Pub Date : 2018-10-10DOI: 10.1163/13894633_021001009
Stephan F.H. Ollick
The Mediterranean Sea has long been an important and perilous route for international migrants from the coast of North Africa to the European Union (EU). Manygrants and refugees travelling on overcrowded and unseaworthy dinghies do not survive the crossing. Rising numbers of fatalities put pressure on the EU to address the Mediterranean tragedy with renewed urgency. Frontex Operation Triton (2014–) and the naval mission eunavfor med Operation SOPHIA (2015–) were launched to survey and influence migratory flows. Although thousands of migrants and refugees have thus been delivered from distress at sea, casualty rates remain staggeringly high. Some commentators and organizations have dismissed Frontex and eunavfor med Operation SOPHIA as vehicles of an isolationist political agenda. This overlooks the narrow legal, political and practical confines within which these initiatives operate. Frontex and eunavfor med Operation SOPHIA seek to attain a level of control necessary for the delayed implementation of more ambitious and forward-looking schemes. The unsophisticated, temporary nature of the regime complex currently governing the EU’s activities in the Mediterranean Sea manifests in ambiguous language, in frequent and disparate amendments, and in the brevity of the mandates thus dispensed.
{"title":"The European Union in the Mediterranean Sea: Navigating the Political-Legal Shallows","authors":"Stephan F.H. Ollick","doi":"10.1163/13894633_021001009","DOIUrl":"https://doi.org/10.1163/13894633_021001009","url":null,"abstract":"The Mediterranean Sea has long been an important and perilous route for international migrants from the coast of North Africa to the European Union (EU). Manygrants and refugees travelling on overcrowded and unseaworthy dinghies do not survive the crossing. Rising numbers of fatalities put pressure on the EU to address the Mediterranean tragedy with renewed urgency. Frontex Operation Triton (2014–) and the naval mission eunavfor med Operation SOPHIA (2015–) were launched to survey and influence migratory flows. Although thousands of migrants and refugees have thus been delivered from distress at sea, casualty rates remain staggeringly high.\u0000Some commentators and organizations have dismissed Frontex and eunavfor med Operation SOPHIA as vehicles of an isolationist political agenda. This overlooks the narrow legal, political and practical confines within which these initiatives operate. Frontex and eunavfor med Operation SOPHIA seek to attain a level of control necessary for the delayed implementation of more ambitious and forward-looking schemes. The unsophisticated, temporary nature of the regime complex currently governing the EU’s activities in the Mediterranean Sea manifests in ambiguous language, in frequent and disparate amendments, and in the brevity of the mandates thus dispensed.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116962149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001014
F. Lone
This article seeks to elucidate the issues affecting political reform in Hong Kong in terms of China’s international law positions and practice. This involves reviewing Hong Kong’s unique legal position, the international law approach that China has adopted, and the manner in which China’s control of Hong Kong can coincide with respect for international norms and standards. In order to achieve this, concepts such as sovereignty, democracy and universal suffrage are examined.
{"title":"The ‘One Country, Two Systems’ Model and Political Reform in Hong Kong: A twail Approach","authors":"F. Lone","doi":"10.1163/13894633_021001014","DOIUrl":"https://doi.org/10.1163/13894633_021001014","url":null,"abstract":"This article seeks to elucidate the issues affecting political reform in Hong Kong in terms of China’s international law positions and practice. This involves reviewing Hong Kong’s unique legal position, the international law approach that China has adopted, and the manner in which China’s control of Hong Kong can coincide with respect for international norms and standards. In order to achieve this, concepts such as sovereignty, democracy and universal suffrage are examined.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115467557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001015
Till Patrik Holterhus
The article discusses the historical development of the rule of law’s basic principles. While indications of societies governed by law can be traced back to early civilizations in ancient Mesopotamia, what today is understood as the rule of law, is, however, a remarkable and continuous historical ascendency of a theoretical concept forged in the century-lasting struggle of subjecting governmental powers to law. Applying a broad perspective, the article first assesses the rule of law’s early antecedents in ancient Sumer, Babylonia, Rome, and Athens. It then examines the rule of law’s theoretic foundations in the Middle Ages and the concept’s advancements through the Enlightenment-fostered intellectual and religious revolutions. Finally, against this background, it takes a particular look at the rule of law’s consolidation, advancement, and proliferation in the 19th and 20th centuries.
{"title":"The History of the Rule of Law","authors":"Till Patrik Holterhus","doi":"10.1163/13894633_021001015","DOIUrl":"https://doi.org/10.1163/13894633_021001015","url":null,"abstract":"The article discusses the historical development of the rule of law’s basic principles. While indications of societies governed by law can be traced back to early civilizations in ancient Mesopotamia, what today is understood as the rule of law, is, however, a remarkable and continuous historical ascendency of a theoretical concept forged in the century-lasting struggle of subjecting governmental powers to law. Applying a broad perspective, the article first assesses the rule of law’s early antecedents in ancient Sumer, Babylonia, Rome, and Athens. It then examines the rule of law’s theoretic foundations in the Middle Ages and the concept’s advancements through the Enlightenment-fostered intellectual and religious revolutions. Finally, against this background, it takes a particular look at the rule of law’s consolidation, advancement, and proliferation in the 19th and 20th centuries.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114989721","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001002
I. Tredici, Renaud Galand
The Special Criminal Court for the Central African Republic (scc) is a national court that has been established with the assistance of the Un Multidimensional Integrated Mission of Stabilization in the Central African Republic (minusca) to bring to justice perpetrators of international crimes committed in car from 2003. The establishment of the scc is a response to the legal obligation to fight impunity for the most serious crimes in a country severely affected by decades of internal armed conflicts, social and political crises: car has been depleted of the resources required to investigate and prosecute those responsible for the commission of international crimes. Taking to justice the perpetrators will help consolidate peace, security and justice and break the cycle of violence. The scc is hence expected to serve as a catalyst for the restoration of the rule of law in car more broadly and to advance national reconciliation and peacebuilding processes. Notwithstanding the challenges that it will face, it is submitted that the scc could be a valid model to be replicated in other post-conflict contexts where impunity for either international crimes or serious organized crime is a fundamental impediment to social peace and progress.
{"title":"Holding to Account the Commission of International Crimes in the Central African Republic: The Establishment of the Special Criminal Court","authors":"I. Tredici, Renaud Galand","doi":"10.1163/13894633_021001002","DOIUrl":"https://doi.org/10.1163/13894633_021001002","url":null,"abstract":"The Special Criminal Court for the Central African Republic (scc) is a national court that has been established with the assistance of the Un Multidimensional Integrated Mission of Stabilization in the Central African Republic (minusca) to bring to justice perpetrators of international crimes committed in car from 2003. The establishment of the scc is a response to the legal obligation to fight impunity for the most serious crimes in a country severely affected by decades of internal armed conflicts, social and political crises: car has been depleted of the resources required to investigate and prosecute those responsible for the commission of international crimes. Taking to justice the perpetrators will help consolidate peace, security and justice and break the cycle of violence. The scc is hence expected to serve as a catalyst for the restoration of the rule of law in car more broadly and to advance national reconciliation and peacebuilding processes. Notwithstanding the challenges that it will face, it is submitted that the scc could be a valid model to be replicated in other post-conflict contexts where impunity for either international crimes or serious organized crime is a fundamental impediment to social peace and progress.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"153 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132685684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001019
Editors Max Planck Yearbook of United Natio
{"title":"Ethan Katsh and Orna Rabinovich-Einy: Digital Justice: Technology and the Internet of Disputes","authors":"Editors Max Planck Yearbook of United Natio","doi":"10.1163/13894633_021001019","DOIUrl":"https://doi.org/10.1163/13894633_021001019","url":null,"abstract":"","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126538244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001007
Stephanie Schlickewei
On 26 June 1987, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (uncat) entered into force. The comprehensive set of regulations of the Convention aimed at ensuring a more effective implementation of the international community’s common endeavours to eradicate torture globally. Nevertheless, torture practice still prevails in many countries. New crises, such as the international fight against terrorism, constantly compromise the achievement of the Convention’s overall objective; in particular, they present a great challenge to States Parties’ compliance with the uncat’s explicit nonrefoulement obligation of Art. 3 uncat. Aiming for the transfer of a person to another State and in a bid to nevertheless satisfy their international obligations, States Parties tend to rely on so-called diplomatic assurances from the receiving State, thereby potentially exposing the individual to the risk of being subjected to torture following the transfer. Being aware of the new challenges to the protection of Art. 3 uncat, in 2015, the United Nations Committee against Torture finally decided to undertake a comprehensive review of its General Comment No. 1 (1997). As the text of 1997 was considered to no longer meet the needs of the States with respect to the new challenges of the 21st century, the revision was inter alia aimed to also explicitly address the alarming trend of the application of diplomatic assurances and to include an assessment of their legitimate use in the context of Art. 3 uncat. This article outlines the aforementioned review process with regard to the use of diplomatic assurances in the context of torture and analyses the question of their legitimacy under international law with respect to the uncat and in light of and in comparison to the European Court of Human Right’s jurisdiction in this context.
{"title":"The Revision of the General Comment No. 1 on the Implementation of Art. 3 uncat’s Non-Refoulement Obligation in Light of the Use of Diplomatic Assurances","authors":"Stephanie Schlickewei","doi":"10.1163/13894633_021001007","DOIUrl":"https://doi.org/10.1163/13894633_021001007","url":null,"abstract":"On 26 June 1987, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (uncat) entered into force. The comprehensive set of regulations of the Convention aimed at ensuring a more effective implementation of the international community’s common endeavours to eradicate torture globally. Nevertheless, torture practice still prevails in many countries. New crises, such as the international fight against terrorism, constantly compromise the achievement of the Convention’s overall objective; in particular, they present a great challenge to States Parties’ compliance with the uncat’s explicit nonrefoulement obligation of Art. 3 uncat. Aiming for the transfer of a person to another State and in a bid to nevertheless satisfy their international obligations, States Parties tend to rely on so-called diplomatic assurances from the receiving State, thereby potentially exposing the individual to the risk of being subjected to torture following the transfer.\u0000Being aware of the new challenges to the protection of Art. 3 uncat, in 2015, the United Nations Committee against Torture finally decided to undertake a comprehensive review of its General Comment No. 1 (1997). As the text of 1997 was considered to no longer meet the needs of the States with respect to the new challenges of the 21st century, the revision was inter alia aimed to also explicitly address the alarming trend of the application of diplomatic assurances and to include an assessment of their legitimate use in the context of Art. 3 uncat. This article outlines the aforementioned review process with regard to the use of diplomatic assurances in the context of torture and analyses the question of their legitimacy under international law with respect to the uncat and in light of and in comparison to the European Court of Human Right’s jurisdiction in this context.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125787932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001018
Editors Max Planck Yearbook of United Natio
{"title":"Charles T. Kotuby Jr. and Luke A. Sobota: General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes","authors":"Editors Max Planck Yearbook of United Natio","doi":"10.1163/13894633_021001018","DOIUrl":"https://doi.org/10.1163/13894633_021001018","url":null,"abstract":"","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130472024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001016
Inga Witte
There are manifold constellations of potential conflict between international investment law and constitutional law. The ordering paradigm for that interaction is an unresolved and underexplored question, which is currently coming up in a number of proceedings. As prominently evidenced by the recent Achmea judgment, we seem to be steering towards supremacy claims of one system over the other with each adjudicative body claiming the final say in the matter. This approach is in line with the classic ordering paradigm of hierarchy. However, this contribution shall argue that hierarchy is ill-suited to properly conceptualize the relationship between the two systems. Instead, it proposes to embrace the heterarchical reality, along with its call for judicial dialogue, as a normatively desirable paradigm. The relationship between international investment law and constitutional law need not be and should not be perceived as inherently antagonistic because their mutual endeavour is to promote the rule of law. Precisely this realization should guide the relationship between the two systems.
{"title":"Interactions between International Investment Law and Constitutional Law: Promoting the Dialogue. A European Perspective on Judicial Cooperation and Deference","authors":"Inga Witte","doi":"10.1163/13894633_021001016","DOIUrl":"https://doi.org/10.1163/13894633_021001016","url":null,"abstract":"There are manifold constellations of potential conflict between international investment law and constitutional law. The ordering paradigm for that interaction is an unresolved and underexplored question, which is currently coming up in a number of proceedings. As prominently evidenced by the recent Achmea judgment, we seem to be steering towards supremacy claims of one system over the other with each adjudicative body claiming the final say in the matter. This approach is in line with the classic ordering paradigm of hierarchy. However, this contribution shall argue that hierarchy is ill-suited to properly conceptualize the relationship between the two systems. Instead, it proposes to embrace the heterarchical reality, along with its call for judicial dialogue, as a normatively desirable paradigm. The relationship between international investment law and constitutional law need not be and should not be perceived as inherently antagonistic because their mutual endeavour is to promote the rule of law. Precisely this realization should guide the relationship between the two systems.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123170787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001008
Rishi Gulati
Highlighting that the right to a fair trial in international law now forms an aspect of international administrative procedural law, I argue when international administrative tribunals administer justice to international civil servants, fair trial guarantees must be accorded. Particularly, in this paper I assess the two leading international administrative tribunals, the United Nations Dispute Tribunal and the Administrative Tribunal of the International Labour Organisation, in terms of their compliance with fair trial standards. Focusing on the jurisprudence of the International Court of Justice, I first show how what I call an international procedural law of fair trial has been developed and requires that basic due process guarantees must be accorded wen delivering international administrative justice. I then develop fair trial standards with greater nuance, especially focusing on the quality of independence and impartiality. Then, the paper engages in a detailed analysis of the leading international administrative tribunals in terms of compliance with fair trial standards, concluding that significant deficits exist. If a fair trial for international civil servants is to be guaranteed, significant structural reforms are necessary.
{"title":"An International Administrative Procedural Law of Fair Trial: Reality or Rhetoric?","authors":"Rishi Gulati","doi":"10.1163/13894633_021001008","DOIUrl":"https://doi.org/10.1163/13894633_021001008","url":null,"abstract":"Highlighting that the right to a fair trial in international law now forms an aspect of international administrative procedural law, I argue when international administrative tribunals administer justice to international civil servants, fair trial guarantees must be accorded. Particularly, in this paper I assess the two leading international administrative tribunals, the United Nations Dispute Tribunal and the Administrative Tribunal of the International Labour Organisation, in terms of their compliance with fair trial standards. Focusing on the jurisprudence of the International Court of Justice, I first show how what I call an international procedural law of fair trial has been developed and requires that basic due process guarantees must be accorded wen delivering international administrative justice. I then develop fair trial standards with greater nuance, especially focusing on the quality of independence and impartiality. Then, the paper engages in a detailed analysis of the leading international administrative tribunals in terms of compliance with fair trial standards, concluding that significant deficits exist. If a fair trial for international civil servants is to be guaranteed, significant structural reforms are necessary.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122798764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-10-10DOI: 10.1163/13894633_021001004
Chie Sato
Although various organizations have been established for the management and conservation of fisheries and these have contributed to the establishment of common regulations pertaining to the management of fisheries on a global or regional level, current measures for the management and conservation of fish resources do not appear to be very effective. This article attempts to clarify the current problems involved in the management and conservation of fisheries and what kinds of regulations are necessary to manage sustainable fisheries effectively in an era of increasing fish consumption.
{"title":"The UN and Its Agencies in the Development of Regulations on Management and Conservation of Fisheries: A Plurality of Initiatives but Questionable Coherence","authors":"Chie Sato","doi":"10.1163/13894633_021001004","DOIUrl":"https://doi.org/10.1163/13894633_021001004","url":null,"abstract":"Although various organizations have been established for the management and conservation of fisheries and these have contributed to the establishment of common regulations pertaining to the management of fisheries on a global or regional level, current measures for the management and conservation of fish resources do not appear to be very effective. This article attempts to clarify the current problems involved in the management and conservation of fisheries and what kinds of regulations are necessary to manage sustainable fisheries effectively in an era of increasing fish consumption.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124693478","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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