Complicity of States in the international illicit
€ 99,95
The present survey aims to explore the role of state practice in the context of modern international law. Not only is the process of interpretation giving concrete content to the conventional disposition, but a practice in the implementation of the treaty that go beyond the boundaries of the same, modifying it and therefore (re) acquiring a “normative” relief in the proper sense. Work on the formation of customs, on the other hand, starts in 2012 on the basis of the work of Special Rapporteur Michael Wood. In particular, these conclusions, which contains conclusions 4 to 8, refers specifically to the theme of “general practice”, which must be accompanied by the acceptance as a right in order to produce the customary norm, according to the dual classic scheme. The main role for the creation of a customary rule is attributed to the practice of the States. In particular, the International Law Commission (ILC) proposes a non-exhaustive list of behaviors that can be used as a praxis, among which there is no coincidence that the practice “in connection with treaties” further proves the affinity between the two projects. The investigation phase is now also concluded with regard to the identification of the custom, and the report of the ILC of 2016 includes a commentary of these 16 Conclusions, submitted to the States at first reading. Our analysis and its purpose of this work is to identify the main hypotheses of states responsibility in connection with organizations activities, adopting the perspective of system protection established by the European Convention on Human Rights (ECHR) on which the European Court of Human Rights (ECtHR) supervises. The results to which the ECtHR has come have been extensively examined in the relevant literature. Therefore, after having reconstructed the main liability hypotheses emerged in the ECtHR jurisprudence and the critical points connected to them (section I), we will investigate new arguments to ascribe responsibility to member states on the basis of different titles, not yet explored or otherwise not still consolidated in ECtHR jurisprudence. We remain also, in the analysis of new interpretive trends with regard to the standard of proof for the attribution to the state of unequivocal conduct of liability through international jurisprudence in comparison with various courts of various statutes and different attributions that remain always under the same level of punishment for international responsibility. Final, an inductive approach, with the aim, on the one hand, of highlighting the concrete results achieved in the field of defense and peacekeeping, and, on the other, of providing possible contributions with respect to the issues raised above, in particular what the impact of international law is under the Common Security and Defense Policy and the Common Foreign and Security Policy and how it is possible to configure the responsibility of the European Union and/or the participating States to international crimes committed in the performance of the various operations.
Complicity of States in the international illicit
€ 99,95
The present survey aims to explore the role of state practice in the context of modern international law. Not only is the process of interpretation giving concrete content to the conventional disposition, but a practice in the implementation of the treaty that go beyond the boundaries of the same, modifying it and therefore (re) acquiring a “normative” relief in the proper sense. Work on the formation of customs, on the other hand, starts in 2012 on the basis of the work of Special Rapporteur Michael Wood. In particular, these conclusions, which contains conclusions 4 to 8, refers specifically to the theme of “general practice”, which must be accompanied by the acceptance as a right in order to produce the customary norm, according to the dual classic scheme. The main role for the creation of a customary rule is attributed to the practice of the States. In particular, the International Law Commission (ILC) proposes a non-exhaustive list of behaviors that can be used as a praxis, among which there is no coincidence that the practice “in connection with treaties” further proves the affinity between the two projects. The investigation phase is now also concluded with regard to the identification of the custom, and the report of the ILC of 2016 includes a commentary of these 16 Conclusions, submitted to the States at first reading. Our analysis and its purpose of this work is to identify the main hypotheses of states responsibility in connection with organizations activities, adopting the perspective of system protection established by the European Convention on Human Rights (ECHR) on which the European Court of Human Rights (ECtHR) supervises. The results to which the ECtHR has come have been extensively examined in the relevant literature. Therefore, after having reconstructed the main liability hypotheses emerged in the ECtHR jurisprudence and the critical points connected to them (section I), we will investigate new arguments to ascribe responsibility to member states on the basis of different titles, not yet explored or otherwise not still consolidated in ECtHR jurisprudence. We remain also, in the analysis of new interpretive trends with regard to the standard of proof for the attribution to the state of unequivocal conduct of liability through international jurisprudence in comparison with various courts of various statutes and different attributions that remain always under the same level of punishment for international responsibility. Final, an inductive approach, with the aim, on the one hand, of highlighting the concrete results achieved in the field of defense and peacekeeping, and, on the other, of providing possible contributions with respect to the issues raised above, in particular what the impact of international law is under the Common Security and Defense Policy and the Common Foreign and Security Policy and how it is possible to configure the responsibility of the European Union and/or the participating States to international crimes committed in the performance of the various operations.
The role of not party in the trial before the International Court of Justice
€ 75,00
The limitations of the present investigation impose to restrict the analysis to the trial system of the International Court of Justice (ICJ), as it is not possible to examine in depth the problem of the position of the third state. The present study intends to contribute to the reconstruction of the structural features of the intervention as not party, as foreseen by articles 62 and 63, of the International Court of Justice (ICJ) Statute. The first part of this survey is dedicated to a general introduction to ICJ function (including principle and legality of acts of ICJ) and continues with the examination of the position of the third state absent from the judgment. First of all, the foundation and the objective and subjective limits of the res judicata are analyzed on the one hand. On the other, there are additional effects with respect to the judgment that the international sentence is likely to produce towards third states and to which the institution of intervention, in its various forms, intends to remedy. The second part is dedicated to the examination of the international trial. Within this framework the absence of an interested party may lead the judge to refuse to exercise its jurisdictional power, where the subject who was not involved in the trial represents a real “necessary party”. The examination of this rule, as stated and applied by ICJ, provides a further piece of the framework in which the figure of the third party intervention is inscribed. The type of incidence that a decision whose obligatoriness rests solely on the consent of litigating states has on the legal positions of third states is partly different from the prejudice that can be caused to individuals by a sentence rendered inter alias. It follows that the reasons that can induce a state to decide to take part in a procedure promoted by other states have at times been different from the reasons that induce private individuals to intervene in internal judgments.
The role of not party in the trial before the International Court of Justice
€ 75,00
The limitations of the present investigation impose to restrict the analysis to the trial system of the International Court of Justice (ICJ), as it is not possible to examine in depth the problem of the position of the third state. The present study intends to contribute to the reconstruction of the structural features of the intervention as not party, as foreseen by articles 62 and 63, of the International Court of Justice (ICJ) Statute. The first part of this survey is dedicated to a general introduction to ICJ function (including principle and legality of acts of ICJ) and continues with the examination of the position of the third state absent from the judgment. First of all, the foundation and the objective and subjective limits of the res judicata are analyzed on the one hand. On the other, there are additional effects with respect to the judgment that the international sentence is likely to produce towards third states and to which the institution of intervention, in its various forms, intends to remedy. The second part is dedicated to the examination of the international trial. Within this framework the absence of an interested party may lead the judge to refuse to exercise its jurisdictional power, where the subject who was not involved in the trial represents a real “necessary party”. The examination of this rule, as stated and applied by ICJ, provides a further piece of the framework in which the figure of the third party intervention is inscribed. The type of incidence that a decision whose obligatoriness rests solely on the consent of litigating states has on the legal positions of third states is partly different from the prejudice that can be caused to individuals by a sentence rendered inter alias. It follows that the reasons that can induce a state to decide to take part in a procedure promoted by other states have at times been different from the reasons that induce private individuals to intervene in internal judgments.
European integration through member states’constitutional identity in EU law
€ 45,00
The present research aims to verify the nature and extent of the identity clause and to establish the role that art. 4, par. 2 TEU is called to perform in the management of the aforementioned conflicts. More specifically, it is of interest to verify whether the law has its own autonomy, what consequences may result its being violated in the light of CEU jurisprudence and what added value could have a consistent use of the identity clause in the context of the management of inter-order conflicts affecting the national identity of member states. To this end, it is essential to start from an examination of the reasons that led to the affirmation of respect for the national identity by the singular member states. To understand the legal value of art. 4, par. 2 TEUs must first reflect on the important developments in the matter of safeguarding the national identity of the Maastricht Treaty up to the Treaty of Nice and analyze them in correlation with other relevant provisions of primary law to protect state prerogatives but also to affirm a European identity founded on respect for values such as democracy and the rule of law as well as on the protection of fundamental rights. The analysis carried out in the first understanding focuses precisely on these aspects, trying to outline the path taken at the normative and jurisprudential level, not only in relation to the identity clause but also with respect to particular conceptions of fundamental rights as well as to cultural, linguistic and religious considered to be worthy of protection (as an expression of national specificity and capable of affecting the assessments of CJEU both on the admissibility of the exceptions to EU law, as well as in relation to their proportionality.
The possibility of recognizing an autonomous character - and not merely complementary and ancillary - in art. 4, par. 2 TEU necessarily passes through a more precise definition of its legal boundaries, which implies, on the one hand, a careful reflection on the differences with respect to the formulation of the clause as contained in art. 6, par. 3 TEU (dating back to the Amsterdam Treaty) as well as the changes proposed by Group V of the Convention on the Future of Europe. On the other hand, a careful reading and adequate knowledge of CJEU jurisprudence and of the relevant factual and legal context.
The possibility of recognizing an autonomous character - and not merely complementary and ancillary - in art. 4, par. 2 TEU necessarily passes through a more precise definition of its legal boundaries, which implies, on the one hand, a careful reflection on the differences with respect to the formulation of the clause as contained in art. 6, par. 3 TEU (dating back to the Amsterdam Treaty) as well as the changes proposed by Group V of the Convention on the Future of Europe. On the other hand, a careful reading and adequate knowledge of CJEU jurisprudence and of the relevant factual and legal context.
European integration through member states’constitutional identity in EU law
€ 45,00
The present research aims to verify the nature and extent of the identity clause and to establish the role that art. 4, par. 2 TEU is called to perform in the management of the aforementioned conflicts. More specifically, it is of interest to verify whether the law has its own autonomy, what consequences may result its being violated in the light of CEU jurisprudence and what added value could have a consistent use of the identity clause in the context of the management of inter-order conflicts affecting the national identity of member states. To this end, it is essential to start from an examination of the reasons that led to the affirmation of respect for the national identity by the singular member states. To understand the legal value of art. 4, par. 2 TEUs must first reflect on the important developments in the matter of safeguarding the national identity of the Maastricht Treaty up to the Treaty of Nice and analyze them in correlation with other relevant provisions of primary law to protect state prerogatives but also to affirm a European identity founded on respect for values such as democracy and the rule of law as well as on the protection of fundamental rights. The analysis carried out in the first understanding focuses precisely on these aspects, trying to outline the path taken at the normative and jurisprudential level, not only in relation to the identity clause but also with respect to particular conceptions of fundamental rights as well as to cultural, linguistic and religious considered to be worthy of protection (as an expression of national specificity and capable of affecting the assessments of CJEU both on the admissibility of the exceptions to EU law, as well as in relation to their proportionality.
The possibility of recognizing an autonomous character - and not merely complementary and ancillary - in art. 4, par. 2 TEU necessarily passes through a more precise definition of its legal boundaries, which implies, on the one hand, a careful reflection on the differences with respect to the formulation of the clause as contained in art. 6, par. 3 TEU (dating back to the Amsterdam Treaty) as well as the changes proposed by Group V of the Convention on the Future of Europe. On the other hand, a careful reading and adequate knowledge of CJEU jurisprudence and of the relevant factual and legal context.
The possibility of recognizing an autonomous character - and not merely complementary and ancillary - in art. 4, par. 2 TEU necessarily passes through a more precise definition of its legal boundaries, which implies, on the one hand, a careful reflection on the differences with respect to the formulation of the clause as contained in art. 6, par. 3 TEU (dating back to the Amsterdam Treaty) as well as the changes proposed by Group V of the Convention on the Future of Europe. On the other hand, a careful reading and adequate knowledge of CJEU jurisprudence and of the relevant factual and legal context.
The function of accusation in International Criminal Court. Structure of crimes and the role of Prosecutor according to the international criminal jurisprudence
€ 55,00
The present survey aims to analyze the issue of the indictment function in the process before the International Criminal Court which integrates a peculiar justice system, result of the complex interaction between the juridical tradition of civil law and the juridical tradition of common law. The prosecution function is entrusted to a Prosecutor who is conceived as a hybrid figure. It is an organ that not only performs its functions in the context of a system in which the principle of opportune penal action applies, but which also operates on a level that can be defined to some extent as political, since he has to move in an international chessboard and being called to also have diplomatic relations with states and international institutions. The discussion (Chapter 3 and 4) proposes a non-new theme, such as that of the structure of the crime in the tripartite system, and yet almost transfigured by the impact with international criminal law, which opens up unexpected and unpredictable scenarios, forcing the international criminal law to renounce and change: on the first , the abandonment of any systematic ambition is found, on the basis of the finding that the need for justice, the matrix of international criminal law, can not be enough to establish a system of crime, because the axiological assumptions are not easily convertible into incriminating norms. From the sequential treatment of typicality, anti-juridicality and guilt, in the complexity of the international dimension, only one certainty emerges. The contextual element, differently depending on the type of international crime in which it is inserted, is the discrimen regarding the common crime, and is impregnated with the marked depreciation of the Makrokriminalität. Chapter 5 is concentrated on some thoughts and perspectives of universalism and particularism coexist in the same historical moment and within the same juridical system, so as to underline a sort of internal dialectic in which universalism and particularism are in a necessarily mobile if not unstable equilibrium. And it is easy to understand how the positive right is naturally brought to privilege this second perspective without obviously neglecting the key offered by history to become aware of the deeper meaning of these two categories especially according, rectius under international criminal justice.
Dimitris Liakopoulos is Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and MA of Arts in Law and diplomacy) and Full Professor of International and European Criminal and Procedural Law at De Haagse Hogeschool-The Hague. Attorney at Law at New York and Brussels. ORCID ID: 0000-0002-1048-6468 .
Dimitris Liakopoulos is Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and MA of Arts in Law and diplomacy) and Full Professor of International and European Criminal and Procedural Law at De Haagse Hogeschool-The Hague. Attorney at Law at New York and Brussels. ORCID ID: 0000-0002-1048-6468 .
The function of accusation in International Criminal Court. Structure of crimes and the role of Prosecutor according to the international criminal jurisprudence
€ 55,00
The present survey aims to analyze the issue of the indictment function in the process before the International Criminal Court which integrates a peculiar justice system, result of the complex interaction between the juridical tradition of civil law and the juridical tradition of common law. The prosecution function is entrusted to a Prosecutor who is conceived as a hybrid figure. It is an organ that not only performs its functions in the context of a system in which the principle of opportune penal action applies, but which also operates on a level that can be defined to some extent as political, since he has to move in an international chessboard and being called to also have diplomatic relations with states and international institutions. The discussion (Chapter 3 and 4) proposes a non-new theme, such as that of the structure of the crime in the tripartite system, and yet almost transfigured by the impact with international criminal law, which opens up unexpected and unpredictable scenarios, forcing the international criminal law to renounce and change: on the first , the abandonment of any systematic ambition is found, on the basis of the finding that the need for justice, the matrix of international criminal law, can not be enough to establish a system of crime, because the axiological assumptions are not easily convertible into incriminating norms. From the sequential treatment of typicality, anti-juridicality and guilt, in the complexity of the international dimension, only one certainty emerges. The contextual element, differently depending on the type of international crime in which it is inserted, is the discrimen regarding the common crime, and is impregnated with the marked depreciation of the Makrokriminalität. Chapter 5 is concentrated on some thoughts and perspectives of universalism and particularism coexist in the same historical moment and within the same juridical system, so as to underline a sort of internal dialectic in which universalism and particularism are in a necessarily mobile if not unstable equilibrium. And it is easy to understand how the positive right is naturally brought to privilege this second perspective without obviously neglecting the key offered by history to become aware of the deeper meaning of these two categories especially according, rectius under international criminal justice.
Dimitris Liakopoulos is Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and MA of Arts in Law and diplomacy) and Full Professor of International and European Criminal and Procedural Law at De Haagse Hogeschool-The Hague. Attorney at Law at New York and Brussels. ORCID ID: 0000-0002-1048-6468 .
Dimitris Liakopoulos is Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and MA of Arts in Law and diplomacy) and Full Professor of International and European Criminal and Procedural Law at De Haagse Hogeschool-The Hague. Attorney at Law at New York and Brussels. ORCID ID: 0000-0002-1048-6468 .