Journal Articles on Category: Law and Political Science

This paper was presented as the Second Friedrich Martens Memorial Lecture inMay 2007. It takes a critical view of the current frequent reference to custom as asource of the law of armed conflict and suggests that in many cases one shouldmore properly speak of the general principles of law. While some norms of the lawof armed conflict may not necessarily reflect “general practice accepted as law”,they may still be recognized as binding on account of their inner force and on thebasis of what may be referred to as communis opinio juris. The author advances the view that the existence of such communis opinio can beestablished by means of a threefold test. Thus, in order to be considered a principleof the law of armed conflict, a norm must (1) have a modicum of support on thepart of States, for instance in the shape of a reflection in military manuals, (2)reflect widely recognized core values of humanity, and (3) enjoy broad support ininformed international discourse (e.g., in Red Cross and Red Crescent conferences,in academic circles etc.). These requirements reflect, in effect, the three sourceslisted cumulatively in the Martens Clause: “the usages established among civilisednations, the laws of humanity, and the dictates of the public conscience.”

Issn:17363918

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Volume: 2

Pages: 48-68

Pseudonyms are of course nothing new under the sun. We know of them in a good many and diverse range of figures, including resistance fighters, saboteurs, gangsters, heroes, vulnerable parties to a lawsuit, authors, and actors. However, behind this surface familiarity is a very complex phenomenon. And it appears increasingly complex as one takes into account the proliferation of pseudonym use as facilitated by rapidly developing information and communication technologies. In this paper we canvass the main areas of law in which the pseudonym appears and extract and explicate key legal principles and considerations. This legal analysis is augmented by consideration of social, cultural, and political dimensions of naming practices. We survey the phenomenon of pseudonym use to reveal a vast variety of different uses of the pseudonym, for different purposes, and under different conditions. We propose a conceptual framework for managing the multiplicity of meanings that the term “pseudonym” has taken on in use today. This framework, we believe, is useful not only for better understanding what is going on in the phenomenon of pseudonymity today but also for normative analysis, discussion, and debate about how law and public policy should approach the pseudonym. *************** Les pseudonymes, bien sûr, ne sont rien de nouveau sous le soleil. Nous savons qu’une grande diversité de gens y ont recours, par exemple des personnes s’opposant à la résistance, des personnes participant à des tactiques de sabotage, des gangsters, des héroïnes et des héros, des parties vulnérables lors d’instances judiciaires, les femmes et les hommes du monde de la publication ou de la scène. Derrière cette familiarité apparente, toutefois, il y a un phénomène très complexe. Ce phénomène semble même encore plus complexe, lorsqu’on tient compte de la prolifération des pseudonymes dont l’utilisation est facilitée par le développement rapide des technologies de l’information et des communications. Dans le présent article, nous explorons les principaux domaines du droit où est soulevée la question du pseudonyme. Nous en dégageons, en les expliquant, les principes et les considérations juridiques. Cette analyse du droit est complétée par une étude des considérations sociales, culturelles et politiques qui entrent en jeu de la pratique de l’attribution de noms. Nous faisons un survol du phénomène des pseudonymes afin de découvrir la grande diversité de leur utilisation, à des fins fort variées et dans toute une panoplie de conditions. Nous proposons un cadre conceptuel pour gérer les significations multiples du pseudonyme dans notre monde actuel. Cet encadrement est utile, selon nous, nous seulement pour mieux saisir la tendance actuelle en la matière, mais aussi pour faire une analyse normative de ce phénomène et pour amorcer un débat sur la réponse juridique et politique à ce phénomène du pseudonyme.

Issn:17106028

Keywords: Naming ; Name ; Pseudonym ; Identification ; Anonymity

Volume: 3

Pages: 53-108

Issn:18257208

Keywords: humanitarian law ; global civil society

Volume: 6

Pages: 7-19

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The relationship between financial supervision and criminal law investigations is complex. How it is given shape exactly, differs from one country to another. National differences may have an impact on transnational cooperation. Whereas in transnational cases requests for mutual administrative assistance are necessary for administrative law purposes, for criminal law enforcement purposes requests for mutual assistance in criminal matters are needed. Do these different regimes for transnational cooperation pay due respect to national differences in law enforcement? To answer this question, the legal systems of Germany and the Netherlands are explored against the background of the EC Market Abuse Directive. Some alternatives for the current interstate practice are subsequently explored.

Issn:1871515X

Keywords: mutual assistance in criminal matters ; mutual assistance in administrative matters ; market abuse ; harmonisation ; area of Freedom ; Security and Justice

Volume: 2

Pages: 136-155

As a result of increasing European integration, local and regional authorities are having to deal with European law more and more intensively. As Member States (read: central government) are responsible vis-à-vis the Community for the errors of local and regional authorities, the question arises within Member States whether the central government possesses sufficient supervisory instruments for complying with their obligations under Community law: they must ensure that the errors of local and regional authorities are rectified in time, and national law must provide for sufficient possibilities to do so. Although Community law is neutral towards the internal relations between the various tiers of government within the Member States, this responsibility of the central government may, as a result of European integration, lead to a need for more powerful supervisory instruments in relation to local and regional authorities. In the past five years there has been some debate on this subject within the Netherlands and after a long delay the Dutch cabinet in 2004 decided that the existing supervisory instruments in the decentralized unitary state of the Netherlands should be expanded. The legislation intended to realize this expansion is being prepared. This discussion and its results would seem of interest to other Member States of the Community facing similar problems.

Issn:1871515X

Keywords: Community law ; European integration ; supervision ; local and regional authorities ; responsibility for infringements of Community law

Volume: 2

Pages: 91-110

The European Court of Justice is the most constant of all the institutions created by the abovementioned treaties. It must behighlighhed the fact that the same wording as the one used in the Treaty of Rome applies to the Court of Justice today, eventhough contained in a different Treaty. The European legal system which exists today is based more on ECJ’s jurisprudence than on what the drafters of the Treaties had actually written. Although it is clear that the drafters of the Treaties created the framework of the UE, the continuing process marked by various stages of development, set backs and compromises can only be coordinated by the ECJ in a manner that goes well beyond the image that the drafters of the Treaties envisaged at that moment.

Issn:1584224X

Keywords: The European Court of Justice ; Treaty of Rome ; The Single European Act (SEA) 1986

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Pages: 93-98

After years of relative silence, psychological torture has recently attracted wide attention. In this article, the author offers a comparative study of the way in which the different major human rights systems deal with this phenomenon. As each case has its own characteristics, factors such as the nature, purpose and severity of the treatment become important in making an assessment. The author deals with the approach of the Human Rights Committee, the Inter-American Commission on Human Rights and the European Court of Human Rights and discusses the different factors that determine whether the treatment is to be classified as torture or as inhuman or degrading treatment or punishment.

Issn:17561957

Keywords: mental ; psychological torture ; Human Rights Committee ; Inter-American Commission on Human Rights ; European Court of Human rights

Volume: 4

Pages: 65-81

When the North Atlantic Treaty Organization (NATO) went to war against the Federal Republic of Yugoslavia to liberate Kosovo, it did so primarily to prevent ongoing human rights violations and possible genocide. When the United Nations (UN) took on the interim administration of Kosovo, it also proclaimed that promoting respect for human rights and fundamental freedoms was one of the main purposes.Since the beginning of this administration by the UN, however, the status of human rights in Kosovo has remained unclear. Also, the relationship between NATO forces in Kosovo and the protection of fundamental rights was ambiguous. This essay will first analyze the mandate of the United Nations Mission in Kosovo (UNMIK) as given by Security Council Resolution 1244. This examination, combined with a closer look at the powers and activities of the NATO Kosovo Force (KFOR) and an analysis of the effective situation on the ground, will show that UNMIK and KFOR exercise de facto all of the governmental functions in the territory of Kosovo.As we are confronted with an international organisation having all the powers of a national State, the question arises whether UNMIK, and by extension KFOR, also carries out the responsibilities and abide by the obligations normally imposed upon States. Indeed, when the administration of a territory by the UN goes as far as taking over all the State’s rights, leaving aside its responsibilities, important questions of accountability arise. It will be these questions of accountability that will be addressed, taking a closer look at both the ‘national’ and international remedies that are available to the people of Kosovo. This analysis will lead to the conclusion that significant changes should be made when mandating international organisations’ missions that have an important focus on governance. Such missions should primarily be conceived from a point of view which recognises the paramount importance of the protection of human rights, the separation of powers and the accountability of its own actors.

Issn:17561957

Keywords: NATO ; accountability ; protection ; human rights

Volume: 4

Pages: 1-14