Pub Date : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0064
Elizabeth Odio Benito
This note highlights some of the innovative developments in the Inter-American Court’s jurisprudence during 2019, as well as some of the criteria that reaffirm the jurisprudence already established by the Court. This evolution of jurisprudence establishes important standards for domestic judicial organs and officials when they carry out the control of conventionality within their respective spheres of competence.
{"title":"Introductory Note","authors":"Elizabeth Odio Benito","doi":"10.1093/oso/9780197618721.003.0064","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0064","url":null,"abstract":"This note highlights some of the innovative developments in the Inter-American Court’s jurisprudence during 2019, as well as some of the criteria that reaffirm the jurisprudence already established by the Court. This evolution of jurisprudence establishes important standards for domestic judicial organs and officials when they carry out the control of conventionality within their respective spheres of competence.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122719195","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0007
R. Kolb
This chapter discusses the thesis found in some newer publications according to which the two branches of international humanitarian law and international human rights law were not as neatly separated between 1949 and 1968 as is often claimed. Its point is that while in effect no complete separation prevailed, the pendulum should not swing too much in the other direction. It would be an anachronistic ideological statement, projected back to the past, to say that both branches were in close relations since the times after World War II. Separation prevailed, but bridges were progressively built, blossoming since the end of the 1960s, especially in the wake of Israeli occupation of Palestinian territories.
{"title":"On the Origins of Human Rights in War","authors":"R. Kolb","doi":"10.1093/oso/9780197618721.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0007","url":null,"abstract":"This chapter discusses the thesis found in some newer publications according to which the two branches of international humanitarian law and international human rights law were not as neatly separated between 1949 and 1968 as is often claimed. Its point is that while in effect no complete separation prevailed, the pendulum should not swing too much in the other direction. It would be an anachronistic ideological statement, projected back to the past, to say that both branches were in close relations since the times after World War II. Separation prevailed, but bridges were progressively built, blossoming since the end of the 1960s, especially in the wake of Israeli occupation of Palestinian territories.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130496231","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0111
Giuliana Ziccardi Capaldo
Giuliana Ziccardi Capaldo Founding General Editor Giuliana Ziccardi Capaldo, Emeritus Professor of International Law, University of Salerno, is internationally renowned as a pioneer of global law and global community. As the architect of the integrated approach, in her book The Pillars of Global Law (2008), she pioneered her vision of global constitutionalism based on the idea of securing globally shared governance in terms of constitutional democracy as well as constitutional principles within the global community as a whole....
{"title":"Celebration of the 20th Anniversary of the Global Community Yearbook of International Law and Jurisprudence","authors":"Giuliana Ziccardi Capaldo","doi":"10.1093/oso/9780197618721.003.0111","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0111","url":null,"abstract":"Giuliana Ziccardi Capaldo\u0000 Founding General Editor\u0000 Giuliana Ziccardi Capaldo, Emeritus Professor of International Law, University of Salerno, is internationally renowned as a pioneer of global law and global community. As the architect of the integrated approach, in her book The Pillars of Global Law (2008), she pioneered her vision of global constitutionalism based on the idea of securing globally shared governance in terms of constitutional democracy as well as constitutional principles within the global community as a whole....","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"172 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123331126","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0083
D. Nelken
Global social indicators, as a form of governance and soft regulation, can exert pressure for change and compliance through the way they compare and then rank the relative performance of states or other units. Is it reasonable to expect the comparisons they make in the process of carrying out such strategic exercises to be accurate and fair? In particular, how far can they, or should they, be required to be faithful to the requirement to “compare like with like”? This chapter first summarises some of the key features of global social indicators. It then goes on to analyse the differences (and overlap) between the tasks of comparing (learning about similarities and differences) and commensuration (showing equivalence and seeking to make matters come into line). Using as an example the role of indicators in documenting and responding to the current coronavirus epidemic, the chapter traces the way the hybrid and sometimes inconsistent commitment to both comparison and commensuration helps account for the difficulty they have had so far at establishing stable rankings of best practice. What can be learnt may also be of more general relevance.
{"title":"Global Social Indicators, Comparison, and Commensuration: A Case Study of COVID Rankings","authors":"D. Nelken","doi":"10.1093/oso/9780197618721.003.0083","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0083","url":null,"abstract":"Global social indicators, as a form of governance and soft regulation, can exert pressure for change and compliance through the way they compare and then rank the relative performance of states or other units. Is it reasonable to expect the comparisons they make in the process of carrying out such strategic exercises to be accurate and fair? In particular, how far can they, or should they, be required to be faithful to the requirement to “compare like with like”? This chapter first summarises some of the key features of global social indicators. It then goes on to analyse the differences (and overlap) between the tasks of comparing (learning about similarities and differences) and commensuration (showing equivalence and seeking to make matters come into line). Using as an example the role of indicators in documenting and responding to the current coronavirus epidemic, the chapter traces the way the hybrid and sometimes inconsistent commitment to both comparison and commensuration helps account for the difficulty they have had so far at establishing stable rankings of best practice. What can be learnt may also be of more general relevance.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134138524","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0020
Michael C. Tolley
Europe’s national, supranational, and international governance structures produce parallel and often overlapping systems of rights protection. After more than sixty years’ experience with the European Convention on Human Rights, the advent in 2009 of the Charter of Fundamental Rights added new complexity to the human rights system. Examined here are the three dimensions of rights protection in this multi-layered system and the challenges resulting from this complexity, including: (1) uncertainty and confusion over the scope and level of rights protection, (2) general lack of uniformity in the recognition and enforcement of rights from one country to the next, and (3) questions over who has the last word on the protection of rights in Europe. Assessed in the conclusion are how and to what extent the unique interactions of national courts, the European Court of Human Rights, and the Court of Justice of the European Union affect outcomes such as the protection of fundamental rights.
{"title":"The Three Dimensions of Rights Protection in Europe’s Multi-Layered System of Governance","authors":"Michael C. Tolley","doi":"10.1093/oso/9780197618721.003.0020","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0020","url":null,"abstract":"Europe’s national, supranational, and international governance structures produce parallel and often overlapping systems of rights protection. After more than sixty years’ experience with the European Convention on Human Rights, the advent in 2009 of the Charter of Fundamental Rights added new complexity to the human rights system. Examined here are the three dimensions of rights protection in this multi-layered system and the challenges resulting from this complexity, including: (1) uncertainty and confusion over the scope and level of rights protection, (2) general lack of uniformity in the recognition and enforcement of rights from one country to the next, and (3) questions over who has the last word on the protection of rights in Europe. Assessed in the conclusion are how and to what extent the unique interactions of national courts, the European Court of Human Rights, and the Court of Justice of the European Union affect outcomes such as the protection of fundamental rights.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127243052","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0019
O. Spijkers
This chapter provides an analysis of the actual and potential contribution of climate litigation to the further development of global law. It identifies certain general trends that can be deduced from the already existing examples of climate litigation that may shape the evolution of global law applicable to the global community’s efforts to jointly combat climate change. Included in the scope of the analysis of this chapter are issues as diverse as the relationship between the courts and the lawmakers, as well as the role of scientific evidence in judicial reasoning. This chapter also addresses the role of the courts in interpreting the human right to a healthy environment and its application in the context of climate change. Finally, an analysis is provided of the legal representation of the rights and interests of climate migrants and climate refugees, of people living abroad, of future generations, and of nature itself.
{"title":"Climate Litigation as Global Law","authors":"O. Spijkers","doi":"10.1093/oso/9780197618721.003.0019","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0019","url":null,"abstract":"This chapter provides an analysis of the actual and potential contribution of climate litigation to the further development of global law. It identifies certain general trends that can be deduced from the already existing examples of climate litigation that may shape the evolution of global law applicable to the global community’s efforts to jointly combat climate change. Included in the scope of the analysis of this chapter are issues as diverse as the relationship between the courts and the lawmakers, as well as the role of scientific evidence in judicial reasoning. This chapter also addresses the role of the courts in interpreting the human right to a healthy environment and its application in the context of climate change. Finally, an analysis is provided of the legal representation of the rights and interests of climate migrants and climate refugees, of people living abroad, of future generations, and of nature itself.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"113 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122460455","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0008
Sonja C. Grover
This chapter explores the distinction between “abuse of Executive and/or congressional power” versus “maladministration” and argues that in the democratic context the former cannot properly be collapsed as but a subset of the latter. It is contended that such abuse of power involves a violation of the public trust based on egregious violation(s) of the fundamental human rights of an individual or collective and is hence ultra vires. Selected US judicial rulings are examined that “call out” the executive under Donald Trump for abuse of power in the handling of undocumented minors in US immigration detention during the COVID-19 pandemic. Also discussed is the US Supreme Court decision in Plyler v. Doe, which placed the protection of the basic human rights of undocumented children within US jurisdiction as central to the analysis as to whether the Texas legislature had acted beyond its jurisdiction in denying the children’s right to access education.
{"title":"“Abuse of Executive Power” versus Simply Bad Policy (or Maladministration) and Why the Distinction Matters","authors":"Sonja C. Grover","doi":"10.1093/oso/9780197618721.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0008","url":null,"abstract":"This chapter explores the distinction between “abuse of Executive and/or congressional power” versus “maladministration” and argues that in the democratic context the former cannot properly be collapsed as but a subset of the latter. It is contended that such abuse of power involves a violation of the public trust based on egregious violation(s) of the fundamental human rights of an individual or collective and is hence ultra vires. Selected US judicial rulings are examined that “call out” the executive under Donald Trump for abuse of power in the handling of undocumented minors in US immigration detention during the COVID-19 pandemic. Also discussed is the US Supreme Court decision in Plyler v. Doe, which placed the protection of the basic human rights of undocumented children within US jurisdiction as central to the analysis as to whether the Texas legislature had acted beyond its jurisdiction in denying the children’s right to access education.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122499106","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0005
S. W. Becker
This chapter addresses the interplay between the rule of specialty, prudential standing, and diplomatic protests in current US international extradition practice through examining the controversial decisions of the Eleventh Circuit Court of Appeals in the case of United States v. Valencia-Trujillo regarding which the Republic of Colombia has issued no less than three diplomatic notes of objection. To date, the Eleventh Circuit’s direct appeal decision in Valencia-Trujillo remains the most extreme holding in the country and has created a direct conflict with other federal circuits. The work further analyzes competing theories on the rule of specialty and whether its enforcement is dependent upon the nature of the extradition, as well as issues related to ineffective assistance of counsel. Finally, the chapter concludes with practical advice for attorneys litigating such complex matters.
{"title":"When Diplomatic Protests Are Not Enough","authors":"S. W. Becker","doi":"10.1093/oso/9780197618721.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0005","url":null,"abstract":"This chapter addresses the interplay between the rule of specialty, prudential standing, and diplomatic protests in current US international extradition practice through examining the controversial decisions of the Eleventh Circuit Court of Appeals in the case of United States v. Valencia-Trujillo regarding which the Republic of Colombia has issued no less than three diplomatic notes of objection. To date, the Eleventh Circuit’s direct appeal decision in Valencia-Trujillo remains the most extreme holding in the country and has created a direct conflict with other federal circuits. The work further analyzes competing theories on the rule of specialty and whether its enforcement is dependent upon the nature of the extradition, as well as issues related to ineffective assistance of counsel. Finally, the chapter concludes with practical advice for attorneys litigating such complex matters.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127287213","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0010
R. Mansbach
This chapter is a description and analysis of crucial foreign-policy issues in the four years of Donald Trump’s presidency. During this period, the United States largely abandoned the liberal global order, which it had led and protected since World War II. It has also alienated allies and maligned their democratic leaders even while the president has praised US foes and their authoritarian leaders. The chapter integrates crucial issues such as arms control, climate change, and trade with key states such as Russia, China, Europe, and Iran and examines the impact of these policies. In sum, America’s foreign policy since the 2016 presidential election has diverged from that of Trump’s predecessors while significantly increasing the dislike of the US globally but especially among those countries with which America had shaped deep military, political, and/or economic links, thereby establishing a more dangerous world.
{"title":"America’s Foreign Policy under Donald Trump","authors":"R. Mansbach","doi":"10.1093/oso/9780197618721.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0010","url":null,"abstract":"This chapter is a description and analysis of crucial foreign-policy issues in the four years of Donald Trump’s presidency. During this period, the United States largely abandoned the liberal global order, which it had led and protected since World War II. It has also alienated allies and maligned their democratic leaders even while the president has praised US foes and their authoritarian leaders. The chapter integrates crucial issues such as arms control, climate change, and trade with key states such as Russia, China, Europe, and Iran and examines the impact of these policies. In sum, America’s foreign policy since the 2016 presidential election has diverged from that of Trump’s predecessors while significantly increasing the dislike of the US globally but especially among those countries with which America had shaped deep military, political, and/or economic links, thereby establishing a more dangerous world.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130844695","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 : 2021-12-31DOI: 10.1093/oso/9780197618721.003.0052
Linos-Alexander Sicilianos, Afroditi Gkagkatsi
This chapter contains an overview of the activities of the European Court of Human Rights in 2019. It outlines the major events that took place, including the first advisory opinion given pursuant to Protocol 16 and the first Infringement Proceedings concerning the execution of the Court’s judgments pursuant to Article 46, Paragraph 4 of the Convention. It refers to the importance of the completion of the Interlaken process, to the new structure and drafting methodology of the Court’s judgments, to the efforts that need to be deployed in order to further reduce the Court’s backlog, as well as to the intensification of the dialogue of the Court, especially with judicial authorities and Council of Europe monitoring bodies. The main part of the overview consists of a presentation of some of the most noteworthy judgments delivered in 2019 on a variety of issues, including migrants and asylum seekers, environmental pollution, violence against women, and video surveillance. It concludes that the Court, through its activities and its judgments on the most contemporary issues, remains relevant and continues to provide guidance to international organs and national authorities alike.
{"title":"Introductory Note","authors":"Linos-Alexander Sicilianos, Afroditi Gkagkatsi","doi":"10.1093/oso/9780197618721.003.0052","DOIUrl":"https://doi.org/10.1093/oso/9780197618721.003.0052","url":null,"abstract":"This chapter contains an overview of the activities of the European Court of Human Rights in 2019. It outlines the major events that took place, including the first advisory opinion given pursuant to Protocol 16 and the first Infringement Proceedings concerning the execution of the Court’s judgments pursuant to Article 46, Paragraph 4 of the Convention. It refers to the importance of the completion of the Interlaken process, to the new structure and drafting methodology of the Court’s judgments, to the efforts that need to be deployed in order to further reduce the Court’s backlog, as well as to the intensification of the dialogue of the Court, especially with judicial authorities and Council of Europe monitoring bodies. The main part of the overview consists of a presentation of some of the most noteworthy judgments delivered in 2019 on a variety of issues, including migrants and asylum seekers, environmental pollution, violence against women, and video surveillance. It concludes that the Court, through its activities and its judgments on the most contemporary issues, remains relevant and continues to provide guidance to international organs and national authorities alike.","PeriodicalId":416751,"journal":{"name":"The Global Community Yearbook of International Law and Jurisprudence 2020","volume":"136 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133615547","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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