denominate Political Opportunism. The case of Argentina, a country that is usually described as a model to export but that after 35 years is still dealing with the consequences brought by the contradictions of using several methods of justice, will then be reinterpreted through this perspective. At the end of the paper, the inevitable question will be posed: can this new angle be exported and implemented in every transition?
This chapter deals with the problem that theories of peace building, conflict resolution and reconciliation were predominately created in the West and, therefore, do not necessarily fit the understanding of peace, conflict, and resolution in non-Western societies and cultures. Within these societies, the acceptance of suffering may also be higher, which leads to different priorities of conflict resolution approaches. Furthermore, this chapter deals with the question of whether the current understanding of wars and the nature of conflict change the basis of established conflict theories. These theoretical approaches are then applied in Sierra Leone as a non-Western negotiation scenario.
