Max Planck Yearbook of United Nations Law Online最新文献

{"title":"UN Membership and the State Requirement","authors":"Jure Vidmar","doi":"10.1163/18757413_02401008","DOIUrl":"https://doi.org/10.1163/18757413_02401008","url":null,"abstract":"The UN Charter provides that membership is open to all peace- loving States. How should one understand the State requirement for UN membership, and is it linked to the law of statehood? This article analyses the practice of UN admission procedures and contextualizes it broadly with the State requirement in international treaties. It argues that some non- States have been Member States as well as non- member observer States of the UN. Such practice should not be labelled as being anomalous or sui generis. Rather, it should be taken as evidence of separation between international treaty procedures on the one hand and the substantive law of statehood on the other. Certain voting procedures regulated by international treaties should not be mistaken for state- creation procedures or collective recognition. Membership of the UN or its specialized agencies can have far- reaching effects, however. Such membership effectively creates an entity’s treaty- making capacity where treaties are generically open to all States. The member then procedurally becomes a State for the purposes of participation in such international treaty regimes. This should not be conflated with State creation. The term ‘State’ for the purposes of participation in international treaties open to ‘any State’ or ‘all States’ is functionally defined by the so- called ‘Vienna formula’: it is not a matter of the Montevideo criteria or any other requirements under the law of statehood. This article thus argues that for the sake of doctrinal clarity, such procedural definitions of the ‘State’ for the purposes of participation in multilateral treaties need to be consistently separated from the substantive issues of the law of statehood. Palestine’s appearance before international judicial bodies proves that such a separation is in principle upheld in international practice, but the line is sometimes unclear.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129347025","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":"Gerhard Werle & Florian Jessberger, Principles of International Criminal Law (oup 2020), 630 pages, isbn 978-0-19-882686-6","authors":"Stephanie Schlickewei","doi":"10.1163/18757413_02401016","DOIUrl":"https://doi.org/10.1163/18757413_02401016","url":null,"abstract":"","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121412352","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":"Pandemics, Planetary Health and Human Rights","authors":"M. Wewerinke‐Singh","doi":"10.1163/18757413_02401013","DOIUrl":"https://doi.org/10.1163/18757413_02401013","url":null,"abstract":"Global solidarity and international cooperation are key to addressing compound global crises – such as climate change, biodiversity loss and pandemics – effectively. It remains unclear, however, to what extent, and on what legal basis, solidarity and international cooperation constitute legal obligations of States under different branches of international law. Questions also persist about the extent to which and how States’ obligations of international cooperation are differentiated; what common and differentiated obligations entail in practice for States at different levels of development; and how potential conflicts between different types of obligations (e.g. territorial and extraterritorial human rights obligations) must be addressed. This article seeks to unpack these questions from the perspective of international human rights law, giving due consideration to relevant principles and provisions of international environmental agreements. It builds on international law scholarship that has explained how and why the provisions of the UN Charter should be interpreted as creating genuine membership duties, including an obligation to cooperate to realise human rights. Further, it builds on more recent scholarship that has explored how this obligation applies in connection with climate change and biodiversity, and on a nascent body of scholarship on the covid- 19 crisis, human rights and international law. The aim of the article is to explore the role of the principle of solidarity and the duty to cooperate to realise human rights in devising more effective and holistic responses to compound global crises.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"19 14","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133424932","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":"Autonomous Weapon Systems and Human Control","authors":"E. Hoffberger-Pippan","doi":"10.1163/18757413_02401009","DOIUrl":"https://doi.org/10.1163/18757413_02401009","url":null,"abstract":"The deployment of autonomous weapon systems (‘aws’) in military operations is a major concern for the international community. While the military in particular argues that increased autonomy mitigates the risks of death and injury for civilians, scientists and civil society emphasise that humans still have to play a decisive role when increasingly outsourcing core competences to machines. In 2017, a Group of Governmental Experts (‘gge’) met for the first time to discuss legal and ethical issues of aws. The centrepiece of the debate was (and still is) the role humans play in an increasingly automated battlefield. In the past couple of years, consensus has been emerging on the necessity of maintaining human control. It will be argued in this contribution that human control (in abstracto) is not merely a political demand. It is also a legal obligation derived from international humanitarian law (‘ihl’). This contribution seeks to analyse relevant rules of ihl with a specific focus on the legal nature of the Martens Clause arguing that human control (in abstracto) is not only politically desired but that it is legally required. That being said, the various concepts aiming to implement and operationalise human control (in concreto) will be examined with a view to offering solutions for a potential regulatory framework on aws at the United Nations (‘UN’) in Geneva.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116823285","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":"William E. Butler, International Law in the Russian Legal System (New York: oup 2020), 227 pages, isbn 978-0-19-884294-1","authors":"Lidia Carchilan","doi":"10.1163/18757413_02401015","DOIUrl":"https://doi.org/10.1163/18757413_02401015","url":null,"abstract":"","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115392159","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":"NHRIs as Autonomous Human Rights Treaty Actors","authors":"Hinako Takata","doi":"10.1163/18757413_02401007","DOIUrl":"https://doi.org/10.1163/18757413_02401007","url":null,"abstract":"What roles do National Human Rights Institutions (‘nhri s’) play in UN human rights treaties, and what is the normative basis of such roles? Although NHRIs are formally State organs, UN human rights treaty bodies have increasingly permitted them to participate in their procedures not as part of the State but in their own capacity as NHRIs. UN human rights treaty bodies have referred to the information and views submitted by nhri s even when such submissions did not conform to the positions taken by their States. In this sense, NHRIs are increasingly acquiring an autonomous status that is distinct from that of States under UN human rights treaties. Through a comprehensive and up- to- date examination of the practices of treaty bodies and the Global Alliance of National Human Rights Institutions and by employing the theoretical lens of ‘global legal pluralism’, this article shows that the autonomous status of NHRIs has a solid normative basis. It is the product of the cooperative relationship between UN human rights treaties and the ‘Paris Principles’, an autonomous legal order of, by, and for nhri s, under the overarching values and principles of human rights protection, democracy, and subsidiarity.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115633190","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":"The End of the United Nations?","authors":"Hitoshi Nasu","doi":"10.1163/18757413_02401005","DOIUrl":"https://doi.org/10.1163/18757413_02401005","url":null,"abstract":"A dynamic shift in global power balance and the rapid pace of technological advances are likely to pose an existential threat to the United Nations (‘UN’) and its collective security system. The political impasse at the Security Council has undermined its ability to address international security crises in recent years. Proceeding with the assumption that the UN collective security system ceases to perform its function, this article provides a thought experiment (Gedankenexperiment) on how international law might operate and evolve in the absence of collective security enforcement. The primary focus of this inquiry is to what extent the fundamental structure of international law might revert to the pre- Charter era and how the modern development of international law achieved under the UN Charter might survive and set a course for normative restructuring. This article tests the hypothesis that the receding institutional capacity to contain destabilising behaviour will have a normative impact on the existing rules of international law, insofar as their modern development has depended upon the institutional framework for collective security. It does so by examining the normative impact in the following three areas of international law: (1) jus ad bellum; (2) the legal authority of regional institutions for collective security; and (3) restrictions on military support to a belligerent involved in international armed conflict under the law of neutrality. It finds that the legal implications of the demise of collective security are likely to be limited, with a gradual shift in State practice and an associated change in opinio juris as States interact with specific instances of security threats.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122445326","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":"Advancing the Rule of Law and Human Rights Protection through United Nations Mandated Mechanisms","authors":"Yousuf Syed Khan, C. Majinge","doi":"10.1163/18757413_02401011","DOIUrl":"https://doi.org/10.1163/18757413_02401011","url":null,"abstract":"Over the past fifteen years, the international community has increasingly relied upon United Nations mandated mechanisms comprising commissions of inquiry, fact- finding missions, and investigations to help address gross violations of human rights and the often blatant disregard for the rule of law during periods of civil unrest, conflict, and post-conflict contexts. The primary reason for why this approach has been preferred centres upon the fact that achieving accountability through internationally mandated tribunals and prosecutions is not only difficult to realize but further complicated due to realpolitik permeating among relevant international decision- making structures. For example, to activate meaningful judicial accountability at the international level, agreement amongst the highest echelons of the United Nations vis- a- vis a Security Council resolution is required to mandate an accountability mechanism. Indeed, even a referral to the permanent International Criminal Court underpinned by the Rome Statute requires a Security Council referral for non- State parties. The complexity of activating these measures, however, has served to ensure the continuation of numerous protracted armed conflicts – characterized by the perpetration of atrocity crimes, violations of international humanitarian law, and violations and abuses of human rights – to the detriment of millions of civilians worldwide.\u0000 This contribution finds that the Commissions of Inquiry on Syria and Libya have been able to advance the rule of law and the protection of human rights by investigating and reporting publicly on findings by all parties to these respective conflicts, in particular on atrocity crimes, violations of international humanitarian law, and violations and abuses of human rights perpetrated by non- State actors. Both Commissions have taken similar positions on the application of human rights to non- State actors, in that non- State actors that cannot formally become parties to international human rights treaties must nevertheless respect the fundamental human rights of persons in areas where such actors exercise de facto control.\u0000 The contribution continues by exploring the roles of the Commissions of Inquiry for Syria and Libya in the general quest for prevention: i.e., can the establishment of these mechanisms deter belligerents from perpetrating abuses of human rights and disregarding the rule of law? The article argues that if UN- mandated mechanisms – including commissions of inquiry, fact- finding missions, and investigations – are well supported, especially when concerned States grant such bodies protected access on the ground, they can significantly act as a deterrent and contribute to the respect for human rights and the rule of law. This may be achieved particularly through their cooperation and sharing with accountability bodies and the documentation and preservation of evidence collected.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125880070","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":"Carsten Stahn and Jens Iverson (eds), Just Peace After Conflict: Jus Post Bellum and the Justice of Peace (oup 2020), 384 pages, isbn: 9780198823285","authors":"Ahmed Badr","doi":"10.1163/18757413_02401014","DOIUrl":"https://doi.org/10.1163/18757413_02401014","url":null,"abstract":"","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"131 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132561962","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":"The Relationship between Institutional Design and the Efficiency of a Jurisdiction","authors":"Anna Kane","doi":"10.1163/18757413_02401010","DOIUrl":"https://doi.org/10.1163/18757413_02401010","url":null,"abstract":"Regional judicial bodies all serve to protect, interpret, and develop the law of the community in which they are established. While they share these common objectives, differences in admissibility, procedure rules, and jurisdiction can be noted. This study aims to shed light on differences in the design of jurisdictions; specifically, it explores whether they impact the efficiency of such courts. Our hypothesis is that institutional design can be used to fix issues – such as enforcement – that some Courts of Justice face. To test this theory, the study focuses on the Court of Justice of the Economic Community of West African States. Using rational design theory, the study of the Court’s case law, its history, and empirical observations, we found that the particularities in admissibility and procedural rules, as well as the scope of the Court’s jurisdiction, were established to bypass some issues linked to the lack of access to justice and weak rule of law in the area. The innovative institutional design allowed the court to be more efficient and helped to establish it as an alternative to national courts for citizens, which in turn promoted the rule of law in the region. However, some problems were left unsolved, and the Court today again faces issues it had managed to avoid in the past. This study concludes that institutional design can serve to create a more efficient judicial body, especially in complex regions. However, there is a risk of only observing short term effects if the adjustments made do not maintain a certain institutional equilibrium.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125590839","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}