The United Nations Security Council and the enforcement of international humanitarian law

This Article discusses the competences and powers of the UN Security Council in securing compliance with international humanitarian law, in particular through the adoption of the measures provided in Chapter VII of the Charter: The competence of the Council in this field can be founded on several legal grounds: on a broad interpretation of the notion of “threat to the peace” (Article 39 of the Charter), on Article 94(2) with regard to the International Court of Justice's judgments establishing violations of the jus in bello and also on the customary duty to ensure respect for international humanitarian law as reflected in Article 1 Common to the 1949 Geneva Conventions on the Protection of the Victims of War. In particular, such customary provision empowers the Security Council to react to any violation of international humanitarian law regardless of a nexus with concerns of international stability. Although the Council has adopted a variety of measures in relation to violations of the laws of war, the most incisive ones are those provided in Articles 41 and 42 of Chapter VII, which however are not without problems. The role the Security Council has played in the enforcement of international humanitarian law has been criticized because of its selective and opportunistic approach, which is due to the political nature of the organ. Also, in several instances the Council, far from securing compliance with the jus in bello, has instead interfered with its application. However selective and imperfect the Council's approach might be, though, its power to adopt decisions binding on UN members and its competence to take or authorize coercive measures involving the use of force make it potentially a formidable instrument against serious violations of international humanitarian law, partly remedying the lack of enforcing mechanisms in the treaties on the laws of war

International organisations and anti-terrorist sanctions: no accountability for human rights violations?

The targeted sanctions adopted by the UN Security Council against individuals and entities suspected of association with terrorism are managed through procedures that infringe fundamental human rights, and there are no mechanisms for actual accountability. With the exception of the ECJ in Kadi, municipal and regional courts tend to consider the UN Security Council's resolutions and domestic measures implementing them outside the scope of judicial review. This article argues that the Security Council is bound to observe human rights even in the context of international security action, and that States are not exonerated from international responsibility for violations committed under the umbrella of Chapter VII resolutions

Global Law as Intercontextuality and as Interlegality

Since the 1990s the effects of globalization on law and legal developments has been a central topic of scholarly debate. To date, the debate is however marked by three substantial deficiencies which this chapter seeks to remedy through a reconceptualization of global law as a law of inter-contextuality expressed through inter-legality and materialized through a particular body of legal norms which can be characterized as connectivity norms. The first deficiency is a historical and empirical one. Both critics as well as advocates of ‘non-state law’ share the assumption that ‘law beyond the state’ and related legal norms have gained in centrality when compared with previous historical times. While global law, including both public and private global governance law as well as regional occurrences such as EU law, has undergone profound transformations since the structural transformations which followed the de-colonialization processes of the mid-twentieth century, we do not have more global law relatively to other types of law today than in previous historical times. The second deficiency is a methodological one. The vast majority of scholarship on global law is either of an analytical nature, drawing on insights from philosophy, or empirically observing the existence of global law and the degree of compliance with global legal norms at a given moment in time. While both approaches bring something to the table they remain static approaches incapable of explaining and evaluating the transformation of global law over time. The third deficiency is a conceptual-theoretical one. In most instances, global law is understood as a unitary law producing singular legal norms with a planetary reach, or, alternatively, a radical pluralist perspective is adopted dismissing the existence of singular global norms. Both of these approaches however misapprehend the structural characteristics, function and societal effects of global law. Instead a third positon between unitary and radical pluralist perspectives can be adopted through an understanding of global law and its related legal norms as a de-centred kind of inter-contextual law characterised by inter-legality

in keeping with the spirit of the albertine statute constitutionalisation of the national unification

This chapter deals with the difficult process of constitutionalisation which characterised Italian Unification. Constitutionalisation is a long-term phenomenon which had the purpose of giving constitutional forms to the Nation. The promulgation of the Albertine Statute is more the start than the arrival of this phenomenon. The focus of this investigation is, therefore, to study the Constitution through its evolution paying particular attention to the process of legal integration within the structures of the Albertine Statute and to the amendment mechanisms of the constitutional text. The preamble of the Albertine Statute speaks of «perpetual and irrevocable fundamental law». The word «perpetual» meant the prohibition of revoking constitutional concession, while the word «irrevocable» was intended as a pact between the Sovereign and the Nation. Over the years, very few were the changes to the letter of the Albertine Statute. The interpretation and the practice represented the most important mechanisms of constitutional change (implicit constitutional changes). A primary role was acknowledged to non-written norms. In this perspective, it may well be said that the Italian Constitution consisted in something more than the written text and dwelt in the spirit and not in the letter of the Albertine Statute

Judging Inter-Legality

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