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102. Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem
- Author:
- Killian S. O'Brien
- Publication Date:
- 09-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Following in the aftermath of the Arab Spring, Europe's southern marine borders have been the showplace of human tragedies previously unseen on this scale and the issue of refugees on the high seas has assumed a newfound importance. This article examines the flawed system provided by the 'Constitution of the Oceans', the UN Convention on the Law of the Sea for the protection of the lives of migrants at sea. It submits that international refugee law is well-equipped to assume a greater responsibility in ensuring the protection of those involved. Although the concept of non-refoulement cannot be stretched ad absurdum, it may still be reasonably interpreted as providing a temporary right to disembark for the purpose of processing possible asylum applications. In the long-term, a system of burden-sharing and permanent, yet flexible, reception agreements remain the only sustainable solution.
- Topic:
- United Nations and Law
- Political Geography:
- Europe and Arabia
103. Rights at the Frontier: Border Control and Human Rights Protection of Irregular International Migrants
- Author:
- Julian M. Lehmann
- Publication Date:
- 09-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- In light of recent events causing people's movement into Europe, continued misuse of the term “migrant” in policy making and public discourse, and at the occasion of events celebrating the international regime of refugee protection, the human rights protection of irregular migrants is explored in relation to irregular migrants' entry/admission and expulsion/deportation. The term “migrant” has, in contrast to the term “refugee”, no bearing on whether or not an international migrant has a need for international protection. While many irregular migrants have no such need, other migrants may be refugees or be in need of international protection “outside” the framework of the 1951 Convention relating to the Status of Refugees. The paper analyses the international human rights law framework applying to individuals with and without need for international protection, when their claims have a socio-economic dimension. The principle of non-refoulement remains the most important source of protection for irregular migrants; it is not concerned with the irregular status of a migrant and also has a bearing on procedural rights in status determination. Socio-economic motivations for flight are not a bar to being a refugee within the meaning of the 1951 Convention, if their underlying cause is persecution, or if motives are mixed. Refugee law can accommodate such claims and overcome a strict dichotomy but is currently only rarely and restrictively applied in this regard. In expulsion cases, virtually only the prohibition of torture, inhuman or degrading treatment is relevant. For individuals that have no need for international protection there are mitigating individual circumstances which a state has to take into account. All pertinent norms of international human rights law apply without distinction and irregular migrants may have, just as refugees may have, humanitarian needs that states should meet.
- Topic:
- Human Rights
- Political Geography:
- Europe
104. Complementary Protection for Victims of Human Trafficking under the European Convention on Human Rights
- Author:
- Vladislava Stoyanova
- Publication Date:
- 09-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The international legal framework regulating the problem of human trafficking contains the presumption that the return of victims of human trafficking to their countries of origin is the standard resolution for their cases. However, victims might have legitimate reasons for not wanting to go back. For those victims, resort to the legal framework of the European Convention on Human Rights could be a solution. I elaborate on the protection capacity of Article 3 when upon return victims face dangers of re-trafficking, retaliation, rejection by family and/or community and when upon return to the country of origin victims could be subjected to degrading treatment due to unavailability of social and medical assistance. In light of the Rantsev v. Cyprus and Russia case, I develop an argument under Article 4 that states cannot send victims to those countries which do not meet the positive obligations standard as established in the case. Article 8 could be relevant: first, when the level of feared harm in the country of origin does not reach the severity of Article 3 but is sufficiently grave to be in breach of the right to private life and engage the non-refoulement principle, and second, when the victim has developed social ties within the receiving state and the removal will lead to their disruption.
- Topic:
- Human Rights
- Political Geography:
- Russia and Europe
105. Editorial
- Publication Date:
- 09-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Since our last issue in May 2011 several events with global impact have filled the newspapers and confronted us with the need for new judicial and political solutions. In the meantime, Hosni Mubarak's trial has begun and it raises again important questions on how to handle trials of ex- dictators. The trial may foreshadow the future stance to the rule of law of Egypt's new politic system. The events in Libya and also Syria sparked a new discussion about the concept of responsibility to protect.
- Political Geography:
- Syria and Egypt
106. The Legal Status of the Holy See
- Author:
- Cedric Ryngaert
- Publication Date:
- 12-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The Holy See enjoys rights under international law that few, if any, non-State actors (excluding intergovernmental organizations) enjoy: it has joined various intergovernmental organizations, it is a party to a substantial number of bilateral and multilateral treaties, it sends and receives diplomatic representatives, is said to enjoy immunity from jurisdiction, and has been granted permanent observer status at the United Nations. However, unlike the Vatican City State, the Holy See is not to be characterized as a State, given that it has a global spiritual remit and that it can act internationally without a territorial base. Instead, it is a sui generis non-State international legal person which borrows its personality from its 'spiritual sovereignty' as the center of the Catholic Church.
- Topic:
- International Law, Bilateral Relations, and Non State Actors
- Political Geography:
- United Nations
107. Protecting in Libya on Behalf of the International Community
- Author:
- Marie-José Domestici-Met
- Publication Date:
- 12-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Here is the third issue of a series of three, under the global title "Humanitarian Action – A Scope for the Responsibility to Protect?". The first issue dealt with "Humanitarian Assistance Looking for a Legal Regime Allowing its Delivery to Those in Need under any Circumstances" and ended with the conclusion that humanitarian action protagonist had hitherto failed to find the adequate regime. The second issue questioned whether R2P was a legal tool ready to use; it ended with the conclusion that it was not yet really the case.
- Political Geography:
- Libya, Arabia, and United Nations
108. The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?
- Author:
- Sebastian Wuschka
- Publication Date:
- 12-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The regulation of the employment of combat drones in current conflicts is a central issue of recent discussions in international law. Contrary to misinterpretations in the media, this article claims that the legal framework regarding today's drone systems is settled. The author first provides an assessment of unmanned combat drones as a new technology from the perspective of international law. He then proceeds to the vital point of the legality of targeted killings with remotely operated drones. Further, he discusses the preconditions for applicability of humanitarian law and human rights law to such operations. In conclusion, the author holds the view that the legal evaluation of drone killings depends on the execution of each specific strike. Assuming that targeted killings with drones will generally only be legal under the law of armed conflict, states might be further tempted to label their struggle against terrorism as 'war'.
- Topic:
- International Law and Terrorism
- Political Geography:
- United States
109. Completing the ICTY Project Without Sacrificing its Main Goals. Security Council Resolution 1966 – A Good Decision?
- Author:
- Donald Riznik
- Publication Date:
- 12-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Almost two decades after having established the ad-hoc criminal tribunal for the former Yugoslavia, this institution is about to fulfill its mandate and will close its doors in the near future. Looking back on 20 years of legal and political struggle, the overall result of this institutional project is positive. This article analyses the way the Security Council and the ICTY have chosen to bring the tribunal to an end by implementing the Completion. The problematic aspect, the Security Council was faced with before its final Resolution 1966, adopted on 22 December 2010, has been outlined together with the chosen path to avoid commitments, especially with regard to its major goal to end impunity for serious breaches of international law, and to bring justice and peace to the people living on the territory of the former Yugoslavia. This (so far) last resolution, which implemented the International Residual Mechanism for Criminal Tribunals (IRMCT), was adopted at a time, when the last two remaining fugitives, Ratko Mladic and Goran Hadzic were still at large. Only a few months ago, the two were caught and transferred to the tribunal. The author argues that not shutting the institutional doors entirely until all remaining fugitives are arrested, was a complex situation in a legal and practical sense. Facing and solving this problem through Resolution 1966 was the best choice at that time. This article will give a brief description about the practical impact of the IRMCT on the ICTY's further work, and the relation between these two judicial institutions during their coexistence.
- Topic:
- Security and International Law
- Political Geography:
- Yugoslavia and United Nations
110. The International Residual Mechanism and the Legacy of the International Criminal Tribunals for the former Yugoslavia and Rwanda
- Author:
- Gabrielle Bardall
- Publication Date:
- 12-2011
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- By Security Council Resolution 1966 (2010), the Security Council established the International Residual Mechanism for Criminal Tribunals as the legal successor to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In the creation of the Residual Mechanism, the Security Council appears to have intended to ensure the continuation of the work of the Tribunals and thereby safeguard their legacies. Accordingly, the Statute of the Residual Mechanism continues the jurisdiction of the Tribunals, mirrors in many respects the structures of the Tribunals, and ensures that the Residual Mechanism's Rules of Procedure and Evidence are based on those of the Tribunals. However, the Statute of the Residual Mechanism is silent with regard to the weight the Judges of the Residual Mechanism must accord to ICTY and ICTR judicial decisions. While there is no doctrine of precedent in international law or hierarchy between international courts, this omission by the Security Council does have the potential to negatively impact the legacies of the Tribunal by allowing for departures by the Residual Mechanism from the jurisprudence of the Tribunals, which lead to similarly situated persons being dissimilarly treated. Nevertheless, even if the Residual Mechanism does adopt the jurisprudence of the Tribunals as its own, as a separate legal body it will still have to answer constitutional questions regarding the legitimacy of its establishment by the Security Council. While it can be anticipated that the Residual Mechanism will find itself validly constituted, the wisdom of the Security Council's decision to artificially end the work of the Tribunals by the establishment of the Residual Mechanisms will ultimately turn upon the question of whether any inherent unfairness could be occasioned to persons whose proceedings are before the Residual Mechanism. It will be suggested that the Security Council has provided the Residual Mechanism with sufficient tools to ensure that its proceedings are conducted in para passu with those of the Tribunals and that the responsibility of ensuring the highest standards of international due process and fairness falls to the Judges of the Residual Mechanism.
- Topic:
- Security
- Political Geography:
- Yugoslavia and Rwanda