Suchergebnisse

In countries such as Syria, Iraq, South Sudan, and Yemen, internationally recognized governments embroiled in protracted armed conflicts, and with very little control over their territory, have requested direct military assistance from other states. These requests are often accepted by the other states, despite the circumvention of the United Nations Security Council and extensive violation of international humanitarian law and human rights. In this book, Erika De Wet examines the authority entitled to extend a request for (or consent to) direct military assistance, as well as the type of situations during which such assistance may be requested, notably whether it may be requested during a civil war. Ultimately, De Wet addresses the question of if and to what extent the proliferation of military assistance on the request of a recognized government is changing the rules in international law applying to the use of force.

Abstract
In 1992 Thomas Franck proclaimed an emerging right to democratic governance in international law. With reference to developments in the Organization of American States (OAS) and the Commission on Security and Cooperation in Europe, he identified free and fair elections as the core benchmark of this right, possessing significant legitimacy in terms of its pedigree, determinacy, coherence and adherence. The current contribution examines Franck's understanding of the right to democratic governance within the African context, notably in relation to those institutional developments that have occurred since the adoption of the Constitutive Act of the African Union (AU) in 2000. Specifically, the article assesses the benchmarks of the notion of 'unconstitutional changes of government' in Article 4(p) of the AU Constitutive Act and their inter-linkage with free and fair elections. In so doing, it critically questions the response of the AU to unconstitutional changes of government and its implications for the normative maturity of the benchmark in question. It places the analysis in a broader context by drawing some parallels with the current back-sliding in democratic governance that is occurring also within the Council of Europe (CoE) and the European Union.

This contribution questions the claim often made in scholarship that the right to self-determination would prevent military assistance at the request of the recognised government during a civil war. Specifically, it argues that the absence of any explicit reliance on the right to self-determination in the reactions of states to military assistance on request of the recognised government, suggests that there is no rule in general international law prohibiting such assistance during a civil war. In so doing, the contribution first outlines the implications of such state conduct from the perspective of opinio juris. Thereafter it illuminates why this conduct can also not be convincingly explained by the existence of counter-terrorism and counter-intervention exceptions to a general prohibition of military assistance during a civil war. ; (VLID)5120893 ; Version of record

AbstractThis article examines whether general international law supports the claim that direct military assistance by one State to another State upon the latter's request is prohibited where the inviting State is implicated in (gross) violations of international humanitarian and/or human rights law. It approaches the question from the perspective of State responsibility, analysing the threshold requirements of Article 16 of the Articles on State Responsibility (ASR),1 which represents the customary international law standard for responsibility for aiding or assisting wrongful conduct by another State. In so doing, the article illuminates how factual uncertainties complicate the triggering of the responsibility of the intervening (assisting) State for any violations of international humanitarian and/or human rights law by the territorial (recipient) State. Thereafter, the article questions whether, in the event that the responsibility of the intervening State is triggered, it would in consequence have to withdraw its troops and/or military air power from the territorial State.

This contribution explores the implications of United Nations Security Council (UNSC) referrals under Chapter VII of the Charter of the United Nations to the International Criminal Court (ICC) for the immunity ratione personae of officials of states that are not party to the ICC Statute. While Article 13(b) of the ICC Statute allows the ICC to receive referrals of situations by the UNSC, disagreement remains among authors as to when such a referral removes the customary immunity attached to a head of state of a nonstate party to the ICC Statute. In particular, it remains disputed whether the broad obligation placed on Sudan by UNSC Resolution 1593 (2005) had the implicit effect of doing so. In referring the situation in Darfur (Sudan) to the ICC under Chapter VII of the UN Charter, the UNSC determined that "the government of Sudan, and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the prosecutor pursuant to this resolution." ; * SARChI Professor of International Constitutional Law, University of Pretoria (South Africa), and Honorary Professor, University of Bonn (Germany). This work is based on the research supported by the South African Research Chairs Initiative of the Department of Science and Technology and National Research Foundation of South Africa (Grant No. 98338). ; https://www.cambridge.org/core/journals/american-journal-of-international-law ; am2019 ; Public Law

This essay describes tensions that arise between two types of public goods enshrined in the United Nations Charter—the right to self-determination of people(s) within a territorial state and peace and security—in situations in which recognized governments in conflict-torn countries request military assistance from third states against opposition groups. It illuminates legal challenges in reconciling these public goods in practice, at a time when collective peacekeeping mechanisms appear unable to prevent or terminate civil conflicts and their destabilizing regional impact. ; http://www.asil.org/resources/american-journal-international-law ; am2018 ; Public Law

The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal's decision could be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a "foreign judgment" as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law. Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a "foreign judgment" can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.