During negotiations for the United Nations Convention on the Law of the Sea (UNCLOS), military activities in another state's Exclusive Economic Zone (EEZ) were a point of contention. Currently, the issue remains controversial in state practice. UNCLOS attempts to balance the differing interests of coastal and maritime states, but is silent or ambiguous on the legality of military operations in foreign EEZs. Coastal states seek to assert increasing control over their maritime zones while maritime states prioritize the freedom of navigation. This article examines the competing views on these issues in the context of the 2009 Impeccable incident between China and the United States that occurred in the South China Sea. The issue of military activities in the EEZ will continue to be a complex subject, without clear definitions in the nature and scope of permissible activity. As state practice evolves, the potential for hostilities is high, particularly in semi-enclosed sea areas such as the South China Sea. This article concludes that states should create dialogues and form agreements to help clarify the contours of military activity in the EEZ, focusing on mutual interests, interdependence, and coexistence rather than perceiving the ocean as a zero-sum resource.
{"title":"The Legality of Foreign Military Activities in the Exclusive Economic Zone Under UNCLOS","authors":"Jing Geng","doi":"10.5334/UJIEL.AX","DOIUrl":"https://doi.org/10.5334/UJIEL.AX","url":null,"abstract":"During negotiations for the United Nations Convention on the Law of the Sea (UNCLOS), military activities in another state's Exclusive Economic Zone (EEZ) were a point of contention. Currently, the issue remains controversial in state practice. UNCLOS attempts to balance the differing interests of coastal and maritime states, but is silent or ambiguous on the legality of military operations in foreign EEZs. Coastal states seek to assert increasing control over their maritime zones while maritime states prioritize the freedom of navigation. This article examines the competing views on these issues in the context of the 2009 Impeccable incident between China and the United States that occurred in the South China Sea. The issue of military activities in the EEZ will continue to be a complex subject, without clear definitions in the nature and scope of permissible activity. As state practice evolves, the potential for hostilities is high, particularly in semi-enclosed sea areas such as the South China Sea. This article concludes that states should create dialogues and form agreements to help clarify the contours of military activity in the EEZ, focusing on mutual interests, interdependence, and coexistence rather than perceiving the ocean as a zero-sum resource.","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"28 1","pages":"22-30"},"PeriodicalIF":0.0,"publicationDate":"2012-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70725024","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}
Security law, or more comprehensively conflict and security law, on the international level represents the intersection of three distinct but interrelated fields: international humanitarian law (the law of armed conflict, jus in bello), the law of collective security (most identified with the United Nations (UN) system, jus ad bellum) and arms control law (including non-proliferation). Security in this sense is multifaceted - interest security, military security and, as is often referred to in the context of the EU, human security. As such, the law covers a wide range of specific topics with respect to conflict, encompassing the use of force, including choice of weapons and fighting techniques, extending to the rules applicable in peacekeeping and peace enforcement, and yet also dictating obligations outside the context of conflict, such as safeguarding and securing dual-use materials (those with both peaceful and military applications) to prevent malicious use.
{"title":"International and European Security Law","authors":"J. Herbach","doi":"10.5334/UJIEL.AV","DOIUrl":"https://doi.org/10.5334/UJIEL.AV","url":null,"abstract":"Security law, or more comprehensively conflict and security law, on the international level represents the intersection of three distinct but interrelated fields: international humanitarian law (the law of armed conflict, jus in bello), the law of collective security (most identified with the United Nations (UN) system, jus ad bellum) and arms control law (including non-proliferation). Security in this sense is multifaceted - interest security, military security and, as is often referred to in the context of the EU, human security. As such, the law covers a wide range of specific topics with respect to conflict, encompassing the use of force, including choice of weapons and fighting techniques, extending to the rules applicable in peacekeeping and peace enforcement, and yet also dictating obligations outside the context of conflict, such as safeguarding and securing dual-use materials (those with both peaceful and military applications) to prevent malicious use.","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"28 1","pages":"01-03"},"PeriodicalIF":0.0,"publicationDate":"2012-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70724883","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}
In Al-Skeini v the United Kingdom , the European Court on Human Rights clarified the scope ratione loci of the European Convention on Human Rights. Without fully abandoning the territorial concept of jurisdiction, which it had affirmed in the 2001 Bankovic decision, the Court inched somewhat closer to the personal model of jurisdiction. After Al-Skeini , an ECHR Contracting State's exercise of public powers over a given territory, even in the absence of full effective control, may bring persons present in that territory within the State's jurisdiction. The Court did not, however, pronounce itself on the applicability of the ECHR in case (agents of ) a Contracting State exercise governmental authority over persons abroad without exercising public powers over the territory where these persons are located.
{"title":"Clarifying the Extraterritorial Application of the European Convention on Human Rights (Al-Skeini v the United Kingdom)","authors":"Cedric Ryngaert","doi":"10.5334/UJIEL.BA","DOIUrl":"https://doi.org/10.5334/UJIEL.BA","url":null,"abstract":"In Al-Skeini v the United Kingdom , the European Court on Human Rights clarified the scope ratione loci of the European Convention on Human Rights. Without fully abandoning the territorial concept of jurisdiction, which it had affirmed in the 2001 Bankovic decision, the Court inched somewhat closer to the personal model of jurisdiction. After Al-Skeini , an ECHR Contracting State's exercise of public powers over a given territory, even in the absence of full effective control, may bring persons present in that territory within the State's jurisdiction. The Court did not, however, pronounce itself on the applicability of the ECHR in case (agents of ) a Contracting State exercise governmental authority over persons abroad without exercising public powers over the territory where these persons are located.","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"28 1","pages":"57-60"},"PeriodicalIF":0.0,"publicationDate":"2012-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70725420","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}
This article re-examines the iconic Trail Smelter dispute. The article discusses the way a modern day Trail Smelter type dispute would be dealt with in the current time. The article examines the opportunities of resolving such a dispute using national mechanisms. Consequently, the United States and Canadian courts are examined in terms of their applicability to a modern day Trail Smelter type dispute. The classic obstacles that prevented access to these courts in the original Trail Smelter dispute are described, subsequently the current status of these obstacles is assessed. The evaluation indicates that the national mechanisms to deal with a Trail Smelter type dispute have gone through a pro- nounced development. Whereas Canadian courts are still reluctant to exercise their jurisdiction extraterritorially, recent legislation seems to indicate that in the present day a Trail Smelter dispute could potentially fall within the jurisdiction of a United States court. Overall the thesis indicates that national mechanisms have started to fill the void that is left by the lack of decisive action that can be taken using international mechanisms. The current situation shows an increasing willingness to provide opportunities for resolving transboundary disputes at the private party level.
{"title":"The Trail Smelter Case Re-examined: Examining the Development of National Procedural Mechanisms to Resolve a Trail Smelter Type Dispute","authors":"M. V. Kerkhof","doi":"10.5334/UJIEL.AR","DOIUrl":"https://doi.org/10.5334/UJIEL.AR","url":null,"abstract":"This article re-examines the iconic Trail Smelter dispute. The article discusses the way a modern day Trail Smelter type dispute would be dealt with in the current time. The article examines the opportunities of resolving such a dispute using national mechanisms. Consequently, the United States and Canadian courts are examined in terms of their applicability to a modern day Trail Smelter type dispute. The classic obstacles that prevented access to these courts in the original Trail Smelter dispute are described, subsequently the current status of these obstacles is assessed. The evaluation indicates that the national mechanisms to deal with a Trail Smelter type dispute have gone through a pro- nounced development. Whereas Canadian courts are still reluctant to exercise their jurisdiction extraterritorially, recent legislation seems to indicate that in the present day a Trail Smelter dispute could potentially fall within the jurisdiction of a United States court. Overall the thesis indicates that national mechanisms have started to fill the void that is left by the lack of decisive action that can be taken using international mechanisms. The current situation shows an increasing willingness to provide opportunities for resolving transboundary disputes at the private party level.","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"69 1","pages":"68-83"},"PeriodicalIF":0.0,"publicationDate":"2011-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70724693","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}
{"title":"Editorial International & European Environmental Law","authors":"Harm Dotinga","doi":"10.5334/UJIEL.AM","DOIUrl":"https://doi.org/10.5334/UJIEL.AM","url":null,"abstract":"","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"27 1","pages":"01-03"},"PeriodicalIF":0.0,"publicationDate":"2011-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70724678","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}
The death toll in Mexico due to drug-related violence has continued to rise since President Felipe Calderon initiated the Mexican Government's crackdown on drug trafficking organizations in 2006. Pervasive corruption among state and local government officials and alleged human rights violations by the Mexican military have added to the gravity of the endemic drug-related violence in Mexico. In response to the continuous violence in Mexico perpetrated by drug trafficking organiza- tions, a substantial number of Mexican citizens have fled to the United States seeking asylum. Due to the strict requirements for refugee status under international law and asylum protection under U.S. law, individuals seeking protection based on drug-related violence face several legal obstacles. This Article addresses the extent to which drug-related violence may con- stitute a basis for refugee status protection under international refugee law and U.S. asylum law. It seeks to provide insight into the potential viability of claims for refugee status brought by Mexican asylum-seekers fleeing drug-related violence. This Article concludes with a discussion on complementary protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for Mexican asylum-seekers.
{"title":"Fleeing the Drug War Next Door: Drug-related Violence as a Basis for Refugee Protection for Mexican Asylum-Seekers","authors":"H. Buchanan","doi":"10.5334/UJIEL.AI","DOIUrl":"https://doi.org/10.5334/UJIEL.AI","url":null,"abstract":"The death toll in Mexico due to drug-related violence has continued to rise since President Felipe Calderon initiated the Mexican Government's crackdown on drug trafficking organizations in 2006. Pervasive corruption among state and local government officials and alleged human rights violations by the Mexican military have added to the gravity of the endemic drug-related violence in Mexico. In response to the continuous violence in Mexico perpetrated by drug trafficking organiza- tions, a substantial number of Mexican citizens have fled to the United States seeking asylum. Due to the strict requirements for refugee status under international law and asylum protection under U.S. law, individuals seeking protection based on drug-related violence face several legal obstacles. This Article addresses the extent to which drug-related violence may con- stitute a basis for refugee status protection under international refugee law and U.S. asylum law. It seeks to provide insight into the potential viability of claims for refugee status brought by Mexican asylum-seekers fleeing drug-related violence. This Article concludes with a discussion on complementary protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for Mexican asylum-seekers.","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"27 1","pages":"28-60"},"PeriodicalIF":0.0,"publicationDate":"2011-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70724210","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}
At the time of writing this case note, the case against Omar Al Bashir is the only genocide case before the InternationalCriminal Court. So far, the main legal question concerns whether the existence of reasonable grounds to believe that a personhas committed a crime of genocide within the jurisdiction of the Court must be the only reasonable conclusion to be drawnfrom the evidence presented by the Prosecutor for an arrest warrant to be issued against the suspect of such crime.
{"title":"Standard of Proof Required to Issue an Arrest Warrant for Genocide","authors":"Enrique Carnero Rojo","doi":"10.5334/UJIEL.AJ","DOIUrl":"https://doi.org/10.5334/UJIEL.AJ","url":null,"abstract":"At the time of writing this case note, the case against Omar Al Bashir is the only genocide case before the InternationalCriminal Court. So far, the main legal question concerns whether the existence of reasonable grounds to believe that a personhas committed a crime of genocide within the jurisdiction of the Court must be the only reasonable conclusion to be drawnfrom the evidence presented by the Prosecutor for an arrest warrant to be issued against the suspect of such crime.","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"27 1","pages":"61-64"},"PeriodicalIF":0.0,"publicationDate":"2011-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70724375","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}
Recent case law from international courts shows an increased willingness to grant collective reparations. This article focuses on how the Inter-American Court of Human Rights has recently been involved in granting a variety of collective reparations to indigenous groups. Moreover, it illustrates the diverse nature of collective reparations, and why there is a need for them.
{"title":"Collective Reparations for Indigenous Communities Before the Inter-American Court of Human Rights","authors":"D. Contreras-Garduno, S. Rombouts","doi":"10.5334/UJIEL.AG","DOIUrl":"https://doi.org/10.5334/UJIEL.AG","url":null,"abstract":"Recent case law from international courts shows an increased willingness to grant collective reparations. This article focuses on how the Inter-American Court of Human Rights has recently been involved in granting a variety of collective reparations to indigenous groups. Moreover, it illustrates the diverse nature of collective reparations, and why there is a need for them.","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"27 1","pages":"4-17"},"PeriodicalIF":0.0,"publicationDate":"2011-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70724555","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}
Public procurement procedures in the EU are coordinated by Directives 2004/17/EC and 2004/18/EC. The acquis communautaire provides minimum requirements for review procedures against public procurement decisions in order to ensure access to effective remedies for economic operators. These minimum requirements are established in Directives 89/665/ EEC and 92/13/EEC and recently amended by Directive 2007/66/EC. The Helby report identified several substantive concerns over the Dutch proposal on the implementation the of the Remedies Directive; Wet implementatie rechtsbeschermingsrichtlijnen. Although the transposition target date has not been met, the Dutch legislature has succeeded to transpose Directive 2007/66/EC into Dutch law while addressing the concerns of the Helby report.
{"title":"Judicial Protection in the Field of Public Procurement: The Transposition into Dutch Law of Directive 2007/66/EC Amending the Remedies Directives","authors":"Wouter Berends","doi":"10.5334/ujiel.ac","DOIUrl":"https://doi.org/10.5334/ujiel.ac","url":null,"abstract":"Public procurement procedures in the EU are coordinated by Directives 2004/17/EC and 2004/18/EC. The acquis communautaire provides minimum requirements for review procedures against public procurement decisions in order to ensure access to effective remedies for economic operators. These minimum requirements are established in Directives 89/665/ EEC and 92/13/EEC and recently amended by Directive 2007/66/EC. The Helby report identified several substantive concerns over the Dutch proposal on the implementation the of the Remedies Directive; Wet implementatie rechtsbeschermingsrichtlijnen. Although the transposition target date has not been met, the Dutch legislature has succeeded to transpose Directive 2007/66/EC into Dutch law while addressing the concerns of the Helby report.","PeriodicalId":30192,"journal":{"name":"Merkourios","volume":"26 1","pages":"17-25"},"PeriodicalIF":0.0,"publicationDate":"2010-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70724417","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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