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1. Exploring the Boundaries of Conditionality in the EU

Author:
Alexander Mattelaer
Publication Date:
06-2018
Content Type:
Working Paper
Institution:
EGMONT - The Royal Institute for International Relations
Abstract:
Conditionality in the EU comes in many forms: legally codified and enforced by the Court of Justice, or reliant on intergovernmental bargaining and expressed by means of political or economic (dis)incentives. This European Policy Brief explores the boundaries of the conditionality debate, and assesses what varying degrees of conditionality can and cannot achieve. The overarching objective of conditionality is to foster integration and cohesion amongst the peoples of Europe and their Member States. A sound logic of conditionality must therefore set incentives in such a way that their application contributes to this intended outcome. A balanced combination of political, legal and budgetary instruments can help remedy a major lacuna in the Treaties: the effective protection of the rule of law and democracy.
Topic:
Regional Cooperation, European Union, Democracy, Legal Theory, and Integration
Political Geography:
Europe

2. More Room for European Agencies in the EU Decision-Making Process?

Author:
Basile Ridard
Publication Date:
09-2018
Content Type:
Working Paper
Institution:
EGMONT - The Royal Institute for International Relations
Abstract:
The European institutions are not always able to address crises in a timely manner due to the cumbersome decision-making process. European agencies often provide the most appropriate response to the concerns of citizens and businesses that are experienced across the single market. They should be granted greater autonomy to bring to life EU policies while being made more responsible. At a time of growing uncertainties, the EU needs to further develop existing EU agencies and create new ones for addressing new cross-border challenges. A common legal framework should also be created for all EU agencies in order to harmonize their overall functioning.
Topic:
Regional Cooperation, European Union, Legal Theory, and Medicine
Political Geography:
Europe

3. "Right to Truth" and Memory Laws: General Rules and Practical Implications

Author:
Grażyna Baranowska and Aleksandra Gliszczynska-Grabias
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Polish Political Science Yearbook
Institution:
Polish Political Science Association (PPSA)
Abstract:
The “right to truth” relates to the obligation of the state to provide information about the circumstances surrounding serious violations of human rights. Despite its increas- ing recognition, the concept raises questions as to its scope and implementation as well as its existence as a free-standing right. Similarly, “memory laws” relate to the way states deal with their past. However, there are certain „memory laws” that, while officially serving as a guarantee for accessing historical truth, lead to its deformation. As a result, an “alterna- tive” truth, based on the will of the legislators, is being imposed. In this article the authors elaborate on the general nature of the new legal phenomenon of the „right to truth”, as a tool of transitional justice, in particular in the context of both providing and abusing historical truth by the legislators, through the instrument of “memory laws”.
Topic:
History, Governance, Legal Theory, Memory, and Truth
Political Geography:
Russia, Europe, Ukraine, Eastern Europe, and Poland

4. The Legal Aspects of the MH17 Disaster: What Next?

Author:
Emma Bakkum
Publication Date:
06-2017
Content Type:
Working Paper
Institution:
Public International Law Policy Group
Abstract:
The most often discussed legal avenue is criminal law, under which individual perpetrators can be held accountable for the crimes they committed. Not only those directly responsible but also those who ordered, conspired to or aided and abetted the shooting down of MH17 can be held responsible. These individuals can be prosecuted both at the national level in domestic courts or at the international level, at the International Criminal Court (ICC) or a specially established tribunal. Criminal law, however, requires a high burden of proof. Not only needs to be proven that an individual has committed a criminal act but also that the individual did so with the required knowledge and intent, making it difficult to prosecute individuals. Under the circumstances of the MH17 situation, investigations are strenuous. Jeroen Akkermans, who was one of the first investigative journalists present at the crash site, underlined the problems with gathering evidence.
Topic:
Crime, Law, Legal Theory, and International Criminal Court (ICC)
Political Geography:
Europe, Malaysia, Ukraine, and Asia

5. Hotspots, Rights Denied: The lack of a legal framework is threatening the rights of migrants reaching Italy

Author:
Guilia Capitani
Publication Date:
06-2016
Content Type:
Working Paper
Institution:
Oxfam Publishing
Abstract:
The flow of migrants into Italy continues to be dealt with as an 'emergency' situation. The EU's 'hotspot' approach, outlined in the European Agenda for Migration of May 2015 as a short-term measure, has been implemented in Italy and Greece and is an approach involving EU officers, in collaboration with national authorities, in the identification, fingerprinting and registration of migrants. This paper from Oxfam Italia examines the hotspot approach in Italy through the experiences of humanitarian agencies and civil society organizations on the ground, and through the voices of migrants themselves. It concludes that, due to the lack of a legal framework, the hotspot approach seriously violates the fundamental rights of people reaching Italian shores. Oxfam calls for the Italian government and the European Union to define hotspot procedures and activities in EU and national regulations and to take medium-term action to expand the capacity of the receiving and support systems in Italy.
Topic:
Migration, Diaspora, Immigration, Refugees, and Legal Theory
Political Geography:
Europe, Greece, Italy, and Mediterranean

6. Global Remittances: Update on the UK-Somali Corridor

Author:
Mohamed Aden Hassan and Giulia Liberatore
Publication Date:
01-2015
Content Type:
Journal Article
Journal:
Bildhaan: An International Journal of Somali Studies
Institution:
Macalester College
Abstract:
In May 2013 Barclays Bank in the UK announced it was shutting down the accounts of four Somali Money Service Businesses (MSBs) includ- ing Dahabshiil, the largest remittance company operating in the Somali regions. Following international uproar, and a Somali diaspora-led grassroots campaign, the UK government took on the task of setting up an Action Group on Cross Border Remittances and a Somali-UK Safer Corridor Pilot Project with the aim of finding a durable solution to the problem. Two years later, however, the Safer Corridor Project has collapsed. Legal remittance flows persist, albeit in a fragile and precarious environment. This paper provides a brief update on the Safer Corridor Initiative, its challenges, and how the money transfer sector has been adapting to the process.
Topic:
International Cooperation, International Trade and Finance, Diaspora, and Legal Theory
Political Geography:
Africa, United Kingdom, Europe, and Somalia

7. Determining Customary International Law: The ICJ's Methodology between Induction, Deduction and Assertion

Author:
Stefan Talmon
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
Methodology is probably not the strong point of the International Court of Justice or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the Court’s jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law, but the legal literature also has had little to say on this subject. In view of the fact that determining the law has also always meant developing, and ultimately creating, the law it is surprising that the question of the Court’s methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law. It starts by defining the terms ‘induction’ and ‘deduction’ and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom and demonstrates that the main method employed by the Court is neither induction nor deduction but, rather, assertion.
Topic:
International Law, Law, Legal Theory, and Courts
Political Geography:
Europe and The Hague

8. Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity

Author:
Ilias Plakokefalos
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
This article addresses the preliminary steps that must be taken in order to study the problems stemming from overdetermination in the law of state responsibility. Overdetermination, broadly defined, is the existence of multiple causes (multiple wrongdoers, external natural causes, contribution to the injury by the victim and so on) contributing towards a harmful outcome. As relationships among states become more and more complex, there is a corresponding increase in the complexity of the potentially harmful outcomes of these relationships. The fact that the harm caused may originate in diverse sources (overdetermination) poses challenges to the law of state responsibility. These challenges pertain to most aspects of state responsibility, yet their dimension regarding causality has not been studied in depth. The confusion surrounding causal analysis conducted by international adjudicatory bodies leads to decisions that are not convincing in their determination of responsibility in causal terms. The argument of the article is twofold. First, it holds that the concept of causation in international law is unclear, especially in relation to overdetermination, and it must be clarified. Second, it holds that a clearer concept of causation can provide useful guidance to the decision-making process of international courts and tribunals: the clear and principled application of causal tests will, in turn, lead to clearer reasoning. A clearer judicial reasoning will improve the foreseeability of the judicial outcome, will provide better guidance for the parties before a court and will lead to a fairer judicial process.
Topic:
International Relations, International Law, Legal Theory, and Courts
Political Geography:
Europe and The Hague

9. Faith, Ritual and Rebellion in 21st Century (Positivist) International Law

Author:
Mónica García-Salmones Rovira
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
In this review of three works (Jörg Kammerhofer’s Uncertainty in International Law: A Kelsenian Perspective; Jean d’Aspremont’s Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules ; and International Legal Positivism in a Post-Modern World, a collection of essays edited by Kammerhofer and d'Aspremont), Mónica García-Salmones Rovira argues that: Theological statements about morality and law to the effect that they ought to be autonomous or that they ought to coincide defy reality, history and common sense and suffer from intellectual inconsistency. On the contrary, from our long legal history appear at least two clear facts about the relationship between morality and law. First, they both conflate in the same acting individual. Second, in the legal sphere, the individual always acts in communication with other individuals. Whether one aims at investigating the normative principles of the first fact, of what makes a good lawyer, or of the second, of what makes good law and the related issue of responsibility, we are always thinking in terms of practical action. Probably, it is in that practical province where international law has its greater emancipatory potential in a post-modern world.
Topic:
Human Rights, International Law, Religion, and Legal Theory
Political Geography:
Europe and Italy

10. Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR

Author:
Lorna McGregor
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The presumption that courts are the principal forum for dispute resolution continues to be eroded. Alternative forms of dispute resolution (ADR), including agreement-based ADR (such as mediation and conciliation) and adjudicative ADR (such as arbitration), continue to proliferate and are increasingly institutionalized, leading to their characterization as ‘appropriate’ or ‘proportionate’ dispute resolution. Interestingly, despite these developments, the position of international human rights law (IHRL) on two key questions regarding ADR and proportionate dispute resolution (PDR) is unclear. These questions are, first, the standards of justice expected of ADR/PDR (whether entered into voluntarily or mandatorily). Second, the permissible circumstances in which parties to a dispute can be required to use ADR/PDR instead of, or before, accessing courts. The attributes and challenges with ADR/PDR have been discussed extensively in socio-legal studies, feminist literature and the dedicated ADR/PDR literature. This article seeks to bring this vast theory on the diversification and institutionalization of dispute resolution into IHRL. Through the lens of the European Court of Human Rights, this article examines the types of tests that supranational bodies currently employ and advances a framework for assessing the choice, design and implementation of ADR/PDR in the future.
Topic:
Human Rights, International Law, Legal Theory, and Courts
Political Geography:
Europe, France, and European Union