Search result: 15 articles

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Year 2018 x
Article

Access_open Crimes Against Humanity and Hostes Generis Humani

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, Luban, crimes against humanity, political community, international criminal law
Authors Antony Duff
AbstractAuthor's information

    In ‘The Enemy of All Humanity’, David Luban provides an insightful and plausible account of the idea of the hostis generis humani (one that shows that the hostis need not be understood to be an outlaw), and of the distinctive character of the crimes against humanity that the hostis commits. However, I argue in this paper, his suggestion that the hostis is answerable to a moral community of humanity (in whose name the ICC must thus claim to speak) is not tenable. Once we recognize the intimate connection between criminal law and political community, we can see that the hostis should answer to the local, domestic political community in and against which he commits his crimes; and that the proper role of the International Criminal Court, acting in the name of the community of nations, is to provide a second-best substitute for such answering when the local polity cannot or will not hold him to account.


Antony Duff
Antony Duff is Professor Emeritus at the University of Stirling.
Article

Access_open On the Humanity of the Enemy of Humanity

A Response to My Critics

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, humanity, International criminal justice, piracy
Authors David Luban
AbstractAuthor's information

    Antony Duff, Marc de Wilde, Louis Sicking, and Sofia Stok offer several criticisms of my “The Enemy of All Humanity,” but central to all of them is concern that labeling people hostis generis humani dehumanizes them, and invites murder or extrajudicial execution. In response I distinguish political, legal, and theoretical uses of the ancient label. I agree with the critics that the political use is toxic and the legal use is dispensable. However, the theoretical concept is crucial in international criminal law, which rests on the assumptions that the moral heinousness of core crimes makes them the business of all humanity. Furthermore, far from dehumanizing their perpetrators, calling them to account before the law recognizes that they are no different from the rest of humanity. This response also offers rejoinders to more specific objections raised by the critics.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
Article

Access_open The Enemy of All Humanity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, piracy, crimes against humanity, universal jurisdiction, radical evil
Authors David Luban
AbstractAuthor's information

    Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
Article

Access_open Armed On-board Protection of Dutch Vessels: Not Allowed Yet But Probably Forthcoming

Journal Erasmus Law Review, Issue 4 2018
Keywords vessel protection, private armed guards, state monopoly on force, masters position, state control
Authors Paul Mevis and Sari Eckhardt
AbstractAuthor's information

    This article provides an overview of the developments about the armed on-board protection of Dutch vessels under Dutch law. The Dutch position has changed over the years. In 2011, the starting point was that private security companies (PSCs) are not to be allowed. It was expected that adequate protection of Dutch vessels could be provided by vessel protection detachments (VPDs). Although not considered as an absolute statutory bar, the state monopoly on force was considered the main argument against PSCs. After optimising the use of VPDs and given the development in other countries, the approach changed into a ‘VPS, unless …’-approach. Under the new Protection of Merchant Shipping Act that is expected to come into force in the second half of 2019, PSCs can be employed only if no VPS is available. This article gives an overview of the argumentation in this change of view over the years. It also explores the headlines, criteria and procedures of the new law and some other topics, including the position of the master under the upcoming law. In line with the other country reports, it enables the comparative study in the last article of this special issue.


Paul Mevis
Paul Mevis is professor of criminal law and criminal procedure at Erasmus University Rotterdam.

Sari Eckhardt
Sari Eckhardt holds a master’s degree in criminal law and has worked as a student assistant at the Rotterdam Erasmus University’s Department of Criminal Law and is currently working at De Bont Advocaten.
Article

Access_open Sustainable Enjoyment of Economic and Social Rights in Times of Crisis

Obstacles to Overcome and Bridges to Cross

Journal European Journal of Law Reform, Issue 4 2018
Keywords social and economic rights, austerity measures, Euro crisis, defaulting countries
Authors Dr. Natalie Alkiviadou
AbstractAuthor's information

    In 2008, the European Union was hit by the most severe financial downturn since the Great Recession of the 1930s. One of the major consequences of this phenomenon was the deterioration in the enjoyment of human rights, in particular economic and social rights. While it is indisputable that the crisis itself was directly correlated to the erosion of such rights, the conditions attached to the loan agreements between defaulting countries and the three lending institutions, namely the International Monetary Fund (IMF), the European Central Bank and the European Commission, have negatively affected the rights under consideration. Loans came with strict austerity measures, such as public expenditure cuts in the realm of, inter alia, public services, benefits and social security. This article considers the deterioration in the enjoyment of economic and social rights by Union inhabitants and particularly the anti-crisis strategy adopted by the European Union, which, as will be demonstrated, directly contributed to this deterioration. The stance of the three institutions was facilitated by the less than proactive, but improving, positioning of the Court of Justice of the European Union in case law, which will be assessed. It must be noted that it is not the three institutions acting alone in this process; the Member States are the ones who agree to the loans and their conditions and implement austerity measures on the ground. However, as will be reflected, the practical role and actual input of the countries themselves in this procedure is limited. The central theoretical tenet of the article is that the European Union is re-shifting its direction to the almost absolute adoption of an economic constitution, with little regard to its social counterpart. Within the aforementioned framework, this article seeks to assess the status of economic and social rights in a crisis-hit Union, provide a theoretical explanation for this occurrence and put forth possibilities for positive change, placing the protection and promotion of economic and social rights at the heart of any responses to crisis as a method to ensure their sustainable protection effectively.


Dr. Natalie Alkiviadou
Dr Natalie Alkiviadou is a Lecturer at the University of Central Lancashire Cyprus.
Article

The European Court of Human Rights in the States of the Former Yugoslavia

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Ex-Yugoslavia, European Court of Human Rights, domestic implementation, the rule of law, human rights
Authors Jernej Letnar Černič
AbstractAuthor's information

    The countries of the former Yugoslavia have in past decades failed to fully meet both the challenges of the socio-economic environment and of the full-fledged functioning of the rule of law and the protection of human rights. Their development was in the first decade halted by the inter-ethnic wars, while in the second decade their institutions have been hijacked by various populist interest groups. All the countries of the former Yugoslavia have been so far facing a constant crisis of liberal democratic institutions of the modern state, based on the rule of law. Only a small number of them have decided to accept effective measures to break away from such crises. In order to present the problems of the newly established democracies in the former Yugoslavia, this article presents and analyses the contributions of the European Court of Human Rights to establishing the rule of law and effective human rights protection in Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. In the closing part of the article, conclusions are drawn on how those countries should proceed to internalize the values of human rights protections in liberal democracies.


Jernej Letnar Černič
Associate Professor, Graduate School of Government and European Studies, Nova Univerza, Ljubljana, Slovenia.
Article

The Margin of Appreciation in the ECtHR’s Case Law

A European Version of the Levels of Scrutiny Doctrine?

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords ECHR, judicial deference, levels of scrutiny, margin of appreciation, U.S. federalism
Authors Koen Lemmens
AbstractAuthor's information

    Although the American doctrine of levels of scrutiny and the European concept of margin of appreciation are regularly compared as typical instances of deferential judicial decision-making, this article argues that owing to the institutional setting in which they operate, the differences between the two are notable. It is also argued that the social consequences of the application of the two concepts may even be radically opposed.


Koen Lemmens
Associate professor of Public Law at KU Leuven (Belgium) and press law VU Brussels (Belgium). The author thanks Toon Agten for his comments and Camille Van Peteghem for her assistance during research. The usual disclaimer applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Editorial

The EU Bill of Rights’ Diagonal Application to Member States

Comparative Perspectives of Europe’s Human Rights Deficit

Journal European Journal of Law Reform, Issue 2-3 2018
Authors Csongor István Nagy
Author's information

Csongor István Nagy
Professor of law and head of the Department of Private International Law at the University of Szeged, research chair and the head of the Federal Markets ‘Momentum’ Research Group of the Hungarian Academy of Sciences and an attorney-at-law admitted to the Budapest Bar. He serves as a recurrent visiting Professor at the Central European University (Budapest/New York), the Riga Graduate School of Law (Latvia) and the Sapientia University of Transylvania (Romania). This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Sovereign Strikes Back

A Judicial Perspective on Multi-Layered Constitutionalism in Europe

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Constitutional identity, constitutionalism, fragmentation, globalization, multilayered constitution, sovereignty, trust
Authors Renáta Uitz and András Sajó
AbstractAuthor's information

    The supranational web of public law is often described as a new constitutionalism. It emerged in a globalized world together with global markets. In the course of the multilayered constitutional experiment, the old, national constitutional framework had lost its ability to deliver on the key features associated with constitutionalism: limiting the exercise of political powers and preventing the arbitrary exercise thereof. In the multilayered era it has become difficult to pinpoint the centre of authority. Ultimately, someone needs to govern, if not for other reasons, at least to avoid chaos. Is it possible to have the guarantees of freedom, rule of law and efficiency that a constitutional democracy seems to provide in a system where there is no sovereign with authority?


Renáta Uitz
Renáta Uitz is Professor, Chair of the Comparative Constitutional Law Program, Department of Legal Studies, Central European University, Budapest.

András Sajó
András Sajo is University Professor, Central European University, Budapest. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Access_open A new interpretation of the modern two-pronged tests for insanity

Why legal insanity should not be a ‘status defense’

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords substantive criminal law, excuses, insanity defense, status defense
Authors Johannes Bijlsma
AbstractAuthor's information

    Michael Moore has argued that modern two-pronged tests for legal insanity are wrongheaded and that the insanity defense instead should be a ‘status defense’. If Moore is right, than the laws on insanity in most legal systems are wrong. This merits a critical examination of Moore’s critique and his alternative approach. In this paper I argue that Moore’s status approach to insanity is either under- or overinclusive. A new interpretation of the modern tests for insanity is elaborated that hinges on the existence of a legally relevant difference between the mentally disordered defendant and the ‘normal’ defendant. This interpretation avoids Moore’s criticism as well as the pitfalls of the status approach.


Johannes Bijlsma
Johannes Bijlsma is assistant professor of criminal law at the Vrije Universiteit Amsterdam.

    The German federal court for labour law matters, the Bundesarbeitsgericht (the ‘BAG’), has held that evidence cannot be used in a dismissal lawsuit if the employer has obtained it from long-term surveillance using keylogger-software. Employers must not keep their employees under constant surveillance and must therefore expect their legal position to be weak if they try to dismiss an employee based on findings from such monitoring. The court ruling preceded the ECtHR Barbulescu ruling of 5 September 2017 (featured in EELC 2017/4) in a similar case.


Paul Schreiner
Paul Schreiner is an attorney at law at Luther Rechtsanwaltsgesellschaft mbH.

    From the inception of European integration, a regime trying to regulate and arrange competition as much as considered necessary for the benefit of society at large has been one of the core elements of the European Union’s legal order. While the European Union has over the past few decades become more and more involved in the European space effort, this has so far hardly given rise to fundamental application of this competition regime to space activities, even if space also in Europe increasingly has become commercialized and privatized. The current paper investigates the reasons and rationale for this special situation, addressing inter alia the special character of outer space activities and the space industry and the role of the European Space Agency in this respect.


Frans G. von der Dunk
University of Nebraska-Lincoln.
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