Suchergebnisse

Cover -- Title Page -- Foreword -- Acknowledgements -- Contents -- Table of Cases -- Table of Legislation -- Introduction -- Research Questions -- Findings and Arguments -- Scope -- Choice of Instruments -- Structure -- 1. Mutual Recognition: From Passive to Active Recognition -- Introduction -- Overview of the Area of Freedom, Security and Justice -- Origins of Mutual Recognition -- Transfer of Mutual Recognition to the Area of Freedom, Security and Justice -- Typology and Operation of Mutual Recognition -- Development of Mutual Recognition -- Models of Mutual Recognition -- From a Passive to an Active Model of Mutual Recognition -- Seeking Equivalence and a Role for Proportionality? -- Conclusion -- 2. Mutual Trust: From Blind to Gained Trust -- Introduction -- Mutual Trust in the Framework Decision on the European Arrest Warrant -- Mutual Trust in the Dublin III Regulation -- Evolution of Trust -- Blind Trust -- The FDEAW -- Dublin System -- Qualified System of Trust -- Trust Based on Individual Assessment? -- Age of Distrust? -- Brexit and Distrust -- Rule of Law Crisis and Mutual Trust -- ECtHR Threshold: Flagrant Denial of Justice -- Criticism and Commentary -- Grounds for Pragmatic Earned Trust -- Conclusion -- 3. Deconstructing Proportionality -- Introduction -- Early Philosophical Foundations -- Emergence of a Legal Doctrine -- Structure of the Proportionality-based Analysis -- Legitimate Objective -- Suitability and Necessity -- Challenges and Limits -- Proportionality in EU Law -- Conclusion -- 4. The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack -- Introduction -- Protection of Victims in Criminal Proceedings Case Law -- European Arrest Warrant Case Law -- Kozłowski -- I.B. -- Leyman -- Wolzenburg -- Lopes Da Silva -- Jeremy F -- Radu -- Melloni -- Aranyosi and Căldăraru -- LM and the Essence of the Rights -- Remarks.

Intro -- Preface -- Contents -- List of Contributors -- Table of Cases -- Table of Treaties and Other International Acts -- Abbreviations -- Introduction -- I. Scope of Application -- II. Relationship between Norms -- III. Implementation and Availability of Remedies -- IV. Rights, Remedies and Developments -- Part I: Rights -- 1. Who Is a Civilian? Membership of Opposition Groups and Direct Participation in Hostilities -- I. Introduction -- II. The Civilian in International Humanitarian Law -- III. Direct Participation in Hostilities in IHL-Defining the Term in Treaties and State Practice -- IV. Defining Direct Participation in Other Instruments -- V. Duration of Direct Participation in Hostilities-When Does DPH Terminate and When Does Loss of Immunity Due to Direct Participation Cease to Be Temporary? -- VI. Who Is a Civilian? Making Sense of DPH and Membership in Armed Groups -- VII. Concluding Thoughts -- 2. The Duty in International Law to Investigate Civilian Deaths in Armed Conflict -- I. Introduction -- II. General Obligations on Parties to Account for the Dead -- III. Investigation of Possible Violations of IHL -- IV. Investigations in Cases of Suspected War Crimes or Other Violations of International Criminal Law -- V. Conclusion -- 3. Protection by Process: Implementing the Principle of Proportionality in Contemporary Armed Conflicts -- I. Introduction -- II. Traditional Proportionality in IHL -- III. New Wars, New Law -- IV. Revisiting Proportionality -- V. Proportionality as Procedure -- VI. Summary -- 4. Regulating Armed Drones and Other Emerging Weapons Technologies -- I. Introduction -- II. The Development of Armed Drones -- III. The International Normative Framework -- IV. Concluding Remarks -- 5. The Globalisation of Non-International Armed Conflicts -- I. Introduction

For its proponents, proportionality analysis is integral to a new "global model of constitutional rights." If economic and social rights are part of that global model, a suggestion supported by recent empirical analysis, there are numerous sites on which to establish the proportionality analysis. And yet, the comparative economic and social rights jurisprudence reveals little resembling proportionality analysis, otherwise so "ubiquitous" in constitutional rights adjudication. Instead, the adjudication of economic and social rights integrates notions of proportionality in a seemingly indirect faction, through giving substance to standards of "reasonableness," "appropriate measures," and "progressive realization.according to maximum available resources." These standards share with proportionality analysis the rejection of more content-driven, results-oriented, or rule-like conceptions of economic and social rights, such as the minimum core. But that rejection alone does not answer the question how proportionality, whether as principle or structured approach, relates to these new standards, particularly to that of reasonableness, a standard that now sets the framework for previously-absent international scrutiny on economic and social rights. In this chapter, which is part of a forthcoming edited collection, by Mark Tushnet and Vicki Jackson, on Proportionality: New Frontiers, New Challenges, I examine the relationship between reasonableness review and proportionality within the context of economic and social rights. Both standards hew closely to the ideal of a "culture of justification." Both too set out a measured assessment of the principle of proportionality, which we might summarize as the view that "the graver the impact of the decision upon the individual affected by it, the more substantial the justification that will be required." Yet they do so under methodologies that are critically different. Part I of the paper sets out the developing approach to reasonableness review in South African constitutional law. The choice of this jurisdiction is pertinent as an early, sophisticated and influential example of the reasonableness standard, which was forged by the court in the presence of both clearly enumerated and justiciable constitutional economic and social rights, and a structured limitations clause. In Part II, I contrast this approach with proportionality analysis, which has been deployed in civil and political constitutional rights cases in South Africa, but far fewer economic and social rights cases. In Part III, I discuss a more direct integration of proportionality into reasonableness review, and suggest what is gained, and what is lost, by this approach. A final question is whether reasonableness review, developed out of largely common law traditions, will travel as well as proportionality analysis purports to do.

The appropriate response to human shields is a recurring issue in modern warfare. Technological asymmetry, disparate obligations, and doctrinal divergence between state and nonstate adversaries combine to make civilians account for 84 percent of combat deaths. Just as a slot machine entices a gambler though he rarely wins, the international community's inconsistent response to human shields has placed shield users on an intermittent reinforcement schedule, thereby ensuring that this tactic remains part of insurgent strategy. Long-term protection of civilians requires eliminating this tactic. Principles of behavior science indicate that an effective way to do so is to uniformly remove its desired consequence--combatants must never allow the presence of shields to impede access to the shielded military objective. This approach is supported by a broader, more forward-thinking conception of the principle of proportionality as reflected in current treaty and customary international law.