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1. Climate Protection Litigation on the Rise

Author:
Szymon Zaręba
Publication Date:
02-2023
Content Type:
Working Paper
Institution:
The Polish Institute of International Affairs
Abstract:
In the last several years, national courts and international institutions have increasingly begun to treat conservative or climate-adverse actions by states as violations of their obligations under international law and human rights. This has been followed by some countries more affected by climate change and engaged in international bodies to put more pressure on Global North states to protect the climate. The sympathetic attitude of international courts towards such complaints may, in the long term, force the need for increased climate ambition or even compensation payments by, among others, Poland.
Topic:
Climate Change, Human Rights, International Law, Courts, and Litigation
Political Geography:
Europe, Poland, and Global Focus

2. R (Begum) v Special Immigration Appeals Commission; R (Begum) v Secretary of State for the Home Department; Begum v Secretary of State for the Home Department [2021] UKSC 7, [2021] AC 765

Author:
Eric Fripp
Publication Date:
07-2022
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
The decision of the Supreme Court represents yet another prompt to reflection asto the very wide provision for deprivation of British citizenship bytheSSHD undertheBNA 1981s 40(2). By making clear the paucity of domestic law restraints upon the SSHD, the decision may ultimately have the effect of moving attention to the question—which the Supreme Court did not address —of whether domestic law safeguards, if not reformed, might be found so insufficient as to fall short of the international law norm prohibiting arbitrary deprivation of nationality, which the European Court of Human Rights in recent cases has been willing to find applicable through the broader art 8 ECHRrights. That question looms over the future but will,for the moment,remain unresolved. It also raises important questions concerning the absence of protection from serious harms which may, given the technical nature of the statelessness definition, not be alleviated by protection from statelessness, and leaves to be resolved on the facts of future cases important issues of child law, including the international human rights protections of the CRC89.
Topic:
Law, Children, Citizenship, Courts, and Stateless Population
Political Geography:
United Kingdom and Europe

3. TP v Minister of Home Affairs (Sentence No 9140, 22 April 2014) (Tribunal of Rome)

Author:
Paolo Farci
Publication Date:
07-2021
Content Type:
Journal Article
Journal:
Statelessness & Citizenship Review
Institution:
Peter McMullin Centre on Statelessness, Melbourne Law School
Abstract:
There are two procedures to determine statelessness in Italy. One is under the competence of the Ministry of the Interior, which can certify, pursuant to the administrative procedure under art 17 of Decree of the President of the Republic No 572,1 the statelessness of applicants who are able to show: (a) a birth certificate; (b) documentation relating to residence in Italy; and (c) any document suitable for demonstrating statelessness. The other procedure is under the competence of the civil courts.2 This judicial procedure does not require applicants to provide evidence of their lawful status or residence and thus, it is the route followed by most stateless persons.3 The present case, TP v Minister of Home Affairs,4 concerns the latter route to statelessness determination and involves TP’s application to the Tribunal of Rome to recognise his status as a stateless person. This case represents an unusual example of a court using its inquisitorial powers to seek evidence in support of its ruling and, as such, it set a judicial precedent, which can assist the determination of similar proceedings. It was also the first time that a court found the Government of India’s practice regarding the treatment of Tibetans born in India to Tibetan parents amounted to a denial of nationality
Topic:
Law, Courts, Stateless Population, and Nationality
Political Geography:
Europe and Italy

4. Protecting checks and balances to save the Rule of Law

Author:
Eric Maurice
Publication Date:
04-2021
Content Type:
Policy Brief
Institution:
Robert Schuman Foundation (RSF)
Abstract:
For half a decade, the Polish government has been reshaping the country's judicial system in a process described by the European Union as a "threat to the rule of law". Despite numerous Council of Europe reports and resolutions, several infringement proceedings and decisions of the Court of Justice of the European Union (ECJ), and the unprecedented activation of the so-called Article 7 procedure of the Treaty on European Union (TEU), the transformation of the judiciary into relays of political power has continued and accelerated since the Law and Justice Party (PiS) won a new term in 2019 and the reelection of President Andrzej Duda in 2020, pushing Poland to the limits of the European legal order.
Topic:
Government, European Union, Courts, and Rule of Law
Political Geography:
Europe and Poland

5. Reform of the European Court of Human Rights

Author:
Stefania Kolarz
Publication Date:
08-2021
Content Type:
Special Report
Institution:
The Polish Institute of International Affairs
Abstract:
Protocol No. 15 to the European Convention on Human Rights and Fundamental Freedoms (ECHR), which entered into force on 1 August, was to improve the functioning of the European Court of Human Rights (ECtHR), including by accelerating the examination of cases. However, some of the changes made by it may have the opposite effect. The protocol does not solve the problem of overloading the ECtHR with incoming complaints. The reform should be thus continued by, for example, more effective resolution by states of systemic problems identified by the ECtHR.
Topic:
Reform, Courts, Jurisdiction, and European Court of Human Rights (ECHR)
Political Geography:
Europe

6. From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal

Author:
Hannah Woolaver
Publication Date:
01-2019
Content Type:
Journal Article
Abstract:
If a state withdraws from a treaty in a manner that violates its own domestic law, will this withdrawal take effect in international law? The decisions to join and withdraw from treaties are both aspects of the state’s treaty-making capacity. Logically, international law must therefore consider the relationship between domestic and international rules on states’ treaty consent both in relation to treaty entry and exit. However, while international law provides a role for domestic legal requirements in the international validity of a state’s consent when joining a treaty, it is silent on this question in relation to treaty withdrawal. Further, there has been little scholarly or judicial consideration of this question. This contribution addresses this gap. Given recent controversies concerning treaty withdrawal – including the United Kingdom’s exit from the European Union, South Africa’s possible withdrawal from the International Criminal Court, and the threatened US denunciation of the Paris Agreement – and the principles underlying this body of law, it is proposed that the law of treaties should be interpreted so as to develop international legal recognition for domestic rules on treaty withdrawal equivalent to that when states join treaties, such that a manifest violation of domestic law may invalidate a state’s treaty withdrawal in international law.
Topic:
International Law, Treaties and Agreements, European Union, Courts, and State Actors
Political Geography:
United Kingdom, Europe, South Africa, and United States of America

7. The European Union and the Law of Treaties: A Fruitful Relationship

Author:
Paz Andrés Sáenz De Santa María
Publication Date:
07-2019
Content Type:
Journal Article
Abstract:
This article examines the European Union’s (EU) treaty practice from the perspective of the international law of treaties, focusing on its most significant examples. The starting point is the EU’s attitude towards the codification of treaty law involving states and international organizations. The article discusses certain terminological specificities and a few remarkable aspects, such as the frequent use of provisional application mechanisms as opposed to much less use of reservations, the contributions regarding treaty interpretation, the wide variety of clauses and the difficulties in determining the legal nature of certain texts. The study underlines that treaty law is a useful instrument for the Union and is further enriched with creative contributions; the outcome is a fruitful relationship.
Topic:
International Law, Treaties and Agreements, European Union, and Courts
Political Geography:
Europe and European Union

8. Brigitte Bierlein, Federal Chancellor of the Republic of Austria

Author:
Brigitte Bierlein
Publication Date:
09-2019
Content Type:
Video
Institution:
Columbia University World Leaders Forum
Abstract:
This World Leaders Forum program features an address, Freedom, Security & the Rule of Law - a European Perspective, by Brigitte Bierlein, Federal Chancellor of the Republic of Austria, followed by a moderated question and answer session with the audience.
Topic:
Security, Human Rights, National Security, Law, Political stability, and Courts
Political Geography:
New York, Europe, Austria, and European Union

9. Root Causes of the Non-Enforcement of the Domestic Judicial Decisions in Ukraine

Author:
Alla Chernova, Halyna Balanovych, and Hanna Pashkova
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
National Security and Defence
Institution:
Razumkov Centre
Abstract:
The study was carried out based on the “Methodology for international and/or national expert analysis to determine the main reasons for the non-enforcement of decisions rendered by the domestic courts of Ukraine” within the Council of Europe’s project “Supporting Ukraine in the execution of judgements of the European Court of Human Rights”. This study was particularly related to the devastatingly low levels of the enforcement of judgments and, accordingly, the need to improve the situation in this area. The project implementation revealed the root causes of the non-enforcement of three categories of court decisions (social disputes, labour disputes and decisions concerning legal entities falling under the responsibility of the State or the State itself), as well as other problems linked to the statistics and the register of court decisions The first problem was associated with the impossibility of finding necessary cases. The experts identified systemic flaws in record-keeping and data comparability of the Unified State Register of Court Decisions (USRCD) and the Unified State Register of the Enforcement Proceedings with respect to all these categories of judgments. For example, of 2,760 court decisions in “social disputes” selected for analysis, the experts could only find 2,254 judgements in the USRCD under the provided requisites. The analysis revealed systemic violations of the relevant legislation, such as illegal reduction of payments, significant narrowing of the scope of plaintiffs’ rights by bylaws, misapplication of the budget legislation by the authorised government bodies. Speaking of labour disputes, the analysis covered 1,505 unexecuted court decisions. Causes for the non-enforcement in this category of decisions included the lack of necessary state funding (lack of budgetary allocations) at the time of the matter of controversy leading to the state’s failure to fulfil its obligations, improper exercise of powers by government authorities and state-owned enterprises, flaws in normative regulation of labour relationships, repeated reorganisations of one and the same enterprises leading to the interpretation confusion of these procedures and their improper execution. As for the decisions concerning legal entities falling under the responsibility of the State or the State itself, 250 of 14,324 court decisions of this category were subjected to expert analysis. It revealed inefficiency of the State Execution Service in recovering such debts, the improper performance of duties by the public executors, unlawful assistance to the debtor or delays in the enforcement of court decisions, obstruction of the plaintiffs’ right to use the mechanisms stipulated by the Law “On State Guarantees for the Enforcement of Judgements”. The study has also analysed the national legislation governing the system of bodies and the procedure for enforcement of judgments. Therefore, if taken into consideration by the relevant authorities, the project results presented in this publication can contribute to the understanding of current situation with the enforcement of judgements and developing approaches to their better execution.
Topic:
Labor Issues, Courts, Judiciary, and European Court of Human Rights (ECHR)
Political Geography:
Europe and Ukraine

10. The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?

Author:
Alan Desmond
Publication Date:
01-2018
Content Type:
Journal Article
Abstract:
This article critically examines the evolving practice of the European Court of Human Rights (ECtHR) towards the definition and use of the concepts of family life and private life in cases involving migrants who seek to resist deportation by invoking Article 8 of the European Convention on Human Rights. The examination reveals an approach on the part of the Court that has the effect of shrinking the protection potential of Article 8 for migrant applicants, allowing state interest in expulsion to carry the day. This is symptomatic of Strasbourg’s deference to state sovereignty in the realm of migration. While the ECtHR has issued a number of landmark rulings roundly vindicating migrants’ rights, these are the exception to the rule of Strasbourg’s deference to state powers of immigration control. This approach has far-reaching implications for migrants in the member states of the Council of Europe. The article concludes by highlighting the tools at the Court’s disposal that could be employed to construct a more human rights-consistent approach in this strand of jurisprudence, which is an issue all the more relevant in light of the growing number of migrants seeking to establish a life in Europe.
Topic:
Human Rights, International Law, Migration, Sovereignty, and Courts
Political Geography:
Europe and France