Spring/Summer 2012

Spring/Summer 2012 - Volume 5 - Issue 1

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Union Citizenship and Immigration : Re-thinking the Classics ?

By: Nathan Cambien   UK - Download PDF Version Download pdf (UK)

The free movement of Union citizens hinges on three ‘classic’ requirements, namely the possession of Member State nationality, the inter-State element and the condition of self-sufficiency. Recent case law of the ECJ seems to shake the traditional conceptions of these requirements and, as a consequence, to widen the scope of application of the free movement rules. This in turn will have significant consequences for the immigration laws of the Member States. On the one hand, Union law will increasingly influence the Member States’ rules on acquisition and loss of nationality. On the other hand, the Member States will have to accord residence rights to certain categories of Union citizens and their family members who would previously not have been entitled to invoke Union law. The resulting financial burdens for the Member States are potentially very significant, although it is not yet possible to ascertain the precise reach of the principles articulated by the ECJ.

Collateral Damage from Criminalizing Aggression? Lawfare Through Aggression Accusations in the Nagorno Karabakh Conflict

By: Marieke de Hoon   UK - Download PDF Version Download pdf (UK)

The regulation of war through the prohibition and criminalization of the act of aggression has provided a common legal language for denouncing an opponent for committing aggressive war that is used between warring sides and is understood globally. Nevertheless, due to the indeterminate nature of aggression, different actors may invoke different interpretations and conceptual frameworks related to the legality of war to accuse the other of aggression. This article asserts that the notion of aggression can be used as a weapon of lawfare because the laws of war can be interpreted differently by different actors. The article explores how this is done by analyzing the Nagorno Karabakh conflict as a case study. A deconstruction of both sides’ arguments where they accuse each other of committing aggressive war shows that even though both sides speak the same ‘language’ of law, they rely on contradictory underlying assumptions, both in their internal argumentative structure as well as between both sides’ legal argumentations. The article furthermore asserts that, strengthened by the criminalization of aggression, the indeterminacy of the notion of aggression provides conflicting parties with another weapon to battle with, and another battlefield to fight on. Despite its aim to monopolize and prevent war, the regulation of war and criminalization of aggression thereby provides new ways to continue a conflict, allows law to be used as a strategic tool of lawfare, and creates false presumptions of the ability of law to resolve fundamental disagreement.

Delitos Culturalmente Motivados. Diversidad Cultural, Derecho e Inmigración

By: Oscar Pérez de la Fuente   ES - Download PDF Version Download pdf (ES)

Este artículo analiza la defensa cultural o delitos culturalmente motivados. En concreto, se estudia la relación entre Derecho y diversidad cultural desde el enfoque de la aplicación judicial del derecho. La inmigración supone que existen nuevas dimensiones asociadas a la noción de pluralismo. Se explicarán los argumentos en contra del universalismo, del Feminismo y de la seguridad jurídica e igualdad en la ley y los argumentos a favor de que la diversidad cultural es inescapable y enriquecedora, frente al localismo y la no “neutralidad cultural” del Derecho Penal y la aplicación del Derecho sensible a la diferencia cultural.

Enforcement of Penalty Clauses in Civil and Common Law: A Puzzle to be Solved by the Contracting Parties

By: Ignacio Marín García   UK - Download PDF Version Download pdf (UK)

This paper claims that there is a need for transnational rules to secure the enforcement of penalty clauses in international commercial contracts, due to the insufficiency of the contractual toolkit that parties may use to address both the clash between the civil and the common law traditions, and existing disparities among civillawsinthisarea. Theinternationalcommunityacknowledgedthisneedalong time ago, but unfortunately the tremendous effort exerted in many different harmonization projects is unlikely to lead to the certainty that actors in international trade demand.

European Union Law as International Law

By: Timothy Moorhead   UK - Download PDF Version Download pdf (UK)

International law principles enable a rationalisation of the values to which the Union order aspires as a collective political and legal commitment amongst the Member States. The doctrine of Union law supremacy, which parallels that of international law supremacy, emphasises the overriding character of Union legal demands as a set of values and objectives over those of purely domestic origin. A common view that the Union legal order is sui generis or municipal in character fails to explain the directing character of the values underlying the Union project including its legal order. In this article I therefore explore and defend the view that the Union legal order is essentially one of international law. A central contention in this regard is that the supremacy of Union law obligations within the Member States is based on the principle of the supremacy of international law obligations over those originating in the domestic arena. The intensive rationalisation of this principle by the Court of Justice within its case law manages the intrusive domestic legal effects of the values and ideals found in the Union Treaties and illustrates the evolutionary character of the Union project.

The Convention for the Protection of All Persons from Enforced Disappearance: Moving Human Rights Protection Ahead

By: Ioanna Pervou   UK - Download PDF Version Download pdf (UK)

The entry into force of the Convention for the Protection of all Persons from Enforced Disappearance at the end of 2010 signified the most important step in the struggle against enforced disappearances and marked a development in international human rights law. This article provides a historical overview of the phenomenon and tracks the background of the Convention’s adoption. It analyses and evaluates the definition adopted by the Convention. It also probes into practices applied against terrorism and suggests that they should be classified as enforced disappearances under the Convention. Overall, it is argued that the Convention’s application can be expected to cement detainees’ protection.

Recognition of Contracts as Investments in International Investment Arbitration

By: Velimir Zivkovic   UK - Download PDF Version Download pdf (UK)

The issue of recognition of contractual rights as protected investments in international investment arbitration, primarily under the auspices of ICSID, has sparked divergent approaches in case law. Treatment of certain contracts and the criteria used differ, which leads to unwelcome consequence of lowering legal certainty in a very sensitive issue. The aim of this paper is to contribute to enhancement and clarification of legal reasoning in this area, with a special focus on the criteria to be used and on sales contracts which are particularly controversial in practice. This is done through the analysis of the current state of affairs which is followed by a proposition of a new model of criteria which could present a beneficial compromise between the existing models and increase certainty.

Editorial


Editorial

By: Benedict S. Wray   UK - Download PDF Version Download pdf (UK)

Book Reviews


Publication Review: Brad R. Roth, Sovereign Equality and Moral Disagreement – Premises of a Pluralist International Legal Order (Oxford University Press, 2011)

By: J. Alexis Galán Ávila   UK - Download PDF Version Download pdf (UK)

Publication Review: Alexandra Gatto, Multinational Enterprises and Human Rights: Obligations under EU and International Law

By: Julien Topal   UK - Download PDF Version Download pdf (UK)





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