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Leander Beinlich - One of the best experts on this subject based on the ideXlab platform.
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drones discretion and the duty to protect the Right to Life germany and its role in the us drone programme before the higher administrative court of munster
2019Co-Authors: Leander BeinlichAbstract:In 2014, three Yemeni claimants filed an administrative complaint against the German government addressing Germany’s role in the US drone programme. Relying on the Right to Life under the German Basic Law, the claimants argued that German authorities must prevent the US from using its air base in Ramstein, Germany, for purposes of conducting drone strikes that might unlawfully harm the claimants. On 19th March 2019, the Higher Administrative Court of Munster overruled the court of first instance and partly decided in favour of the claimants. In what is a highly interesting and thought-provoking judgment, the Court not only finds strong reasons to suspect that US drone strikes in Yemen, at least partially, violate international law. Even more, it orders the German government to ‘ascertain’ that the US drone strikes conducted via Ramstein Air Base are compatible with international law and, ‘if necessary’, to ‘work towards’ compliance with international law. Remarkable enough, this outcome is not the only reason why the judgment is worth being discussed: It furthermore raises interesting and difficult questions as to the material and territorial reach of fundamental Rights under the German Basic Law, their inter-relation with international law, as well as the scope – and limits – of judicial review in matters of international law and foreign affairs.
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drones discretion and the duty to protect the Right to Life
Social Science Research Network, 2019Co-Authors: Leander BeinlichAbstract:In 2014, three Yemeni claimants filed an administrative complaint against the German government addressing Germany’s role in the US drone programme. Relying on the Right to Life under the German Basic Law, the claimants argued that German authorities must prevent the US from using its air base in Ramstein, Germany, for purposes of conducting drone strikes that might unlawfully harm the claimants. On 19th March 2019, the Higher Administrative Court of Munster overruled the court of first instance and partly decided in favour of the claimants. In what is a highly interesting and thought-provoking judgment, the Court not only finds strong reasons to suspect that US drone strikes in Yemen, at least partially, violate international law. Even more, it orders the German government to ‘ascertain’ that the US drone strikes conducted via Ramstein Air Base are compatible with international law and, ‘if necessary’, to ‘work towards’ compliance with international law. Remarkable enough, this outcome is not the only reason why the judgment is worth being discussed: It furthermore raises interesting and difficult questions as to the material and territorial reach of fundamental Rights under the German Basic Law, their inter-relation with international law, as well as the scope – and limits – of judicial review in matters of international law and foreign affairs.
Marko Milanovic - One of the best experts on this subject based on the ideXlab platform.
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the murder of jamal khashoggi immunities inviolability and the human Right to Life
Social Science Research Network, 2019Co-Authors: Marko MilanovicAbstract:On 2 October 2018, Jamal Khashoggi, a dissident Saudi journalist residing in the United States, where he was a columnist for the Washington Post, was murdered in the Saudi consulate in Istanbul. This article seeks to comprehensively analyze Khashoggi’s killing from the standpoint of the human Right to Life. It sets out the relevant legal framework, addressing inter alia the issue that Saudi Arabia is not a party to what would otherwise be the most relevant human Rights treaty, the International Covenant on Civil and Political Rights. It examines not only the obligations of Saudi Arabia, but also those of Turkey and the United States, in protecting Khashoggi’s Right to Life from third parties, and ensuring respect through an effective investigation of his killing and mutual cooperation for the purpose of that investigation. It also looks at the extraterritorial scope of these various obligations.Finally, the article examines possible norm conflicts between state obligations under human Rights law and their obligations under diplomatic and consular law, such as the inviolability of diplomatic and consular premises, agents, and means of transportation. The article argues that the fundamentals of the operation of the Right to Life in its various aspects regarding Khashoggi are reasonably clear. First, before the killing, the positive duty to protect Khashoggi’s Life was triggered if Turkey and the United States knew, or ought to have known, of a real and immediate risk to Khashoggi’s Life. It seems possible, if not likely, that these two states, and potentially others as well, did in fact possess such information so that the threat to Khashoggi’s Life was reasonably foreseeable to them. If such was the case, at the very minimum these states had the duty to warn Khashoggi of the threat, which they did not do. Second, there is no doubt that Saudi Arabia was in flagrant violation of the negative obligation to refrain from arbitrary deprivations of Life. As for Turkey, if it knew, or ought to have known, of the threat to Khashoggi’s Life in the premises of the Saudi consulate in Istanbul, it would have been required by its obligation to protect his Life to forcibly enter the consulate if that was the only way of saving his Life. Third, Khashoggi’s killing engaged the procedural positive obligation to investigate his death. The article shows that many of the decisions that Turkey had made which compromised the effectiveness of the investigation, but which Turkey claimed it had to pursue in order to respect consular privileges and immunities, were in fact not required by consular law. For example, no rule of international law required Turkey to allow the Saudi agents to leave the country, to allow the consul-general and other members of consular staff to leave the country, or to ask Saudi Arabia for consent to search the consul-general’s residence or the consulate’s vehicles. The article concludes that regardless of whether accountability for Khashoggi’s killing is ever fully realized, this does not change the fact that his Right to Life was protected by international law, as was the Right to Life of countless other victims of authoritarian regimes worldwide. The murder was a violation of the Rights Khashoggi himself had had under international law, not simply those of the Turkish state. It deserves to be discussed in those terms.
Diarmuid Phelan - One of the best experts on this subject based on the ideXlab platform.
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Right to Life of the unborn v promotion of trade in services the european court of justice and the normative shaping of the european union
Modern Law Review, 1992Co-Authors: Diarmuid PhelanAbstract:This Protocol, which by virtue of Article 239 EEC will have the same effect as a Treaty Article, exists to protect the Irish constitutional Right to Life of the unborn, not from the written provisions of the Treaty on European Union or feared secondary legislation thereunder, but from the jurisprudence of the European Court of Justice. This article argues that the Court has, by reference to its economic and federal teleology of Community objectives, evolved certain legal techniques applicable to human Rights which will point the Community in new normative directions. These techniques, supported by the doctrines of supremacy over, and direct effect in, national law,2 are brought into play when national constitutional Rights which the Court does not adopt as its own3 are held to have economic implications. The techniques are used to control the three dimensions of conflict between state and federal competencies, between a moral and an economic ideal of what is fundamental (and hence different ideas of fundamental Rights), and between different legal doctrines of justification. The techniques are as follows. First, the definition of an act as a service solely on account of its economic significance, regardless of the unconstitutional and criminal nature of that act in national law. Second, the prohibition as a matter of principle of all impediments to the freedom of services, even if caused by disparities between national constitutional Rights. Third, the use of fundamental Rights to expand the free movement of services and to incorporate thereby supreme Rights, based on different values and supported by the doctrines of supremacy and direct effect, for market participants. Fourth, the testing of national constitutional Rights as derogations from economic principle. The article questions the desirability of th.ese techniques and also the general solution provided by the Treaty on European Union as well as the particular response to the Article 40.3.3 problem in the Protocol and the recent Declaration on the Protocol instigated by the Irish government. An alternative is proposed in the form of a teleological jurisdictional rule. This article focuses on the structure of argument in Society for the Protection of the Unborn Child v Grogan in the light of the Court's supporting decisions and
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Right to Life of the unborn v promotion of trade in services the european court of justice and the normative shaping of the european union
1992Co-Authors: Diarmuid PhelanAbstract:“Nothing in the Treaty on the European Union, or in the Treaties establishing the European Communities, or in the Treaties or acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.” This Protocol, which by virtue of Article 239 EEC will have the same effect as a Treaty Article, exists to protect the Irish constitutional Right to Life of the unborn, not from the written provisions of the Treaty on European Union or feared secondary legislation thereunder, but from the jurisprudence of the European Court of Justice. This article argues that the Court has, by reference to its economic and federal teleology of Community objectives, evolved certain legal techniques applicable to human Rights which will point the Community in new normative directions. These techniques, supported by the doctrines of supremacy over, and direct effect in, national law, are brought into play when national constitutional Rights which the Court does not adopt as its own are held to have economic implications. The techniques are used to control the three dimensions of conflict between state and federal competencies, between a moral and an economic ideal of what is fundamental (and hence different ideas of fundamental Rights), and between different legal doctrines of justification. The techniques are as follows. First, the definition of an act as a service solely on account of its economic significance, regardless of the unconstitutional and criminal nature of that act in national law. Second, the prohibition as a matter of principle of all impediments to the freedom of services, even if caused by disparities between national constitutional Rights. Third, the use of fundamental Rights to expand the free movement of services and to incorporate thereby supreme Rights, based on different values and supported by the doctrines of supremacy and direct effect, for market participants. Fourth, the testing of national constitutional Rights as derogations from economic principle. The article questions the desirability of these techniques and also the general solution provided by the Treaty on European Union as well as the particular response to the Article 40.3.3 problem in the Protocol and the recent Declaration on the Protocol instigated by the Irish government. An alternative is proposed in the form of a teleological jurisdictional rule. This article focuses on the structure of argument in Society for the Protection of the Unborn Child v. Grogan in the light of the Court's supporting decisions and recent constitutional opinion on the European Economic Area. The Grogan case is the first case where a private party sought in EC law the means to avoid restraints on its freedom necessitated by the vindication of the constitutional Right of another. SPUC sought to enjoin under Article 40.3.3 student unions from publishing addresses of British abortion clinics.' Despite the Supreme Court's prohibition on the similar activities of counselling services in Attorney General (Society for the Protection of Unborn Children (Ireland) Ltd.) v. Open Door Counselling Ltd. and The Dublin Wellwoman Center Ltd., the High Court distinguished this case and made an Article 177 reference. The Supreme Court on appeal criticised the distinction and made an interlocutory injunction prohibiting distribution of the information pending the ECJ's reply and the High Court's subsequent determination of the case. But the Supreme Court did not interfere with the High Court's jurisdiction to make the reference, citing Campus Oil v Minister for Energy (No 2). The ECJ held, first, that abortion 'constitutes a service within the meaning of Article 60'; second, that 'the provisions of Article 59 EEC...prohibit any restrictions on the freedom to supply services'; third, that on the facts the link to the provision of services was 'too tenuous for the prohibition on the distribution of information to be regarded as a restriction within the meaning of Article 59'; and fourth, that the Court has no fundamental Rights jurisdiction with regard to national rules 'lying outside the scope of Community law,' as was the instant case because of the insufficiently proximate link between student unions and abortion clinics. Advocate General Van Gerven applied the Court's jurisprudence by testing the constitutional Right as a derogation because he considered the link sufficient. The Advocate General's argument brings together several trends in the Court's jurisprudence which may be decisive in the expected follow-up litigation, based either on an agency relationship between the providers of information and services or directly on the Right of free movement as European citizen (contained in Article 8a of the Treaty on European Union) and recipient of services. The likelihood of confrontation between the ECJ and the Irish courts on this related issue was affirmed by the widely reported case of a fourteen-year-old suicidal Irish girl, pregnant allegedly by rape, who was initially judicially restrained from travelling to the United Kingdom to abort. In State v. X, the High Court and three of the five Supreme Court judges held that where the Right to Life of the unborn is not outweighed by the equal Right to Life of the mother, an injunction restraining travel to obtain an abortion will issue.
Vladislava Stoyanova - One of the best experts on this subject based on the ideXlab platform.
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the Right to Life under the eu charter and cooperation with third states to combat human smuggling
Social Science Research Network, 2020Co-Authors: Vladislava StoyanovaAbstract:According to EU policy documents, “[s]aving lives of people in distress is a primary goal of EU action in relation to managing the EU external borders.” The EU preferred strategy to achieve this objective is to take measures against human smuggling — including the establishment of cooperation with third countries — ostensibly so that migrants are contained and their irregular movement is prevented. This Article examines whether this strategy complies with the positive obligations corresponding to the Right to Life as enshrined in Article 2 of the EU Charter of Fundamental Rights. After considering any formal obstacles that might prevent the activation of the Charter, this Article clarifies the factors that determine the scope of these positive obligations. Procedural and substantive obligations are then distinguished. The procedural positive obligation demands that the EU and its Member States (MS) consider alternatives to the measures of containment. Due to difficulties in assessing the reasonableness of such alternatives, the EU and the MS are also under the positive obligation to initiate studies that can provide reliable evidence that alternative measures — such as the possibility of issuing humanitarian visas — would be too burdensome. As to the substantive positive obligation corresponding to the Right to Life, this Article will argue that the EU and the MS need to be attentive about the cumulative outcome of their migration policies. The more successful they are in their indiscriminate containment policies — and the more unlikely any protection possibilities in the region of containment — the more likely it is that the positive obligation to protect Life will remain unfulfilled.
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the Right to Life under the eu charter and cooperation with third states to combat human smuggling
German Law Journal, 2020Co-Authors: Vladislava StoyanovaAbstract:According to EU policy documents, "[s]aving lives of people in distress is a primary goal of EU action in relation to managing the EU external borders."The EU preferred strategy to achieve this objective is to take measures against human smuggling - including the establishment of cooperation with third countries - ostensibly so that migrants are contained and their irregular movement is prevented. This Article examines whether this strategy complies with the positive obligations corresponding to the Right to Life as enshrined in Article 2 of the EU Charter of Fundamental Rights. After considering any formal obstacles that might prevent the activation of the Charter, this Article clarifies the factors that determine the scope of these positive obligations. Procedural and substantive obligations are then distinguished. The procedural positive obligation demands that the EU and its Member States (MS) consider alternatives to the measures of containment. Due to difficulties in assessing the reasonableness of such alternatives, the EU and the MS are also under the positive obligation to initiate studies that can provide reliable evidence that alternative measures - such as the possibility of issuing humanitarian visas - would be too burdensome. As to the substantive positive obligation corresponding to the Right to Life, this Article will argue that the EU and the MS need to be attentive about the cumulative outcome of their migration policies. The more successful they are in their indiscriminate containment policies - and the more unlikely any protection possibilities in the region of containment - the more likely it is that the positive obligation to protect Life will remain unfulfilled. (Less)
Jessica Earle - One of the best experts on this subject based on the ideXlab platform.
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feeling the heat climate litigation under the charter s Right to Life liberty and security of the person
Social Science Research Network, 2017Co-Authors: Nathalie J Chalifour, Jessica EarleAbstract:Citizens are increasingly searching for ways to spur their governments to take climate change action, and recent successes in courtrooms around the world suggest litigation may be an effective recourse. This article evaluates the legal basis for a claim that the Canadian government’s conduct in relation to climate change and greenhouse gas (GHG) emissions violates the Charter’s Right to Life, liberty and security of the person. A section 7 climate case would raise a number of novel questions, three of which are addressed in detail. The first question arises because there is not one specific law or decision that alone is leading to harmful climate change, but rather a series of government plans, policies and decisions made over many years that infringe Rights. Framing the challenge around a constellation of decisions versus the government’s inadequate action in achieving national GHG reduction targets would raise different questions and potentially yield different results. We explore some of these tensions, and argue for a flexible and purposive interpretation of section 7 that overcomes this issue. A second question relates to the issue of the evidentiary burden. Establishing causation is often the thorn in the side of environmental cases. Unlike in many environmental cases, however, the state of climate science provides a rich evidentiary basis that shows how a certain level of GHG emissions leads to warming that causes harm. We discuss the evidentiary burden required in a Charter case and how this would be applied to the context of government conduct in relation to climate change. We also consider and reject the de minimus argument that the government should not be held responsible given that it only emits a small proportion of global GHG emissions (though it still ranks high among emitting countries). The third question relates to justiciability of a Charter challenge. This issue is important in a Canadian context because there have been two climate lawsuits against the federal government and both were dismissed for being non-justiciable. We explain why we believe those cases are distinguishable from the kind of challenge contemplated in this article. Throughout the article we argue that in determining how to handle this relatively uncharted terrain, courts should be guided by a normative approach. In other words, courts should interpret the Constitution in light of its purpose, overarching principles and the evolving circumstances of climate change which poses serious risks to the future of Life as we know it. The international community and Canadian governments have acknowledged the severity of the problem and the need to take urgent action to prevent dangerous levels of warming. Ultimately, we believe courts should avoid using the unusual circumstances of climate change to justify a narrow, technical application of the Charter, and rather adapt their reasoning to ensure the Charter achieves its purpose of guaranteeing the fundamental Rights and freedoms of Canadians. Canadians are already adapting to the realities of climate change, and judges should do the same.
