• Pushing back against push-backs: a right of entry for asylum seekers unlawfully prevented from reaching Italian territory

      Borelli, Silvia; University of Bedfordshire (Società Editrice il Mulino, 2020-03-10)
      A decision of a civil court in Rome has reaffirmed the illegality of ‘push-back’ operations under both Italian and international law. In a noteworthy and innovative development, the court further held that, in light of the fact that the claimants had been wrongfully prevented from reaching Italian territory, they had a subjective right as a matter of Italian constitutional law to be admitted to Italy so as to be able to make an application for international protection. The decision has potentially far-reaching implications for future cases before the Italian courts in the field of migration, and may also pave the way for similar findings at the international level.
    • The development of age and disability equality within the European Union: the Court of Justice and the (mis)implementation of EU general principles

      Gualco, Elena (Il Mulino, 2019-12-01)
      Over the years, EU general principles have proven to be an essential source of protection of equality. The approach followed by the European Court of Justice has made general principles one of the most effective sources of law towards the goal of expanding the protection of equality and improving its enforcement. Against this backdrop, the article argues that some recent decisions in the fields of disability and age discrimination challenge the merits of such approach and eventually disclose its shortcomings. The ruling in Kaltoft shows at time a lack of consistency of the CJEU case-law and a far too discretional reasoning, while Dansk Industri and Parris demonstrate that the Court’s arbitrary approach has the capacity to ultimately jeopardise the effective and fair enjoyment of equality as an individual right.
    • The International Criminal Court and Africa : a fractious relationship assessed

      Rukooko, Archangel Byaruhanga; Silverman, Jon; Makerere University; University of Bedfordshire (University of Pretoria, 2019-07-19)
      For many African states, the latest iteration of Western colonialism is the International Criminal Court. All the Court’s prosecutions have involved African conflicts, and the continent’s initially strong support for its creation has in recent years notably weakened. Leaders from Museveni to Kenyatta and Zuma to Bashir have excoriated the Court for its partiality, and only a change of government in The Gambia reversed a serious threat to quit its jurisdiction. Under pressure from Burundi and South Africa, the African Union has made increasingly militant noises about a mass withdrawal of member states. How should blame be apportioned for the turbulence of this relationship between the Court and the current generation of African leaders? Where does it leave a continent blighted by conflict, egregious human rights abuses and perceptions of the impunity of the ‘big man’ at the top? A research project, funded by the British Academy, has examined attitudes in civil society in Uganda and Kenya towards the ICC and asked whether human rights abuses could be effectively addressed by any other means. Researchers from three universities in Kenya, Uganda and the UK have interviewed judges, lawyers, NGOs, journalists and others about the ICC, domestic or regional forms of 'justice' (such as the putative African Court of Justice & Human Rights) and other transitional post-conflict mechanisms. The findings suggest that there is a high level of frustration with the performance of the ICC and, specifically, the Office of the Prosecutor. The article argues that although there is no one common denominator in the failed prosecutions, the ICC’s strategy has too often yielded the initiative to long-serving leaders adept at retaining power and that, while state parties see little hope of reforming the ICC and favour an ‘Africanist solution to African problems’, there is little agreement on what form that should take.
    • Reflecting and integrating the contextual influences of ambiguities and institutional power in organisational research design: a case of Myanmar

      Win, Sandar; Kofinas, Alexander K.; University of Bedfordshire (Cambridge University Press, 2019-03-27)
      Our understanding of how an organisation operates is elucidated by the host country’s political system. Myanmar has remained abstruse to researchers for many decades, as do most emerging markets prior to their transition from a centrally planned economy to a market economy such as China. We establish how the problematising and contextualisation of the methodologies adopted during a longitudinal fieldwork in Myanmar (2008 to 2016) has influenced our research focus and question. By reflecting on our experience of conducting organisational research in a highly institutionalised environment, we have identified limitations in the prevalent research methodologies used by the extant literature. Such methodologies tend to be incompatible with the Asian context. This process of problematisation required us to remain flexible and adaptive during the process of the generation of the research questions. We adopted a context-informed theory-building process and reflect on the interplay between interviewer, interviewees and local institutional contexts. An important insight from this process was the need to nullify the asymmetry of power between the interviewer and interviewees to obtain honest responses rather than superficial data that aimed to satisfy and please the interviewer/institutional context.
    • The exceptio non adimpleti contractus in public international law

      Xiouri, Maria; University of Bedfordshire (Brill, 2019-03-11)
    • The justice conundrum : Africa's turbulent relationship with the ICC

      Silverman, Jon; University of Bedfordshire (Harvard University, Harvard Law School, 2019-02-18)
      This article/blog is a response to the article 'Judicialization of Peace' in the Harvard International Law Journal Vol 59(2).The Colombia transitional peace model, as described in the article, offers an interesting prism through which to view the ICC's involvement in African conflicts which, hitherto, has served mainly to antagonize African leaders and achieved little in the way of transitional justice. This response looks critically at the role of the Office of the  Prosecutor under both Luis Moreno Ocampo and Fatou Bensouda ; examines some of the flaws in the Kenyatta/Ruto prosecution; and asks whether the 'shadow effect' of the ICC (pace the article) could help mediate meaningful peace moves on a continent whose institutions, in the main, are far less robust than Colombia's.  It also posits a philosophical gulf between African concepts of 'human rights', rooted in tribe and ethnic community, and the ICC's application of (Enlightenment) principles of individual liberties.  
    • Refusing to kill: selective conscientious objection and professional military duties

      Yiannaros, Andreas C. (2018-11-29)
      This paper explores the legal implications of objections of conscience against participation in particular military activities or conflicts (selective conscientious objection) as these are expressed by professional members of the armed forces. It does so by exploring how established human rights principles and norms related to the right of conscientious objection to military service may be extended to professional members of the armed forces seeking a discharge from military duties. The paper outlines applicable human rights standards relating to objections of conscience and compares how objections by professional members of the armed forces are dealt with by the judiciary in the United Kingdom and Germany. Finally, the paper uses empirical research data to map the recognition of selective conscientious objection to military duties in other member states of the Council of Europe that operate with fully professional armies and provides an extensive analysis of state practice identifying significant gaps, best practices and future challenges for the Council of Europe’s member states.
    • Is Toufik Lounes another brick in the wall? The CJEU and the on-going shaping of the EU citizenship

      Gualco, Elena; University of Bedfordshire (2018-06-21)
      This Insight tackles a recent judgment of the CJEU, Toufik Lounes (Court of Justice, judgment of 14 November 2017, case C-165/16, Toufik Lounes v. Secretary of State for the Home Department), where the CJEU was asked to rule on the case of a EU national, Ms García Omazábal, who had exercised her free movement rights, later acquiring the citizenship of the host State while also retaining her nationality of origin. The Court has further investigated the scope ratione personae of Directive 2004/38 and Art. 21, para. 1, TFEU, so to clarify whether, in the scenario above, the EU national and her third-country national spouse could still be considered “beneficiaries” under Directive 2004/38. The CJEU answered as follows: while Directive 2004/38 is not applicable in the situation above, Art. 21, para. 1, TFEU shall instead be applied so as to prevent the EU national holding a dual citizenship to be treated less favourably than a EU national having the citizenship of his country of origin only, and therefore having the EU national’s right to family life unreasonably disrupted. Against this backdrop, the Insight first highlights the merits of the decision, by also investigating its positive effects within the Brexit process. Secondly, it discloses a main shortcoming that is likely to weaken the overall protection granted to EU citizens, i.e. the CJEU choice to disregard the connection between the provisions on the EU citizenship and the respect of fundamental rights
    • The Energy Charter Treaty and the intra-EU treaty objection post Charanne and REEF cases: the latest developments in Blusun v. Italy

      Baltag, Crina (2018-05-01)
      Until 2010, the Energy Charter Treaty (ECT) was relied on in less than thirty investment arbitration cases. Fast-forward seven years and there are more than one hundred cases. Most of these cases arise out of the repeal of the incentives granted to photovoltaic solar electricity investments under the EU regulations and majority of such disputes necessarily involve an investor of an European Union (EU) Member State, as Claimant, and an EU Member State, as Respondent. As a rule, the European Commission requested participation as amicus curiae in these cases and argued that the ECT is not meant to be applied between the EU Member States, as Contracting Parties to the ECT. Such claim is necessarily based on the fact that the ECT was signed by both the EU (the European Communities at that time) and the EU Member States because of the shared competences under the EU Law in matters addressed by the ECT. Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italy is yet another case in which the Tribunal rejects this argument and concludes that the ECT was entered into by the EU Member States in their own capacity and no ‘disconnection clause’ was included in the ECT to prevent the intra-EU application of the ECT.
    • Why has the UK prosecuted so few war criminals?

      Silverman, Jon; University of Bedfordshire (2018-04-11)
    • Charanne case: investors defeated in first ECT solar claim arbitral award

      Baltag, Crina (2018-01-01)
      There are over thirty arbitrations based on the provisions of the Energy Charter Treaty (‘ECT’) registered against Spain and arising out of the photovoltaic solar electricity incentives granted by Spain to its investors in this renewable energy field. Promoted under the slogan ‘The sun can be yours’, the incentives granted by Spain attracted a record number of investments. The first arbitral award issued in this series of cases concerned the dispute between Charanne B.V. and Construction Investments S.à.r.l, as Claimants, and Spain, as Respondent. While the arbitral tribunal upheld jurisdiction, it rejected Claimants’ claim and dismissed the allegations of breaches of fair and equitable treatment and expropriation standards under the ECT. Although this arbitral award is not binding on subsequent arbitral tribunals, the reasoning of the tribunal in the Charanne case is of utmost importance as it confirms that the ECT is available for intra-European Union disputes. On the other hand, it is interesting to see how the other cases based on the same regulatory scheme will develop, as the tribunal in the Charanne case dismissed Claimants’ claims in full.
    • The historical evolution of the right of conscientious objection to military service in the UN human rights system: 1950-2017

      Yiannaros, Andreas C.; University of Bedfordshire (Inderscience, 2017-12-05)
      This paper discusses the emergence and historic development of the right to conscientious objection to military service within the United Nations framework for the protection of human rights, through the drafting history of the International Covenant on Civil and Political Rights 1966. It further explores conscientious objection as a fundamental aspect of the right to manifest one’s thought, conscience and religion and it outlines the jurisprudence of the UN Human Rights Committee in relation to conscientious objection to military service from 1981 to 2017 to illustrate the Committee’s current approach and steps to ensure compliance with international human rights standards. This paper contributes to academic knowledge by exploring the semantic restraints of the International Covenant on Civil and Political Rights and the delay of the UN human rights system in adopting a more liberal approach to the interpretation of the Covenant. 
    • Not hot enough: cooling-off periods and the recent developments under the Energy Charter Treaty

      Baltag, Crina (National Law University, Jodhpur, 2017-07-01)
      Cooling-off provisions in international investment agreements guarantee that investors and host States resolve their disputes in the most efficient manner. Aimed at offering the parties the opportunity to amicably settle their differences, cooling-off provisions remain a controversial issue in the jurisprudence on international arbitral tribunals. Arbitral tribunals are still split between considering the cooling-off provision as a procedural requirement or as an admissibility or jurisdictional requirement. Each of these positions triggers different practical consequences, with serious outcomes for the arbitral process.This note addresses the latest developments concerning the cooling-off provision under one international investment agreement–the Energy Charter Treaty.
    • From Grandrath to Bayatyan: the development of European jurisprudence on conscientious objection to military service

      Yiannaros, Andreas C. (Intersentia, 2017-03-31)
      The paper discusses the historical evolution of the legal right to conscientious objection to military service within the key institutions of the Council of Europe. It does so by examining the travaux preparatoire and legislative history of the European Convention on Human Rights, focusing on the intention of its drafters to incorporate into the scope of the treaty, a right to be exempted from military service on grounds of conscience. It further explores the activities of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe in order to identify whether these bodies intended to expand the scope of the Convention to cover objections of conscience to the undertaking of military duties as a constituent element of Article 9 ECHR, protecting the right to freedom of thought, conscience and religion. Finally, the paper explores the European Court of Human Rights’ jurisprudence on the question of conscientious objection to military service and assesses the importance and impact of Bayatyan v Armenia, a landmark decision by the Grand Chamber of the European Court of Human Rights which finally placed objections of conscience to military service firmly within the scope of Article 9 of the European Convention on Human Rights.