Suchergebnisse

Discusses Grundrechtsentfaltung im Gesetz (Development of Basic Rights within the Law) by Matthias Jestaedt (1999), which deals with the development & theories of basic rights, & takes a stand against the dismantling of concise boundaries & differentiations. In the center of his examination stands the increased prominence of basic rights, the principle of proportionality, & the method of weighing. Jestaedt presents a theory of law & uses a methodology that adequately captures the given object -- basic laws -- & provide a legally binding interpretation. The author contends that today the traditional concept of a source of law & a hierarchy of rights, as well as the idea of a sole original law-generating source are long outdated. E. Sanchez

Environmental governance is - not least as a result of European Union legislation - increasingly based on economic instruments. In the field of waste policy long-winded political debates on the introduction of packaging waste charges have been a case in point. More recently, the political attention has shifted to local waste charges. The specification of the latter occurs within a complex framework of general legal principles related to fee collection (like the principle of cost recovery), constitutional principles (principles of proportionality and equality), federal law, as well as local statutes. Against this backdrop, the central problem addressed by this article refers to the question if and to what extent waste charges may actually entail incentives for waste avoidance and this way might constitute an elementary cornerstone of national waste governance. Adapted from the source document.

This is a polemic commentary on Christian Tomuschat's (2006) interpretation of the Israel vs. Hisbollah conflict in Lebanon in summer of 2006. The topic discussed is the application of the international law of armed conflict in asymmetric situations involving states & nonstates. It is argued that recent wars between state & nonstate actors can no longer be interpreted in the light of the classical model of armed conflict between two nation-states. This model is based on the historically debunked & invalidated premise that only nation-states enjoy the monopoly & legitimacy of exercising physical violence. Lebanon is characterized as a failed state & Hisbollah is defined as a political actor without institutional or territorial basis which, nonetheless, can be treated, from the international law perspective, as an actor with a parity status to that of a state. However, this approach needs to resolve the strong vs. weak asymmetry associated with warring parties of which one is a state & the other is not. Issues of double standard, proportionality of military response, & preferential treatment of nonstate actors need also to be addressed. Z. Dubiel

A commentary on the polemic between Christian Tomuschat (2006) & Michael Wolffsohn concerning the international law implications of Israel's attack against Hisbollah in the Lebanon war of 2006. The issues of the legal right to wage war, proportionality in exercised violence, & humanitarian respect of civilians are at the center of the discussion here, as Tomuschat's & Wolffsohn's views are considered & compared. The arguments of both, as the former criticizes & the latter supports Israel's military actions in Lebanon, are assessed from the perspective of international law. The larger problem of asymmetric conflict between states & nonstates is addressed, drawing also on the lessons of the US response against Al Qaeda in Afghanistan in the aftermath of September 11. Three positions are characterized vis-a-vis the ethical aspect of violence in international context: (1) political realism, (2) pacifism, & (3) the theory of justified war. The ineffectiveness & counter-productiveness of the "Land for Peace" approach in Middle East peace negotiations are also examined from the perspective of balance of power in the region & asymmetric conflicts between states & nonstates, ie, Israel vs PLO/Hamas & Israel vs Hisbollah. Z. Dubiel

Surplus mandates are a peculiarity of the German electoral system. Surplus mandates emerge when a party gains more constituency seats than the total amount of seats to which it is entitled according to the proportionality principle as determined by its share of second votes. Until Reunification in 1990, surplus mandates were only negligible phenomena. However, since then their number & relevance has dramatically increased. In the federal election of 2009, 24 surplus mandates emerged, more than ever before. This increase is foremost the consequence of the changed structure of the party system, which is now an established 5-parties-system with two comparatively minor big parties. Surplus mandates are on the one hand a problem of constitutional law while on the other hand they represent a violation of fundamental principles of fairness & justice. One solution for all these problems would be to create two-member-districts for the representatives who are directly elected on the first vote. Adapted from the source document.

The NATO air strikes to end ethnic cleansing in Kosovo have renewed the ongoing controversy regarding the application of force. Yugoslavia & Russia take the position that such action violates the UN Charter's ban on aggressive use of force & is illegal. While most articles focus on the legality or illegality of humanitarian intervention, this issue has been raised to the level of the International Court in The Hague & requires a systematic approach. Arguments against the Yugoslavian & Russian stance could be based on the concept that according to the proportionality principle, threatened & applied force is not against UN principle, but rather, furthers the aims of the UN in such extreme cases of ethnic cleansing & takes precedence over territorial sovereignty. Should such a stance be discounted, the intervention can still be justified on the basis that Yugoslavia initiated the aggression, though against its own people, the intervention was an emergency measure, or that reprisal was required for such a severe violation of international law. L. Kehl