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According to Article 1 ECHR, States Parties are under the obligation to guarantee the Convention rights and freedoms to persons ‘within their jurisdiction’. In the famous Banković decision the European Court of Human Rights interpreted the notion of jurisdiction restrictively, considering it as an essentially territorial concept and its extraterritorial exercise as strictly exceptional. The decision has thus imposed a strong presumption against the applicability of the Convention to extraterritorial state conduct. This article explores the subject of extraterritorial application of the ECHR in view of the Court’s recent case law on Article 1. It shows that unlike in the case law of the European Court, jurisdiction in public international law is a flexible concept, the meaning of which is not necessarily restricted to territoriality. The article demonstrates that in the context of human rights treaties it is possible to devise a more suitable concept of jurisdiction; a concept that would be compatible with the general international law of jurisdiction and at the same time would make it possible to respond to the challenges posed by the globalization of state conduct affecting human rights.
The present topic has been extensively addressed by several authors during the 1990s. It has provoked harsh polemics and a passionate debate and still represents an issue of interest for the international lawyers, as no formal and complete answer to the question of the international judicial review has been brought to this day. This article tries to put forward an effective and efficient mechanism allowing the International Court of Justice to review the resolutions adopted by the Security Council in the realm of Chapter VII of the UN Charter. The approach of the subject is favourable to an international judicial review, which would render the intervention of the Council more legitimate, hence more easily accepted by states. The proposed method of judicial review must however ensure both the legitimacy and the efficiency of the political organ and strengthen, not weaken the United Nations' role in the maintenance of international peace and security. That is why the international judicial review mechanism should be carefully defined and should confer upon the international judge a limited power of appreciation. At the same time, the other international courts and tribunals should defer to the International Court on matters concerning the legality of the Security Council's coercive measures by means of a preliminary ruling mechanism.
Since 1995, Ethiopia has embarked upon a new federal system. Very little has been written about the process in general and about the manner in which the issues concerning the division of powers between the federal government and the states in Ethiopia are adjudicated The federal Constitution has several peculiar features. One of these relates to the institution empowered to interpret and adjudicate constitutional issues. Unless there is a tribunal that enforces the supremacy clause of the Constitution and that demarcates the proper sphere of the powers of the federal and state governments, chaos would result from jurisdictional conflicts. This power, by virtue of the federal Constitution belongs to the second chamber, otherwise known as the House of Federation. This article begins with a brief introduction of the federal system and proceeds to discuss the role, jurisdiction and procedure of the House of Federation (HOF) in the adjudication and interpretation of constitutional issues from a comparative perspective. It explains why vesting this power on the HOF, and not on the judiciary, was a policy choice.
In the long-lasting debate about reforming the United Nations, UN Secretary-General Kofi Annan appeared to want to make a difference. On the basis of a report prepared by a high level panel of experts he presented his own reform proposals in March 2005. At the beginning of 2005 a voluminous report on the development issue, the so-called Millennium Project Report (or ‘Sachs-Report’), was presented. On the basis of these documents an intense discussion set in. Despite the fact that the immediate result of this debate, the so-called 2005 World Summit Outcome of September 2005 was rather disappointing, the world community has now at their disposal an array of detailed studies and reports on some of the most topical issues in international law. As reform of the United Nations seems to be imperative the relative discussion will continue. This article aims at examining the strengths and faults of the documents mentioned and highlighting the extent to which the positions to be found therein are corresponding to the main structural elements of the international order presently in force. Finally, the article also considers whether these proposals are opening suitable avenues for a further development of UN law.
The impact of armed conflict on women is the subject of three recent international studies, two under the auspices of the United Nations and one undertaken by the International Committee of the Red Cross. These studies make a significant contribution to increasing knowledge of the ways in which women experience armed conflict and, moreover, propose strategies to address the problems they identify. There is virtual consensus, however, that the existing legal regime protecting women in times of armed conflict is adequate and that there is no place for progressive development of the law. This article challenges this conclusion. After examining the approach of the studies to the regime protecting women in times of armed conflict, the author argues that there is a need for a comprehensive initiative to consider whether in fact the law is adequate to deal with their situation of women in armed conflict.
Natural resources trust funds have been employed in the developed world since the 1970s in order to achieve a fair allocation of revenues and promote social growth. This model has been applied recently in developing economies, however lacking transparency and democratic oversight. As a result of increased public spending and depletion of the funds' assets, instead of economic growth, Dutch disease set in when oil prices fell. The World Bank-inspired Chad trust fund is the only of its kind with some external oversight and a contractual obligation by the recipient state to use the fund's earnings for social development. The idea is commendable, but implementation has been slack and if this model is to work in the future the Bank must condition similar loans to full external oversight, otherwise the whole operation will remain a farce.
There have been numerous unsuccessful attempts to define terrorism generically in international treaty law since the 1920s, from early conferences on the unification of criminal law to efforts in the League of Nations, the International Law Commission, and the UN General Assembly. While these sources do not carry great weight as evidence of customary law, they illustrate the recurring normative and political disputes surrounding definition and elucidate the basic features of an international prohibition and/or crime of terrorism, as perceived by different international actors. The recurrent attempts at definition indicate that the international community attaches considerable normative importance to it. Drafting of a UN Comprehensive Terrorism Convention continues in the Sixth Committee, and the UN High-Level Panel on Threats, Challenges and Change advocated definition in treaty law in late 2004. Generic definition of terrorism can capture and stigmatize the political motives which distinguish terrorism from ordinary violent crime, or transnational organized crime for financial benefit. Following an historical pattern, agreement on the scope of any exceptions to a definition of terrorism remains the key obstacle, although much of the argument about exceptions is ideological, not substantive.
The current litigation in the World Trade Organisation (WTO) over European restrictions on the importation, marketing and sale of genetically modified organisms gives rise to questions about the procedures through which international courts and tribunals may receive expert evidence from social science experts. The WTO Panel considering the EC – Biotech case received an amicus curiae brief from five social science experts who are highly qualified in precisely those fields of sociological research within which the most problematic aspects of the Biotech dispute are situated. The authors of the five-person brief themselves suggest that panels dealing with the subject of risk should contemplate formally appointing experts to assist them from disciplines additional to the natural sciences, and this suggestion merits serious broader consideration. International courts and tribunals’ handling of certain cases, such as those concerning risks to human health and the environment from new and modern technology, may stand to be improved through better access to state-of-the-art expertise on all aspects of risk and risk assessment.
The year 2005 marks the 10th anniversary of the establishment of the World Trade Organization – the multilateral body responsible for regulating the global trading regime. Whether because or in spite of the organization's existence, trade has brought unprecedented levels of economic prosperity to various parts of the world within this period. Even those parts of what used to be called ‘the Third World’ are beginning to challenge the appropriateness of that unfortunate categorization. However, much of sub-Saharan Africa has not only failed to become part of this trend, but has in fact become poorer than it was 25 years ago. Various excuses have been proffered, amongst which is that the GATT/WTO regime represents an impediment to its economic emancipation. This interdisciplinary critique aims to challenge this orthodoxy by offering a different analysis of the region's inability to trade, and by extension, of its failure to realize the rights proclaimed under the International Covenant on Economic, Social and Cultural Rights 1966.
The mastery of outer space as the basis of integrated battleground platforms is fast becoming a reality. As the two Gulf Wars and the Kosovo military campaign made clear, space assets are decisive in battle planning and execution. The contemporary move towards weaponization of space and its intersection with international law forms the basis of this article. This article analyses the militarization and weaponization of space. It is premised on the fact that the active move to militarization and weaponization of outer space that exposes the deficit of the international law space law regime. The article highlights the fact that the international space law legal regime now has a new game in the making for which it is in many ways ill equipped to handle.
The Chinese practice with regard to universal jurisdiction should not be ignored when examining its legal status under contemporary international law. Article 9 of the Chinese Criminal Code 1997 (CC 1997) provides the domestic legal basis for the PRC to exercise its criminal jurisdiction over those crimes stipulated in those concluded international treaties within the scope of obligations prescribed therein. This article explores the birth of the Chinese universal jurisdiction clause from a historical perspective, and makes a much-detailed interpretation of it in the combination of the jurisprudence and the most recent judicial practices. It is intended to clear up the misunderstanding widespread in the western world that the PRC never recognizes universal jurisdiction, and provides a picture of the Chinese understanding of universal jurisdiction in the CC 1997. However, due to the restrictions of the legal factors, such as the absence of certain international crimes and penalties in the CC 1997, the inability of applying the customary international criminal law in the Chinese courts, the requirement of the presence of the accused within the Chinese territory, as well as the respect of immunity for the persons with high official position, the effect of the Chinese universal jurisdiction clause is so restricted that it is almost impossible to play a role of suppressing international crimes, in particular those core crimes within the Rome Statute, in the international level.
Since 1 March 2002 the EC Regulation No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as the ‘Brussels I’ Regulation) operates in legal practice. On 1 May 2004 the new EU Member States had to accept the ‘Brussels I’ Regulation as acquis communautaire. The Regulation is now in force in all EU Member States, with the exception of Denmark. As mentioned in the previous survey, it is the intention to conclude eventually a convention with Denmark in which the solutions reached under the ‘Brussels I’ Regulation will be laid down. Then the necessary unity in the application of the rules of jurisdiction and of recognition and enforcement will be restored again. According to Article 68 EC the EC Court of Justice can give preliminary rulings on the interpretation of the ‘Brussels I’ Regulation. Although the first questions are put before the ECJ, there is no decision as yet in which the ‘Brussels I’ Regulation has been interpreted. In one decision regarding the interpretation of Article 5(3) Brussels Convention concerning the forum delicti, the ECJ referred to the solutions reached under the same provision in the ‘Brussels I’ Regulation. The Court decided that Article 5(3) Brussels Convention could also be used in case the harmful event might occur.