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This review essay aims to consider the law of neutrality, and whether it may be better situated within the jus ad bellum, the body of law governing the use of force, or the jus in bello, the body of law governing hostilities following the initial use of force. In doing so, the essay centres on the recent monograph by Constantine Antonopoulos on the subject of the law of neutrality, wherein the author assures us that despite the legal innovations of the last century, the law of neutrality has remained squarely within the modern jus in bello. The present writer takes a somewhat different approach, although appreciates the doctrinal allure of keeping the law of neutrality separate from jus ad bellum considerations, particularly in the context of the ongoing Russian invasion of Ukraine.

In: Journal of International Humanitarian Legal Studies

Abstract

This article’s main aim is to evaluate the position of brics ‘as a group’ towards the Responsibility to Protect (r2p) norm by locating it in the framework of the English School’s pluralist versus solidarist debate. It traces the pluralist and solidarist elements in brics discourses and decisions towards r2p by scrutinising the content of the ten brics summit declarations between 2011 and 2020 and the voting of brics members on UN Security Council resolutions regarding seven cases involving atrocity crimes (Syria, Yemen, Mali, Ivory Coast, Central African Republic, South Sudan, Libya) discussed at the UN Security Council. The article argues that although there is an obvious quantitative increase in brics common pluralist agenda, they do not demonstrate group solidarity in practice and have not yet socialised to act as a group on the r2p as a key norm of global governance. Therefore, their position as a group towards r2p could best be framed as ‘Charter solidarism’ in principle per se, not in practice.

In: Global Responsibility to Protect
The open access publication of this book has been published with the support of the Swiss National Science Foundation.

Climate change is forcing us to consider the right of people to leave their disappearing homelands, and the shape this right should take. Climate Change, Disasters and People on the Move proposes international protection as a solution with three pillars: granting protection against return to the country of origin (non-refoulement); preventing future displacement; and facilitating safe, orderly, and regular migration in the context of disasters and climate change. Dr. Aylin Yildiz Noorda uses the theories of common concern of humankind and community interests to operationalise her proposal, providing a blueprint for future claims.

Abstract

The safeguarding of cultural heritage and the protection of human rights constitute separate branches of international law, with different origins and different historical development. However, the far-reaching development of international cultural heritage law in the past half century has progressively infiltrated the field of human rights, developing what we may call ‘the human dimension of cultural heritage’. This article reconstructs the process of mutual influence of these two branches of international law by way of an analysis of the most representative sectors on international cultural heritage law, including protection of cultural property in war time, restitution and return of stolen and illegally exported cultural objects, the protection of cultural heritage of outstanding universal value (‘world heritage’), and the safeguarding of intangible cultural heritage and of cultural diversity. At a time when armed bands and terrorists deliberately destroy cultural property of great importance for humanity and angry crowds demolish monuments memorializing controversial figures of the past, connecting human rights and cultural heritage becomes an ever more necessary condition for a dialogue among the peoples and, in the end, the foundation for international peace and security.

In: Max Planck Yearbook of United Nations Law Online
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Abstract

This article examines some of the major contributions of and the challenges UN treaty bodies have encountered since the creation of the first such institution, the Committee on Racial Discrimination, in 1969. It looks at the roles played by treaty bodies in interpretating and monitoring compliance with UN human rights treaties, including questions about the effectiveness of procedures, inclusive of individual petitions and the remedies they may afford. It questions whether new procedures like inquiry and investigation may prove more beneficial to victims of abuse than the earlier and less-intrusive measures states were willing to accept. The dearth of reliable evidence on implementation and state enforcement of international human rights treaties makes overall conclusions about the value added by treaty bodies more anecdotal or impressionistic than reliable.

In: Max Planck Yearbook of United Nations Law Online

Abstract

The United Nations (UN) Security Council (UNSC) is endowed with the primary responsibility for the maintenance of international peace and security under Art. 24 (1) of the Charter of the United Nations (UNC). The establishment of the ad hoc criminal tribunals for Yugoslavia and Rwanda in the 1990s under Chapter VII of the UNC has shown that individual criminal accountability for international core crimes belongs to the instruments to address threats to or breaches of peace (Art. 39 of the UNC). With the International Criminal Court (ICC) a permanent institution has been established to sanction the commission of international core crimes. Acting under Chapter VII, the UNSC is entitled to refer a situation to the ICC according to Art. 13 (b) of the Rome Statute of the International Criminal Court (Rome Statute), as well as to defer proceedings (Art. 16 of the Rome Statute). By using their veto power each of the five permanent members of the UNSC might block both types of resolutions. While a veto against an ICC referral resolution might hinder the Court from fulfilling its mandate (destructive veto), blocking a deferral resolution might enable the Court to continue its fight against impunity (constructive veto). This article discusses whether obligations stemming from the UNC and other sources of public international law, in particular human rights, might impact the decisions of the UNSC and the veto exercise in particular in both cases. It intends to contribute to the ongoing discussion by several reflections on the veto powers, and concludes that, even though the veto powers might be influenced by these legal sources, it will be difficult to guide the conduct of the five UNSC Permanent Members (P5) with regard to the ICC.

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

Abstract

The Human Rights Council is the principal forum for the discussion of human rights issues in the United Nations (UN) system. It has replaced the Human Rights Commission which had been highly successful in the codification of human rights norms and standards, but less so in monitoring their effective implementation. This failure was due in part to the Commission’s design as a body representing Member State governments and the lack of transparent criteria for membership selection. The reforms which led to the replacement of the Commission by the Human Rights Council in 2006 were intended to address these shortcomings but turned out to be compromise solutions which have produced only limited change in the outlook and in the working methods of the Council in comparison to its predecessor. As ideological and political divisions within the international community and the Council have intensified, this has increased the risk of partisanship undermining the credibility of the latter’s work, thus calling into question the Council’s role as an effective instrument for human rights promotion and protection.

In: Max Planck Yearbook of United Nations Law Online

Abstract

Although first noted discussions at the United Nations (UN) level about corruption are reaching their 50th anniversary, the core of the UN activity against corruption has taken place in the last quarter of a century. The 2021 special debate at the UN General Assembly was an opportunity for the institution to pause and reflect about its role over this period in the international fight against corruption. It also presented a (partially missed) opportunity for the UN to renew its commitment and reconsider its approach for the next 25 years. This article provides first an overview of the UN activity against corruption, which relies on two main pillars. On the one hand, the well-known United Nations Convention Against Corruption (UNCAC) in force since 2005, which has received remarkable academic attention and is an example of success in terms of ratifications. On the other hand, the insertion in Sustainable Development Goal 16 of an anticorruption objective (16.5) and its related indicators, which is not as widely acknowledged by anticorruption activists and scholars but serves as a recognition of the importance of tackling corruption in the development context.

The article offers a historical contextualisation of both initiatives, analyses this dual approach and explores the impact of these initiatives in the global and domestic contexts. Based on previous research from the author, it highlights their joint value as a true global statement against corruption and an authoritative recognition of its damaging effects and their importance for peace, security, development, human rights and human wellbeing. The article presents, nevertheless, a critical analysis showing their shortcomings and the lack of a real effect of these instruments in overcoming or at least reducing corruption and kleptocracy at the international level. It proposes three different avenues within the UN mandate and fields of action that could guide newer initiatives. First, it explores the possibility of individual (non-criminal) ‘smart’ sanctions, modelled on the counter-terrorism regime driven by national governments, but assisted by United Nations Office on Drugs and Crime (UNODC). Second, the article considers how the economic and trade dimension of the UN, especially at the regional economic commissions level, could be reinvigorated with a mandate to tackle corruption through economic instruments. Third, it analyses how an optional protocol to the UNCAC could give more ‘teeth’ to the Convention. The general conclusion is that the UN, within its existing powers, has significant potential to take anticorruption initiatives a step further as the current ones have almost exhausted their shelf life.

Open Access
In: Max Planck Yearbook of United Nations Law Online