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This paper deals with the linkage of international human rights and climate change. It focuses on the approach to deduce legal claims in the form of compensations and concrete measures from international human rights in the course of impairments through climate change. This paper shall give a short overview on the issue climate change in general, including its causes, effects and the current political strategies. It furthermore provides a synopsis on how human rights are impaired by global warming and climate change effects. Unfortunately, this essay will come to the conclusion that the international human rights approach struggles with functioning as a solitary legal basis in that context and with stepping beyond the just moral implication. Human rights' legislative potential rather lies 'in the development of more encompassing and more inclusive legal and political strategies. Human rights may advisably be instrumentalized to strengthen political debates and be used as an incitement to set up enforceable and balanced agreements on reasonable measures of equalization and support.
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The EU law is an independent law order. It is not a kind of international law, and it does not fall into the scope of the internal law of the EU Member States. It is to be applied by the EU Member-States on their territories as a separate legal system. Supremacy and direct effect represent the core principles of the EU law system. Direct effect is a characteristic related to the EU law provisions, and not to the EU law instruments and provisions' sources. EU law provisions can produce a vertical direct effect as well as a horizontal direct effect. Provisions that can produce both a vertical and a horizontal direct effect are recognised as provisions with a 'full direct effect'. The notions of 'immediate enforceability' and 'direct effect', both implied by the definition of 'direct applicability' as contained in the Art 249 EC, are to be clearly distinguished from each other. 'Direct applicability' as synonymous with 'immediate enforceability' is only to be placed in relation to the sources of EU law, and as good as never in relation to the provisions contained therein. It is justified to be spoken on 'direct effect' solely in relation to EU law provisions, and as good as never in relation to EU law acts (sources). Regulations are mandatory in their entirety. By being compulsory in all their elements, Regulations most clearly differ from Directives that are compulsory as to the results only. Regulations do have direct effect in their entirety. The existence of provisions in a given Regulation that require measures of application adopted by the Member States, however, does not preclude the Regulation itself from having a direct effect as to the rest of its provisions. Thus, it is for national courts not just to automatically apply those Regulation's provisions that have an explicit direct effect but also to control the consistency of the adopted national measures with a given Regulation.
Is the right to fair trial applicable to immigration law cases? In this essay, we will see that the situation in Germany, the Netherlands, Belgium, the United Kingdom and Turkey differs significantly from the situation in the other states which are parties to the European Convention on Human Rights (ECHR). It is the aim of this text to provide lawyers in those countries with a short guidance as to how to approach both the European Court of Human Rights but also - and even more importantly - domestic courts with regard to this issue. In particular the high caseload of immigation law courts as well as a lack of knowledge about the Convention make it necessary for practising lawyers to be informed about the rights of their clients. This article is designed as a practical guide and first reference paper for lawyers to assess the prospect of cases dealing with rights of migrants. The first part of this article will deal with ratione loci of the ECHR and its fundamental jurisprudence focusing on the special issues appearing in the context of migration law. In the second part the right to a fair trial under Art. 6 ECHR will be addressed including recent rulings of the Court and fundamental questions regarding the administrative procedure of granting asylum. The final part will be dealing with the rights of asylum seekers in countries which did not ratify Protocol 7 and the consequences this fact entails.Attorney Dr. Stefan Kirchner, MJI, is Associate Professor of Fundamental and Human Rights at the University of Lapland in Rovaniemi, Finland.
Computers represent a stark example of dual use technology as they can be used for peaceful and military purposes, such as espionage and cyber-attacks. Cyber-attacks are a new tool of coercion, which brings many advantages for potential perpetrators in comparison with conventional attacks. For example, the knowledge and equipment necessary to initiate a computer network attack are widely available. The response of international law to this problem has been slow, attempting to twist existing legal frameworks to fit the new challenge. The present essay considers whether the international community should view computerized network attacks as a prohibited use of force under Article 2(4) of the UN Charter.The first section defines the parameters of cyber-attack and distinguishes it from other forms of computer crime. Several reasons for choosing cyber-attack over conventional weapons are identified. The second section discusses whether cyber-attack constitutes 'armed force'. Cyber-attack is contrasted with other forms of coercion such as political and economic coercion as well as chemical and biological weapons. The final section poses the question whether cyber-attacks are prohibited by Article 2(4) of the UN Charter, particularly focusing on the issue of consequentiality.
Rapidly developing technologies are providing new and very powerful means to sort, combine and analyse data. This data exists in a networked environment, thus personal information can be collected and processed on any computer on the Net and is, at least in theory, accessible by every computer on the Net. The development of the Internet has made it possible to transfer this data 'around the globe at the click of a mouse'. Fresh business models such as 'cloud computing', the newest 'driver to illustrate the speed and breadth of the environment', allow this data to be processed across national borders on a routine basis. Individuals and companies are 'increasingly immersed in social networking, search technologies, online commerce and many other activities in which information about an individual is sent worldwide from one point to another'. These activities became more and more borderless, because the Internet, as an open window to the world, blurs the lines between public and private space, firstly since globalisation and the outsourcing of economic actors entrain an ever growing exchange of personal data, additionally because of the security pressure in the name of the legitimate fight against terrorism opens the access to a significant number of data to an increasing number of public authorities and finally this is due the tools of the digital society accompany everyone at each stage of life by leaving permanently individual and borderless traces in both space and time. Therefore, calls of both the public and private sectors for an international legal framework for privacy and data protection have become louder. Privacy Commissioners appealed to the United Nations 'to prepare a binding legal instrument which clearly sets out in detail the rights to data protection and privacy as enforceable human right'. This appeal was repeated in 2008 at the 30th International Conference held in Strasbourg , and at the 31th conference 2009 in Madrid through the draft of a global legal instrument on Data Protection with a view to submitting it to the United Nations. But also companies such as Google and Facebook have come under continuous pressure from governments and citizens to reform data use of data. Could these calls possibly be best achieved by an international framework for Data Protection, rather than a collection of national or regional approaches?...
Traditional international law was firmly rooted in the assumption that no international obligation could ever trump the national public interest. This sovereigntist account of public interest has been replaced by a constitutionalist account. Hence, human rights law and trade law allow for national public interest considerations, but the international agreements require states to submit their policies to international adjudication. The study gives a comprehensive overview of the case law of the Strasbourg organs, of the ECJ and of the WTO dispute settlement bodies with regard to the so-called escape clauses of the respective treaties. Recently, a third communal account of public interest has become important. A global common good requires international law to adapt its structures and to overcome its horizontal architecture. The study investigates into the various doctrinal elements which are invoked in the name of a global public interest, such as jus cogens, norms erga omnes or the 'common heritage of mankind'. Original in its approach, the study concludes that the use of ordre public in private international law may be a way of accommodating universal conceptions of the public interest with national conceptions.
Is there universalism of human rights? If so, what are its scope and limits? This book is a doctrinal attempt to define universalism of human rights, as well as its scope and limits. The book presents tests of universalism on international, regional and national constitutional levels. It is maintained that universalism of human rights is both a 'concept' and a 'normative reality'. The normative character of human rights is scrutinized through the study of international and regional agreements as well as national constitutions. As a consequence, limitations of normativity are identified, usually on the international level, and take the form of exceptions, reservations, and interpretations. The book is based on the General and National Reports which were originally presented at the 18th International Congress of the International Academy of Comparative Law in Washington D.C. 2010.
Determining the earliest point in time at which international law authorises a state to exercise its inherent right of self-defence is an issue which has been debated, but unsatisfactorily reasoned, by scholars and states since the 1960's. Yet it remains arguably the most pressing question of law that faces the international community. This book unravels the legal and factual complications which have obscured the answer to this question. In contrast to most other works, it takes an historic approach by tracing the evolution of the rights, rules and principles of international law which have governed the use of force by states since the 16th century. Its emphasis on self-defence provides the reader with a new and complete understanding of how and why the international legal framework limits defensive force to repelling an imminent threat or use of offensive force which is directed at the territory of a state.Taking an historic approach enables this book to resurrect an understanding of the human defensive instinct which has guided the formation of the international law of self-defence. It also explains the true legal nature and scope of the inherent right of self-defence, of anticipatory self-defence and provides a definition of the legal commencement of an armed attack for the purpose of Article 51 of the Charter. Finally, the reader will receive a unique source of research materials and analysis of state practice and of scholarly works concerning self-defence and the use of force since the 16th century, which is suitable for all readers of international law around the world.
Human rights have transformed the way in which we conceive the place of the individual within the community and in relation to the state in a vast array of disciplines, including law, philosophy, politics, sociology, geography. The published output on human rights over the last five decades has been enormous, but has remained tightly bound to a notion of human rights as dialectically linking the individual and the state. Because of human rights' dogged focus on the state and its actions, they have very seldom attracted the attention of legal pluralists. Indeed, some may have viewed the two as simply incompatible or relating to wholly distinct phenomena. This collection of essays is the first to bring together authors with established track records in the fields of legal pluralism and human rights, to explore the ways in which these concepts can be mutually reinforcing, delegitimizing, or competing. The essays reveal that there is no facile conclusion to reach but that the question opens avenues which are likely to be mined for years to come by those interested in how human rights can affect the behaviour of individuals and institutions.
Spaceflight is a rational undertaking, yet full of emotions. It is a dream of mankind and a multi-billion industry likewise. It is subject to a distinct branch of law - and moreover part of modern pop culture. In short: spaceflight is fascinating. 'Outer Space in society, politics and law' is an inter-disciplinary approach to the understanding of modern space law. Technical, cultural and historical aspects lay the foundation for a sound comprehension why space law norms have been established and what they mean in practice. The reader will realize the impact space and spaceflight have on society - from Stonehenge to climate change. A new approach to presenting space law: comprehensive and illustrative.