In this regard, it is vital to differentiate between non- recognition of the State and the case of non-recognition of the government; non-recognition of the State means that its existence is basically illegal. No recognition about its authority, borders nor peoples. As for the non-recognition of the government, it means that the government's existence is illegal, but with a recognition of the State. This is not a legal topic, but a political one resulting in legal effects. The American government applied Jefferson's theory (1792) by non- recognition of any government that is not established in accordance with the nation's desire. In addition, the government of Washington worked based on this theory until the end of the 19 th century when it recognized governments that were a result for overthrows claiming that such governments enjoy actual authority and can satisfy their International obligations ( 36 ) . The government is the party who provides the means for survival through the way it deems appropriate; it has the right to regulate laws to insure its existence; decided the powers and duties it enjoys; manages its services and establishes the courts that are deemed necessary to preserve its stay ( 37 ) . This perspective relies on the existence of the political, legislative and judicial authority which leads the State and insures rights to defend itself, without intervention in the internal and external affairs of other countries. However, non- recognition of the government means its non-existence and therefore, it does not enjoy the right to stay. The International community used not to recognize the government or revolution unless after recognition by other States (which is called: Topar's Theory) ( 38 ) . However, the International community applied the opposite, starting with the July revolution in Egypt (1952), the Iraqi revolution (1958), the overthrow in Syria (1963 and the Egyptian overthrow in 2014 by Sessi. Those military overthrows were recognized by other States. Still, recognition of the government influences the International
Muslim scholars did not use the term (people), nor was it mentioned in the Holly Qur'an except once, when God Al- Mighty says: (Oh people, we created you from a male and female and made you peoples and tribes to know each other, the most fearful is the most generous, God has been Knowledgeable and expert) ( 46 ) . However, Muslim scholars differ in defining the term (peoples); some of them said that it is more general than tribes, which means that it includes the tribes ( 47 ) , while others State that the term (peoples) means Adam's sons ( 48 ) . It is said (peoples) meaning Arab tribes and their affiliates ( 49 ) . In the Islamic State, people consist of Muslims and non-Muslims who live in the Islamic State as they are called ((free non-Muslims)) who are enjoy the right of citizenship ( 50 ) . Scholars used the term (Muslims) instead of people. Here, they mean any Muslim person regardless of the place where he stays, even if he does not perform the religious rituals. In addition, they gave the term (a free non-Muslim) on any non-Muslim persons who stays on the Islamic lands. They used Dar Al-Islam when the Muslims rule it, even if Muslims were a minority. Moreover, they used the term (Dar Al-Harb) when the State is ruled by Non-Muslims, even if Muslims were a majority ( 51 ) . However, Dar Al-Harb is divided into two types: Dar Al-Ahd: which is called Dar Al-Muwada'a, Dar Al- Sulh and Dar Al-Mu'hada, which means that the Imama makes an oath with the people of Dar Al-Harb (for reconciliation) where he abandons fighting for a period in return for compensation or without compensation and thus it is called Dar Al-Ahd ( 52 ) . In this context, Islam did not link between man, life and the State's right to stay; Islam made humanrights close to the rights of the State. The utmost objective for the Islamic State is to apply religion, righteous and justice to serve human ( 53 ) . This means that eliminating man means the elimination of the State. God Al-Mighty addressed all people by saying: The swore for God if they receive a prophet to warn them to be believers than some nations ( 54 ) . Accordingly, Qur'an addressed the Arabs and through their call for Islam, God guided most of the peoples (Persians). They became leaders of the nations, and the Romans' State, Persia, and the eastern kingdoms ( 55 ) . Consequently, in Islam, the relationship between man and the State has been embodied as shown in (the modern political Islam) which States: (the Islamic State is a natural production of the group and its self characteristics. The group included the State and rises with it to achieve the
36 See e.g. Christian Tomuschat, “Case Comment: Tidewater v Venezuela, The Award of 13 March 2015” (2016) 31 ICSID Review 138. However, the argument could be made in Pezold that the absence of any compensation rendered the expropriation unlawful. Humanrights arguments could nonetheless be considered under cases of direct unlawful expropriation to affect the amount of compensation as illustrated in the Partial Dissenting Opinion by Philippe Sands in Bear Creek Mining Corporation v Republic of Peru, ICSID Case No ARB/14/21 [Bear Creek v Peru (Dissent)]. On restitution damages of state responsibility, see InternationalLaw Commission (ILC), Responsibility of States for Internationally Wrongful Acts, UNGAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) [ILC Articles on State Responsibility] (art. 35 provides that “[a] State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed”). See also R. Dolzer & C. Schreuer, Principles of International Investment Law, 2nd ed (Oxford University Press, 2012) ch. VI at 98-129 [Dolzer & Schreuer].
A BSTRACT : This article examines how international instruments for the protection of humanrights may affect the interpretation of the Charter of Fundamental Rights of the European Union (Char- ter). In doing so, it first reflects on the role of the European Convention on HumanRights (ECHR) in the interpretation of the Charter. The paper then considers the role of other international instru- ments, as they may be relevant in the interpretation of the Charter. The need to consider these instruments appears particularly clear when the explanations relating to the Charter refer to them in a manner suggesting that the instrument and the Charter protect corresponding rights. When an instrument is relevant, there is the need to take into account the interpretation given by the rel- evant treaty body established for reviewing the application of the specific instrument, such as the European Court of HumanRights with regard to the ECHR, or the HumanRights Committee with regard to the UN Covenant on Civil and Political Rights. Finally, the paper recalls that the Charter may not be invoked in order to restrict the protection of rights protected by international instru- ments, thus barring the possible attribution of negative effects to the Charter under EU law.
alleged perpetrators are corporations in the energy, mining, and manufacturing industries; the alleged violations range from severe environmental damage and inhumane working conditions to forced labor, torture, and killings. Corporate violations of humanrights frequently go unredressed due to significant gaps in domestic and international legal regimes. Host countries are often unwilling or unable to impose criminal sanctions or provide civil remedies, and home countries generally do not exercise jurisdiction over the extraterritorial acts of multinational corporations. Most significantly, internationallaw is virtually silent with respect to corporate liability for violations of humanrights. Internationallaw has neither articulated the humanrights obligations of corporations nor provided mechanisms to enforce such obligations. Corporations thus remain immune to liability, and victims remain without redress. Recent developments in American law raise the possibility that American courts may begin to hold corporations liable for humanrights violations. The Alien Tort Claims Act (ATCA), as interpreted in several recent cases, permits aliens to bring private tort suits against corporations for certain humanrights violations committed in the United States or abroad. The first two ATCA cases brought against a corporation were filed in 1996 against Unocal for alleged humanrights violations committed in connection with the construction of an oil pipeline in Myanmar...” DEVELOPMENTS IN THE LAW - INTERNATIONAL CRIMINAL LAW.
Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the com- mission of grave transnational wrongs. Two main legal strategies— belong- ing, respectively, to public and private internationallaw— offer important directions for addressing these urgent concerns. One strategy extends state obligations under humanrightslaw to some non-state actors; the other adapts traditional private internationallaw doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity”— namely, identifying the reason for impos- ing the burden of plaintiffs’ vertical rights on putative defendants. In this Article, we argue that the moral underpinnings of private law provide the relational key to this missing link. We claim that private law’s normative DNA is premised on a profound commitment to reciprocal respect to self- determination and substantive equality. Because this commitment is the jus gentium of our private laws, it can and should be understood as a mani- festation of our interpersonal humanrights, which should function both as a premise for criticizing domestic rules and as the foundation of aggrieved parties’ standing vis-`a-vis those who wronged them.
NGO participation, both in general and in relation to law-making activities;840 “every NGO you talk to will say inadequate resources”.841 This affects NGO participation in law-making, as international lobbying and networking require huge resources for travel, organisation and communication.842 This is especially illustrated regarding participation in law-making at the UN; few NGOs are able to afford to attend UN meetings in Geneva or New York, especially those from the global South.843 One interviewee identified how resource levels particularly affect informal participation by small NGOs: “if they can’t afford to have a permanent presence in New York and Geneva, then they’re more restricted because they just fly in and fly out, and that means they don’t have the informal network to the same extent [as larger organisations] of the Secretariat and the governments”.844 Larger and richer NGOs who can afford to maintain a permanent office in Geneva or New York have more consistent access to the UN and State decision-makers, illustrating disparities of participation. This problem was recognised and to some extent addressed by General Assembly Resolution 57/229 which established a voluntary fund to support the participation of NGOs and experts in the work of the Ad-Hoc Committee on the drafting of the Disabilities Convention,845 and there have been calls for a general Trust Fund to be established to assist NGOs from developing countries to directly participate at the UN,846 although this Fund is yet to be created. It should however be noted that General Assembly Resolution 50/156847 decided that the United Nations
ordinary publicists. The precise composition of the community of international lawyers varies depending on the subject matter at issue. Indeed, rather than a single community of international lawyers, there are, in fact, multiple communities of international lawyers. 171 The community comprises all those who have expertise in the relevant issue. For example, insofar as a matter of internationalhumanrightslaw is concerned, the community would include states, regional humanrights courts, UN humanrights treaty bodies, special procedures, humanrights non-governmental organizations, and academics. 172 Depending on the specific issue under consideration, it might also include other actors such as general public international lawyers, trade lawyers, or military lawyers. Each of the actors in the community of international lawyers uses teachings of publicists. States utilize teachings as ‘shortcuts’ given that they often have to act under time pressure. 173 Government legal advisors turn to digests for precedents, for example, 174 relying on teachings of publicists instead of undertaking the first hand work themselves. On one view, then, ‘internationallaw is made by the legal advisers of Foreign Offices … depending very much on learned authors’. 175 The teachings of publicists are thus used behind the scenes. They are also used publicly. Government legal advisors and other counsellors rely on teachings of publicists to support their arguments and lines of thinking. 176 They are referred to in legal opinions, 177 and in manuals. 178 States refer to teachings in their pleadings before courts and tribunals. Teachings also influence states’ positions, for example, in negotiations with other states.
search for the truth and ultimately, suffocates the effectiveness of the law as the rights of tortured victims to redress and remedy cannot be en- forced. The main goal of internationalhumanrightslaw is, undoubtedly, the protection of humanrights. The anti-torture norm is often described as having the status of jus cogens, a peremptory norm of international relations from which no derogation is permissible. Internationalhumanrightslaw makes it categorically clear that, even in cases of war or public emergency, torture and other ill or degrading treatment is prohibited. An argument can be made that a victim’s sense of helplessness and struggles suffered because of non-disclosure of the truth in their case and the de- nial of his right to redress and remedy is, in itself, torture. Where, then, is the ‘force’ of internationalhumanrightslaw in controlling the conduct of states and inhibiting the violation of fundamental rights of individuals? The interpretation and implementation of internationalhumanrightslaw should be such that these laws will be made effective and practicable. The practicability and effectiveness of these laws is not limited to the
Moreover, like the above three frameworks on HMI, there are also moral arguments supporting and opposing the legitimacy of HMI. Moral principles supporting existence of legitimacy of the right of HMI are based mainly on the natural law and the related Just War ethics. Natural law represents a set of rules with a universal character regulating the behavior of states in their international relations. What is unique about the natural law is that it has a primacy over and exists independently of both treaty and customary law(George, 1999). Natural law accepts existence of the right to use force in case of a moral imperative of protecting the innocents, even if the suffering occurs in another state. Natural law constitutes a major inspiration for the foundations of the Just War Theory (JWT), which deals with the justification of HMI much more specifically, concretizing the exact conditions for both waging and conducting a ‗just war‘(Williams & Caldwell, 2006). Based on the JWT, an act of war can be classified as ‗just‘ when the following six criteria become fulfilled: ‗just cause‘; ‗just intent‘; ‗just authority‘(Harhoff, 2001); ‗last resort‘; ‗proportionality‘ of the used force to the ends it seeks to achieve; and a reasonable chance of ‗success‘(Harhoff, 2001).