Max Planck Yearbook of United Nations Law Online最新文献

{"title":"Social Movements and the Legal Field: Becoming-Constituent","authors":"Xenia Chiaramonte","doi":"10.1163/18757413_022001015","DOIUrl":"https://doi.org/10.1163/18757413_022001015","url":null,"abstract":"The relationship between social movements and the legal field is controversial and complex. This paper begins by recognizing that the concept of social movement does not belong to legal doctrine and then synthetically reconstruct the relevance of it for a legal understanding. In fact, even if this concept is not formally taken into account by constitutions or by legal codes, a socio-legal approach underscores the need for the comprehension and inclusion of collective phenomena into legal theory. First, the paper explores the way in which ‘social movement’ has been taken up and translated in the legal field through the concept of social change and constitutional change. Second, this research goes through various cases in which social movements use law strategically, from the phenomenon of cause lawyering to the litigation strategy. Finally, it stands for a theoretical understanding of the role of social movements in legal theory as a lively expression of ‘becoming-constituent’.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"333 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120951510","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":"UN Security Council Reform—The Council Must Lead by Example","authors":"H. Corell","doi":"10.1163/18757413_022001002","DOIUrl":"https://doi.org/10.1163/18757413_022001002","url":null,"abstract":"The point of departure in the present article is that the UN Security Council must be reformed. But this reform should not focus on extending the membership of the Council, which seems to be the main issue in the discussion at present. It is imperative that the Council is maintained as an executive organ since this is a precondition for its effective functioning. Too many members would destroy this requirement completely, in particular if additional members are granted veto power. Already 15 members may be past the limit for an executive organ. Additional members will endanger the Council’s ability to fulfil its obligations under Art. 24 of the UN Charter: the primary responsibility for the maintenance of international peace and security.\u0000Instead, the reform should focus on resolving the real problem with the Council, namely the manner in which the permanent members sometimes behave. The exercise of the veto power must be in conformity with the UN Charter, which now must be viewed against the background of the development of international law since the UN was established more than 70 years ago. The manner in which some permanent members exercise their veto power is simply not in conformity with the Charter.\u0000Against this background it is absolutely necessary that the five permanent members engage in a profound discussion about their performance and the manner in which the veto power is exercised. Here, there is need for statesmanship. The members of the Security Council, and in particular the permanent members, must lead by example.\u0000What the Council must focus on is conflict prevention. This requires determination and consequence. The focus must be on the challenges that humankind is facing and will face ever more in the future and the threats to international peace and security that these challenges are causing. The need for the rule of law and protection of human rights are obvious elements in this analysis. Furthermore, the growth of the world population in combination with climate change simply must be addressed in an effective manner. The Council must focus attentively on these ‘conflict multipliers’.\u0000The discussion must also focus on peacekeeping and responsibility to protect. With respect to responsibility to protect there is great need for improvement. We cannot accept in the 21st century that fundamental human rights are violated and that crimes against international humanitarian law are being committed on a large scale without consequences. Another important element in this context is empowerment of women. In addressing these questions there is need for close cooperation with regional organizations. This cooperation already exists, but the question is how it can be developed and what lessons can be learnt from the past.\u0000Since the five permanent members are also recognized as nuclear-weapon States under the 1968 Non-Proliferation Treaty, they must confirm their obligations under this treaty and make serious their obligation to work for a ","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126702497","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":"State Succession and Devolution Agreements Revisited: A Note on Sanum v. Laos","authors":"O. Repousis","doi":"10.1163/13894633_021001012","DOIUrl":"https://doi.org/10.1163/13894633_021001012","url":null,"abstract":"In a recent judgment, the Singapore Court of Appeal quashed a prior judgment of the Singapore High Court, which had decided to set aside an arbitration award on the basis that the China–Laos bilateral investment treaty (bit) does not apply to Macao. The judgment of the Court of Appeal is significant inasmuch as it involves a thorough examination of the international law principles governing the law of State succession in respect of part of territory, the relative effect of treaties in the context of devolution agreements, and the relationship between the critical date rule (or intertemporal principle) and the interpretive norm of subsequent agreement or practice. Above all, the dialogue between the Singaporean courts and the arbitral tribunal (whose award was sought to be set aside) raise a number of interesting issues in respect of the territorial application of investment treaties in general and Chinese investment treaties in particular. It also bears noting that this dialogue and its impact on future cases has to be filtered through subsequent developments, most notably a statement issued by China’s Ministry of Foreign Affairs to the effect that the Court of Appeal judgment was incorrect.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131102560","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":"Traditional Justice Methods and Their Possible Impact on Transitional Justice Models in South Sudan","authors":"J. Deng","doi":"10.1163/13894633_021001011","DOIUrl":"https://doi.org/10.1163/13894633_021001011","url":null,"abstract":"This paper discusses the legal framework of the traditional justice methods in several African countries, with a focus on South Sudan; the objective of customary law, the role of traditional courts or the forum of elders, and the methods of settlement of disputes. These methods of settlement of disputes are by-products of the practices, customs and traditions of the people that were devised as ways of maintaining peace and tranquillity, and thereby uphold the rule of law.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134638140","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":"Determining the Scope of the Local Remedies Rule in unclos Disputes","authors":"L. Marotti","doi":"10.1163/13894633_021001003","DOIUrl":"https://doi.org/10.1163/13894633_021001003","url":null,"abstract":"Art. 295 of the UN Convention on the Law of the Sea (unclos) embodies the rule of prior exhaustion of local remedies by making a renvoi to cases where the application of the rule is required by international law. In the practice of the International Tribunal for the Law of Sea (itlos) and Annex vii Tribunals, States continuously raise preliminary objections based on Art. 295. However, such tribunals have never found the local remedies rule applicable. In this paper, it is argued that the approach taken by unclos Tribunals towards the applicability of the local remedies rule is not persuasive since, absent proper reasoning, it fails to align with – or expressly depart from – what appears to be the present state of international law on the topic. Furthermore, the above practice undermines the effectiveness of Art. 295 and calls into question the actual relevance of the local remedies rule within unclos disputes. In the present article the approach followed by unclos Tribunals with respect to the applicability of the local remedies rule is assessed against a reconsideration of the issue of mixed claims and the specific regime set forth in the Law of the Sea Convention. In the concluding section the approach taken in unclos Tribunals’ case law is considered in light of recent criticisms pointing out the current improper expansion of the jurisdiction under unclos Part xv.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123438292","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":"To Convene or Not to Convene? The Future Status of the Articles on State Responsibility: Recent Developments","authors":"Federica I. Paddeu","doi":"10.2139/SSRN.3241388","DOIUrl":"https://doi.org/10.2139/SSRN.3241388","url":null,"abstract":"This article reviews the recent developments concerning the future status of the ars at the Sixth Committee and critically appraises the arguments put forward by States both in favour and against convening a conference to negotiate a treaty on State responsibility.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128478828","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":"Self-Determination and Democracy in Post-Conflict Africa: Moving from Procedure to Substance","authors":"Nneka A. Okechukwu","doi":"10.1163/13894633_021001010","DOIUrl":"https://doi.org/10.1163/13894633_021001010","url":null,"abstract":"This article reviews the application of the principle of self-determination to postconflict rule of law developments in Africa. Popular conceptions of the principle or right of self-determination often associate it with so-called ‘self-determination’ or ‘sovereignty-based’ conflicts, that is, those fought with the aim of separation or secession. This link with secession has experienced a recent resurgence with the Russian invasion and annexation of Crimea, and the arguments put forward by the Kremlin in defence of its actions. However, focus on the relationship between secession and selfdetermination tends to overshadow other understandings and approaches. This article focuses upon a too often neglected aspect of self-determination – the application of internal self-determination, with a focus on African post-conflict States. The specific concern here is the ways and means by which self-determination governs the relationship between the ‘people’ of a State in entirety and the State itself, especially during periods of political transition. The principle of internal self-determination is argued here to consist of three critical facets: representation, accountability and responsiveness. These facets in turn require a move away from liberal-democratic approaches, which equate (internal) self-determination with ‘democracy’ expressed via elections, and a focus instead on the ways and means by which effective participation of an entire population might be advanced.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133275424","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":"Taking the Paris Agreement Forward: Continuous Strategic Decision-making on Climate Action by the Meeting of the Parties","authors":"Petra Minnerop","doi":"10.1163/13894633_021001006","DOIUrl":"https://doi.org/10.1163/13894633_021001006","url":null,"abstract":"There is a new cloth on the table that provides the setting for global climate action. The 2015 Paris Climate Agreement represents the future legal framework designed to facilitate global efforts to combat climate change in the long-term. This article looks at the fabric of this framework through the lens of the law-making procedure. The lawmaking procedure that brought the Paris Agreement into life and will sustain it, marks a departure from the traditional framework convention-cum-protocol approach and changes it into a ‘framework convention-cum-decisions’ model. While the Kyoto Protocol was prescriptive in setting individual emission targets for developed countries, the Paris Agreement sets forth an evolutionary multilateral treaty and enables Parties to steer collective and individual efforts towards a worldwide temperature goal through continuous, strategic decision-making. The article demonstrates that the Agreement becomes operational only in the context of the decisions that were adopted by the Conference of Parties with the Agreement and in the context of further decisions that need to be adopted by the ‘Conference of Parties serving as the meeting of the Parties to the Paris Agreement’. Many of the skeletal provisions and mechanisms of the Paris Agreement need to be fleshed out and operated through further decisions. New functions and competences conferred on the ‘Conference of Parties serving as the Meeting of the Parties’ change the role that this meeting of the Parties has, making it the driver for the development of the law on combating climate change. This international lawmaking is reinforced through the integration of Parties’ decisions within legal orders of Parties, the European Union legal order will be used as an example of one legal order acting as a transmission belt. The article contends that this strategic decision-making affects the legal certainty of international climate action and contravenes the balance between legislative approval of an international agreement and the prerogative of national governments for strategic decisions.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127083140","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":"Preliminary Material","authors":"","doi":"10.1163/13894633-02101001","DOIUrl":"https://doi.org/10.1163/13894633-02101001","url":null,"abstract":"","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129111336","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":"Crimea in International Courts and Tribunals: Matters of Jurisdiction","authors":"Gaiane Nuridzhanian","doi":"10.1163/13894633_021001013","DOIUrl":"https://doi.org/10.1163/13894633_021001013","url":null,"abstract":"The events taking place in Crimea since early 2014 have given rise to a number of international disputes currently pending before international courts and tribunals. Ukraine instituted inter-State proceedings against Russia before the International Court of Justice, the European Court of Human Rights and an unclos Annex vii Tribunal. Seven investor-State cases have been commenced against Russia. The Prosecutor of the icc is conducting preliminary examination into the crimes allegedly committed in Crimea in 2014 and afterwards. Foreign courts have also had to deal with cases related to the annexation of Crimea.\u0000This article provides an overview of cases pending before international courts and tribunals in relation to events in Crimea. The focus is on the questions related to jurisdiction of the international courts and tribunals seized in Crimea-related cases. The study explores the limits of the jurisdiction of international courts to adjudicate disputes concerning the interpretation and application of a treaty arising in connection with a larger dispute regarding the use of force, respect for sovereignty and territorial integrity. The article also discusses novel and debated jurisdiction-related matters that arise in cases brought in relation to events in Crimea. A brief description of cases heard in foreign courts is provided as well.","PeriodicalId":167092,"journal":{"name":"Max Planck Yearbook of United Nations Law Online","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129013791","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}