Cambridge journal of international and comparative law最新文献

{"title":"Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision","authors":"R. Passchier, M. Stremler","doi":"10.2139/SSRN.2561209","DOIUrl":"https://doi.org/10.2139/SSRN.2561209","url":null,"abstract":"The issue of unconstitutional constitutional amendments is extremely topical in the field of na-tional and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations – explicit or implicit – on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability – explicit or implicit – also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doc-trine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130916262","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 Responsibility and Community Interest in International Energy Law: A European Perspective","authors":"D. Azaria","doi":"10.4337/CILJ.2016.02.02","DOIUrl":"https://doi.org/10.4337/CILJ.2016.02.02","url":null,"abstract":"Treaties dominate international energy law, meaning the rules of public international law that govern energy activities and their effects. This raises the question about the relationship of treaties, and particularly those on energy trade, with the law of international responsibility. This article uses a European angle to contextualise the importance of this question. EU Member States are major oil and gas importers from third states. The EU and Member States are party to treaties with third states that apply to energy trade, carriage and investment. Whether treaty obligations, undertaken and owed to the EU and/or Member States vis-a-vis third states, are of bilateral, interdependent or community interest nature determines whether the EU and/or a Member State have standing to invoke the responsibility of a third state for a breach of an energy-related obligation as well as their remedial rights and the means by which they may implement responsibility. At the same time, because energy access is vital for states, suspending compliance with obligations in the energy sector is often preferred as a permissible response to wrongfulness carrying significant effects and persuasiveness. The nature of obligations of international energy law may determine whether suspending compliance with such obligations can be a lawful countermeasure either by the EU and/or Member States against a third state, or by a third state against the EU and/or Member States.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128956134","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":"European Parliamentary oversight behind closed doors","authors":"V. Abazi","doi":"10.4337/CILJ.2016.01.03","DOIUrl":"https://doi.org/10.4337/CILJ.2016.01.03","url":null,"abstract":"The lack of transparency in European Union (EU) decision-making and integration has been a long-standing concern in academic and public debate. Perhaps paradoxically, parliamentary oversight of executive power in the EU is also increasingly taking place behind closed doors. This closed oversight results from internal rule-making and interinstitutional agreements established by the European Parliament and executive actors without a public debate and is primarily aimed at safeguarding EU official secrets. This paper examines the role of the European Parliament in oversight in the context of EU executive secrecy. The paper argues that, although the European Parliament asserts its prerogatives for gaining access to EU official secrets, its current practice of closed oversight does not facilitate public deliberation. The European Parliament is yet to make serious efforts to develop its public deliberation function and, in doing so, to also bring attention to possible extensive secrecy practices.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125910911","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":"Is There Any Room for the Doctrine of Fundamental Rights of States in Today's International Law?","authors":"D. Joyner, Marco Roscini","doi":"10.7574/CJICL.04.03.467","DOIUrl":"https://doi.org/10.7574/CJICL.04.03.467","url":null,"abstract":"This article serves as a general substantive introduction to the special issue on the fundamental rights of states in international law. It introduces the concept in theoretical and doctrinal terms, and lays out the questions that will be addressed by the contributions to the special issue. These questions include: 1) What do attributes like ‘inherent’, ‘inalienable’ and ‘permanent’ mean with regard to state rights?; 2) Do they lead to identifying a unitary distinct category of fundamental rights of states?; 3) If so, what is their source and legal character?; 4) What are their legal implications, eg, when they come into conflict with other obligations of the right holder or with the actions of other states and international organisations?; and ultimately, 5) Is there still room in today’s international law for a doctrine of ‘fundamental’ rights of states? The article reviews the fundamental rights of states in positive law sources and in international legal scholarship, and identifies the reasons for a renaissance of attention for this doctrine.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116107767","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 Concept of the State and its Right of Existence","authors":"Jure Vidmar","doi":"10.7574/CJICL.04.03.547","DOIUrl":"https://doi.org/10.7574/CJICL.04.03.547","url":null,"abstract":"The right of a state to existence has two aspects: the putative right of an entity to become a state and the right of an existing state not to be extinguished, or territorially diminished. In a world completely divided between states, the two aspects of the right of a state to existence lead to conflicts. Neither aspect of a right is absolute, however. The article considers the various conceptualisations of the state in international law and makes an argument against the anthropomorphic definitions of the state. Statehood is legal status of a territory under customary international law, and implies the existence of certain rights and duties inherent in this status. A state can also exist as a legal fiction and exercise its rights on the international plane even if it cannot exercise its sovereign powers in its (entire) territory. This is due to the fact that statehood is a concept grounded in law rather than fact.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121508349","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":"Burqas and Bans: The Wearing of Religious Symbols Under the European Convention of Human Rights","authors":"Armin Steinbach","doi":"10.7574/CJICL.04.01.29","DOIUrl":"https://doi.org/10.7574/CJICL.04.01.29","url":null,"abstract":"The wearing of religious symbols has been subject to more or less restrictive national regimes. In Europe, the Convention on Human Rights sets transnational conditions in this regard and has recently been interpreted to give great leeway to national states. Open-face communication is now being accepted an indispensable requirement of “living together” that qualifies as “rights and freedoms of others” within the meaning of Article 9 para. 2 ECHR. In S.A.S. v France, the ECHR created a new ground to justify interference with the freedom of religious expression. This article questions the Court's expansion of existing grounds of justification as no sufficient legal basis exists and sociocultural considerations do not protect individual rights as required under the term “rights and freedoms of others”. To that end, the basis for grounds of justification is examined in light of the evolution of the Court's jurisprudence on the wearing of religious symbols. While public security and order, health and improper proselytism are well-established reasons for interference, the Court's acceptance of secular orders highlights the ambiguity of the terms “pluralism” and “tolerance” as referred to in case-law. The article finds that this jurisprudence has given significant leeway to Member States in regulating religious expression and paved the way for the Court's new approach under which behavioural social norms may be used to ban face-covering religious cloth. In addition, the doctrine of the margin of appreciation does not justify the expansion of the legitimate aims pursued under Article 9 para. 2 ECHR.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132940566","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":"Measuring Cosmopolitanism in Europe: Standards of Judicial Scrutiny Over the Recognition of Rights to Non-Citizens","authors":"Graziella Romeo","doi":"10.7574/CJICL.03.03.236","DOIUrl":"https://doi.org/10.7574/CJICL.03.03.236","url":null,"abstract":"The paper aims at answering two research questions, the first concerns standards of judicial scrutiny national and supranational courts apply when deciding cases involving the recognition of rights to non-citizens, while the second regards how and why the differences among such standards of judicial scrutiny impact cos- mopolitan theories. Authors supporting cosmopolitanism envisage the progres- sive construction of a cosmopolitan legal order in the recognition of rights irre- spective of the status of citizenship, at least with regard to the European Courts' attitude. Indeed supranational courts challenged the theories that make the recog- nition of (at least some categories of) rights contingent upon the status of citizen- ship (ECtHR, Koua Poirezz v France; CJEU, Kadi v UK ) in cases involving third coun- try citizens. European domestic courts adopted the same approach in a number of cases (House of Lords, R v SSHD ex parte Limbuela; French Constitutional Court, Decision No 89–269). Analysing judicial argumentation techniques, the Author argues that there are differences in the standards of judicial scrutiny applied by supranational and domestic courts, which in turn express distinctive views of cos- mopolitanism as well as different understandings of the minimum content of the cosmopolitan citizenship.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115636792","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":"Article 4 of the ECHR and the Obligation of Criminalizing Slavery, Servitude, Forced Labour and Human Trafficking","authors":"V. Stoyanova","doi":"10.7574/CJICL.03.02.191","DOIUrl":"https://doi.org/10.7574/CJICL.03.02.191","url":null,"abstract":"This article addresses the interaction between international human rights law and national criminal law as exemplified and revealed in relation to the abuses of slavery, servitude, forced labour and human trafficking (THB). First, I point out the mismatch between the interpretative techniques of international human rights law and national criminal law. The reportedly low numbers of prosecutions and convictions for abuses against migrants has gathered increasing attention. As a reaction it has been suggested that the definitions of THB and of slavery, servitude and forced labour (where the latters have been specifically criminalized) have to be expansively construed. These suggestions ignore basic criminal law precepts. Criminal law has to remain faithful to the principle of legal certainty and to the rights of the accused which ban expansive interpretations. It is human rights law which celebrates liberal interpretations of concepts for the purpose of holding states internationally responsible for their failures to protect. Despite the difference in their interpretative standpoints, there is a clear interaction between these two fields of law. A manifestation of the interaction is that the ECHR obliges states to criminalize the abuses falling within the material scope of Article 4 of the ECHR. I argue that many states have failed to fulfil this obligation since the focus has been predominantly placed on the criminalisation of THB. This leads to failures to address abuses where there are no elements of recruitment, transportation, transfer etc. by means of deception/coercion. I also demonstrate that Article 4 of the ECHR obliges states to incorporate in their domestic criminal laws clear definitions of crimes intended to address the abuses falling within the scope of Article 4. An obligation which many states have failed to fulfil since they have directly copied the international definition of THB and/or the human rights definitions of slavery, servitude and forced labour, without further establishing the elements of the crimes at domestic level. Finally, I suggest that there needs to be a better articulation of the distinctions between different crimes meant to addresses abuses falling within the ambit of Article 4.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129559527","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":"Judicial Interpretations of Democracy in Human Rights Treaties","authors":"Jure Vidmar","doi":"10.7574/CJICL.03.02.150","DOIUrl":"https://doi.org/10.7574/CJICL.03.02.150","url":null,"abstract":"Human rights treaties contain provisions for the so-called democratic rights. These provisions are textually almost identical in various regional and universal human rights treaties, yet courts and other judicial bodies have constructed diverse understandings of democracy through interpretation. The main questions that arise are whether human rights treaties require a multiparty political setting and how they accommodate limitations on the will of the people. This article analyses developments in the context of the ICCPR and the three regional systems. It demonstrates that human rights courts have clearly established a requirement for multiparty elections and have even attempted a more robust, substantive definition of democracy. However, a new problem has arisen in recent case law. The electoral process has become dominated by political parties and electoral systems have often proven to be unable to accommodate independent candidates. The result is that candidates wishing to run at elections may be forced to associate with others. The contemporary interpretation of human rights treaties does not necessarily provide for suitable avenues to take part in elections outside of the framework of party politics. If it was once questionable whether human rights treaties guarantee the right to associate in political parties, it now seems that parties have become too central in the exercise of the so-called democratic rights.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129091295","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":"In Defence of Expansive Interpretation in the European Court of Human Rights","authors":"Shai Dothan","doi":"10.7574/CJICL.03.02.149","DOIUrl":"https://doi.org/10.7574/CJICL.03.02.149","url":null,"abstract":"The European Court of Human Rights (ECHR) applies a series of interpretive techniques that systematically expand states' human rights obligations far beyond the obligations states took upon themselves by ratifying the Convention for the Protection of Human Rights and Fundamental Freedoms. Some commentators argue that this practice is illegitimate because states represent their citizens and their decision not to undertake certain human rights obligations should be respected. This paper argues that expansive interpretation is nonetheless legitimate in two important situations which often occur in the international arena. First, in situations where most states would have subscribed to the additional obligation but for a minority of states that use their veto power to prevent an amendment of the Convention, expansive interpretation will bring the states' actions into better alignment with their own desires and the desires of their citizens. Second, in situations where democratic failures lead states to misrepresent the interests of individuals affected by their human rights policies, expansive interpretation can help align the policies of states with the true interests of the citizens they represent. Although the paper does not provide a general justification for expansive interpretation, it does suggest that in certain limited contexts where the conditions identified above hold, it might well serve the goals of international law and international courts.","PeriodicalId":169604,"journal":{"name":"Cambridge journal of international and comparative law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123778522","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}