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In: Journal of the History of International Law / Revue d'histoire du droit international

For the last 75 years, the UN has been placed at the centre of international law-making. The Organization can be considered both as a place where international law is discussed, made and interpreted by its Member States and as a proper actor, with its own international legal personality, voice and practice, engaged in the creation and implementation of international law.

This article considers the extraordinary position of the UN in providing a unique contribution to the development, codification and implementation of international law in branches ranging from the law of treaties to the legal principles governing the protection and preservation of the marine environment or the criminal accountability for graves violations of international humanitarian law.

On its 75th anniversary, the Organization has demonstrated its flexibility and adaptability to the changing priorities and concerns of the international community and facilitated the commitment of its Member States to multilateralism and the principles enshrined in the Charter signed on 26 June 1945 in San Francisco. Indeed, the outlook for the next 25 years of international law-making at the UN looks brighter than it may at first appear.

In: Max Planck Yearbook of United Nations Law Online
Author:

Cyber technologies have changed all spheres of contemporary life at both the national and international levels. At the same time, legal regulation in the sphere stays far beyond technical developments. As a result, an enormous number of new terms and concepts have been invented in the area. It is maintained sometimes that the changes are so drastic that the very notion of sovereignty is outdated and the individual becomes a key actor of international relations. Consequently, there is a clear need to assess the impact of cyber technologies on the enjoyment of human rights. Due to the absence of proper legal regulation, the necessity or possibility to state the emergence of the new ‘fourth’ generation of human rights on the Internet is already discussed. The present article focuses on the status of different categories of human rights in the digitalized world. It concludes that the development of cyber technologies may hardly cause the emergence of a new generation of human rights but rather results in the need to adapt the whole system of the existing human rights to the emerging reality.

In: Max Planck Yearbook of United Nations Law Online
Author:

The Brexit saga which culminated in the sweeping victory of the Conservative Party in the parliamentary elections of December 2019 and the British withdrawal from the European Union the following months caused a major upheaval in the relationship between Britain’s main constitutional actors, especially between the government and the judiciary. In the course of the long-winded and acrimonious Brexit debate, the courts were repeatedly asked to intervene at critical junctures of the withdrawal process, first to secure a central role for Parliament in discussing and approving the terms of withdrawal and then to protect Parliament against attempts by the government to curtail and render ineffective this role through the questionable use of its prerogative powers.

This development reached its climax with the UK Supreme Court’s judgment of 24 September 2019 on the unlawfulness of the prorogation of Parliament decided by the Queen on the advice of the Prime Minister in the run-up to Brexit, an unprecedented interference by the courts with the exercise of prerogative powers in the name of a functioning parliamentary democracy. While the reasoning of the Court does not appear entirely convincing, there can be no doubt that the ruling was crucial in upholding the central role of Parliament in the Brexit negotiations and, by implication, of the authority of the courts which had defined that role at the beginning of the negotiations. That the Supreme Court felt it necessary to take the unprecedented step of confronting the executive over the use of its prerogative powers in a highly polarized political debate also demonstrates the extent to which the political consensus which in former times had underpinned the functioning of Britain’s flexible constitutional democracy has broken down as a result of the Brexit debate, and the divisions it has engendered within Britain’s political class and in the public at large. This gives rise to the concern that the reforms announced by the Conservative government following its sweeping victory in the parliamentary elections of December 2019 will destroy any progress which had been made in the UK prior to the Brexit referendum towards a modern practice of parliamentary majority government based on incomplete but genuine checks and balances.

In: Max Planck Yearbook of United Nations Law Online

The European Union possesses constitutional characteristics that have permitted a unique approach to the organization and exercise of public authority in matters of marine fisheries regulation. The resulting system, known as the Common Fisheries Policy (CFP), is underpinned by the international law of the sea and other multilateral legal frameworks, yet also contains significant special features. Through extensive legislation and successive reforms the CFP has evolved into a complex body of principles, rules and institutions, growing in ambition and sophistication with each iteration. Yet, its success is not only dependent on its capacity for evolution, but also on the stability of its constitutional foundations, and the extent to which it can coherently support the plurality of idiosyncrasies and interests that characterize the Member States and their diverse fishing interests and cultures.

In: Max Planck Yearbook of United Nations Law Online
Author:

Constitutional drafting is a complex procedure. Every year, nonetheless, the world witnesses the birth of several constitutions. The drafting of constitutions, however, differs greatly from one to the other; this depends mainly on the state of affairs in each State and the causes behind the need for a new constitution. In post-conflict States, the success of the constitutional drafting process depends on various factors including, inter alia, the inclusiveness of the process; transparency; equal representation in the bodies involved in the drafting; public participation; as well as the role the international community plays. All of these factors have great implications on the success, or failure, of not only the constitutional drafting process, but also on the whole peace-building process in post-conflict societies. In other words, a successful constitutional drafting process must be nationally-led and owned while targeting the root causes of the conflict. While it may be aided by international components, the process must reflect the geo-ideological differences within a State, whether cultural, tribal, ethnic or religious. This article gives an empirical account of the constitutional drafting processes adopted as a consequence of internal conflict in Iraq, Tunisia, Kosovo, and Sudan. The paper discusses the general drafting process; the bodies involved; procedural shortcomings; and any international influence.

In: Max Planck Yearbook of United Nations Law Online
Author:

The UN Security Council (UNSC) has become the dominant forum for resolving peace and security disputes or disturbances since the early 1990s, and the Gulf region was not only the starting point but also one of the key areas of concern to the post-Cold War UNSC. By all accounts, Qatar’s strategy towards the embargo has been twofold: on the one hand, it has engaged in a global public relations campaign, while on the other it has made meticulous and concerted use of all available UN mechanisms, both judicial and political. In this manner, Qatar has shown an entrenched commitment to the rule of law and sound governance. This paper suggests that this strategy could go a step further by directly engaging the UNSC. Given that the UNSC views the embargo as a low-intensity political skirmish with no discernible victims in the near future, it is unlikely to alienate Egypt and Saudi Arabia by putting the issue on its agenda. The paper argues that given this state of affairs, Qatar might well pursue other indirect ways of engaging the UNSC. This may be achieved by linking the embargo to existing thematic issues on the Council’s agenda, such as the wars in Syria and Yemen, where Saudi Arabia, the United Arab Emirates and Qatar have some degree of involvement; the situation with Iran, which is a thorny issue for the Gulf Cooperation Council (GCC); the UNSC’s ongoing involvement with international terrorism, and potentially several others.

In: Max Planck Yearbook of United Nations Law Online

A relatively young body with roots in an older institution, the UN Human Rights Council has enjoyed some success and continued to serve important positive goals, many of them not easily realized. However, the system has always had significant internal and external limitations and continues to be beset by many problems – some more serious than others, and others more imagined than real. In our own time, the rise of right-wing populist regimes around the world, the continuities and discontinuities of the challenge that this sort of populism has posed to multilateralism in global governance, the economic crises that recently beset many parts of the world leading to serious resource constraints among many of the States that contribute the most to the UN’s budget, and the on-and-off withdrawals of the US (one of the most powerful States in the world) from the Council amidst charges of selectivity, appear to have combined to produce heightened crisis within and about that body. What to do? Informed by the cross-fertilization of the author’s academic thought and practical experience at the UN, the article offers an analysis of the Council’s attainments (including its embrace of a broader and more inclusive agenda, upr reduction of selectivity, the reform of its system of appointing special procedure mandate holders, increase in the number of standing invitations issued by States to such mandate holders, and establishment of an effective sids/ldcs fund); discusses the problems that presently confront the Council (many of which have already been referred to above); and works out in some detail some of the ways in which these difficulties can be effectively ameliorated so as to enhance the Council’s performance in the near- to medium-term future.

In: Max Planck Yearbook of United Nations Law Online
Author:

The Constitutional Court of South Africa has played a unique role in the country’s constitutional transition. This paper starts by detailing the historical and political context of the Interim Constitution which created the Constitutional Court and the constitutional principles. The article describes the approach of the Court in the First Certification Judgment (1996), analysing the impact of the Constitutional Court’s decision on the drafting of the final Constitution and the public more generally, before briefly outlining the role that the Court continues to play in protecting constitutional democracy as a ‘Guardian of the Solemn Pact’.

In: Max Planck Yearbook of United Nations Law Online

International practice indicates a tendency that the obligations under human rights treaties continue under the law of State succession. The successor State is thus bound to respect the rights previously granted under a human rights treaty to the inhabitants of a territory it has assumed responsibility for. However, the successor State is not automatically party to the human rights treaty which its predecessor was a party to. As such, the continuity of human rights obligations has not occurred ipso iure. Yet, States have acquiesced to the jurisprudence of the Human Rights Committee and accepted their human rights obligations retroactively upon the ratification of the human rights treaties.

In: Max Planck Yearbook of United Nations Law Online