Die Palästinenserführung nutzt im Ringen um die Anerkennung der Staatlichkeit Palästinas seit lan... more Die Palästinenserführung nutzt im Ringen um die Anerkennung der Staatlichkeit Palästinas seit langem das System der Vereinten Nationen für ihre Zwecke. Im Jahr 2011 gelang ihr dabei ein Achtungserfolg, indem die UNESCO Palästina als Vollmitglied aufnahm. Zeitgleich verlaufende Bemühungen in den VN selbst stießen zwar im Sicherheitsrat auf Widerstand, immerhin gelang aber die Aufwertung Palästinas in der Generalversammlung von einer bloßen observer entity zu einem observer state. Diese Ereignisse werfen eine Reihe von Rechtsfragen auf: War die Aufnahme Palästinas in die UNESCO angesichts der Haltung des Sicherheitsrats völkerrechtsgemäß? Hat die Generalversammlung nicht möglicherweise gegen Pflichten dem Sicherheitsrat gegenüber verstoßen? Die vorliegende Untersuchung gibt eine differenzierte Antwort und gewährt zugleich Einblicke in das tatsächliche Funktionieren der Vereinten Nationen.
The Council of Europe, of which all European States are members, plays a pivotal role in the prom... more The Council of Europe, of which all European States are members, plays a pivotal role in the promotion and protection of human rights, democracy, and the rule of law in Europe. Bringing together specialist scholars and practitioners, The Council of Europe: Its Laws and Policies offers profound insights into the functioning of the organization. The organization's primary and secondary law, its institutional structure, and its far-reaching fields of activities are comprehensively and systematically analysed. This volume investigates the impact of the Council's activities within the national legal systems of the Member States and the dense web of relationships between the Council of Europe and other international organisations. An important reference work on one of the most influential organizations in Europe, the book concludes that the Council of Europe has played a considerable role in the constitutionalization process of regional public international law.
Principled Resistance to ECtHR Judgments - A New Paradigm?, 2019
The book analyses the position of the ECtHR which has been more and more confronted with criticis... more The book analyses the position of the ECtHR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECtHR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECtHR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept - 'principled resistance' - to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind 'principled resistance' shows enough commonalities in order to qualify such incidents as expression of a 'new paradigm'.
Journal of International Dispute Settlement, Feb 14, 2021
Recent years have seen a marked increase in ‘clashes’ between national courts on the one hand and... more Recent years have seen a marked increase in ‘clashes’ between national courts on the one hand and international courts and tribunals on the other hand. This article introduces a new analytical pattern, called ‘principled resistance’, in order to analyse deficits occurring during the implementation phase of a Strasbourg judgment. This analytical concept is contrasted with other most recently developed scholarly concepts (‘reasonable resistance’: Palombino; ‘pushback’ and ‘backlash’: Madsen; ‘principled’ and ‘dilatory non-execution’: de Londras and Dzehtsiarou) in order to show differences and commonalities. Furthermore, the limits of (permissible) ‘disagreement’, as opposed to (impermissible) ‘principled resistance’, are explored from an international law point of view. It will be argued that although cases of principled resistance are extremely rare, the concept has an analytical value in that it prevents us from overestimating divergences between national and international courts and tribunals. At the same time, it will be shown that even where courts and other national actors employ legal arguments for their resistance to the ECtHR, those conflicts should be conceptualized as struggles over the proper allocation of powers between the national level and Strasbourg.
In recent years, diplomatic protection and protection of human rights intersect more and more fre... more In recent years, diplomatic protection and protection of human rights intersect more and more frequently. Both concepts, however, stem from different epochs of international law: The right to diplomatic protection was developed under the traditional, state-centred period of international law. This has a bearing on the concept of diplomatic protection. According to the PCIJ’s well-known Mavrommatis formula, by resorting to diplomatic action ‘a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law’. During the drafting of the 2006 ILC Draft Articles on Diplomatic Protection, the fictional character of this traditional concept was criticised. This did not result, however, in a clear-cut reconceptualization. Rather, the further development has been left open. Human rights, by contrast, became an issue at the international level only after the Second World War. Unlike diplomatic protection, there is no need for a fiction but the individual himself or herself is the holder of right under international law. Upon closer scrutiny, it becomes clear that international human rights treaties have a two-layer structure: Over and above creating rights for the individual, they also create obligations between the contracting States parties. Furthermore, human rights have a rationale entirely different from diplomatic protection in that they are not dependent on nationality. Notwithstanding such conceptual differences, it cannot not excluded that human rights obligations are asserted by means of diplomatic protection, an example being the Diallo case before the ICJ. Similarly, the ECtHR in the Cyprus v Turkey case underlined that there are similarities between the State complaint procedure and diplomatic protection. This leads to the question of the legal consequences arising out of diplomatic protection. Under the traditional concept, where a State receives compensation in the exercise of diplomatic protection, this is done in response to a violation of the State’s own right. Consequently, there is no legal obligation, from the international law perspective, to transfer the sum of money to the individual. The article argues that in case of asserting human rights by means of diplomatic protection, this should be different. The argument is that human rights have the individual as the ultimate beneficiary. For reasons of dogmatic consistency, this characterisation of the primary rule has to prevail at the secondary rule level, too. The ICJ judgment in the Diallo case and the ECtHR judgment in Cyprus v Turkey lend further arguments in support.
Die Palästinenserführung nutzt im Ringen um die Anerkennung der Staatlichkeit Palästinas seit lan... more Die Palästinenserführung nutzt im Ringen um die Anerkennung der Staatlichkeit Palästinas seit langem das System der Vereinten Nationen für ihre Zwecke. Im Jahr 2011 gelang ihr dabei ein Achtungserfolg, indem die UNESCO Palästina als Vollmitglied aufnahm. Zeitgleich verlaufende Bemühungen in den VN selbst stießen zwar im Sicherheitsrat auf Widerstand, immerhin gelang aber die Aufwertung Palästinas in der Generalversammlung von einer bloßen observer entity zu einem observer state. Diese Ereignisse werfen eine Reihe von Rechtsfragen auf: War die Aufnahme Palästinas in die UNESCO angesichts der Haltung des Sicherheitsrats völkerrechtsgemäß? Hat die Generalversammlung nicht möglicherweise gegen Pflichten dem Sicherheitsrat gegenüber verstoßen? Die vorliegende Untersuchung gibt eine differenzierte Antwort und gewährt zugleich Einblicke in das tatsächliche Funktionieren der Vereinten Nationen.
The Council of Europe, of which all European States are members, plays a pivotal role in the prom... more The Council of Europe, of which all European States are members, plays a pivotal role in the promotion and protection of human rights, democracy, and the rule of law in Europe. Bringing together specialist scholars and practitioners, The Council of Europe: Its Laws and Policies offers profound insights into the functioning of the organization. The organization's primary and secondary law, its institutional structure, and its far-reaching fields of activities are comprehensively and systematically analysed. This volume investigates the impact of the Council's activities within the national legal systems of the Member States and the dense web of relationships between the Council of Europe and other international organisations. An important reference work on one of the most influential organizations in Europe, the book concludes that the Council of Europe has played a considerable role in the constitutionalization process of regional public international law.
Principled Resistance to ECtHR Judgments - A New Paradigm?, 2019
The book analyses the position of the ECtHR which has been more and more confronted with criticis... more The book analyses the position of the ECtHR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECtHR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECtHR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept - 'principled resistance' - to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind 'principled resistance' shows enough commonalities in order to qualify such incidents as expression of a 'new paradigm'.
Journal of International Dispute Settlement, Feb 14, 2021
Recent years have seen a marked increase in ‘clashes’ between national courts on the one hand and... more Recent years have seen a marked increase in ‘clashes’ between national courts on the one hand and international courts and tribunals on the other hand. This article introduces a new analytical pattern, called ‘principled resistance’, in order to analyse deficits occurring during the implementation phase of a Strasbourg judgment. This analytical concept is contrasted with other most recently developed scholarly concepts (‘reasonable resistance’: Palombino; ‘pushback’ and ‘backlash’: Madsen; ‘principled’ and ‘dilatory non-execution’: de Londras and Dzehtsiarou) in order to show differences and commonalities. Furthermore, the limits of (permissible) ‘disagreement’, as opposed to (impermissible) ‘principled resistance’, are explored from an international law point of view. It will be argued that although cases of principled resistance are extremely rare, the concept has an analytical value in that it prevents us from overestimating divergences between national and international courts and tribunals. At the same time, it will be shown that even where courts and other national actors employ legal arguments for their resistance to the ECtHR, those conflicts should be conceptualized as struggles over the proper allocation of powers between the national level and Strasbourg.
In recent years, diplomatic protection and protection of human rights intersect more and more fre... more In recent years, diplomatic protection and protection of human rights intersect more and more frequently. Both concepts, however, stem from different epochs of international law: The right to diplomatic protection was developed under the traditional, state-centred period of international law. This has a bearing on the concept of diplomatic protection. According to the PCIJ’s well-known Mavrommatis formula, by resorting to diplomatic action ‘a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law’. During the drafting of the 2006 ILC Draft Articles on Diplomatic Protection, the fictional character of this traditional concept was criticised. This did not result, however, in a clear-cut reconceptualization. Rather, the further development has been left open. Human rights, by contrast, became an issue at the international level only after the Second World War. Unlike diplomatic protection, there is no need for a fiction but the individual himself or herself is the holder of right under international law. Upon closer scrutiny, it becomes clear that international human rights treaties have a two-layer structure: Over and above creating rights for the individual, they also create obligations between the contracting States parties. Furthermore, human rights have a rationale entirely different from diplomatic protection in that they are not dependent on nationality. Notwithstanding such conceptual differences, it cannot not excluded that human rights obligations are asserted by means of diplomatic protection, an example being the Diallo case before the ICJ. Similarly, the ECtHR in the Cyprus v Turkey case underlined that there are similarities between the State complaint procedure and diplomatic protection. This leads to the question of the legal consequences arising out of diplomatic protection. Under the traditional concept, where a State receives compensation in the exercise of diplomatic protection, this is done in response to a violation of the State’s own right. Consequently, there is no legal obligation, from the international law perspective, to transfer the sum of money to the individual. The article argues that in case of asserting human rights by means of diplomatic protection, this should be different. The argument is that human rights have the individual as the ultimate beneficiary. For reasons of dogmatic consistency, this characterisation of the primary rule has to prevail at the secondary rule level, too. The ICJ judgment in the Diallo case and the ECtHR judgment in Cyprus v Turkey lend further arguments in support.
Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, 2019
The chapter analyses the national practice apparent from previous chapters, claiming that not eac... more The chapter analyses the national practice apparent from previous chapters, claiming that not each and every disagreement by a national actor amounts to ‘principled resistance’. It is submitted that the difference between res judicata and res interpretata is pivotal in this regard. In most cases, the way in which disagreement with the ECtHR is expressed is far more important than the disagreement as such (hence the claim for ‘respectful disobedience’). Finally, the chapter aims to identify the root causes of ‘principled resistance’. It argues that neither the hierarchical position of the Convention under national law nor the purported ‘national identity’ are sufficient to explain the phenomenon. Rather, ‘principled resistance’ cases should be viewed as a struggle about the proper allocation of power in the relationship between Strasbourg and the national level.
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