Suchergebnisse

The first sustained critique of how domestic courts in the EU apply the European Convention on Human Rights and interact with the European Court of Human Rights at Strasbourg. This book considers the British, French, and German approaches to the ECHR and shows that domestic courts apply and develop the Convention faithfully and positively.

A critique of how domestic courts in the EU apply the European Convention on Human Rights and interact with the European Court of Human Rights at Strasbourg. It considers the British, French, and German approaches to the ECHR and shows that domestic courts apply and develop the Convention faithfully and positively.

1. Introduction -- 1.1. Research Question and Argument -- 1.2. Impermissibility of Courts Reconstructing Treaty Obligations -- 1.3. Outline of the Positions with Which this Book Takes Issue -- 1.4. Methodological Questions -- 2. Different Regimes, Different Methods of Interpretation? -- 2.1. Introduction -- 2.2. Constitutional Treaties, Human Rights Treaties, 'Ordinary Treaties' -- 2.3. Systemic Coherence in both Content and Method -- 2.4. Conclusion -- 3. The Means of Interpretation Admissible for the Establishment of the Intention of the Parties -- 3.1. Introduction -- 3.2. Evolutionary Interpretation and Good Faith -- 3.3. Evolutionary Interpretation and the Intention of the Parties -- 3.4. Conclusion -- 4. The Intertemporal Law -- 4.1. Introduction -- 4.2. Normative Criticisms of the Principle of Intertemporality -- 4.3. Jus Cogens Superveniens: Peremptory Norms and Time -- 4.4. Conclusion -- 5. Evolutionary Interpretation, Or Not? : Evolutionary Interpretation and Jurisdiction Ratione Temporis -- 5.1. Introduction -- 5.2. Jurisdiction Ratione Temporis in the European Court of Human Rights -- 5.3. The Traditional Doctrine of Jurisdiction Ratione Temporis -- 5.4. Conclusion -- 6. Conclusion : Evolution Intended -- 6.1. Intention of the Parties and Evolution -- 6.2. One Coherent Method of Treaty Interpretation -- 6.3. Evolving International Law -- 6.4. A Redundant Concept?

AbstractIn the work of the International Law Commission (ILC) on 'the general principles of law' in Article 38(1)(c) of the Statute of the International Court of Justice, one question has given rise to an inordinate amount of controversy: does this category of principles include principles formed within the international legal system or does it embrace only principles derived from national legal systems? In the draft conclusions adopted on first reading in 2023, the ILC accepts the existence of general principles of law formed within the international legal system, but only in a very narrow manner. Prominent commentators have argued that such a narrow approach is correct. It has been contended, furthermore, that the category of general principles of law formed within the international legal system is an innovation of the ILC's, and one that lacks any real support in State practice. These views are based on assumptions to the effect that the traditional view concerning the meaning of Article 38(1)(c) was that it referred only to general principles of law derived from national legal systems. The present article takes issue with these assumptions. It seeks to prove, by an analysis of the position in 1920 when the Statute was drafted, of the practice of States, both before and after 1920, and the writings of leading commentators, that general principles of law formed within the international legal system are no less part of 'general principles of law' than general principles of law derived from national legal systems.

Abstract
In a given legal situation relating to one or more states, the most practically important question to be determined is not whether, in an objective sense, a legal act is or is not generally valid. It is instead whether, as far as the relationship between the states involved is concerned, the act is opposable by one state to another. Opposability is the capacity of a rule, a legal act, a right, or a legal fact to produce international legal effects vis-à-vis a state, including a state or states unconcerned by the obligations that arise directly from it. Rather than depending on whether an act is valid as against all the world, opposability operates in the relations between pairs of states. Opposability (like its opposite: non-opposability) is concerned with whether the act in question may be opposed to the state at issue; the basis for that opposability (or non-opposability) will be whether or not the state has given its recognition, tacitly or explicitly, of the act concerned.

AbstractThis article concerns two aspects of Stone Sweet and Ryan's theory of legal cosmopolitanism: (1) what the Kantian cosmopolitan legal order means for an international court; and (2) what it means for the holders of the rights that flow from the cosmopolitan legal order. The article interrogates the extent to which, in order to be considered a truly cosmopolitan legal order, the European Convention on Human Rights needs at times not only to make non-citizens free of rights equal to those of citizens, but also to give them stronger rights than those enjoyed by citizens. The article concludes by turning to the meaning of the European Convention beyond its European context. The European system for the protection of human rights and fundamental freedoms may fail or succeed, yet the enthusiasm that the most successful rights-protecting body in the world has created in bystanders, and the very fact that it came into being at all, prove that real progress is possible. From a Kantian perspective, this may well be its greatest accomplishment.

Comments on R. v Reeves-Taylor (Agnes) (SC) on the application of "person acting in an official capacity" in the Criminal Justice Act 1988 s.134(1) to conduct by insurgent forces. Considers why Lord Reed's dissenting judgment might be preferred, by reference to the approach of international law authorities, rules of interpretation, inconsistency in decisions of the UN Committee Against Torture and the law's temporal scope of application.

This essay argues against the widely held article of faith of English constitutional law according to which an international treaty obligation is not a part of English law unless it has been incorporated through an Act of Parliament. On the evidence of authorities such as The Parlement Belge, Porter v Freudenberg, and Imperial Japanese Government, it is concluded that under English constitutional law treaty rights have indeed been allowed to override the common law in certain situations where the traditional article of faith would, were it entirely valid, not have allowed such an application. There is argument that, contrary to what is widely argued in the literature, the test is not simply one of incorporation of non-incorporation. The correct test is instead this—does the treaty obligation effect a change of the law that infringes the existing legal rights of the subject? If it does not, then the court can hold that the treaty right may override the law of the land. The essay argues that this test is attractive in that it coheres with the core of the principle of the separation of powers, which operates as a primary protection of individual liberty.

The article asks whether the law of the European Union (EU) can impose jurisdictional constraints on so-called intra-EU investment arbitration proceedings. Would an arbitral tribunal hearing an intra-EU case under either a bilateral investment treaty (BIT) or under the Energy Charter Treaty (ECT) have to declare itself incompetent to hear the proceeding owing to the operation of EU law? The paper subjects that proposition to criticism, finding that, for a number or reasons connected either with the drafting of the BIT or the ECT or the operation of general principles of international law, it does not withstand scrutiny. An arbitral tribunal seized of a treaty claim under a BIT or the ECT cannot rely on EU law to negate rights expressly granted under the instrument giving it jurisdiction.